FEBRUARY 1989 

COMMISSION DECISIONS/ORDERS 

02-01-89 

02-02-89 

02-03-89 

02-03-89 

02-06-89 

02-08-89 

02-08-89 

02-10-89 

02-28-89 

Amber Coal Company 

Sec. Labor on behalf of Joseph Gabossi v. 

Western Fuels-Utah, Inc. 

Missouri Rock, Inc. 

Ernie L. Bruno v. Cyprus Plateau Mining Corp. 

Emery Mining Corp./Utah Power & Light Co. 

Lincoln Sand and Gravel Company 

Freeman United Coal Mining Company 

Sec. Labor on behalf of Bryan Pack v. Maynard 

Branch Dredging & Roger Kirk 

Paula Price v. Monterey Coal Company 

ADMINISTRATIVE LAW JUDGE DECISIONS 

02-01-89 

02-01-89 

02-02-89 

02-02-89 

02-02-89 

02-06-89 

02-06-89 

02-09-89 

02-09-89 

02-13_;89 

02-16-89 

02-16-89 

02-16-89 

02-22-89 

02-27-89 

Local 5817, UMWA v. Monument Mining & Island 

Creek Coal Co. 

Lindia Sue Frye v. Pittston/Clinchfield Coal Co. 

W. K. Enterprise 

Charles F. Rose v. Co~?olidation Coal Co. 

Birchfield Mining Incorporated 

Jim Walter Resources, Inc. 

Stoney Coal Company 

Peabody Coal Company 

Twin Oak Construction Company 

El Paso Sand Products, Inc. 

Robert Buelke v. Thunder Basin Coal Co. 

Rivco Dredging Corporation 

Wilfred Bryant v. Dingess Mine Service, etc. 

McFarland & Hullinger 

Kenneth Howard v. B & M Trucking 

ADMINISTRATIVE LAW JUDGE ORDERS 

01-04-89 

01-12-89 

02-08-89 

02-08-89 

02-09-89 

02-17-89 

02-22-89 

Mid-Continent Resources, Inc. 

Kentucky Mountain Reserve, -Inc. 

KTK Mining and Construction 

Developers International Service Corp. 

El Paso Sand Products, Inc. 

FMC Wyoming Corporation 

Sec. Labor on behalf of Donald Robinette and 

Joey Hale v. Bill Branch Coal Co. 

I .'! 

KENT 88-136 

WEST 86-24-D 

CENT 87-65-M 

WEST 88-157-D 

\JEST 87-130-R 

LAKE 88-67-M 

LAKE 86-67 

KENT 86-9-D 

LAKE 86-45-D 

WEVA 85-21-C 

VA 88-55-D 

WEST 87-197-M 

WEVA 88-350-D 

WEVA 87-272 

SE 88-42 

WEVA 88-113 

KENT 88-161 

KENT 88-153 

CENT 88-53-M 

WEST 86-192-D 

KENT 88-25-R 

WEVA 85-43-D 

WEST 88-328-M 

KENT 89-2-D 

WEST 88-121 

KENT 88-157 

KENT 89-47-R 

CENT 88-132-M 

CENT 88-53-M 

WEST 88-312-R 

VA 87-21-D 

Pg. 131 

Pg. 134 

Pg. 136 

Pg. 150 

Pg. 156 

Pg. 158 

Pg. 161 

Pg. 168 

Pg. 183 

Pg. 185 

Pg. 187 

Pg. 195 

Pg. 197 

Pg. 198 

Pg. 200 

Pg. 206 

Pg. 230 

Pg. 234 

Pg. 236 

Pg. 238 

Pg. 245 

Pg. 250 

Pg. 254 

Pg. 256 

Pg. 257 

Pg. 259 

Pg. 261 

Pg. 263 

Pg. 265 

Pg. 273 

Pg. 274 

FEBRUARY 1989 

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

Secretary of Labor, MSHA v. Pennsylvania Electric Company, Docket No. 

PENN 88-277. (Judge Melick, December 30, 1988). 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

AMBER COAL COMPANY 

February 1, 1989 

Docket No. KENT 88-136 

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

Conunissioners 

BY THE COMMISSION: 

In this civil penalty proceeding ar1s1ng under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 ~seq. (1982), Chief 

Administrative Law Judge Paul Merlin issued an Order of Default on 

November 21, 1988, finding Amber Coal Co. ("Amber") in default and 

ordering Amber to pay a civil penalty of $8,500. The default order was 

issued because Amber had failed to respond to an earlier Order to Show 

Cause. Subsequently, the Commission received from Amber a copy of a 

letter that Amber apparently had sent in response to the show cause 

order but had misdirected to the Department of Labor. For the reasons 

set forth below, we deem this letter to constitute a request for relief 

from a final Conunission order, vacate the judge's default.order and 

remand for further proceedings. 

On November 12, 1987, following an investigation of a fatal roof 

fall accident at Amber's No. 7 mine, an inspector of the Department or 

Labor's Mine Safety and Health Administration ("MSHA") issued to Amber a 

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

alleging a violation of 30 C.F.R. § 75.200, the mandatory roof control 

standard for underground coal mines. On May 20, 1988, MSHA's Office of 

Assessments, under the special assessment procedures of 30 C.F.R. 

§ 100.5, notified Amber that it proposed a civil penalty of $8,500 for 

the alleged violation. On May 26, 1988, Amber filed its "Blue Card" 

request for a hearing before this independent Commission. On June 24, 

1988, the Secretary of Labor filed a complaint proposing the assessment 

131 
of a civil penalty for the violation. The record indicates that Amber 

did not file an answer to the complaint with the Commission. 

On September 8, 1988, approximately two and one-half months after 

the Secretary's complaint was filed, Judge Merlin issued a show cause 

order directing Amber to answer the complaint within 30 days or be found 

in default. When no answer was filed by November 21, 1988, Judge Merlin 

issued an Order of Default against Amber, directing it to pay the $8,500 

civil penalty proposed by the Secretary. See 30 C.F.R. § 2700.63 

(summary disposition of Commission proceedings). 

On December 1, 1988, the Commission received from Amber a copy of 

a letter dated September 15, 1988, addressed to the sub-regional office 

of the Solicitor of the Department of Labor, Nashville, Tennessee and 

signed by Amber's safety director. (The letter begins "[t]his is 

respectfully submitted as an answer to why we disagree with the penalty 

levied against us." and sets forth Amber's defense to the citation.) 

Amber's submission, on its face, raises the possibility that Amber's 

letter to the Department of Labor was meant as a response to the judge's 

show cause order but was erroneously filed with the wrong agency. 

The judge's jurisdiction in this matter terminated when his 

default order was issued on November 21, 1988. 29 C.F.R. § 2700.65(c). 

Because the judge's decision has become final by operation of law, 

30 U.S.C. § 823(d)(l), we can consider the merits of Amber's submission 

only if we construe it as a request for relief from a final Commission 

decision incorporating a petition for discretionary review. See 

29 C.F.R. 2700.l(b) (applicability of Federal Rules of Civil Procedure 

to Commission proceedings); Fed. R. Civ. P. 60(b) (relief from judgment 

or order). 

Amber appears to be a small coal company proceeding without 

benefit of counsel. In conformance with the standards set forth in 

Fed. R. Civ. P. 60(b)(l), the Commission has previously afforded such a 

party relief from final orders of the Commission where it appears that 

the party's failure to respond to a judge's order and the party's 

subsequent default are due to inadvertence or mistake. See Kelley 

Trucking Co., 8 FMSHRC 1867 (December 1986); M.M. Sundt Construction 

Co., 8 FMSHRC 1269 (September 1986). Here, Amber may have confused the 

roles of the Commission and the Department of Labor in this adjudicatory 

proceeding. Amber's letter was apparently sent to the Department of 

Labor's Solicitor shortly afte~ the judge issued the show cause order 

and well within the time provided for a response. Under these 

circumstances, we will accept Amber's submission as a request for relief 

fro~ a final order incorporating by implication a petition for 

discretionary review. 

We have observed repeatedly that default is a harsh remedy and 

that if the defaulting party can make a showing of adequate or good 

cause for the failure to respond, the failure may be excused and 

appropriate proceedings on the merits permitted. Kelley, 8 FMSHRC at 

1869; Sundt, 8 FMSHRC at 1271. Although Amber's submission raises the 

possibility of a misdirected communication, we cannot make a 

determination with certainty on the basis of the present record. In the 

132 
interest of justice, we conclude that Amber should have the opportunity 

to present its position to the judge, who shall determine whether final 

relief from the default order is warranted. See Kelley, 8 FMSHRC at 

1869. 

Accordingly, the default order is vacated, and the matter is 

remanded for proceedings consistent with this order. Amber is reminded 

to serve the opposing party with copies of all its correspondence and 

other filings in this matter. 29 C.F.R. § 2700.7. 

Distribution 

Theresa Ball, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

' Richard V. Backley, Commissioner 

:IOY~y1e, a a~ coillliliSSfler 

Lastowk,a, 

~:_v //-e_J_A-u-.-_, 

L. Clair Nelson, Commissioner 

2002 Richard Jones Road, Suite B-201 

Na·shville, TN 37215 

Keith Akers 

Amber Coal Company, Inc. 

29501 Mayo Trail 

Catlettsburg, KY 41129 

133 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 . 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

. February ~, 1989 

on behalf of JOSEPH GABOSSI . 

v. Docket No. WEST 86-24-D 

WESTERN FUELS-UTAH, INC. 

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

Commissioners 

ORDER 

BY THE COMMISSION: 

In this discrimination case arising under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982), the parties have 

filed a Joint Motion to Approve Settlement and Dismiss. For -:the reasons 

set forth below, the motion is granted. 

The Commission issued its prior decision on the merits in this 

matter on August 15, 1988, reversing Commission Adm~nistrative Law Judge 

John J. Morris' original decision and remanding the case t9 him.for 

further proceedings. 10 FMSHRC 953 (August 1988). In f1is_Decision 

After Remand issued on October 24, 1988, Judge Morris concluded that 

complainant Joseph Gabossi had been discharged in violation of section 

105(c)(l) of the Mine Act, 30 U.S.C. § 815(c)(l),,and .orde:ir.ed Western.·; 

Fuels-Utah, Inc. ("Western Fuels") to pay Mr. Gabossi $39:;560. 06 in ba.-ck 

pay and other expenses with interest. lO .. FMSHRG 1462 (Octo.ber 

1988)(ALJ). (Gabossi had not sought reinstatement:.}·: We.stern Fuels. · 

filed a petition for discretionary review, which the Commission granted 

in part and denied in part on December 2, '19,88'. 

Western Fuels subsequently filed with the Commission a motion 

indicating that the parties had reached a settlement of the case and· 

would be submitting a motion for approval of settlement and dismissal. 

On January 11, 1989, the Commission issued an order staying briefing and 

directing the parties to file their motion by January 31, 1989. The 

Joint Motion to Approve Settlement and Dismiss was received by the 

Commission on January 27, 1989. Attached to the parties' joint motion 

134 
. . 

is a copy of the 's•ttl8"nt a1re-.nt_>si1ned by the parties and by Gabossi. · · · 

Upon consideratiort of the settleaant agreement, motion. and 

record, we approve the s•ttl91119nt and grant the motion to dismiss. 

Accordingly, .our dir.ctiol\ for review is vacated and this proceeding is 

dismissed. 

. . . 

' .·. ·. 

. . . &rk 1 • . · ; Richard v. Back ey, Coanissioner 

Distribution· 

J~rald S. Fei"gold, Esq. 

Office of the Solicitor. . 

U.S. Department of Labor 

4015 Wilson Blvd. · Arlington, VA 22203 . 

~ ·'"~L ..... /~··~.· . ~L 

··J¥eA:DOY!e. c0an18Si0i 

Richard s. Mandelson. Esq. · 

Baker & Hostetler 

303 t:ast ).7th Avenue,. Suite 1100 

Denver, Colorado 80203. 

Administrative Law Judge John Morris 

Federal. Mine Safety & · Heait.h Review Co11111ission 

1244 Speer 1$lvd. • lloom 2$0 .· · 

. Denver, Colorado 80204 · 

l35 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

~U:NE SAFETY AND HEALTH 

ADMINISTRATION (MSl-lt\) 

v. 

~HS SO URI ROCK, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 3, 1989 

Docket No. CP.TT 87-fi5-M 

BEFORE: Ford, Chairman; "Rackley, Doyle, Lastowka and Nelson, Commissioners 

DECISION 

BY: Backley, Lastowka and Nelson, Corr.missioners 

This civil penalty proceeding arising under the Federal Hine Safety and 

Bealth Act of 1977, 30 U.S.C. ~ 801 et seq. (1982), involves three citations 

issued to ~issouri Rock. Inc. ("~issouri Rock") alleging "significant and 

"substantial" violations of 30 C.F.R. ~ 56.9003 for using Caterpillar 631C 

tractor-scrapers ("scrapers") without adequate hrakes at Hissouri Rock's 

Plant ~To. 2. 1/ Commission Administrative Law Judge James A. Broderick 

determined that Missouri ~ock violated section 56.9003 hy failing to 

provide adequate brakes on the three cited scrapers and assessed civil 

penalties totaling S2,000.00. 10 FM'SHRC 583 (April 1988)(ALJ). We subsequently granted ~issouri Rock's petition for discretionary review. For 

the following reasons, we affirm the judge's decision. 

Missouri Rock's Plant No. 2 is a limestone quarry located in Clay County, 

Missouri. 'vfissouri Rock uses three scrapers to remove the overburden (soil 

and unconsolidated rock) that overlies the limestone deposit. Each scraper 

is equipped with a large bowl, often called the pan, that scrapes the ground 

and scoops up the overburden into the howl as the scraper moves forwarrl. An 

empty scraper weighs approximately 35 tons, while a scraper with a bowl fully 

1/ Section 56.9003, a mandatory safety standard for surface metal and nonmeta~ mines, provides: 

Mobile equipment brakes. 

Powered mobile equipment shall be provided with 

adequate brakes. 

136 
loaded with overhurden weighs over 70 tons. The scraper operator can raise 

and lower the hydraulically operated bowl and can exert positive pressure 

against the ground with the howl by means of a lever in the operator's 

compartment. Each scraper is equipped with wheel brakes, often called 

service brakes, that are activated with a pedal in th~ operator's compartment. 

On Fehruary 3, 1987, Eldon Ramage, an inspector with the Department 

of Lahor's Mine Safety and Health Administration ("MSHA") conducted an 

inspection of "'.'1issouri Rock's Plant No. 2. nuring this inspection, Inspector 

Ramage requested that the operator of a scraper, identified by Missouri Rock 

as Unit No. 643, pull the machine forward and uμon signal activate the brakes. 

The scraper operator dropped the howl to the ground using the quick release 

Lever and the scraper stopped. The inspector then directed the operator to 

stop the vehicle by using the wheel brakes. The scraper operator was unable 

to stop the scraper with the wheel brakes. This operator told the inspector 

that there was no air pressure to operate the wheel brakes. The··inspector 

issued Citation No. 2846910 under section 104(a) of the Act, 30 TJ.S.C. 

§ 814(a), charging a violation of 30 C.F.R. § 56.9003 for failure to provide adequate brakes on powered mobile equipment. The citation required 

that the service brakes be repaired by February 4, 1987. On February 20, 

1987, the inspector modified the citation by changing the likelihood of 

an injury designation from "unlikely" to "reasonably likely" and 

designating the violation as being of such a nature as could significantly 

and substantially contribute to the cause and effect of a mine safety hazard. 

On February 25, 1987, Inspector Ramage returned to the mine. He asked 

that scraper ~o. 643 be tested and again found that the wheel brakes did not 

stop the scraper. He issued a section 104(b) order of withdrawal for failure 

to abate the previously cited violation. 2/ He also requested that the wheel 

brakes on the other two scrapers be tested. He found the wheel brakes to be 

inadequate on each and issued Citation Nos. 2846916 and 2846917 under section 

104(a) of the Act charging significant and substantial violations of the same 

safety standard. 

2/ Section 104(b) of the Act , 30 U.S.C. § 814(b), states: 

If, upon any follow-up inspection of a coal or other 

mine, an authorized representative of the Secretary 

finds (1) that a violation described in a citation 

issued pursuant to subsection (a) has not been 

totally abated within the period of time as originally 

fixed therein or as subsequently extended, and (2) 

that the period of time for the abatement should not 

be further extended, he shall determine the extent 

of the area affected by the violation and shall 

promptly issue an order requiring the operator of 

such mine or his agent to immediately cause all 

persons, except those persons referred to in subsection (c), to be withdrawn from, and to be prohibited from entering, such area until an authorized 

representative of the Secretary determines that such 

violation has been abated. 

137 
Before the administrative law judge, Missouri Rock admitted that the 

wheel brakes were not in working order on the three scrapers. It produced 

evidence to show that the bowl on each scraper serves as the primary brake 

and that such "brake" is fully adequate to stop the scraper in all operating 

situations. The inspector testified that the bowl will not adequately stop 

a scraper in all instances and that the safety standard requires that wheel 

brakes be adequate whenever the equipment is in operation. 

In finding a violation of section 56.9003, Judge Broderick concluded 

that the term "brakes" in the standard refers to wheel brakes. 10 FMSHRC 

at 586-87. He held that the wheel brakes are required to be adequate 

(i.e., able to stop the equipment in a reasonable distance) and the fact 

that there are other effective means of stopping a scraper does not satisfy 

the safety standard. 10 FMSHRC at 587. He also determined that dropping 

the bowl is not a safe or effective means of stopping a scraper in all 

situations. Id. 

On review, Missouri Rock contends that the bowl of a scraper is designed, 

manufactured and customarily used as the primary braking system on the 

scrapers at issue and is an adequate brake under the standard. It further 

contends that if a violation is found, the civil penalties ordered by the 

judge are excessive and should be reduced. The Secretary argues that the 

Commission should defer to its interpretation of the safety standard as 

expressed by the inspector and adopted by the judge. She states that the 

legislative history of the Act establishes that it was Congress' intention 

"that the Secretary's interpretation of the law and regulations shall be 

given weight by both the Commission and the courts." S. Rep. No. 181, 

95th Cong., 1st Sess. 49 (1977), reprinted in Senate Subcommittee on 1,ahor, 

Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of 

the Federal Mine Safety and Health Act of 1977, at 638 (1978). For the 

reasons set forth below, we conclude that substantial evidence supports the 

judge's finding that the scrapers were not provided with adequate brakes and 

that the civil penalties assessed by the judge are also supported by 

substantial evidence. 

The testimony of Inspector Ramage affords substantial evidentiary support 

for the judge's determination that the term "brakes" in the standard refers to 

wheel brakes. Although the term "brakes" is not defined in the Act or the 

Secretary's regulations, it is clear that the Secretary's interpretation of 

that term was as expressed by the inspector. When he asked the scraper 

operators to test the brakes during his inspection, he demanded that the 

service brakes be tested not the pan of the scraper. Tr. 30-35 & 37. He 

did not consider the pan to have any bearing on the safety standard at issue. 

Tr. 83. When asked on cross-examination whether he had required that the pan 

be tested, he replied: 

[W]hen we check a piece of equipment for brakes, we're 

checking for brakes. It [does not] say check the pan. 

The standard that I -- in the normal procedure that we 

do, it does not say check the pan. 

Tr. 97. In addition, the Operator's Guide, 631 Tractor Scraper, published 

by Caterpillar Tractor Company and introduced at the hearing, instructs 

138 
scraper operators to test the brakes when checking the controls of the 

scraper. Exhibit P-4 at p. 4. It is obvious from the context that this 

guide is referring to the service brakes and not to the pan. Finally. 

Inspector Ramage testified that in his inspections of 50 to 60 quarries 

twice a year during the five proceeding years, he had issued only one 

citation for inadequate brakes on scrapers and in his experience quarry 

operators usually keep such brakes in working condition. Tr. 44-47. 3/ 

The Secretary's interpretation of the term "brakes" in the standard to 

mean service brakes is a reasonable construction of section 56.9003. Because brakes are required to be "adequate" under the standard, it is an 

appropriate reading of the standard to direct this requirement to the service 

brakes as opposed to other parts of a scraper such as the pan. Under the 

interpretation proposed by Missouri Rock, the safety standard would not 

require that the service brakes designed and installed by the manufacturer 

function as an adequate brake if the vehicle could be stopped by other means. 

The standard does not require that powered mobile equipment be provided with 

an adequate stopping or braking method; it requires adequate brakes. It is 

also helpful to note that tractor-scrapers are a conventional type of powered 

mobile equipment manufactured and sold at the time this standard was promulgated. 

There is no evidence that the standard provides any exceptions for scrapers. 

We find the Secretary's interpretation of the standard to require adequate 

service brakes to be rational and reasonable notwithstanding the fact that, in 

some situations, other effective means may exist for stopping the equipment. !:./ 

On review, Missouri Rock has presented no compelling reasons why the 

Comoission should not give weight to the Secretary's interpretation. It 

simply argues that because the pan will effectively stop the scraper, the 

pan is a brake under the standard. The administrative law judge rejected 

this argument. We believe it is appropriate to give weight to the Secretary's 

interpretation of the standard in this case because it is supported by the 

record and is a reasonable interpretation. See U.S. Steel Mining Company, 

10 FMSHRC 1138 (1988). 

Missouri Rock also challenges the judge's finding that dropping the 

pan is not a safe and effe~tive means of stopping the scraper in all 

instances. The judge founJ that dropping the pan would not be a safe or 

3/ Our dissenting colleague Chairman Ford states that Inspector Ramage personally had not operated a model 631 Caterpillar scraper. We note that 

personal experience in operating every model of every type of regulated 

equipment realistically cannot be expected and is not required of MSHA 

inspectors. We note also that in addition to his experience gained 

through formal training and 10 years of inspection activity, Inspector 

Ramage has, in fact, personally operated scrapers. Tr. 75. 

4/ The Secretary does not take the position that the pan should never be 

used to stop a scraper or that using only the service brakes is always 

advisable. She argues, however, that the standard requires that the service 

brakes be available for use should the need arise. She maintains, for example, 

that situations will arise in which service brakes will be necessary for the 

supplemental braking effect they may provide when used in conjunction with the 

pan. Sec. Br. 9 & 11. 

139 
effective method of stopping the scraper (1) on hard packed surfaces, (2) 

if the scraper .engine fails while ascending a hill or (3) if buried rock is 

present. Missouri Rock contends that substantial evidence does not support 

the judge's finding and points to the extensive evidence it presented that 

the pan will adequately stop the scraper in each of the above-described 

situations. 

We find that substantial evidence was presented by the Secretary to 

support the judge's findings. Although there also is evidence in this 

record to the effect that the pan will stop the scraper in these situations, 

the judge credited the testimony of Inspector Ramage that the pan alone may 

not effectively stop the scraper in all instances including the situations 

relied upon by the judge. 10 FMSHRC at 587; Tr. 38, 49-50, 134-35. He find 

nothing in the record that would warrant overturning the judge's finding in 

this regard. The inspector's ten years of experience as a surface mine 

inspector provides a substantial level of experience to support his testimony 

as to the potential hazards of operating a scraper without service brakes. 

Substantial evidence has been defined to mean "such relevant evidence 

as a reasonable mind might accept as adequate to support a conclusion." 

Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938). Taking into 

account the evidence in the-record which detracts from the judge's findings, 

we conclude that the record supports the judge's conclusion that the pan 

will not effectively stop the scraper on all instances. The Commission 

may not substitute a competing view of the facts for an administrative 

law judge's reasonable factual determination. Universal Camera v. NLRB 

340 U.S. 474, 488 (1951); Donovan ex rel. Chacon v. Phelps Dodge Co~ 

709 F.2d 86, 94 (D.C. Cir. 1983). 

Finally, Missouri Rock argues that the judge's decision should he reversed 

because the proposed penalties were improperly assessed under the Secretary's 

"special assessment" provision of 30 C.F.R. § 100.5 and are in any event 

excessive. In his decision, the judge held that the fact that the Secretary 

used her special assessment provisions to be irrelevant since the Commission 

possesses de~ authority in assessing civil penalties. 10 FMSHRC at 588. 

The Commission has previously determined that the Secretary's penalty 

regulations are not binding on the Commission. Sellersburg Stone Co., 

5 FMSHRC 287 (1985), aff'd, 736 F.2d 1147 (7th Cir. 1984). The Commission 

has held that a mine operator may prior to hearing raise and, if appropriate, 

be given the opportunity to establish, that in proposing penalties the Secretary failed to comply with her Part 100 penalty regulations. Youghiogheny & 

Ohio Coal Company, 9 FMSHRC 673, 679-80 (1987). Given the Commission's 

independent penalty assessment a~thority, the scope of the inquiry would be 

whether the Secretary had arbitrarily proceeded under a particular provision 

of her penalty regulations. 

In the instant proceeding, Missouri Rock did not seek resolution of 

this issue prior to hearing. In its post-hearing brief, Missouri Rock simply 

asked that the proposed penalties be "reduced to nominal penalties under 

the regular assessment provision (without assessing respondent, as petitioner 

apparently proposed to do, with excessive or unwarranted points in the areas 

of negligence, good faith, likelihood of occurrence and gravity of injury)." 

Missouri Rock Br. to ALJ at 16. Since the judge independently assessed 

140 
civil penalties taking into consideration the criteria set forth at·-Section 

llO(i) of the Act (30 U.S.C. § 820(i)), the controlling issue is whether the 

judge did so properly rather than whether the Secretary failed to comply with 

her penalty. regulations. 

lJhen a judge's penalty assessment is put in issue on review, we must 

determine whether it is supported by substantial evidence and whether it 

is consistent with the statutory penalty criteria. Pyro ~ining Co., 

6 FMSHRC 2089, 2091 (September 1984). The judge considered the evidence 

relating to the violations and found that the violations were moderately 

serious, that the violations found on February 25, 1987 (Citation Nos. 

2846916 & 2846918) were the result of Missouri Rock's gross negligence 

and the violation found on February 3 (Citation No. 2846910) to be a result 

of Missouri Rock's ordinary negligence. He also found that ~issouri Rock 

showed good faith abatement with respect to the violations of February 25 

but that it did not demonstrate good faith in attempting to achieve rapid 

compliance of the first violation until a section 104(b) order was issued. 

We find that the civil penalties totalling S2,000 imposed by the judge for 

the violations of section 56.9003 are supported by substantial evidence, 

are consistent with the statutory penalty criteria and do not constitute 

an abuse of discretion by the judge. 

For the foregoing reasons, the decision of the administrative law judge 

is affirmed. ../! 

?~~uA4v Richard v. Backley, Commissioner 

141 
Chariman Ford, dissenting: 

If.the standard at issue required that "powered mobile equipment shall be 

provided with adequate service brakes", I would join the majority in affirming 

the judge's decision. Likewise, had this case arisen under the current brake 

-standard which supersedes and clarifies the one cited by the inspector, a 

finding of violation would have been appropriate. 1/ Given, however, the 

vagueness of the brake standard, as manifested in the widely divergent 

interpretations advanced by the parties, and the unique design of the 

scraper-tractors cited, I do not believe the Secretary has met her burden of 

provtng a violation. Therefore, I respectfully dissent. 

The premise underlying the judge's decision is that 30 C.F.R. 56.9003, 

requiring that "powered mobile equipment shall be provided with adequate 

brakes", applies only to the service or wheel brakes of the scraper-tractors 

cited. While the judge found that the bowl or pan on a scraper-tractor could 

be used to effectively stop the equipment in many circumstances, he 

nevertheless found that the bowl by itself could not be considered a means of 

compliance with the standard. I would reverse the judge on the ground that his 

basic legal conclusion regarding the application of the standard is erroneous. 

Section 56. 9003 does not refer to "service brakes" nor is the term 

"brakes" defined in 30 C. F .R. Part 56. The Secretary offered no official 

interpretation of the standard, nor could she point to any Commission or court 

precedent that might shed light on the meaning and scope of section 56. 9003. 

The Secretary does, however, urge upon the Commission the opinion of her 

inspector as to what the standard means and argues that the Commission should 

give deferential weight to his interpretation of the standard. Unfortunately 

1/ 30 C.F.R. 56.14101, promulgated August 25, 1988 (53 FR 32496, 32522) 

provides in part: 

"(a) Minimum requirements. (1) Self-propelled mobile equipment shall be 

equipped with a service brake sys tern capable of stopping and holding the 

equipment with its typical load on the maximum grade it travels ••• 

(3) All braking systems installed on the equipment shall be maintained in 

functional condition. 

(b) Testing. (1) Service brake tests shall be conducted when an MSHA 

inspector has reasonable cause to believe that the service brake system does 

not function as required, unless the mine operator removes the equipment from 

service for the appropriate repair." 

142 
for the Secretary, however, the inspector readily admitted: that he was "not a 

brake expert" (Tr. 125); that he had never operated a 631 scraper-tractor (Tr. 

75-76); 2/ and that his training with respect to braking systems consisted of 

reviewing a demonstration board at MSHA's Training Academy which differentiated 

air brakes from hydraulic brakes (Tr. 24). . I strongly disagree with the 

majority's view that the inspector's ten years' experience of inspecting 50-60 

quarries qualifies him as an expert on "brakes" or as an expert on interpreting 

section 56.9003. 3/ 

2/ I believe the majority misperceives the basis for my reliance on this 

admission by the inspector. Obviously, a mine inspector need not be a 

qualified operator of every piece of mobile equipment he might have occasion to 

inspect. The issue, here, however, is the level of expertise the inspector 

brings to bear on interpreting the brake standard, generally, and on applying 

it to the components of the particular model of equipment he cited as not being 

in compliance with the standard. As to his "hands on" familiarity with the 

operation of the tractor-scrapers cited the complete testimony is as follows: 

Q. And I listened closely and I didn't hear you 

tell us that you had any training in 631 

C-scraper operations, is that true? 

A. I am not a qualified operator, no. 

Q. Okay. Have you ever gotten on one of those 

631 C-scrapers, and operated the wheel brakes? 

A. Not a 631. I have operated scrapers, but 

not 631's. 

Q. Okay. I'm not talking about any other scrapers, 

or any other equipment. I'm talking about 631 

C-scrapers? 

A. We're not allowed to operate anyone's equipment. 

Q. Have you ever gotten on them even, and used the 

bowl, or the pan, or used that lever that operates 

the bowl, or the pan? 

A. We do not interfere 

Tr. 75-76. 

or bother people's equipment. 

3/ The inspector's experience might qualify him to speak with some authority 

as to whether a particular braking system is adequate, i.e., capable of 

stopping equipment within a reasonable and safe distance, but, as will be 

shown, infra, his opinions as to the adequacy of the bowls on the 

scraper-tractors was highly speculative and lacking any empirical basis. 

143 
Poised in opposition to the inspector's testimony is that of: (1) 

representative of a large distributor of the equipment cited who had 12-14 

years exper~ence with scraper-tractors and extensive training in their 

operation and capabilities; (2) a quarry supervisor with ten years experience 

operating scraper-tractors; (3) a safety director with four years experience 

operating scraper-tractors; and (4) a mechanic with six to seven years 

experience both operating and repairing scraper-tractors. All testified that 

the pan or bowl constituted the primary braking system on the equipment. 4/ 

Mr. Messerli, territorial manager for the Caterpillar distributor that supplied 

the scraper-tractors, testified that the distributor's training and 

demonstration personnel taught customers to rely on the pan or bowl as the 

primary braking system on the equipment. Tr. 189-190. Furthermore, 

Respondent's Exhibit 1 clearly indicates that the local Operating Engineer's 

Union apprentice training program stresses use of the pan or bowl as the 

primary braking system on scraper-tractors. See also Tr. 251-252. One can 

assume that union members so trained are employed by mining and construction 

operations other than Missouri Rock's quarry. 

This Commission has on numerous occasions applied what has come to be 

known as the "reasonably prudent person" test in determining whether vague or 

broadly drawn standards afford reasonable notice of what is required or 

proscribed. Alabama By-Products, 4 FMSHRC 2128, 2129 (December 1982); Great 

Western Electric Co., 5 FMSHRC 840, 841-42 (May 1983); U.S. Steel Corp., 5 

FMSHRC 3, 5 (January 1983). 

In U.S. Steel, supra, the issue was whether or not berms along a mine 

roadway were "adequate" for purposes of the standard, 30 C.F.R. 77.1605(k). In 

essence, the Commission held that the adequacy of a berm must be determined "by 

reference to an objective standard of a reasonably prudent person familiar with 

the mining industry and in the context of the preventive purpose of the 

statute." Id. 5. In setting an "objective standard" the Commission held it 

appropriate to consider "accepted industry standards ... considerations unique 

to the mining industry, and the circumstances at the operator's mine." Id. 

Applying the reasonably prudent person test here, one could not avoid 

concluding that at Missouri Rock's facility and at facilities utilizing the 

type of scraper-tractor cited and employing trainees of the Operating Engineers 

program, the common practice was to utilize the pan or bowl as the primary 

braking system on the units. Furthermore, both the· judge and the Secretary 

acknowledged that in certain instances the pan or bowl would be necessary to 

meet the objective of the standard -- safely stopping the equipment within a 

reasonable distance. Tr. 118, 128-129; Sec. Br. 9, fn. 8; 11, fn 12; 10 FMSHRC 

587, I would therefore find as a matter of law that pans or bowls on the 

4/ The record establishes that the bowl or pan can be applied as a braking 

mechanism in two ways. It can be gradually lowered against the ground with up 

to 82,000 pounds positive pressure to slow the scraper-tractor, or it can be 

"quick-dropped" to provide immediate stopping capability in the event of an 

emergency. The bowl is controlled by a lever readily at hand in the operator's 

compartment. Tr 177, 172-3, 201, 203. We are dealing here with a fairly 

sophisticated braking system not dependent upon the "ingenuity of the employee" 

or the "whimsical imagination of the operator" to stop the equipment. 

Secretary of Labor v. Brown Brothers Sand Co., 9 FMSHRC 636, 656-57 (March 

1987). 

144 
scraper-tractors can appropriately be considered "brakes" for purposes of 

section 56.9003. With that established, the issue becomes whether or not those 

"brakes" are. adequate for purposes of the standard. In that regard the 

Secretary has failed to show that the bowls were inadequate. 

Once again the Secretary's case rests entirely on the testimony of the 

inspector which can be summarized as follows: 

If you're maneuvering in an area where there --

you've got hard surface, or real dry hard packed 

surface, the dropping of the pan may not provide 

the immediate braking action that would be required, 

or may be necessary to stop -- keep from striking 

someone, or running into another piece of equipment." 

[A]scending a steep grade or a grade, and the engine 

fails, dies, or anything, he has got no brake whatsoever if he don't have a service brake." 

If the scraper was moving at any speed -- I'm saying 

five to ten miles per hour or maybe faster, then if 

they were in an area where there could be some rock 

buried below the surface, and you dropped the pan, 

that pan -- that scraper is going to come to a real 

abrupt halt, and if the operator don't have his seat 

belt on, he could suffer substantial injuries. Even 

with his seat belt on, he is going to be pitched forward with considerable force. Tr. 48-50. 

Generally speaking the testimony is speculative in nature -- interspersed 

with "may" or "could". Furthermore, at no time did the inspector verify his 

conjectures by asking the equipment operators to demonstrate the use of the 

bowls in such circumstances. More particularly, Missouri Rock clearly rebutted 

the inspector's testimony in each of the three cases. 

First, Messrs Case, Gordon and Mcclanahan all testified that a test of 

the braking capacity of the bowl on a hard packed surface was undertaken at the 

mine site. Test results indicated that the bowl stopped the equipment at full 

speed in five to six feet while fully functioning wheel brakes required 12 

feet. Tr. 316-17; 370-71. Masserli testified that if the engine died while 

the equipment was ascending a steep grade the wheel brakes would soon overheat 

so that only the bowl would be available as a brake. The hydraulic system for 

the bowl, however, continues to operate whether or not the engine is running. 

Tr. 172, 178. Third, Masserli and Ellis both testified that equipment 

operators are required to use seat belts at all times. Tr. 186, 254. Indeed, 

Masserli testified that since operators are subjected to a great deal of bounce 

while operating the equipment, they have to be belted into the seat in order to 

maintain control of the units. Tr. 187. Given the overwhelming rebuttal 

evidence presented by Missouri Rock, I conclude that substantial evidence does 

not support the judge's holding that operation of the bowl is not "safe or 

effective" in those circumstances speculated upon by the inspector. 10 FMSHRC 

587. 

145 
One other aspect of the "adequacy" issue strikes me as contradictory. If 

one assumes that the standard applies only to the service or wheel brakes and 

not the bowl, then it appears that Missouri Rock would have been found in 

violation of the standard even if the wheel brakes had been well-maintained. 

All parties and the judge agree that the wheel brakes are limited by their 

design capability inasmuch as they will not safely and effectively stop a fully 

loaded unit going downhill on a steep grade; the bowl or pan is best utilized 

in such circumstances (Tr. 118-20, 177-78, 258, 372-3; Sec. Br. 9, fn. 8; 11, 

fn. 12; 10 FMSHRC 587). Thus, even fully operational wheel brakes could not be 

considered adequate for all purposes under section 56.9003. On the other hand, 

extensive and uncontroverted evidence establishes that the pan or bowl would be 

adequate in all off-road applications that might arise in the Missouri Rock 

quarry. ll 

In summary, I would reverse the judge with respect to his legal 

assumption that the standard applies only to the wheel or service brakes and 

not the pans or bowls of the scraper-tractors. I would also reverse his 

holding with respect to the adequacy issue since substantial evidence does not 

support his holding that the pans are not safe and effective. 

Since the majority affirms the judge on both matters, I must respectfully 

dissent. 

~---

5/ Missouri Rock acknowledges that the wheel brakes would be necessary for 

transporting a scraper-tractor between jobs on public roads and would have to 

be fully operational in those circumstances. Pet. for Discr. Rev. at 3; Tr. 

166-171. 

146 
Commissioner Doyle, dissenting: 

In his· decision, the administrative law judge examined the term 

"brake" as defined by two sources. He noted that the American Heritage 

Dictionary of the English Language defined brakes as "[a] device for 

slowing or stopping motion, as of a vehicle or machine, especially by 

contact friction" and that A Dictionary of Mining, Mineral and Related 

Terms defined the term in part as "[a] device (as a block or band applied to the rim of a wheel) to arrest the motion of a vehicle, a machine 

or other mechanism and usually employing some sort friction." He then 

found that the testimony in this case established that dropping the pan 

is the usual method of stopping the scrapers in issue and that in many 

cases that is the quickest and safest way to stop them. Based solely 

on the inspector's testimony, however, he found several instances in 

which the pan would not be effective in stopping the scrapers and then 

concluded that the term "brakes" in the standard refers only to wheel 

or service brakes. The majority finds that substantial evidence was 

presented by the Secretary to support the judge's findings of fact. 

I disagree. 

The only evidence of record to support the judge's finding that there 

were instances in which dropping the pan is not effective is the opinion 

testimony of a non-expert witness (Inspector Ramage). The inspector testified that his training with respect to brakes consisted of learning at 

MSHA's Training Academy to differentiate air and hydraulic brake systems 

(Tr. 24, 125) and he readily admitted that he was "not a brake expert." 

(Tr. 125). Yet the judge permitted him to testify, and credited his testimony, as to what he thought would happen if attempts were made to stop 

the scraper when operating on pavement or other hard surfaces, when the 

engine failed while ascending a hill, when traveling backwards downhill 

or in the case of buried rock or a limestone knoll. This testimony was 

not based on tests that the inspector had conducted, nor on tests he had 

observed. It was not based on his own experience in operating a scraper 

nor on his study of the subject. In fact, the record gives no indication 

that it had any basis at all. For that reason, the inspector's testimony 

should have been accorded no weight by the judge. Instead, the judge 

credited it and based his findings of fact and his subsequent conclusion 

that the standard refers to the wheel or service brakes on this testimony. 

I believe that he erred in relying on the opinion testimony of a nonexpert witness and that, without that testimony, his finding that there 

were instances when the pan would not be effective in stopping the 

scraper is without record support. 

The majority accepts the Secretary's argument that her interpreta~ 

tion of the standard as meaning only service brakes is a reasonable one 

that should be accorded deference. I disagree. 

147 
This case is unlike Chevron U.S.A. v. Natural Res. Def. Council, 

467 U.S. 837 (1984) cited by the Secretary in support of her position. 

In that case.the agency issued a regulation interpreting a statute and 

it was the agency's official interpretation of the statute as set forth 

in the regulation that was at issue. This case is also unlike U.S. Steel 

Mining Company, 10 FMSHRC 1138 (1988) cited by the majority. In that 

case the operator had longstanding notice of the Secretary's consistent 

enforcement of the standard. Here the Secretary introduced no evidence 

of consistent (or previous) enforcement of the standard to apply only to 

service brakes nor did she even advance this interpretation in her 

brief to the administrative law judge. The Secretary did not submit 

any official MSHA. interpretations of the regulation, such as interpretive bulletins or policy manual positions on the subject. Rather 

than any official interpretation, the record before us presents only 

a personal interpretation of one MSHA inspector. 

The :::i.ajority states that "it is clear that the Secretary's interpretation of the term was as expressed by the inspector" and they then recount the inspector's actions and his testimony as to his state of mind 

("[h]e did not consider the pan to have any bearing on the safety standard 

at issue") as evidence of the Secretary's interpretation. It is perhaps 

more accurate to say that the Secretary has subsequently fashioned her 

interpretation of the term to coincide with the inspector's actions and 

the judge's conclusions rather than the Secretary having arrived at her 

interpretation, the inspector having then acted on the basis of that 

interpretation and the judge having then properly given deference to 

it. rnder the circumstances of this case, I do not believe that the 

Secretary's after the fact (and after the hearing) interpretation is 

a reasonable action to which deference is owed. To find otherwise 

permits the Secretary to adopt ex post facto any number of diverse 

interpretations and enforcement actions by her inspectors with no 

forewarning to operators of what those interpretations or enforcement actions might be. Safety is better served if operators know 

in advance what the law requires of them. 

Accordingly, I would reverse the judge's finding of violation. 

~~!2.~ yceA:DOYle, Comm~ 

148 
Distribution 

James L. Burgess, Esq. 

Johnson, Lucas, Bush, Snapp & Burgess 

1414 Home Savings Bldg. 

1006 Grand Avenue 

Kansas City, ~!issouri 64106 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge James A. Broderick 

Federal :Hne Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

149 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ERNIE L. BRUNO 

v. 

CYPRUS PLATEAU MINING 

CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 3, 1989 

Docket No. WEST 88-157-D 

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

ORDER 

BY THE COMMISSION: 

In this discrimination proceeding arising under the Federal Mine 

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

Act"), Commission Administrative Law Judge John J. Morris issued a 

decision dismissing Ernie L. Bruno's complaint of discriminatory 

discharge on the grounds that the complaint was filed with prejudicial 

untimeliness and that Mr. Bruno would have been fired in any event for 

the unprotected activity of fighting. 10 FMSHRC 1649 (November 

1988)(ALJ). The Commission did not grant Bruno's subsequently filed 

petition for discretionary review, and Judge Morris' decision became a 

final decision of the Commission on January 8, 1989, by operation of the 

statute. 30 U.S.C. § 823(d)(l). 

In a letter to Judge Morris dated January 18, 1989, Bruno 

requested that this proceeding be reopened and that the judge's decision 

be reconsidered on the ground~ of newly discovered evidence. (The newly 

discovered evidence was described in Bruno's letter.) Bruno's 

submission was received in the Commission's Denver, Colorado offices on 

January 26, 1989. By letter dated January 26, 1989, the judge informed 

Bruno that he did not have jurisdiction to entertain the request. See 

29 C.F.R. § 2700.65(c). The judge forwarded Bruno's submission to the 

Commission's Washington, DC offices, where it was received on January 

30, 1989. For the reasons set forth below, we deem Bruno's submission 

to constitute a motion for relief from a final Commission decision on 

the basis of newly discovered evidence, and we deny the motion. 

The factual and procedural background of th5s case relevant to 

Bruno's motion may be summarized briefly. On April 4, 1988, Bruno filed 

a complaint with the Commission alleging that on December 12, 1983, he 

had been discriminatorily discharged by Cyprus Plateau Mining 

150 
Corporation ("Cyprus Plateau") in violation of section 105(c)(l) of the 

Act, 30 U.S.C. § 815(c)(l). Bruno filed the complaint pro se and 

pursuant to section 105(c)(3) of the Act, 30 U.S.C. § 815(c)(3), 

following a determination by the Department of Labor's Mine Safety and 

Health Administration ("MSHA") that Bruno had not been discriminatorily' 

discharged. lf The complaint alleges that in being fired, ostensibly 

for fighting, Bruno was subjected to illegally disparate treatment. The 

case was scheduled to be heard before Judge Morris on September 13, 

1988. On September 8, 1988, the judge received an entry of appearance 

from counsel for Bruno, in which counsel specifically requested the 

judge to note that "complainant does not request a continuance of this 

matter." Appearance of Counsel (September 6, 1988) (emphasis in 

original). · 

Following the hearing and the submission of briefs by the parties, 

Judge Morris issued his decision dismissing Bruno's complaint. The 

judge decided the case on alternative grounds. First, he held that the 

delay by Bruno of over four years in filing the complaint materially 

prejudiced Cyprus Plateau. Therefore, the judge concluded that Bruno's 

complaint was not timely filed and had to be dismissed. 10 FMSHRC at 

1652. Second, the judge held that although Bruno had engaged in 

protected activity in attempting to correct float coal dust conditions, 

his discharge by Cyprus Plateau, even if partly motivated by the 

protected'activity, would have occurred in any event. In reaching this 

determination, the judge analyzed the evidence regarding management's 

knowledge of Bruno's protected activity, the coincidence in time between 

that activity and the adverse action, and disparate treatment. The 

judge concluded that Cyprus Plateau was motivated by Bruno's unprotected 

activity of fighting and would have fired him in any event for the 

fighting alone. 10 FMSHRC at 1655-59. 

As part of the evidence regarding disparate treatment, the judge 

reviewed the evidence regarding fights at the mine. The judge credited 

Cyprus Plateau's evidence that Bruno was not the subject of disparate 

treatment and noted that Stan Warnick, Cyprus Plateau's Manager of Human 

Resources, testified that two other employees besides Bruno, Buddy Weaby 

and Dennis Craig, had been fired for fighting. 10 FMSHRC at 1658. The 

judge also noted that the fight for which Bruno was terminated was not 

Bruno's first "incident" and that Bruno had previously pushed another 

employee, an incident discussed during Bruno's termination interview. 

10 FMSHRC at 1659. 

On December 27, 1988, Bruno, by counsel, filed with the Commission 

a petition for discretionary review. On January 9, 1988, the Commission 

issued a Notice stating that because no two members of the Commission 

had voted to grant Bruno's petition, the judge's decision had become a 

final decision of the Commission 40 days after its issuance, i.e., on 

January 8, 1989. 30 U.S.C. § 823(d)(l). 

!/ Bruno complained to MSHA of the alleged discrimination on January 

19, 1988. On March 19, 1988, MSHA advised Bruno of its determination 

that a violation of section 105(c) of the Act had not occurred. See 

30 U.S.C. §§ 815(c)(2) & (3). 

151 
On January 19, 1989, Bruno's counsel informed the Commission of 

his withdrawal from the case. In his letter of January 18, 1989, to 

Judge Morris, Bruno stated that he was without counsel and requested, in 

effect, that the judge reopen the case and reconsider the decision, 

because of new evidence that "clearly shows .•. · disparate treatment" and 

because of certain discrepancies that Bruno had discovered in the 

testimony of Warnick. Bruno letter 1 (January 18, 1989)("B.L."). 

In his letter, Bruno asserts that Warnick's testimony that Weaby 

and Craig were fired for fighting, testimony credited by the judge, was 

not true. Bruno contends that a recently obtained statement from Gary 

McDonald, a retired company official, who was "responsible for the 

decision concerning the fight involving ... Weaby," establishes that 

Weaby quit and left the company for his own reasons and was not 

disciplined for fighting. B.L. 1-2. In addition, Bruno asserts that a 

statement from Craig, whom Bruno had "also found," establishes that 

Craig was fired for leaving the mine without permission, not for 

fighting. B.L. 3. (Bruno includes in his letter his own purported 

quotation of Weaby's and Craig's statements in non-affidavit form.) 

Finally, Bruno's submission argues that there are differences in the 

material facts as sworn to by Warnick in interrogatories from an earlier 

state trial involving Bruno's discharge and in Warnick's testimony 

before Judge Morris. B.L. 4-6. £/ 

By letter dated January 26, 1989, Judge Morris informed Bruno that 

he no longer had jurisdiction and that "the matters raised in your 

letter ... should be presented to the .•. Commission." ALJ letter to 

Bruno (January 26, 1989). Judge Morris forwarded to the Commission 

Bruno's submission and a copy of his letter to Bruno. 

As noted above, Judge Morris' decision became final on January 8, 

1989, 40 days after the decision was issued and because no two 

Commissioners had voted to grant review. We may consider the merits of 

Bruno's submission only if we construe it as a request for relief from a 

final Commission decision. See 29 C.F.R. § 2700.l(b) (applicability of 

Federal Rules of Civil Procedure to Commission proceedings); 

Fed. R. Civ. P. 60(b) (relief from judgment or order). See generally 

M.M. Sundt Construction Co., 8 FMSHRC 1269, 1270 (September 1986); Henry 

L. Wadding v. Tunnelton Mining Co., 8 FMSHRC 1142, 1142-43 (August 

1986). 

A decision on a motion for relief from a final judgment calls for 

"a delicate adjustment between· the desirability of finality and the 

prevention of injustice." In re Casco Chemical Co., 335 F.2d 645, 651 

(5th Cir. 1964). In general, once a case has been considered on the 

merits, the pendulum swings in the interest of finality. See 11 C. 

Wright, A. Miller, Federal Practice and Procedure § 2857 (1973). 

~/ Bruno's discharge generated two actions. First, Bruno sued Cyprus 

Plateau in the State of Utah District Court seeking reinstatement. 

Bruno's claim was denied by the trial court and Bruno lost on appeal. 

Later, Bruno filed the subject discrimination complaint with the 

Commission. See 10 FMSHRC at 1651. 

152 
Fed. R. Civ. P. 60(b)(2) provides: "On motion and upon such terms as are 

just, the court may relieve a party ... from a final judgment, order, or 

proceeding for the following reasons: ... newly discovered evidence 

which by due diligence could not have been discovered in time to move 

for a new trial under Rule 59(b)." (Fed. R. Civ. P. 59(b) provides that 

a motion for a new trial must be served no later than 10 days after the 

entry of the judgment.) 

In order to prevail upon a Rule 60(b)(2) motion, the movant must 

establish that the newly discovered evidence was in existence at the 

time of the trial but not in the movant's possession; that even by 

exercising due diligence, the movant could not have obtained the 

evidence at the time of trial or in time to move for a new trial under 

Rule 59(b); and that the evidence is not merely cumulative and would 

change the result. See generally C. Wright, supra, at § 2859. 

Bruno's submission falls short of these criteria in several 

respects. While Bruno's submission has been filed within a "reasonable 

time" of the finality point of Judge Morris' decision, and the "new 

evidence" upon which he relies (the two "statements" and discrepancies 

in Warnick's testimony) was in discoverable existence at the time of the 

hearing before Judge Morris, Bruno has failed to satisfy the "due 

diligence" and "affecting outcome" tests. 

Concerning due diligence, Bruno has made no showing why McDonald's 

and Craig's purported testimony regarding disparate treatment could not 

have been discovered and used at the hearing had Bruno exercised due 

diligence. Bruno states that he discovered McDonald's testimony "just 

recently" when he "decided to go over to [McDonald's] house." B.L. 1. 

Of Craig, Bruno only states that he has "also found" him. Id. In 

short, Bruno has not established that, by the exercise of due diligence, 

he could not have obtained McDonald's and Craig's testimony in time for 

the original proceeding. See 7 J. Moore, W. Taggart & J. Wicher, 

Moore's Federal Practice P~ 60.29 (2d ed. 1985). We note also that 

Bruno obtained an attorney prior to the hearing, that his attorney 

specifically waived a continuance, and that he was represented by 

counsel at trial. Similarly, Warnick's interrogatories presumptively 

were available to Bruno prior to trial and thus were known to Bruno. 

Even so, they do not represent newly discovered evidence but are rather 

impeaching evidence, and thus fall outside the scope of a Rule 60(b)(2) 

motion. See,~· Harris v. Illinois California Express, Inc., 687 

F.2d 1361, 1375 (10th Cir. 1982). 

Further, Bruno has made no showing that McDonald's and Craig's 

purported testimony, even if proven, would change the outcome of the 

case. Their statements indicate only that each was involved in a single 

incident of fighting while, as the judge noted, Bruno's termination was 

based in part on his involvement in past incidents, including a shoving 

incident. 10 FMSHRC at 1659. 

Disparate treatment is but one factor bearing upon an employer's 

motivation. The judge also noted that there was no showing that those 

personnel who fired Bruno knew of his protected activity in attempting 

to correct float coal dust conditions and that there was no coincidence 

153 
in time between Bruno's protected activity and his discharge. 10 FMSHRC 

at 1655. Thus, even if all of the evidence upon which Bruno now relies 

we~e assumed arguendo to be true, it would fall short of establishing 

the probability that the substantive merits of the decision.reached by 

the judge would be affected. Cf. Wadding v. Tunnelton Mining, 8 FMSHRC 

at 1143 (failure to adduce clear and convincing evidence of fraud under 

Rule 60(b)(3)). In the final analysis, and upon review of the record, 

we regard Bruno's evidence as essentially cumulative of other evidence 

in his favor that was presented at trial. 

Second, none of Bruno's "newly discovered evidence" affects the 

first basis for the judge's decision -- that Bruno's complaint was filed 

with prejudicial untimeliness. Accordingly, even were we to agree in 

all respects with Bruno, the outcome of the judge's decision would not 

be changed. Bruno's complaint would still be subject to dismissal on 

the basis of the complaint's untimeliness. 

154 
Accordingly, Bruno's request for reconsideration is denied. 

Distribution 

Ernie L. Bruno 

Rt. 1, Box 340 

Price, Utah 84501 

Kent W. Winerholler, Esq. 

Parsons, Behle & Latimer 

185 South State Street, Suite 700 

P.O. Box 11898 

Salt Lake City, Utah 84147 

Administrative Law Judge John Morris 

Federal Mine Safety & Health Review Commission 

1244 Speer Bldg., Suite 280 

Denver, Colorado 80204 

155 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 6, 1989 

EMERY MINING CORPORATION 

and UTAH POWER AND LIGHT 

COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

UNITED MINE WORKERS 

OF AMERICA (UMWA) 

Docket Nos. WEST 87-130-R, etc. 

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

ORDER 

--

BY THE COMMISSION: 

On January 10, 1989, we granted the petition for interlocutory 

review filed by the Secretary of Labor in this consolidated civil 

penalty and review proceeding arising under the Federal Mine Safety and 

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

Direction for Review and Order was for the limi~ed purpose of remanding 

this proceeding to the administrative law judge for a determination of 

whether, pursuant to Fed. R. Civ. P. 54(b), a certification of finality 

of his order of August 30, 1988, was appropriate. We held in abeyance 

our ruling on the Secretary's petition and retained jurisdiction pending 

the judge's determination on remand. 

Following proceedings on remand, the judge issued an order on 

January 27, 1989, certifying the finality of his.order of August 30, 

1988. Any party aggrieved by the judge's August 30 order, as made final 

by ·his certification order, may file with the Commission a petition for 

discretionary review within the 30-day statutory period for seeking such 

review (30 U.S.C. § 823(d)(2)), which is deemed to have commenced 

running as of the judge's January 27, 1989 certification order. 

l56 
Accordingly, the Secretary's petition for interlocutory review is 

dismissed, our direction for review is vacated, and this interlocutory 

proceeding is dismissed. 

~{£L 

Distribution 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Timothy ~. Biddle, Esq. 

Thomas C. ~eans, Esq. 

Ann Klee, Esq. 

Crowell & ~1oring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004-2505 

~lary Lu Jordan, Esq. 

L'}lWA 

900 15th St., N.W. 

Washington, D.C. 20005 

c---~~-l:s_ · Richard V. Backley, Commissioner 

Administrative Law Judge John Morris 

Federal Mine Safety & Health Review Connnission 

1244 Speer Blvd., Room 280 

Denver, Colorado 80204 

157 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY & HEAL TH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 8, 1989 

Docket No. LAKE 88-67-M 

LINCOLN SAND AND GRAVEL COMPANY 

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

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arising under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), involves three 

citations issued to Lincoln Sand and Gravel Company ("Lincoln") alleging 

violations of mandatory safety standards. Following proper notice, a 

hearing on the merits was held in St. Louis, Missouri on July 25, 1988. 

Lincoln failed to appear at the hearing. In his decision issued December 8, 

1988, Administrative Law Judge Roy J. Maurer determined that Lincoln violated the mandatory safety standards as alleged in the citations and assessed 

civil penalties totalling $168. 10 FMSHRC 1679 (December 1988)(ALJ). We 

granted Lincoln's petition for discretionary review and stayed briefing. 

Upon consideration of the full record, we have determined that briefs are 

not necessary for the resolution of this case. For the reasons that follow, 

we affirm the judge's decision. 

Lincoln is proceeding in this case without the benefit of counsel. In 

response to the Chief Administrative Law Judge's Order to Respondent to Show 

Cause why it failed to file an answer to the Secretary of Labor's Proposal 

for a Penalty, Lincoln replied, by letter mailed on June 2, 1988, that it 

had not received the Proposal for a Penalty and it requested a hearing. By 

notice of July 1, 1988, Judge Maurer set the hearing for 8:00 a.m., July 25, 

1988, in St. Louis, Missouri. The record reveals that approximately one 

week prior to hearing, Lincoln, by telephone, requested a later hearing date. 

Tr. 3. The administrative law judge agreed to delay the hearing until 10:00 

a.m. on the same date. Tr. 3; 10 FMSHRC at 1681. When Lincoln failed to 

appear by 10:30 a.m., the attorney representing the Secretary of Labor 

called Lincoln and was told by the office manager that no representative 

from Lincoln would be attending the hearing. Tr. 3-4; 10 FMSHRC at 1681. 

The Secretary presented evidence as to each citation and the hearing was 

closed at 11:15 a.m. The judge affirmed each citation in his written decision. 

158 
In its petition for discretionary review Lincoln first contends that 

Paul Orr, Vice-President of Lincoln, called Judge ~urer after receipt of 

the notice of hearing to request that the hearing be held in Lincoln, 

Illinois. Lincoln also alleges that Orr called the judge's office on the 

Wednesday or Thursday prior to the hearing and, in the judge's absence, 

informed the judge's secretary that he would not be able to attend the 

hearing and asked that the hearing be delayed. By implication, Lincoln 

argues that the judge's failure to grant these requests was unreasonable. 

We disagree. Lincoln did not request any particular hearing site or date 

in its June 2 written request for a hearing. Rule 51 of the Commission's 

Procedural Rules, 29 C.F.R. § 2700.51 provides: 

All cases will be assigned a hearing site by order of 

the Judge, who shall give due regard to the convenience 

and necessity of the parties or their representatives 

and witnesses, the availability of suitable hearing 

facilities, and other relevant factors. 

This Rule was derived from section 5(a) of the Administrative Procedure Act, 

5 U.S.C. § 554(b), which states: "In fixing the times and places for hearings 

due regard shall be had for the convenience and necessity of the parties or 

their representatives." Judge Maurer, in accordance with Rule 51, reasonably 

set the hearing for St. Louis, Missouri, a city located less than 150 miles 

from the mine. Compare, Cut Slate, Incorporated, 1 FMSHRC 796 (1979)(administrative law judge abused his discretion by requiring a small quarry operator 

to attend a prehearing conference at a site about 450 miles from the operator's 

mine). 

The notice of hearing setting forth the date, time and place of hearing 

was issued to Lincoln 24 days prior to the hearing date. See Procedural 

Rule 53, 29 C.F.R. § 2700.53. During his telephone conversation with Orr, 

the judge agreed, in response ~o Orr's request, to start the hearing two 

hours later on the scheduled hearing date. Tr. 3; 10 Fr1SHRC at 1681. 

Nothing in the record suggests that Orr objected to this resolution of 

his requests. Orr's alleged phone call to t~e judge's secretary 

requesting a further delay is not reflected in the record. */ In 

addition, Lincoln did not set forth any reasons to support the requested 

additional delay. For the foregoing reasons, we conclude tht the judge 

complied with the requirements of the Mine Act and the Commission's Procedural Rules in setting this case for hearing. 

Lincoln also challenges the judge's findings that it violated the 

mandatory safety standards alleged in the citations. We have reviewed the 

record and conclude that the judge's findings of violation are supported by 

*I We previously have noted "the risk of possible misunderstandings,. 

conflicting interpretations, and differing recollections, resulting 

from ... telephonic [,rather than written,] communications .... " 

Inverness Mining Co., 5 FMSHRC 1384, 1388 n. 3 (August 1983). 

159 
substantial evidence. 30 U.S.C. 823(d)(2)(A)(ii)(I). Lincoln makes other 

allegations in its petition for review that do not raise issues under the 

Mine Act and are not appropriately addressed in this decision. 

For the foregoing reasons, the judge's decision is affirmed. 

Distribution 

Paul R. Orr, Vice President 

Lincoln Sand & Gravel 

P.O. Box 67 

Lincoln, Illinois 62657 

Dennis Clark, Esq. 

Office of the Solicitor 

U.S. 'Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Richard u. Backley, Commissioner 

J~yce 

J~!l.~ A. Doyle, CommiSSiO'T 

L. Clair Nelson, Commissioner 

Administrative Law Judge Roy Maurer 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

160 
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. 

FREEMAN UNITED COAL MINING 

COMPANY 

February 8, 1989 

Docket No. LAKE 86-67 

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

Commissioners 

DECISION 

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"), the issue before us is whether Freeman United Coal Mining Company 

("Freeman") violated 30 C.F.R. § 75.316 by failing to maintain an air 

velocity of at least 5,000 cubic feet per minute (cfm) at the end of a 

line curtain, as required by Freeman's approved ventilation system and 

methane and dust control plan ("ventilation plan"). 1../ Commission 

Administrative Law Judge John J. Morris held that the violation occurred 

as alleged and assessed a civil penalty of $200 against Freeman. 

!/ 30 C.F.R. § 75.316, a mandatory standard for underground coal 

mines, repeats section 303(0) of the Mine Act, 30 U.S.C. § 863(0), and 

provides in part: 

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 adopted by 

the operator •..• 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 reviewed 

by the operator and the Secretary at least every 6 

months. 

161 
9 FMSHRC 1678 (September 1987)(ALJ). For the reasons that follow, we 

reverse Judge Morris' decision. 

Freeman's Orient No. 6 mine is an underground coal mine located in 

Waltonville, Illinois. On December 11, 1985, John Stritzel, a 

ventilation specialist and inspector of the Department of Labor's Mine 

Safety and Health Administration ("MSHA") performed a ventilation 

inspection at the mine. Stritzel was accompanied by Mark Eslinger, his 

supervisor, Larry Eubanks, the miners' representative, and Howard Hill, 

a ventilation engineer for Freeman. When the inspection party arrived 

at the last open crosscut between two rooms in an intake entry of the 

mine, the party did not proceed into one of the rooms because a 

continuous mining machine was loading a shuttle car at the working 

face. '!:./ 

While waiting for the shuttle car to move, Stritzel examined the 

plastic ventilation line curtain that was installed across the intake 

entry and directing intake air to the face. He observed that the 

curtain was down in the corner of the room, causing a gap of 

approximately three feet in the curtain. Eslinger asked Stritzel "do 

you see that curtain •••• It looks like a violation." Stritzel replied 

"it's not a violation till I check the air." Tr. 26. 

After the shuttle car left the room, Stritzel, Eslinger, and 

Eubanks proceeded toward the working face. Stritzel told the operators 

of the continuous mining machine that he needed to take an air reading 

and, therefore, they should turn on the machine's scrubber. 11 Stritzel 

testified that the ventilation plan requires a minimum air velocity of 

5,000 cfm at the end of the line curtain and that he believed that an 

air reading taken without the scrubber operating would be inaccurately · low. 

The scrubber was started. At about the same time, the trailing 

cable of the offside shuttle car became entangled in the line curtain, 

tearing an 18 to 20 foot gap in it. 9 FMSHRC at 1684. Robert Newton, 

another shuttle car operator, heard the curtain tear and, after seeing 

the large gap, inunediately prepared to rehang the curtain as he had been 

properly trained by Freeman. Tr. 97-98. As Stritzel was preparing to 

take the air reading at the end of the line curtain at the face, someone 

informed him that he would not get an accurate reading because, outby in 

the entry, the line curtain was being rehung by someone. Stritzel 

testified that he walked back from the face, into the room, and told 

someone not to hang the line curtain. A miner that Stritzel could not 

identify responded that he worried about the velocity of air in the 

section just as much as Stritzel did. Tr. 30. Stritzel stated that he 

'l.I A "room" is described as "space driven off an entry in which coal 

is produced .... U.S. Department of the Interior, A Dictionary of Mining, 

Mineral, and Related Terms 941· (1968). 

11 The scrubber, which helps to remove respirable dust from the air 

in the room, affects the air velocity by pulling approximately 1,000 cfm 

of air to the end of the line curtain. 

162 
answered the miner by stating that he had to take an air reading at the 

face before the curtain could be rehung. 9 FMSHRC at 1684, Tr. 30. 

Newton. testified that as he prepared to rehang the curtain, the 

inspector came up to him and directed him not to rehang it until 

Stritzel's air reading was completed. Tr. 98-99, 101-102. Newton 

testified that had he not been interrupted, it would have taken him 

about three or four minutes to rehang the curtain. Tr. 99-100. 

Stritzel proceeded to take an air reading with an anemometer, a 

device that measures air velocity. Based upon the results of the air 

reading, Stritzel determined that the air velocity at the end of the 

line curtain was 1662 cfm. According to Stritzel, no more than three 

minutes elapsed between the time he ordered that the curtain not be 

rehung and his completion of the air velocity reading. Tr. 56-57. 

Stritzel informed Hill that the air velocity was not sufficient to 

comply with the mine's ventilation plan and that Freeman had violated 

section 75.316. Stritzel also found that the violation was caused by 

Freeman's unwarrantable failure to comply with the standard and 

significantly and substantially contributed to a mine safety hazard. 

Therefore, he issued an order pursuant to section 104(d)(2) of the Mine 

Act. 30 U.S.C. § 814(d)(2). ~/ 

Freeman's personnel immediately repaired, rehung, and repositioned 

the curtain. A second air measurement taken by Stritzel indicated an 

air velocity of over 5,800 cfm, and Stritzel terminated the order of 

withdrawal. 

The Secretary proposed a civil penalty of $950 for the violation 

and a hearing was held. Freeman argued that Stritzel's air measurement 

~/ Section 104(d)(2) of the Mine Act, 30 U.S.C. § 814(d)(2), states 

in part: 

(2) If a withdrawal order with respect to any 

area in a coal or other mine has been issued 

pursuant to paragraph (1), a withdrawal order shall 

promptly be issued by an authorized representative 

of the Secreta~y who.finds upon any subsequent 

inspection the exi_stence in. such mine of violatio.ns 

similar to those that resulted in the issuance of 

the withdrawal order under paragraph (1) until such 

time as an. inspection of such mine discloses no 

sim~lar violations .... 

Section 104(d)(l) of the Mine Act, 30 U.S.C. § 814(d)(l), requires 

that an inspector issue a citation if he finds that a violation is "of 

such nature as could significantly and substantially contribute to a 

mine safety or health hazard" and is caused by the operator's 

"unwarrantable failure ... to comply," and that an order of withdrawal 

be issued if, during the same inspector or any subsequent inspection 

within 90 days after the issuance of such citation, he finds another 

"unwarrantable failure" violation. 

163 
did not establish a violation of the ventilation plan and that Stritzel 

had impermissibly interfered with the normal mining cycle at the Orient 

No. 6 mine when he directed Freeman's miner not to immediately repair 

the 20 foot gap in the line curtain. 

The judge rejected Freeman's arguments. The judge concluded that 

although Freeman's witness testified that the three-foot gap in the line 

curtain would not have caused the air velocity to drop below 5,000 cfm, 

it was immaterial whether the inadequate velocity measured by the 

inspector was caused by a three-foot gap or a twenty-foot gap. 9 FMSHRC 

at 1684. He found the evidence uncontroverted that the air velocity 

measured 1662 cfm at the end of the line curtain and that a velocity of 

5,000 cfm was required. Therefore, he held that the evidence 

established a violation of the ventilation plan and consequently of 

section 75.316. 9 FMSHRC at 1684. Regarding Freeman's argument that 

Stritzel had interfered with the mining cycle, the judge stated that it 

could not be considered part of any mining cycle for a shuttle car to 

tear down part of a line curtain. Id. Contrary to the inspector's 

findings, the judge held, however, that the violation was neither 

significant and substantial nor unwarrantable, and he lowered the civil 

penalty assessed to $200. 9 FMSHRC at 1685-86. 

We granted Freeman's petition for discretionary review. Freeman 

argues that the Secretary did not prove a violation of the standard, and 

we agree. 

A ventilation plan is approved by the Secretary and adopted by the 

mine operator pursuant to section 75.316 and section 303(0) of the Mine 

Act. 30 U.S.C. § 863(0). Once the plan is approved and adopted its 

provisions are enforceable as mandatory standards. Jim Walter 

Resources, Inc., 9 FMSHRC 903, 907 (May 1987); see also Zeigler Coal Co. 

v. Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976); Carbon County Coal Co., 

7 FMSHRC 1367, 1371 (September 1985); Penn Allegh Coal Co., 3 FMSHRC 

2767, 2771 (December 1981). In an enforcement action before the 

Commission, the Secretary must establish that the provision allegedly 

violated is part of the approved and adopted plan and that the cited 

condition violated the provision. Jim Walter, 9 FMSHRC at 907. 

The 

There is 

provides 

curtain. 

Secretary has failed to establish this latter requirement. 

no dispute that the ventilation plan for the Orient No. 6 mine 

for a minimum air velocity of 5,000 cfm at the end of the line 

The plan states: 

The minimum air quantities or velocities to be 

employed, and the maximum distance ventilating 

devices will be maintained from the deepest point of 

face penetration, where coal is being cut, mined 

loaded or drilled for blasting are outlined below. 

* * * 

A blowing line curtain in conjunction with a ... 

scrubber may be used. The blowing line curtain will 

deliver a minimum of 5,000 cfm with the scrubber 

164 
operating. The inby end of the curtain will be 

maintained to within 25 feet of the face. 

P. Ex. 1 at ·rrr. However, the plan itself does not suggest that failure 

to deliver the minimum air velocity at all times and in all 

circumstances necessarily results in a violation of the plan. Indeed, 

when the plan is read together with other relevant mandatory ventilation 

standards for underground coal mines, it is clear that in certain 

circumstances, including the unique factual circumstances presented 

here, a temporary interruption in the minimum air velocity delivered can 

occur without a violation of the Act resulting. 

While minimum air quantity or velocity requirements of ventilation 

plans and mandatory safety standards provide an objective test by which 

the adequacy of a mine ventilation system can be evaluated, other 

mandatory ventilation standards recognize that the dynamics of the 

underground mining environment occasionally interfere with attainment of 

constant minimum quantity or velocity levels. The other standards 

recognize that disruptions in mine ventilation inevitably occur and that 

the key to effective compliance lies in expeditiously taking those steps 

necessary to restore air quantity or velocity to the required level. 

For example, it is obvious that an unplanned power outage and the 

temporary shutdown of the main fan will reduce the quantity and velocity 

of air delivered to the face areas. Such a contingency is anticipated 

in the mandatory standards, however, and procedures for the restoration 

of air and the steps to be taken if ventilation cannot be restored 

within a reasonable time are outlined accordingly. See 30 C.F.R. 

§§ 75.300-3(a)(2), 75.321, and 75.321-1. 

Similarly, and directly on point with the situation presented in 

this case, there are mandatory safety standards that anticipate the 

possible diminution in ventilation caused by damaged or downed line 

brattice. 30 C.F.R. § 75.302, a standard drawn verbatim from the 

statute, 30 U.S.C. 863(c), requires that "[p]roperly installed and 

adequately maintained line brattice ... shall be continuously used from 

the last open crosscut of an entry or room of each working section to 

provide adequate ventilation .... When damaged by falls or otherwise, 

such brattice ... shall be repaired immediately." (Emphasis added.) 

Furthermore, 30 C.F.R. § 75.302-2 provides that, "[w]hen the line 

brattice ... is damaged to an extent that ventilation of the working 

face is inadequate, production activities in the working place shall 

cease until necessary repairs are made and adequate ventilation 

restored." These standards recognize that line curtains may be damaged 

or torn down and that ventilation at the working face may, as a result, 

be diminished. They also make clear, however, that absent any unusual 

circumstances, it is the operator's failure to take immediate steps to 

repair or replace the downed line brattice that constitutes a violation. 

Here, the second shuttle car operator stopped his machine and, 

consistent with the dictates of section 75.302, immediately began 

rehanging the downed line brattice. For purposes of section 75.302-2, 

production activities had ceased, since his was the next shuttle car to 

be loaded at the continuous miner and he would not have returned to the 

165 
loading area until he had repaired the 20 foot gap. Thus, compliance 

with section 75.302-2 would have been achieved but for the inspector's 

order, mistaken as it may have been, to cease rehanging the line 

brattice. Had not the inspector intervened, the minimum air velocity 

would have been restored almost immediately. ~/ At the very least, the 

inspector's unwitting interference with Freeman's abatement skewed the 

results of the air measurement so as to render it invalid for purposes 

of establishing a violation insofar as the three-foot gap initially 

observed by the inspector is concerned. Under these circumstances we 

conclude that Freeman did not violate its ventilation plan. 

Accordingly, we reverse the decision of the administrative law 

judge. 

~~ ··, ~· <~CL C.t.(./li-l0/ Richard V. Backley, Commissione-r"" 

Lastowka, 

';/fl,,._;_,,_, /L<_Lll~._, L. Clair Nelson, Commissioner 

21 We note, as did the judge, that Freeman's expert testified that 

the three foot gap in the line curtain would not have resulted in a drop 

in the air velocity below 5,000 cfm. 9 FMSHRC at 1684. 

166 
Distribution 

Harry Coven, Esq. 

Gould & Ratner 

222 N. LaSalle St. 

8th Floor 

Chicago, Illinois 60601 

Vicki Shteir-Dunn, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge John Morris 

Federal Mine Safety & Health Review Connnission 

1244 Speer Bldg., Room 280 

Denver, Colorado 80204 

167 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MI~IB SAFETY AND HEAL TH 

AD~INISTRATION (MSHA) 

On behalf of BRYAN PACK 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 10, 1989 

Docket "To. KENT 86-9-n 

~fAYNARD BF.ANCH DREDGING COMPANY 

and ROGER KIRK 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and "Jelson. Commissioners 

DECISION 

BY: T!'ord, Chairman; Doyle and '.'Telson, Commissioners 

In this discrimination proceeding arising under the Federal Mine Safety 

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

Bryan Pack alleges a violation by Maynard'Branch Dredging Company ("Maynard 

~ranch") and its President, Roger Kirk, of section 105(c) of the Mine Act. 

Commission Administrative Law Judge William Fauver held that "faynard 'Branch 

Dredging Company and its president, P.oger Kirk. did not violate the ~fine Act 

in discharging Pack. 9 FMSHRC 1474 (August 1987). Hhile the judge found that 

Pack had engaged in protected activity by reporting a safety violation to MSHA 

inspectors, he went on to find that Pack's failure to report the conditions 

which created the violation to a supervisor or to his co-workers constituted 

misconduct of sufficient seriousness that Respondents would have discharged him 

on that ground alone even if he had not complained to the inspectors. 9 FMSHRC 

at 1476. We granted the Secretary of Labor's petition for discretionary review. 

For the reasons set forth below, we affirm the judge's decision as correct both 

as a matter of law and as supported by substantial evidence. 

At the time of the events giving rise to this proceeding, Maynard Branch 

operated a coal dredging and preparation facility in Lawrence County, Kentucky. 

The dredging operation extracted coal from a river ·bottom by means of a suction 

hose ~xtending from a dredging platform. The platform floated atop an assembly 

of empty oil drums. Movement of the platform back and for-·.h across the river 

was accomplished by means of cables and winches situated or either shore. 

~aterial dredged from the river bottom was pumped through a pipeline to a conveyor system that included a series of shaker screens where ·y the coal was 

168 
separated from silt, sand and other refuse. 

preparation activity employed five to seven 

tons of coal per year. Tr. 24, 9 FMSHRC at 

Tr. 23-28. The dredging and 

miners and produced about 9,000 

1474. 

Complainant Pack was employed by Maynard Branch as a night watchman and . 

fill-in laborer for approximately one and one-half years prior to his discharge. 

Harking alone from 11:00 p.m. to 7:00 a.m., he was responsible for security at 

the facility. He was also responsible for seeing that the dredging platform 

remained afloat and for cleaning up spillage around the conveyor and shaker 

screens. Tr. 20, 21, 45, 47. 

On }1ay 15, 1984. prior to the start of his shift, Pack testified that he 

was asked hy his brother. Jeffrey Pack, a former employee of Xaynard Branch, 

whether dynamite was still being stored in the glove compartment of a school 

bus being used as an office and storage facility at the dredging site. Tr. 32. 

Upon arriving at the site Pack, who had been unaware of the presence of the 

dynamite on the bus, examined the glove compartment and discovered dynamite 

and detonators. 1/ Concerned for his safety, he carefully closed the glove 

compartment and spent the remainder of the shift in his own truck. 9 FMSHRC 

at 1475. 

During and after his shift he told no supervisor of his discovery even 

though the :::ornpany policy required him to notify management of any hazardous 

conditions discovered at the dredging site. 9 FMSHRC at 1475. 2/ ~or did 

Pack inform miners coming on shift the morning of May 16, 1984 of his discovery of the dynamite. Td. Instead, he left the site, picked up his father, 

and drove to a nearby town. Id. 

As they drove past a restaurant parking lot, Pack's father recognized a 

car belonging to an inspector of the Department of Labor's ~ine Safety and 

Health Administration ("~!Sl-IA"). Pack thereupon located two inspectors and 

informed them of his discovery of the dynamite. One of the inspectors, Baron 

Lawson, proceeded to the dredging site where he informed one of the foremen, 

James Adkins, that he had received a complaint regarding improper storage of 

explosives. Upon inspection of the glove compartment, Inspector Lawson discovered two and one-half sticks of dynamite ~μd two detonators or blasting 

caps. Tr. 13. Re issued a citation to Maynard Branch charging a violation 

of 30 C.F.R. 77.130l(a) dealing with the storage of explosives. 3/ 

1/ The testimony establishes that at least some of the dynamite was left over 

from a blasting operation performed during the previous winter when it became 

necessary to blast river ice away from the dredging platform. Tr. 94. There 

is no evidence in the record as to how the detonators came to be stored in the 

glove compartment. 

'l:_/ One of the foremen, Rocky Fitzpatrick, lived less than a mile from the 

dredging operation. Tr. 65. On a previous occasion Pack had gone to Mr. 

Fitzpatrick's house to notify him of flooding conditions that damaged the 

pump on the dredging platform. Tr. 142. 

3/ Maynard Branch did not contest the citation and paid the penalty 

assessed by the Secretary. 9 FMSHRC at 1475. 

169 
During the inspection Kirk arrived on the scene and asked the inspector 

who had complained about the explosives. The inspector indicated that he did 

not know the complainant by name but gave Kirk a physical description of Pack. 

Kirk responded that "[w]e know who it is," believing that the inspector had 

described Pack. Once .the inspector left the site, Kirk directed Foreman 

Fitzpatrick to fire Pack. Fitzpatrick fired Pack that afternoon. 9 FMSHRC 

1476. 

Thereafter, Pack confronted Inspector Lawson regarding Lawson's description of Pack to Kirk. The inspector denied having described ?ack in 

detail and suggested that Pack file a complaint of discrimination. Tr. 39. 

Pack's complaint to the Secretary was filed May 29, 1984. After an investigation the Secretary filed her complaint on Pack's behalf with this 

Commission on October 17, 1987. !!_/ 

In his decision below the judge held that the Secretary had established 

a prima facie case of discrimination. Pack had engaged in protected activity 

by reporting the illegally stored explosives to the MSHA inspectors and the 

respondents were motivated at least in part by that protected activity when 

they discharged him. 9 FMSHRC at 1476. The judge went on to hold, however, 

that Maynard Branch and Kirk had rebutted the prima facie case by establishing 

with "convincing proof" that they were motivated more by what they considered 

to be the serious misconduct of Pack in neglecting to carry out his duties as 

a security guard, i.e., in failing to report a dangerous situation to a foreman 

or to the oncoming crew. Id. 

On review the Secretary urges reversal of the judge's decision on the 

grounds that it is legally erroneous and that certain of its factual conclusions are not supported by substantial evidence. The Secretary argues 

that the judge's decision, if not reversed, will have a chilling effect on 

the right of miners to report dangerous conditions or safety and health 

violations to MSHA. Moreover, the Secretary interprets the judge's decision 

to require that miners make their complaints first to the operator and only 

then to the Secretary, thus imperiling the anonymity protections afforded 

miner informants under section 103(g) of the Mine Act, 30 U.S.C. 813(g). }../ 

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 in establishing that (1) he engaged in protected activity and (2) 

the adverse action complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 

2797-2800 (October 1980), rev'd on other grounds, sub nom. Consolidation 

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

Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). 

4/ At the hearing before the judge, respondents moved to dismiss the complaint as untimely filed, which motion the judge took under advisement 

pending post-hearing briefing on the issue. Tr. 91. Although the question 

was briefed, the judge's decision contains no ruling on the matter. In any 

event, the timeliness issue is not before us on review. 

5/ It should be noted that the confidentiality of miner informants is also 

protected by this Commission in its procedural rules. 29 C.F.R. § 2700.59. 

170 
The operator nay 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 the operator cannot rebut the prima facie case 

in this manner, it nevertheless may defend affirmatively by proving that it 

also was notivated by the miner's unprotected activity alone and would have 

taken the adverse action in any event for the unprotected activity. Pasula, 

supra; Robinette supra; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 

F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d 

954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-6 (6th Cir. 

1983)(specifically approving the Commission's Pasula-Robinette test). Cf. 

~RB v. Transportation :fanagement Corp., 462 U.S. 393, 397-413 (1983) (approving a nearly identical test under the National Labor Relations Act). 

The affirmative defense referred to above is involved in this case. On 

that issue the judge held that Maynard Branch and Kirk had rebutted the prima 

facie case by establishing with "convincing proof" that they were motivated by 

the serious unprotected misconduct of Pack in neglecting his duties as a security guard, i.e., in failing to report a dangerous situation to a foreman or to 

the oncoming crew, and would have discharged him on that ground alone. 9 FMSHRC 

1476. 

At the outset of his opinion the judge stated that he made his findings 

of fact based upon his consideration of the hearing evidence and the record 

as a whole. 9 ~SHRC at 1474. Among those findings was the judge's determination that Pack's failure to report the presence of the dynamite violated 

company procedure. Although the Secretary argues otherwise, we find sufficient 

support in the record for the judge's determination that Maynard Branch did 

have an established policy requiring that safety and health hazards be reported to the operator's supervisors. Jeffrey Kinser, James Atkins and Rocky 

Fitzpatrick, all foremen while Pack was employed at Maynard Branch, each 

testified that it was the operator's policy that safety violations and 

problems were to be reported by an employee to his immediate supervisor. 

Tr. 98, 99, 117, 143, 144, 152. Kirk, testifying in his capacity as part 

owner, affirmed that this was company policy. Tr. 178. Fitzpatrick, who 

was Pack's supervisor, testified that he told Pack "to inform [him] day 

or night, weekend, whenever [there was a problem]." Tr. 143, 144. 

The Secretary conced~~ that the record contains statements by members 

of :~ynard Branch's management, including Roger Kirk, that there was a 

policy requiring employees to report dangerous conditions·, b·.it protests 

that these statements are "unsupported." Sec. Hr. at 13. The judge, 

in his role as fact finder, determined that a preponderance of the 

reliable and probative evidence established that there was such a company 

reporting policy. Statements of management officials that there was· 

such a policy constitute substantial evidence where the judge determines, 

as he apparently did here, that those statements were reliable. 

We also note that it is commonly understood that security guards have 

the duty to report breaches of security to their employers and that the 

presence of improperly stored dynamite undeniably constitutes such a report~ 

able breach. Even Pack, while unable to recall whether a reporting policy 

was in effect (Tr. 52), nevertheless testified that the job of a security 

guard is to report safety violations. Tr. 68. 

171 
In response to the Secretary's arguments that Pack didn't appreciate the 

inherent hazard of the dynamite's storage in the glove box until after he 

reported it to MSHA, 6/ that everyone already knew the dynamite was stored 

there, and that Maynard Branch's failure to discipline an employee who stored 

part of the dynamite in the glove box demonstrates that Pack was really fired 

solely for reporting the matter to MSHA, it must simply be said again that 

the judge, after reviewing all of the reliable and probative evidence, nid 

not accept those arguments and consequently did not include them among his 

findi~gs of fact. 

The Secretary implicitly raises the issue of whether Pack received disparate treatment in being discharged over the incident since the individual 

responsible for placing one of the sticks of dynamite in the glove compartment, Fitzpatrick, was not similarly disciplined. 7/ Sec. Br. 13. 

The judge, however, credited Kirk's statement that the dynamite incident 

was the "straw that broke the camel's back" with respect to Pack's work 

record and that, prior to Pack's failure to report the serious safety and 

security problem, Kirk had been asked to fire Pack for other incidents. 

9 P.!SHRC at 1476. The record contains testimony by Kirk and others that 

Pack's inattention a week or two earlier had resulted in the capsizing of 

the barge platform and severe damage to the dredging pump. At that time 

Atkins had urged Kirk to fire Pack. Tr. 116, 129, 143. 

The Secretary also argues that when a miner engages in protected activity 

by reporting a dangerous condition to MSHA, such action by the miner insulates 

the individual from being discharged for failing to also report that condition 

to his foreman or co-workers. Consequently, according to the Secretary, operators may not impose a policy which requires a miner who makes a safety complaint to MSHA to also notify the operator of the complaint. Pointing to 

section 105(c)'s proscription that miners shall not suffer adverse action 

for ::iaking a complaint under the Mine Act, the Secretary asserts that Pack 

was discharged for doing exactly that. The Secretary believes that, if not 

reversed, the judge's decision will have a chilling effect on the right of 

miners to report dangerous conditions or safety and health violations to 

~SHA. ~·!oreover, the Secretary interprets the judge's decision to require 

that ~iners must make their complaints first to the operator and only then 

to the Secretary, thus imperiling the anonymity protections affordeq miner 

informants under section 103(g) of the Mine Act, 30 U.S.C. 813(g). 

It is important to point out what did and did not happen here. Maynard 

Sranch did not have a policy that prohibited miners from reporting dangerous 

conditions to HSHA, a policy that would clearly be prohibited by the Mine Act. 

~or did ~~ynard Branch have a policy that required.miners to notify the company 

6/ Pack's recognition of the danger posed by the improperly stored dynamite 

and blasting caps is signified by his conduct in carefully closing the glove 

box and spending the shift away from the bus. 9 FMSHRC 1475, Finding of 

Fact ~o. 4. 

7 I The record reflects that foremen Fitzpatrick and Atkins and a :Mr. 

Kinser, the blaster who oversaw the ice clearing activity, were orally 

reprimanded by Kirk. Tr. 90. 

172 
prior to contacting :!SHA. The company policy only required employees to 

report dangerous conditions to the company, and contained no instructions or 

prohibitions as to employees' actions vis-a-vis MSHA. The facts show that, 

upon finding the dynamite, Pack failed to perform his job responsihility at 

any time and then, by fortuitous circumstances, reported the condition to 

MSHA. Pack's failure to perform the essence of his job, that of reporting 

security breaches, exposed other miners to the risk of injury, and it was 

that breach that cost him his job. The specter raised by the Secretary of 

miners being intimidated from exercising their rights under sections 103(g) 

or 105(c) of the :line Act simply is not presented by this case. 

Moreover, the Secretary's position fails to take into account an 

operator's right to require the reporting of dangerous conditions. It is 

beyond dispute that a mine operator has the right to hire individuals whose 

job duties include the reporting of dangerous conditions. The ~ine Act itself recognizes the importance of such an arrangement. While section 2(e) 

of the Mine Act provides that mine operators have the primary responsibility 

to prevent unsafe conditions in mines, that section adds that miners are to 

provide assistance to operators in meeting that responsibility. It would 

make little sense to assert that an operator may not receive such assistance 

because a miner elects instead to report such a condition only to XSHA. 

This is particularly true where the miner's very job responsibilities, by 

definition, include the duty to report unsafe conditions to the operator. 

The Secretary's position would create other untenable situations. For 

example, it would prohibit an operator from disciplining a pre-shift 

examiner who, rather than reporting dangerous conditions to the operator, 

chose instead to report to MSHA, while the miners on the incoming shift 

entered the mine unaware of the dangers. We do not believe this is what 

anti-discrimination provisions of the ~ne Act contemplated. 

As the judge found, Pack was a security guard who engaged in serious 

misconduct by failing to perform an essential duty: reporting to the mine 

foreman or oncoming crew his discovery of a very dangerous situation which 

jeopardized their safety. It was for this reason that the judge determined 

that Maynard Branch and Kirk, while motivated in part to discharge Pack for 

reporting the dangerous condition to MSHA, were also motivated by Pack's 

egregious failure to perform his job, and that, whether he reported to 

MSHA or not, Pack would have been fired for this misconduct. 

We find there is substantial evidence in the record of Pack's dereliction of those duties inherent in his position as security guard. That 

evidence supports the judge's conclusion that Pack would have been discharged for that misconduct alone. Accordingly, we affirm the judge's 

decision dismissing Pack's complaint. 

~ 

L. Clair Nelson, Commissioner 

173 
Conunissioner Backley concurring in part and dissenting in part. 

The administrative law judge concluded that Bryan Pack engaged in a 

protected activity by notifying MSHA of a dangerous safety violation, and 

that Respondent was motivated at least in part by such protected activity 

in discharging him. I agree. The administrative law judge also found that: 

the seriousness of Pack's misconduct as a security 

guard - in discovering a very dangerous situation 

and failing to report it to the foreman or oncoming 

crew - jeopardized their safety . . • 

9 FMSHRC 1476 

Again, I agree. Moreover I join the majority in finding •.. "substantial 

evidence in the record of Pack 1 s dereliction of those duties inherent in 

his position as a security guard " Slip op. at 6. Pack's failure to warn 

oncoming crew members of the danger was especially egregious. 

The Secretary however argues otherwise. The Secretary states that 

"the judge in effect has ruled that an operator may require miners to 

notify the company of any complaints made to MSHA." The Secretary argues 

that such a request "would severely chill miners 1 exercise of their 

statutory rights" and "vitiates many of the protections of the Mine 

Act ... " Sec. Br. at 6. Elsewhere the Secretary states, 11 even where a 

miner believes that an inuninent danger exists Section 103(g) does not 

require the miner to report that condition to the operator ..• 11 Sec. Br. 

at 7. 

I find the Secretary's position on this issue to be perverse. The 

Secretary apparently condones the manner in which Mr. Pack acquitted 

himself - leaving the mine knowing that a dangerous condition existed, yet 

failing to warn oncoming fellow workers. In her zeal to find a way to 

prevail in this case, the Secretary seems to be willing to turn a blind 

eye toward the fundamental goal of the Act - to ensure that every miner 

does all that he can to make the work environment safe. In this regard, 

Pack failed. 

To attempt to dignify Pack's conduct by invoking statutory reporting 

rights is irresponsible. There is no conflict of rights in this case and 

the judge 1s ruling on the matter creates no conflict. Mr. Pack had the 

right to anonymously make a safety complaint to MSHA, and he did so in 

this case. l/ However, because of the exigencies of this particular 

ll His identity may have remained unknown to Respondent Roger Kirk 

but for the astounding fact that MSHA inspector Bryan Wilson 

Lawson provided Kirk with a physical identification of Pack. 

Tr. 15 

174 
situation, Mr. Pack had, in my opinion, a fundamental obligation to first 

forewarn his . fellow workers of the safety hazard before leaving the 

mine. On .this point the Secretary quibbles that no such company policy 

may have existed and that "the effect of Maynard Branch's reporting 

requirement is to place an impermissible burden on miners making safety 

complaints." Sec. Br. at 12. This myopic view of the facts of this case 

is disturbing. More significantly, the question to be posed is what type 

of burden was placed upon the safety of the crew who were not properly 

warned of the hazard known by Mr. Pack? 

Accordingly, I concur with 

failure to fulfill that duty. 

judge's conclusion that the 

discrimination. 9 FMSHRC 1476 

the majority regarding Pack's duty and his 

I would also affirm the administrative law 

Secretary made a prima f acie case of 

The administrative law judge concluded that: 

Respondents rebutted the prima facie case by 

convincing proof that Respondents were motivated 

by serious unprotected misconduct of the employee 

and would have discharged him on that ground alone 

even if he had not complained to the inspectors. 

9 FMSHRC 1476 

The majority has affirmed this conclusion. I cannot agree. 

A review of the record, which of course includes the written 

decision, does not persuade me that Respondents' motivation went beyond 

pure retaliation for Pack's reporting of the dangerous condition to 

MSHA. The record contains evidence confirming the retaliatory 

motivation, including damaging admissions by Roger Kirk, President and 

part owner, (Tr. 178) and foreman Rocky Fitzpatrick. Tr. 158, 164. That 

evidence, however, is not the basis of my dissent. 

Elsewhere in the record we learn that Fitzpatrick admitted placing a 

stick of dynamite in the subject bus (Tr. 140) and further that he 

informed no one of that dangerous condition. Tr. 141, 156-157. The 

record also discloses that Kirk responded to Fitzpatrick's conduct by 

merely advising him "not to let it happen again" Tr. 190. 

While I understand that legitimate reasons may exist within this 

record which might reconcile the disparate treatment accorded Pack and 

Fitzpatrick, I am not inclined, as is the majority, to naively conclude 

that unarticulated findings of fact equate to rejection of arguments. Slip 

op. at 5. Our Rule 65(a), 29 C.F.R. 2700.65(a) and the APA, 5 U.S.C. 

Sec. 557(c) both require that all material issues of fact, law, or 

discretion be specifically addressed in the decision. Unfortunately the 

decision in this case contains no reference to the above-noted evidence. 

175 
In this case, the entire decision turns on whether respondents would 

have discharged Pack for his unprotected activity alone. In attempting to 

resolve that issue, nothing could be more material than record evidence 

which establishes that a contemporaneous violation of the very same 

company policy by another, who did not call· MSHA, resulted in no 

discipline. Rarely in discrimination cases do we have the opportunity to 

so clearly measure potential disparate treatment. Ironically the decision 

in this case contains no such analysis. 

The absence of such an analysis is particularly significant because 

Fitzpatrick's conduct was, by any measure, far more egregious than Pack's. 

Fitzpatrick created a dangerous safety hazard; Fitzpatrick failed to warn 

the crew of the danger for an extended period of time; and Fitzpatrick, as 

foreman, had a high degree of duty and responsibility for the safety of 

the entire crew •..• a duty which was at least as high as the duty to which 

Pack was charged as a security guard. 

Consequently, in the absence of any findings or analysis, 

Respondents' disparate reaction to Fitzpatrick's breach of duty severely 

undercuts the administrative law judge's conclusion that Pack would have 

been discharged solely for his unprotected activity. 

Accordingly, I would remand, and direct the administrative law judge 

to consider and discuss the above-referenced evidence regarding disparate 

treatment, and to determine , in light thereof, whether Pack's unprotected 

activity alone was the motivation for discharge. 

,,-. 

/ ) _/,1 

~~l.A . .. A.A .. ~~/~~/~r_,1"-=. ~ 

. RICHARD V. BACKLEY, Commissioner 

176 

----. 
Commissioner Lastowka, dissenting: 

Section 103(g) of the Mine Act provides to miners the right to report to 

the Secretary of Labor the existence of hazardous conditions at a mine. 30 

u.s.c. 813{g). The Secretary is required to respond to such reports by 

conducting a special inspection "as soon as possible" to determine if a danger 

exists. In order to encourage miners to report dangerous conditions, thereby 

enlisting their aid in the attempt to make mining a less hazardous occupation, 

miners are granted anonymity in filing a safety complaint. Id. Section 105(c) 

of the ~ine Act further encourages and protects the reporting of violations by 

prohibiting a mine operator from retaliating against a miner "because such 

miner . . . has filed or made a complaint under or related to this Act. •.• " 30 

U.S.C. 815(c)(l). 

In the present case, Bryan Pack discovered dynamite and blasting caps 

stored in the glove Compartment of a school bus used as an off ice at a surface 

mine site operated by Maynard Branch Dredging Company. Pack reported this 

condition to a Mine Safety and Health Administration (MSHA) inspector. The 

inspector promptly proceeded to the mine where he informed the foreman of the 

complaint. Upon opening the glove compartment, the improperly stored blasting 

materials were observed and removed. The mine operator was charged with a 

violation of 30 C.F.R. i7.1301(a), a mandatory safety standard prohibiting 

improper storage of explosives. Maynard Branch did not contest the violation 

and paid a civil penalty. 

up to this point, the statutory scheme for encouraging and protecting 

miner reports of unsafe conditions would appear to be running its intended 

course. A series of errors by the MSHA inspector, the administrative law judge 

and now a majority of this Commission, however, have served to vitiate the 

very protection that Congress intended to provide to miners like Pack who take 

the initiative to report safety and health hazards. As a direct consequence of 

his report to the ~SHA inspector concerning the improperly stored explosives, 

Pack was fired. In my opinion, the majority's upholding of this result on a 

substantial evidence basis is erroneous and far afield from a proper 

implementation of section 105 { c). Accordingly'· I must dissent. 

The error by the MSHA inspector may not be of controlling importance at 

this stage of this proceeding, but nonetheless is deserving of comment if only 

to underscore its gravity and dissuade its repetition. In this regard, the 

inspector's mistake and its consequences are succinctly set forth in the 

judge's findings of fact: 

9. Respondent Roger Kirk is the president of the company, and owns 

one-third interest in the business. He personally supervised the 

dredging facility. Kirk asked the inspector for the name of the 

person who had made the complaint about the dynamite. The 

inspector told him he did not get his name, but described him. 

Kirk recognized the description very well and stated, "We know who 

it is." Kir.k believed that the complainant was Bryan Pack. 

10. After the inspector left the dredge, Kirk told the foreman, 

Rocky Fitzpatrick, to fire Bryan Pack. 

9 FMSHRC at 1475-76. 

177 
The inspector's transgression is apparent. The Secretary concedes this 

and represents that the inspector has been reprimanded for identifying Pack to 

the company. Sec. Br. at 6 n.4. Perhaps as to this inspector a reprimand is 

sufficient. Given the fundamental nature and longstanding history of the 

miners' right that was compromised, however, this discipline could be viewed 

as being charitable. In light of this incident and the serious adverse impact 

on the miners who must bear the brunt of such mistakes, it may behoove the 

Secretary to consider the need for a general reinstruction of her inspectorate 

concerning the importance of strict adherence to the guarantee of anonymity 

Congress gave to miners who report safety violations to the government. 

Of greater moment are the factual and legal errors committed by the 

administrative law judge and the majority that control the outcome of this 

proceeding. As discussed below, I believe that under a correct reading of the 

record and a proper application of the law, Pack established a violation of 

section 105(c) and the judge's contrary conclusion must be reversed. 

The administrative law judge found that Pack had engaged in protected 

activity by reporting the improperly stored dynamite to the Secretary. He 

further found that Maynard Branch was motivated in part by such activity in 

discharging Pack. Thus, the judge concluded that a prima facie case of 

discrimination had been established. Nevertheless, the judge dismissed the 

complaint based on his further finding that the company had presented 

"convincing proof" that it was "motivated by serious unprotected misconduct of 

[Pack] and would have discharged him on that ground alone even if he had not 

complained to the inspectors." 9 FMSHRC at 1476. The Secretary. challenges this 

finding of the judge as lacking substantial evidentiary support. I must agree. 

Substantial evidence is "such relevant evidence as a reasonable mind 

might accept as adequate to support [the judge's] conclusion". Consolidated 

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). In assessing whether a finding 

is supported by substantial evidence, the record as a whole must be considered 

including evidence in the record that "fairly detracts" from the finding. 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). Measured against 

this standard, the judge's finding that Maynard Branch's firing of Pack was 

motivated by serious, unprotected misconduct fails. In fact, to the extent 

that there is testimony in the record in support of the judge's conclusion, I 

believe that the totality of the record nevertheless reveals that the 

misconduct-based rationale for Pack's firing constitutes nothing more than a 

plain and simple pretext. 

The "serious unprotected misconduct" found to justify Pack's firing is 

the fact that he did not tell anyone at the work site about his discovery 

prior to his reporting it to the MSHA inspector. The rationale for labelling 

Pack's failure to communicate his discovery to the operator as misconduct 

appears to be twofold. First, because Pack was a security guard proper 

performance of his job required that he immediately tell his superiors what he 

had found. Second, given the hazard posed by the condition that he had 

observed, his failure to notify the operator prolonged the hazard to his coworkers thereby justifying removal of his report to MSHA from the cloak of 

protected activity. These theories of misconduct raise an interesting question 

concerning whether a miner's right to report hazards to the Secretary should 

be weighed against the hazard posed to co-workers by any delay in the 

178 
reporting of the hazard to the mine operator. Whatever merit these theories 

may have in the abstract, however, measured against the facts of record in the 

present case their appeal proves purely superficial. 

Maynard Branch is not a large operation with a sophisticated operating 

structure; it employed only 5 to 7 workers at its river dredging site. Pack 

worked as a night watchman at the dredge and also occasionally filled in as a 

laborer removing rock and debris from the coal and cleaning up around the 

conveyor. On ~ay 15, 1984, Pack was to report to the mine at 11:00 p.m. That 

same night his brother, a former Maynard Branch employee, had asked him if 

there were still explosives in the glove compartment of the school bus used as 

the office. Tr. 32. According to his brother, the dynamite had been placed in 

the glove compartment by Rocky Fitzpatrick, the foreman, after a winter 

blasting operation. Tr. 67. Pack knew nothing about this, but upon arrival at 

the site he immediately checked the glove compartment and observed "two things 

that looked like road flares". Tr. 53. He then "closed the glove box back real 

carefully and left the bus very carefully and sat in my truck the rest of the 

night" Tr. 33. 

Pack was the only person at the site during the night shift. Id. Pack 

left ~ork at the end of his shift without mentioning what he had observed to 

the others arriving for work because "[f ]rom what I had been told, everyone 

knew it was there except me. They all knew it was there". Tr. 54. See also Tr. 

55, 66, 67. While driving home, he saw an MSHA vehicle in a restaurant parking 

lot and stopped to report to the MSHA inspectors what he had found and to 

inquire as to the safety and legality thereof. Tr. 33-34. The consequences of 

Pack's doing so have already been detailed. 

The linchpin of the judge's conclusion that Pack's conduct is not 

protected under the Mine Act, and the majority's affirmation of that result, 

is their finding that Pack's failure to inform the other workers of the 

presence of the dynamite in the bus constitutes "serious misconduct". In so 

finding, they necessarily refuse to accept Pack's consistent testimony that he 

did not do so because he believed that everyone else had long been aware of 

what he had only just found out. Pack's testimony in this respect cannot be 

discredited or ignored, however, because it ii directly corroborated by the 

testimony of respondent's own witness, foreman Rocky Fitzpatrick. 

Fitzpatrick testified that in January 1984 the river had frozen and 

dynamite was used to blast the ice and free the dredge, Tr. 138-39. He 

explained that after discovering that he had accidentally left a stick of 

dynamite on the dredge, ''I removed it from the dredge and I took it to the bus 

that we used as storage and office space, and I put it in the glove 

compartment of the bus". Tr. 140. As late as one week before Pack's 

discovery, Fitzpatrick knowingly continued to allow this dangerous and 

improper storage. He testified: 

It was on a Tuesday or Wednesday night. Delbert [Fitzpatrick] was 

helping me watch the cables and the water and stuff, and I was 

trying to get some sleep. It was 2 or 3:00 in the morning. I had 

instructed him to keep an eye on the dredge and things, I was 

going to try to get some sleep. This bus was in two sections. 

There was like a plastic partition that separated the office space 

from the storage space. The office end of it had a recliner chair 

179 
and a table and some other objects in that end, and the other end 

was storage space. I sat down in the recliner chair, and I told 

Delbert, I said, I am going to try to get a couple of hours sleep. 

You can keep an eye on things. He said, well I'll go up here where 

I can keep an eye on things. He went up and sat down in the 

driver's seat of the bus. The driver's seat was still in the bus, 

and the rest of the seats were taken out for storage space. He 

walked up there and sat down, and he lit a cigarette. I said, I 

don't know why, but it just come to me that that stick of 

explosives was in the glove compartment. I said, you better watch 

smoking cigarettes, more or less joking, you better watch smoking 

cigarettes up there, there is a stick of dynamite in that glove 

compartment. He said, really, or you're kidding, or something like 

that. I said no. I walked up and opened the giove compartment, and 

the one stick was there. 

Tr. 149-50. See also Tr. 82 (testimony of MSHA special investigator that 

Fitzpatrick told him he had placed dynamite in glove compartment). 

Fitzpatrick's candid admission concerning his culpability in placing the 

dynamite in the bus corroborates Pack's testimony concerning his brother's 

revelation to him of the dynamite's presence, Fitzpatrick's role in placing it 

there and the knowledge of others about its presence. In these circumstances, 

it can only be concluded that Pack's belief in the futility of communicating 

to Fitzpatrick and the others what he had belatedly learned was held 

reasonably and in good faith. Simpson v. FMSHRC, 842 F. 2d 453 (D.C. Cir. 

1988). 

The majority's emphasis of the fact that Pack was a night watchman whose 

duties apparently also included reporting safety hazards he discovered (Tr. 

68) ignores the crucial fact that Pack's good faith belief in the futility of 

doing so in this instance excuses his failure to communicate with the 

operator. Simpson, supra. Further, their emphasis of Pack's "egregious" 

misconduct in failing to protect his fellow workers from the hazard he had 

just discovered not only ignores his belief in the futility of telling them 

what they already knew, but also grossly distorts the consequences of Pack's 

actions. Rather than callously causing others to be exposed to a continued 

hazard, Pack acted responsibly and, as a result, the danger that Maynard 

Branch's foreman knowingly had allowed to exist for several months was swiftly 

and effectively abated. In these circumstances, the majority's casting of Pack 

as an irresponsible employee undeserving of the Act's protection is 

incomprehensible. Compare Miller v. FMSHRC, 687 F. 2d 194, 196 (7th Cir. 

1982). 

Other evidence in the record also detracts from·the substantiality of the 

evidence supporting the judge's conclusion that Pack was fired for misconduct 

rather 'than for reporting the illegally stored dynamite to MSHA. Most telling 

is the evidence illustrating Maynard Branch's disparate treatment of Pack as 

compared to its other employees who actually were involved in the improper use 

and storage of dynamite. Roger Kirk, owner of Maynard Branch, testified at a 

state administrative proceeding that "there wasn't suppose(d] to be any powder 

on the premises at all •••• We had no permit to have powder on the .•• premises 

at all." Exh. C-6 at 5-6. Despite this, foreman Fitzpatrick testified that he 

used dynamite to blast ice from the river, that he left a stick of dynamite on 

180 
the dredge by accident, that he placed the dynamite in the glove compartment, 

and that he observed the dynamite as late as one week before the inspector's 

arrival at the site. Tr. 138-141, 149-150, 155-58. In addition, Jeff Kinser, a 

fill-in foreman, testified as to his involvement in the blasting operation and 

that afterwards he had given some dynamite to Pack's brother, then an 

employee, for personal use even though he did not know whether he was licensed 

or certified. Tr. 96. Foreman James Atkins also testified as to his 

involvement in the blasting. Tr.114-15. 

Despite this demonstrated widespread nonchalance towards the handling and 

use of explosives at Maynard Branch, Pack, who was not at all involved, was 

the only employee disciplined as a result of the inspector's discovery. 

Fitzpatrick, Kinser and Atkins were merely "talked to about it and told not to 

let it happen again. Tr. 190. 

The operator's self-serving assertion that Pack's ''misconduct" concerning 

the dynamite was only one in a series of incidents leading to his firing also 

fails to survive a disparate treatment analysis. In this regard, the majority 

draws comfort from the operator's argument that shortly before the incident at 

issue "Pack's inattention ... had resulted in the capsizing of the barge 

platform and severe damage to the dredging pump." Slip op. at 5. Assuming this 

to be true, two points must be noted. First, this incident did not trigger any 

action against Pack until after his report to MSHA. Second, James Atkins 

testified that he and the rest of the day shift had been involved in a pump 

tipping incident just two or three weeks before the pump incident that 

ostensibly influenced Pack's firing, and that he had been neither disciplined 

nor criticized. Tr. 122-27. 

Finally, I find troubling the majority's attempt to draw support for 

their result from section 2(e) of the Act, 30 U.S.C. 801(e). Slip op. at 6. It 

seems strange to me that section 2(e)'s statement or a congressional finding 

that miners must assist operators in the prevention of hazards can be relied 

on as justification for disciplining a miner whose good faith report to MSHA 

of a known hazard caused the prompt abatement of the hazard. 

In sum, upon consideration of the record as a whole, I conclude that the 

administrative law judge's finding that Bryan Pack was fired for serious 

misconduct apart from his protected activity is not supported by substantial 

evidence and is contrary to law. I further conclude that the non-protected 

reasons advanced in support of Pack's firing constitute nothing more than a 

pretext. Pack was fired for making a report to MSHA and his firing therefore 

violated section 105(c) of the Mine Act. 

Accordingly, I dissent. 

C.~.~ Commissioner 

181 
Distribution 

Vicki Shteir-Dunn, Esq. 

Dennis D. Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Hugh M. Richards, Esq. 

134 East Fifth St. 

P.O. Box 905 

London, Kentucky 40741 

Administrative Law Judge William Fauver 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

182 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 28, 1989 

PAULA PRICE 

v. Docket No. LAKE 86-45-D 

MONTEREY COAL COMPANY 

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

ORDER 

BY THE COMMISSION: 

In this discrimination proceeding, initiated by Paula Price pursuant to 

Section 10S(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. Sec. 31S(c)(3), the administrative law judge dismissed the complaint 

for lack of jurisdiction because Price had filed her private action with 

the Commission prior to a determination by the Secretary that no violation 

had occurred. 9 FMSHRC 1663 (Sept. 1987). In reaching that conclusion, the 

judge exclusively relied upon the then recently issued decision of the 

Commission in the matter of Gilbert v. Sandy Fork Mining Company, Inc., 9 

FMSHRC 1327 (Aug. 1987), wherein the Commission invalidated part of 

Procedural Rule 40(b), 29 C.F.R. 2700.40(b).*/ In its decision, the 

Commission concluded that under Section 10S(c)(3) "the complainant may file 

his private action only after the Secretary has informed the complainant of 

his determination that a violation has not occurred." Gilbert at 1337 

(emphasis in original). 

Because the Commission's 

holding to all pending Section 

that the required Secretarial 

Paula Price's complaint, the 

complaint was required. 

decision in Gilbert expressly extended the 

10S(c)(3) cases, and because the judge found 

determination had not been made regarding 

judge below concluded that dismissal of the 

Subsequent to the Commission's direction for review in this matter, the 

United States Court of Appeals for the District of Columbia Circuit issued 

its opinion in the case of Gilbert v. FMSHRC, No. 87-1499 (January 27, 

1989), reversing the Commission's retroactive application of revised 

Procedural Rule 40(b). 

~/ That part of former Commission Procedural Rule 40(b) invalidated by the 

Commission provided that a complainant could file a private action for 

discrimination if the Secretary failed to make a determination that no 

violation had occurred within 90 days after the miner complained to MSHA. 

183 
In light o"f the D. C. Circuit's opinion, the stated basis for the 

judge's dismissal of Price's Sec. 105(c)(3) complaint cannot stand. 

Therefore, we remand the case to the administrative law judge for the 

purpose of completing the record and entering a decision. Accordingly, the 

Commission's direction for review previously issued in this matter is 

hereby vacated and the case remanded for further appropriate proceedings. 

Distribution 

Linda K. MacLachlan, Esq. 

Michael J. Hoare Law Offices 

314 North Broadway 

St. Louis, Missouri 63102 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arli~gton, VA 22203 

Thomas C. Means, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Administrative Law Judge Gary Melick 

A. DOYLE, Commission~ 

L. CLAIR NELSON, Commissioner 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

184 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 11989 

LOCAL UNION 5817, DISTRICT 17,: COMPENSATION PROCEEDING 

UNITED MINE WORKERS OF 

AMERICA (UMWA), Docket No. WEVA 85-21-C 

Complainant 

v. 

MONUMENT MINING CORPORATION 

and 

ISLAND CREEK COAL COMPANY, 

Respondent's 

No. 1 Surface Mine 

ORDER OF DISMISSAL 

Before: Judge Koutras 

On ,June 16, 1988, the Commission issued an Order remanding 

this case to me for further adjudication,.and the Order stated 

as follows: 

On February 23, 1988, the United States Court 

of Appeals for the District of Columbia Circuit 

issued its decision in this matter, styled 

International Union, UMWA v. FMSHRC, 840 F.2d 77 

(D.C. Cir. 1988), reversing the Commission's 

decision (Local Union No. 5817, District 17, UMWA 

v. Monument Mining Corp. and Island Creek Coal Co., 

9 FMSHRC 209 (February 1987)), and remanding for 

further proceedings consistent with its opinion. 

In accordance with the Court's order, we are 

obliged to remand this matter to the administrative 

law judge originally assigned for further proceedings including, if necessary, consideration of any 

remaining challenges by Island Creek Coal Company 

to the complaint for compensation that have not 

been previously waived. 

On June 28, 1988, I issued an Order requesting the parties 

to inform me as to any further appropriate remedial action 

which may be required in this case pursuant to the Court's 

decision, and the Commission's remand Order of June 16, 1988. 

In response to my Order, the parties advised me of their mutual 

185 
agreement that no issue remains on the question of the respondent's liability, and that the only remaining issues concern 

the amount of compensation due the miners, including interest, 

and costs of litigation. 

The parties have now reached a mutually satisfactory 

agreement with respect to the compensation due the miners, 

including interest, and costs of litigation. The record 

reflects that all of the affected miners have been compensated 

and paid the amounts due them, including interest, and that 

the respondent has paid the UMW'A for all costs incurred in 

pursuit of its court appeal. Under the circumstances, since 

the parties have reached a mutual agreement with respect to 

the final disposition of this case, I see no reason why it 

should not now be dismissed. 

ORDER 

In view of the foregoing, this case IS DISMISSED. 

Administrative 

eorge A. «:~ Law Judge 

Distribution: 

Mary Lu Jordan, Esq., United Mine workers of America (UMWA), 

900 15th Street, N.W., Washington, DC 20005 (Certified Mail) 

Robert M. Clark, Esq., Dechert, Price & Rhoads, 1730 Pennsylvania 

Avenue, N.W., Suite 1100, Washington, DC 20006 (Certified Mail) 

Marshall S. Peace, Esq., Island Creek Coal Company, 

2355 Harrodsburg Road, P.O. Box 11430, Lexington, KY 40575 

(Certified Mail) 

/fb 

186 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 1 1989 

LINDIA SUE FRYE, 

Complainant 

v. 

PITTSTON COAL GROUP/ 

CLINCHFIELD COAL COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. VA 88-55-D 

NORT CD 88-01 

Moss No. 3 Prep Plant 

Appearances: Jerry O. Talton, II, Esq., United Mine Workers', 

District 28, Castlewood, Virginia, for Complainant; 

w. Challen Walling, Penn, Stuart, Eskridge & Jones, 

Bristol, Virginia, for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

On July 11, 1988, a Complaint was filed alleging violations 

of section 105(c)(l) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 815(c)(l). An Answer was filed on August 9, 

1988. On August 19, 1988, Respondent filed a Motion for Summary 

Decision, and a Response to the Motion for Summary Decision was 

filed by Complainant on September 6, 1988. On September 14, 

1988, an Order was entered denying the Motion for Summary 

Decision. 

Pursuant to notice, a hearing was held on October 19 - 20, 

1988, in Lebanon and Abington, Virginia, respectively. T. R. 

Dino, MD, Joseph Pendergast, Samuel G. Sanders, James w. Hicks, 

Darnis Salyer, William McCoy, Billy Lee Bise, Kenneth Robert 

Holbrook, and Lindia Sue Frye testified for Complainant. Michael 

Ray Hendrickson, Sam Sanders, Roy F. Castle, Donald w. Hughes, 

and James w. Rhoton testified for Respondent. Proposed Findings 

of Fact and Memorandum of Law were filed by the Parties on 

December 27, 1988. Reply Briefs were filed by Complainant and 

Respondent on January 10, and January 12, respectively. 

Issues 

1. Whether the Complainant has established that she was 

engaged in an activity protected by the Act. 

187 
2. If so, whether the Complainant suffered adverse action 

as the result of the protected activity. 

3. If so, to what relief is she entitled. 

Discussion and Findings of Fact 

Lindia Sue Frye, who worked for Respondent as a mechanic 

from July 1978 to September 1987, has predicated her complaint of 

discrimination against Respondent under section 105Cc> of the 

Act, upon assertions that she was discharged in retaliation 

against her complaints with regard to Respondent's policy of 

holding safety meetings adjacent to male bathroom and against her 

refusal to work. 

In evaluating the evidence presented herein, I have been 

guided by the Commission's recent decision of Goff v. Youghiogheny 

& Ohio Coal Company, 8 FMSHRC 1860 (December 1986), which reiterated the legal standards to be applied in a case where a.miner has 

alleged acts of discrimination. The Commission, Goff, supra, at 

1863, stated as follows: 

A complaining miner establishes a prima facie case 

of prohibited discrimination under the Mine Act by 

proving that he engaged in protected activity and that 

the adverse action complained of was motivated in any 

part by that activity. Pasula, 2 FMSHRC at 2797-2800: 

Secretary on behalf of Robinette v. United Castle Coal 

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

may rebut the prima facie case by showing either that 

no protected activity occurred or that the adverse 

action was not motivated in any part by protected activity. Robinette, 3 FMSHRC at 818 n. 20. See also 

Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59 

(D.C. Cir 1984): Boich v. FMSHRC, 719 F.2d 194, 195-96 

(6th Cir. 1983) (specifically approving the 

Commission's Pasula-Robinette test). 

It has been further held by the Commission that, a miner's 

refusal to perform work is protected under section 105(c) of the 

Mine Act if it is based on a reasonable, good faith belief that 

the work involves a hazard. Pasula, supra, Robinette, 3 FMSHRC, 

803 at 812~ Secretary v. Metric Constructors, Inc., 6 FMSHRC 226, 

229-31 (February 1984), Aff'd sub nom. Brock v. Metric 

Constructors, Inc., 766 F.2d 469, 471-72 (11th Cir. 1985). 

Perando v. Mettiki Coal Corp., 4 FMSHRC 491 C1988). As stated by 

the Commission in Secretary on behalf of Sedgmer, et al v. 

Consolidation Coal Company, 8 FMSHRC 303, at 307 (March 1986), 

"The case law addressing work refusals contemplates some form of 

contact or communication manifesting an actual refusal to work." 

188 
In this connection the Commission, in the recent decision of 

Secretary on behalf of Keene v. S and M Coal Company, Inc., 

10 FMSHRC 1145, 1150 (1988), noted as follows: 

A miner has the right under section 105(c) of the 

Mine Act to refuse to work if the miner· has a good 

faith, reasonable belief that continued work involves a 

hazardous condition. Pasula, supra, 2 FMSHRC 

at 2789-96; Robinette, supra, 3 FMSHRC at 807-12. See 

also, e.g., Metric Constructors, supra. Where reasonably possible, a miner refusing to work ordinarily must 

communicate or attempt to communicate to some representative of the operator his belief that a hazardous 

condition exist. Reco, supra, 9 FMSHRC at 995; Dunmire 

& Estle, supra, 4 FMSHRC at 133-35. See also Miller v. 

Consolidation Coal Co., 687 F.2d 194, (7th Cir. 1982) 

(approving Dunmire & Estle communication requirement). 

Protected Activities 

I. 

According to Frye, in September 1987, she had episodes of 

vomiting, and had complained of this condition to her physician 

Dr. T. R. Dino. Darnis Salyer testified in this connection that 

in August or September 1987, Frye had complained of being sick 

and went to the nurse at Respondent's plant where she worked. 

William McCoy, a coworker of Frye's, indicated that he saw her 

vomit at the work site, and he could tell that she was sick. 

Michael Ray Hendrickson, who was Respondent's foreman, indicated 

that Frye had complained of being sick, and Donald w. Hughes, who 

was Frye's evening shift foreman from early 1984 through the 

middle of the year in 1985, indicated that at times he was 

informed that Frye was sick. Doctor T. R. Dino, a physician with 

a general practice, testified that he had been treating Frye 

since September 1981, and that she has a history of an ulcer for 

which he had prescribed medication. He said that on September 16, 

1987, she complained of epigastric pain which she described as 

burning, and which he attributed to the possible ulcer that she had 

in the past. He indicated that if the epigastric pain which she 

had been complaining about from September 16 - 21, 1987, would have 

included nausea and vomiting he would not have let her work. However, he indicated that his notes did not indicate she had nausea 

and vomiting. He further indicated that the notes do not indicate 

that he advised Frye not to work, but on cross-examination indicated that he recalled advising her not to work, but that he did 

not discuss the specific tasks that she should not do. According 

to Frye, however, after she saw Dr. Dino on September 16, 1987, she 

was provided with a slip to allow her to work the following day. 

Significantly, Frye indicated, upon cross-examination, that prior 

189 
to September 22, 1987, she did not feel that it was too dangerous 

for her to work. Considering this statement, along with the lack 

of any contemporaneous notation by Dr. Dino with regard to her 

inability to work, I conclude that prior to September 21, 1987, the 

evidence fails to establish that there was any work refusal on 

Frye's part due to any good faith, reasonable belief that her 

continuing to work involved a hazardous condition. Cc. f. Pasula, 

supra, at 2789-96). 

In essence, according to Frye, while driving to work on 

September 21, 1987, she suffered a dizzy spell, blacked out, and 

got involved in an automobile accident. The following day Frye 

saw Dr. Dino, who, according to Frye, advised her not to work as 

it would be too dangerous for her and for her coworkers. Frye 

also said that Dr. Dino advised her not to drive. Frye indicated 

that Dr. Dino told her not to return to work until she was evaluated by Dr. Morgan a neurologist. In essence, she testified that 

she did not work subsequent to September 22, 1987, as ·she was 

afraid to drive, and to work at her job which required her at 

times to work at heights and in proximity to equipment. Dr. Dino 

indicated that, assuming Frye had to work as a mechanic in a 

preparation plant, which required her to tear down and repair 

pumps, work in an area with water tanks, work in high places and 

climb stairs, and be around machinery and welding, he would not 

recommend her to work at this job or drive. 

It appears from Frye's testimony that she was motivated not 

to work subsequent to September 23, 1987, in part based upon her 

fear of driving. Clearly this· concern relates solely to Frye's 

abi1ity to travel to the work site rather than to any hazard at 

the site. She also indicated, in essence, that her job entailed 

working at heights, welding, and being exposed to various equipment, and that due to her dizziness she was afraid to work. 

There is no evidence of any objective data, either clinical signs 

or laboratory findings to provide a medical basis for Frye's 

complaints of dizziness. Also, the record does not present 

significant evidence as to the frequency, density, and duration 

of Frye's dizziness. As such, the hazard of any injury is based 

solely upon Frye's subjective complaints, and is not based upon 

a condition or practice under Respondent's control. As such, I 

find that section 105(c) of the Act did not cover Frye's not 

working subsequent to September 22, 1987, based upon her 

dizziness. 

In making this decision, I agree with the following statement oi the law as set forth in Bryant v. Clinchf ield Coal Co. 

4 FMSHRC 1380, 1421 (1982), "Any claim of proc.ected activity that 

is not grounded on an alleged violation of a health or safety 

3tandard oc which doe~ not result from some hazardous condition 

190 
or practice existing in the mine environment for which the 

operator is responsible falls without the penumbra of the 

statute." (See also, Mastings v. Cotter Corp. 5 FMSHRC 1047 

( 19 83) ) • 

I do not find Eldridge v. Sunfire Coal·Co. 5 FMSHRC 

408 (1983), relied on by Complainant, to be applicable to the 

case at bar. In Eldridge, supra, Judge Koutras held that a 

miner's refusal to work an extra shift due to feac of exhaustion, 

was a protected activity within the scope of section l05(c) of 

the Act. Thus the physical disability of fatigue in Eldridge, 

which led to a miner's refusal to work, was as a result of having 

already worked a shift and thus was clearly job related. In 

contrast, in the case at bar, Frye's dizziness has not been 

established to have been job related. 

II. 

Assuming arguendo that Frye's dizziness provided a basis for 

her not to work subsequent to September 22, 1987, her Complaint 

under section 105Cc) of the Act, must fail, as she has not established that she refused to work, and communicated this refusal to 

Respondent. Not only did Frye fail to communicate to Respondent 

the reasons for her not working subsequent to September 22, but 

she did not notify Respondent of any refusal to work subsequent 

to that date. According to Frye, after Dr. Deno advised her not 

to work, she attempted to telephone Respondent on two occasions, 

but did not receive any answer. According to the uncontradicted 

testimony of Sam Sanders, Respondent's superintendent, Respondent 

did not hear from Frye from the time she last worked on 

September 22, until she come in to see Sanders on October 5, in 

response to Sanders' communication to her that she had violated 

the Last Chance Agreement. Indeed, according to the uncontradicted testimony of Sanders, on October 5, 1987, Frye did not 

indicate that she felt it was unsafe to work or that it would be 

hazard::rn~ to others, but merely said she some "dizziness problems," and stated that she was afraid to drive to work CTr. 

Vol. II, 286) • 

Frye indicated that Dr. Dino told her that Respondent was 

advised of her illness. Respondent admitted that on or about 

October 3, 1987, a nurse, at the Moss No. 3 Nurses Station had a 

conversation with Dr. Dino's office, and wa~ informed that Frye 

had been treated for dizzy spells and was seen on September 16, 

21, 23, and October 5, 1987. However, the only communication 

from Dr. Dino to Respondent bearing on Frye's ability to work 

subsequent to September 16, 1987, is a letter dated October 20, 

1987, more than 1 month after Frye last worked. In the same 

fashion, the only written statement from Dr. Steven W. Morgan, a 

neurologist who examined Frye in October 1987, with regard to her 

ability to work, is dated October 28, 1987, again more than a 

191 
month after Frye last worked. Based upon the above, I conclude 

that Frye has not established that she communicated to Respondent 

her work refusal, and as such, her complaint must fail (See 

Sedgmer, supra, Keene, supra. 

III. 

In addition to safety training, which is mandated, Respondent 

provides its employees, on a voluntary bases, with a weekly safety 

meeting. These meetings, which last approximately 15 minutes, and 

for which the employees are paid time and a half, allow the latter 

to ask safety questions and provide safety suggestions~ When 

weather permits, these meeting are held out of doors, and in 

inclement weather they are held in a hot water heater room which is 

adjacent to, but separated by a doorway, from the men's bathroom. 

It was the testimony of Frye, as corroborated by William McCoy, 

that with the door open, it is possible to observe male nudity and 

men urinating in the bathroom. 1/ However, it is possible, while 

attending a safety meeting, to stand in a position where it would 

not be possible to see through the doorway to the men's bathroom. 

Frye also testified that during the safety meetings she observed 

men in the meeting room wearing only their long underwear, and her 

testimony was corroborated by Darnis Salyer. According to Frye she 

attended "a lot" of safety meetings (Tr. Vol. II, 110), but that in 

the fall of 1986, she first encountered male nudity at a meeting. 

This was the last meeting she attended, and she asked Billy Lee 

Bise, the Union Mine Committeeman, to ask Sanders to change the 

location of the meetings. She said that Bise informed her that 

Sanders had.informed him that he would provide a different meeting 

place, but that she was never approached by any of Respondent's 

personnel to come to another site. She said that she talked to 

Bise again about this matter 1 week prior to her discharge in 

September 1987, but that no alternate sites were provided to her. 

In this connection, Bise indicated that in approximately 

February 1987, and again "a while" before Fiye was discharged (Tr. 

Vol. II, 45), he told Sanders that different arrangements should be 

made for a facility for the safety meetings as it was not proper to 

have females exposed to men changing clothes. Bise indicated that 

Sanders told him that he would arrange for one of the foremen to 

give Frye safety meetings by herself. Thus, the only evidence of 

any activity on Frye's part, that has any relevance with regard to 

activities protected by the Act, was her request of Bise to ask 

Sanders to change the safety meeting site. Frye thus was not 

1/ There is some conflict in the record as to whether or not on 

the dates in issue there was a door in this doorway. The weight 

of the evidence tends to establish that there was a door although 

it was usually kept open. 

192 
seeking the right to attend a safety meeting, but rather was 

seeking a change in its situs to a location that would not be 

offensive,. and an embarrassment to her. I conclude that Frye's 

request is beyond the purview of the Act, and as such is not 

protected thereunder. 

Motivation 

Assuming arguendo that Frye's request to have the location 

of the safety meetings changed was a protected activity, Frye's 

case must fail, as she has not established that her discharge was 

motivated "in any part by this activity." To the contrary, the 

evidence establishes that Frye's dismissal was based solely on 

her excessive absenteeism. 

On January 1, 1985, Respondent instituted a Chronic and 

Excessive Absentee Control Program in order to address chronic 

absenteeism. In December 1985, Sanders met with Frye and 

informed her that he was going to be the superintendent as of 

January 1986, and that he was aware of her absenteeism. He also 

indicated that they should help one another so that the absenteeism would not be a problem. In September 1986, Sanders met with 

Union Officials, James Hicks and Bise, to ask them to counsel 

Frye with regard to her absenteeism. In February 1987, Frye 

missed 16 percent of scheduled working days, and in March and 

April of 1987 missed 42 percent and 90 percent respectively of 

scheduled working days. 

In May 1987, Frye was absent for 96 percent of the scheduled 

working days, and in June her absentee rate was 44 percent. Frye 

was orally counseled with regard to her absentee rate by Sanders 

on April 30, June 8, and July 20, 1987. On that last date Frye 

was suspended, with intent to discharge, due to excessive absenteeism. Subsequently, pursuant to a 24 - 48 hour meeting on 

July 25, 19 87, Frye entered into a Last Cha·nce Agreement in which 

she agreed that she would not exceed the mine absentee rate of 

four percent in any month in the next 12 months commencing 

August 1, 1987. 

In August 1987, Frye's absentee rate did not exceed the mine 

average, however, in September.1987, her absentee rate was 

39 percent. On October 1, 1987, Sanders informed Frye that 

inasmuch as her absentee rate in September 1987, exceeded the 

provisions of the Last Chance Agreement she was to contact the 

superintendent within 48 hours. Sanders subsequently met with 

Frye on October 5, 1987, and explained to her that she was to be 

suspended as she had violated the Last Chance Agreement. On 

Oct~ber 16, 1987, Sanders sent a notification to Frye informing 

her that she was being suspended with intent to discharge because 

her absenteeism was in violation of the Last Chance Agreement. A 

24 - 48 hour meeting ensued, and subsequently Frye was discharged. 

193 
Ba3ed upon the above facts, I conclude that the sole reason 

for the aischarge of Frye was her excessive absenteeism. This 

clearly is a prerogative of management, and I do not find sufficient evidence to establish that the discharge was motivated in 

any part by any protected activities. Accordingly, the Complaint 

herein must be dismidsed. {See Goff, supra). 

ORDER 

Based on the above, it is ORDERED that this proceeding be 

DISMISSED. 

~-~ Avram Weisberger 

Administrative Law Judge 

Distribution: 

Jerry o. Talton, II, Esq., Law Offices of Raymond Kates, 222 East 

Main Street, Front Royal, VA 22630 (Certified Mail) 

W. Challen Walling, Esq., Penn, Stuart, Eskridge & Jones, 

207 Piedmont Avenue, P. O. Box 2009, Bristol, VA 24203 (Certified 

Mail) 

dcp 

194 
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 CMSHA}, 

Petitioner 

v •. 

W. K. ENTERPRISE, 

Respondent 

FEB 2 1989 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 87-197-M 

A.C. No. 42-01997-05502 

Rattlesnake Mine 

DECISION 

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

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

for Petitioner; 

Kent W. Winterholler, Esq., Parsons, Behle & 

Latimer, Salt Lake City, Utah 

for Respondent. 

Before: Judge Cetti 

This case is before me upon a petition for assessment for 

civil penalty under section 105(d} of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et seg. The Secretary of 

Labor, on behalf of the Mine Safety and Health Administration, 

(MSHA}, charges the operator of the Rattlesnake mine, W. K. 

Enterprise with violating a mandatory regulatory standard 30 

C.F.R. § 57. 3200, because there was unsupported, loose and 

unconsolidated material on the left side of the mine portal. On 

December 10, 1986, the MSHA inspector issued a section 104Cd}(l} 

Citation No. 2646222 at the Rattlesnake mine. 

The operator filed a timely appeal contesting the existence 

of the alleged violation, its characterization as significant and 

substantial and the appropriateness of the proposed penalty. 

The case was set for hearing on the merits at the same place 

and time as other cases involving the same parties were heard on 

the merits. At the hearing counsel for the Secretary moved to 

amend.the proposed penalty so as to reduce the proposed penalty 

from $800.00 to $400.00. There was no objection. The motion was 

granted. Counsel for respondent then moved to withdraw its 

notice of contest to both the alleged S & S violation and the 

amount of the penalty as amended at the hearing. There was no 

objection; the motion was granted. 

195 
In support of this proposed disposition of the case the 

parties have submitted information pertaining to the six 

statutory civil penalty criteria found in section llO(i) of the 

Act. After careful review and consideration of the pleadings, 

arguments, and submissions I find that the proposed disposition 

is reasonable, appropriate, and in the public interest. 

ORDER 

Citation No. 2646222 is affirmed. W. K. Enterprise, if it 

has not already done so, is directed to pay a civil p~nalty in 

the sum of $400.00 within 30 days of the date of this-decision. 

nistrative Law Judge 

Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Kent W. Winterholler, Esq., Parsons, Behle & Latimer, 185 South 

State Street, Salt Lake City, UT 84147 (Certified Mail) 

/bls 

196 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 2 1989 

CHARLES F. ROSE, DISCRIMINATION PROCEEDING 

Complainant 

v. Docket No. WEVA 88-350-D 

CONSOLIDATION COAL COMPANY, Pursglove No. 15 Mine 

Respondent . . 

ORDER OF DISMISSAL 

Before: Judge Weisberger 

On January 19, 1989, Counsel for Complainant filed a 

statement indicating Complainant "Wishes to Withdraw his 

Complaint and terminate this proceeding." On January 23, 1989, a 

copy of a signed statement from the Complainant was filed. In 

this statement Complainant has indicated as follows: "I wish to 

withdraw the discrimination proceeding filed by me at Docket 

No. WEVA 88-350-D relating to activities at Consolidation Coal 

Company's Pursglove No. 15 Mine." 

Accordingly, is is ORDERED that the above proceeding be 

DISMISSED. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

(703) 756-6210 

William R. Nalitz, Esq., Sayers, King, Keener & Nalitz, 77 South 

Washington Street, Waynesburg, PA 15370 (Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

dcp 

197 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 2 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

. . 

. . 

. . 

: 

BIRCHFIELD MINING INCORPORATED: 

Respondent : 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 87-272 

A.C. No. 46-07273-03501 

No. 1 Mine 

Appearances: Mary K. Spencer, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia 

for Petitioner; 

William D. Stover, Esq., Beckley, West 

Virginia for Respondent. 

Before: Judge Melick 

This case is before me upon remanq by a majority of the 

Commission to determine whether its findings that the 

violation at issue was not "significant and substantial" 

would affect the amount of civil penalty imposed below. 

In the decision below, 9 FMSHRC 2209 (1987), it was 

found that the failure to complete and record a pre-shift 

examination required by 30 C.F.R. § 75.303(a) was a "serious" 

violation and warranted a civil penalty of. $400. The 

Commission majority found however that the violation did not 

contribute "a measure of danger to safety" and in essence did 

not constitute a serious hazard. Since the gravity 

determination below was a significant component in. the amount 

of penalty established, there must now be a corresponding 

reduction in penalty. Accordingly considering the criteria 

under section llOCi) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et seq., I now direct that a 

penalty of $300 be paid. ~ 

198 
ORDER 

Birc~f ield Mining Incorporated is hereby directed to pay 

a civil penalty of $300 within 30 days of the date of this 

I 

( 

decision. J · · ' 

fl •·- j 

/~.)I~. e / ! 

Gary M~i~ ·\_ \~t··~ Admi:'nistrative Law~Judge 

(703) 756-6261 

Distribution: \ 

• I 

Mary K. Spencer, Esq., and Barry F. W~sor, Esq., Office of 

the Solicitor, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 (Certified Mail> 

William Stover, Esq., MAE Services, 40 Eagles Road, Beckley, 

WV 25801 (Certified Mail) 

Anthony J. Cicconi, Esq. Shaffer & Shaffer, 330 State Street, 

P.O. Box 38, Madison, WV 25130 

nt 

199 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 6, 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION (MSHA), 

Petitioner 

Docket No. SE 88-42 

A. C. No. 01-01322-03697 

v. No. 5 Mine 

JIM WALTER RESOURCES, INC., 

Respondent 

DECISION 

Appearances: William Lawson, Esq., Office of the 

Solicitor, u. s. Department of Labor, 

Birmingham, Alabama, for Petitioner. 

Harold D. Rice, Esq., R. Stanley Morrow, 

Esq., Jim Walter Resources, Inc., 

Birmingham, Alabama, for Respondent. 

Before: Judge Merlin 

This case is a petition for the assessment of a civil 

penalty filed by the Secretary of Labor against Jim Walter -

Resources, Inc., under section 110 of the Federal Mine Safety and 

Health Act of 1977. 30 u.s.c. § 820. An evidentiary hearing was 

held on November 30, 1988, and post-hearing briefs have now been 

filed. 

Citation No. 3011407, dated January 13, 1988, recites as 

follows: 

"Based on the results of an evaluation of 

SCSR training conducted 12/16-22/87 where 25 

persons were interviewed to determine the 

effectiveness of the training 5 of the 25 

persons failed to know the proper procedures 

for donning the self contained self rescuer. 

This is 20 per cent of the persons interviewed. The training shall be reevaluated by 

management and an assurance obtained that all 

mine personnel underground are aware of the 

proper donning procedures." 

On January 28, 1988, the citation was modified to allege a 

violation of 30 C.F.R. § 75.1714. The parties agree that (c)(2) 

is the applicable portion of§ 75.1714 (Tr. 5). The mandatory 

200 
standard in effect at the time the citation was written, provided 

as follows: 

(2) Training in the use of self-contained 

self-rescue devices shall include each person 

properly opening the device, activating the 

device, inserting the mouthpiece or simulating this task while explaining proper 

insertion of the mouthpiece, and putting on 

the nose clip. 1/ 

At the hearing the parties agreed to the following stipulations: Cl) The operator is the owner and operator of the subject mine; (2) the operator and the mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977; (3) 

the administrative law judge has jurisdiction of this case; 

(4) the inspector who issued the subject citation was a duly authorized representative of the Secretary; (5) true and correct 

copies of the subject citation and modification were properly 

served upon the operator; (6) copies of the subject citation and ~edification are authentic and may be admitted into evidence for 

the purpose of establishing their issuance but not for the purpose of establishing the truthfulness or relevancy of any statements asserted therein; (7) imposition of a penalty will not 

affect the operator's ability to continue in business; (8) the 

operator's history of prior violations is average; (9) the 

operator is large; ClO) the applicable regulation is 30 C.F.R. 

§ 75.1714(c)(2). The foregoing stipulations were accepted at the 

hearing (Tr. 5). 

The citation recites that twenty-five people were interviewed to determine the effectiveness of the operator's training 

program and that 5 of the interviewees failed to know proper 

donning procedures. The inspector testified that she conducted 

the interviews to determine the effectiveness of the operator's 

training and issued the citation because she believed the training was ineffective and a failure (Tr. 26-27, 54, 56}. She 

stated that the interviews were not conducted to determine individual failures and therefore, she did not cite soecific 

instances regarding particular individuals C~r. 56): She also 

testified that in order for the operator's training to be effective and for the operator to avoid being found guilty of a violation, 100% of the individuals interviewed must correctly answer 

the required number of questions and perform the donning procedures set forth in ~n MSHA test which the inspector used to 

determine compliance with the mandatory standard (Tr. 62). If 

11 30 C.F.R. § 75.1714 was subsequently amended, but its 

substantive requirements are essentially unchanged. 53 F.R. 

10336, March 30, 1988. 

201 
one in 500 employees failed the test, the inspector would find 

the training ineffective (Tr. 63-64). It would not matter to the 

inspector if a miner feel asleep during training, did not absorb 

the training, .knew it but forgot it, or purposely failed the test 

because he was mad at the company (Tr. 64-65). However, the MSHA 

supervisory inspector testified that if less than 100% of miners 

passed the test or if 1% failed, he might not issue a citation, 

whereas another inspector might, and that issuance of a citation 

under such circumstances was a judgment call CTr. 96). 

30 C.F.R.§ 75.1714Cc>C2) directs that miners be given training in the use self-rescuers and that this training include performance of certain activities by individual miners which may be 

summarized as "hands-on" training. The inspector's requirement 

that the operator's training program be "effective" does not 

appear in the mandatory standard. Rather it is nothing more than 

the inspector's own creation cut from whole cloth. In addition, 

the inspector testified that regardless of the circumstances all 

miners must pass the test or the training would be found ineffective and the operator guilty of a violation. The inspector's 

equation of effectiveness with perfection also is unfounded. It 

is clear that in issuing this citation the inspector has strayed 

far from what the law actually prescribes. Elemental fairness 

requires that the operator be held accountable only for what the 

law and regulations require. 

Furthermore, the MSHA supervisory inspector could not offer 

any basis for sustaining the lack of effectiveness charge i~ the 

citation. Although he did not agree with the issuing inspector's 

100% compliance requirement, he offered no acceptable explanation 

of his own. He merely stated that issuance of a citation where 

there was less than 100% compliance was a "judgment call". Such 

an approach is unsatisfactory because it would leave every 

inspector free to decide for himself when to issue a citation and 

every operator unable to tell what is expected of it. 

The citation's further allegation that five miners failed to 

know proper donning procedures also does not properly charge a 

violation of the mandatory standard. Once again, it must be 

noted that the mandatory standard requires that training be given 

and that the training be hands-on. As the testimony at the hearing makes clear, individuals may receive the required training, 

but still not be able to put on the self-rescuers for a variety 

of reasons, such as forgetting, inability to understand, or willful intent to fail CTr. 64-65). Upon prompting by the Solicitor, 

(Tr. 74-75), the inspector equated donning failure with training 

failure, without considering any of the foregoing circumstances 

which could render that equation false. Moreover, the Solicitor 

did not challenge the possible existence of these factors. 

The MSHA supervisory inspector testified that the allegation 

of being unaware of the donning procedures meant personnel at the 

. , . 

202 
mine had not been properly trained (Tr. 90). As already set 

forth, I reject this reasoning because although donning failure 

may certainly be evidence of a lack of training, it does not 

always follow that an individual's inability to put on a 

self-rescuer means he did not receive the requisite training. 

Therefore, one cannot automatically be equated with the other. 

The supervisory inspector further stated that rather than issue 

five citations in this case, only one was issued to give the 

operator time to comply (Tr. 93). However, in view of the 

language of the mandatory standard, a lack of the prescribed 

training for named individuals should be charged and thereafter 

supported with specific proof, whether the individuals are 

identified in one citation or in separate citations. The 

operator has ~ right to expect that the charges against it 

conform to the statute and regulations. 

For the foregoing reasons, I conclude that the citation does 

not properly charge a violation in accordance with the applicable 

mandatory standard. 

Even if the citation had properly alleged a violation, 

MSHA's case would fail, because the evidence falls far short of 

establishing a violation. At the hearing the inspector could not 

remember the names of the five individuals whom sne alleged 

failed the MSHA test until she looked at her notes (Tr. 41-42). 

And even after she named the five miners, she could not remember 

how many of the five did not know how to put on the self-rescuer 

(Tr. 75). All she could say was that "some" of the miners who 

could not don the self-rescuer were included in the five rererred 

to in the citation, but she did not know which ones or if all 

five failed the donning procedures (Tr. 75-76). 

Only one of the five named individuals, Ms. Willie Jean 

Mccrary, testified at the hearing. Ms. Mccrary stated that she 

had not been given hands-on training (Tr. 13-15). However, she 

admitted signing a Certificate of Training which states on its 

face in bold letters that she had received hands-on training (Op. 

Exh. 1, Tr. 10-11, 18). One of the operator's associate safety 

inspectors, Mr. Haygood, testified that hands-on training had 

been given in classes of about 10 people <Tr. 105-106). 

Mr. Haygood had not himself. trained Ms. Mccrary, but he had on 

occasion assisted Mr. Lee another associate. safety inspector, who 

had trained Ms. Mccrary and signed her certificate (Op. Exh. No. 

1, T~. 112-113). According to Mr. Haygood, each shift was set up 

the same way, calling ten people for training (Tr. 111). The 

instructors went by the manufacturer's guidelines and their training included everything in the MSHA test used by the inspector 

(Tr. 127-128, 131). After consideration of the matter, I find 

persuasive the signed Certificate of Training and the testimony 

of Mr. Haygood. I do not find convincing Ms. McCrary's testimony 

that she did not remember si3ning the certificate and that she 

did not know what hands-on training meant (Tr. 10, 23-24). Ms. 

Mccrary admitted she did not remember everything her instructor, 

203 
Mr. Lee, said and did (Tr. 19). Finally, Ms. Mccrary said she 

knew some of the donning procedures, but not all of them and the 

record does not indicate what she knew and what she did not know 

CTr. 15). Therefore, I conclude Ms. Mccrary received hands-on 

training. 

The remaining four individuals referred to in the citation 

did not testify and the inspector did not state what they knew or 

did not know or what they did or did not do in their interviews. 

As already noted, the inspector admitted she did not know how 

~any or which ones of the five could not put on the self-rescuer 

CTr. 75). The record contains signed Certificates of "Training 

for three of the~e four miners, Lockhart, Sides and Dukes (Op. 

Exhs. Nos. 2, 3, 4). Mr. Haygood, the associate safety inspector 

whose testimony I have already accepted, trained and signed the 

certificates of Lockhart and Dukes. I find persuasive these 

certificates and Haygood's testimony that these two individuals 

received hands-on training. Mr. Lee who signed Ms. McCrary's 

certificate, also signed Sides' certificate. Here again, the 

certificate and Mr. Haygood's testimony regarding the training he 

and Mr. Lee gave are persuasive. The record does not contain a 

certificate of training for the fifth individual, Harris. 

However, MSHA has failed to make out a orima facie case of no 

hands-on training for Harris because the inspector did not 

specify what he could not do and, aside from reading his name 

from her notes, she did not specifically refer to him. In light 

of the foregoing, even if the citation properly charged a 

violation, I would have no alternative but to conclude that_ MSHA 

failed to prove a violation with respect to any of these five 

miners. 

The rest of the inspector's testimony was similarly vague 

and nonspecific. She said "several people" forgot to put goggles 

on or forgot to take the nose clip out of the mouthpiece and that 

"some people" missed every part of the MSHA test, one question or 

another (Tr. 38). But she did not identify these people. There 

is no way for the operator to defend itself against charges that 

a group of unidentified individuals could not perform one step or 

another in the donning of self-rescuers or did not have the 

knowledge deemed necessary by the inspector. 

Although "effectiveness" is not a proper measure by which to 

determine whether a violation occurred and although the evidence 

does not, in any event, show the existence of a violation, note 

must be taken of the means whereby the inspector undertook to 

demonstrate the existence of a violation. The inspector 

questioned the 25 miners she interviewed based upon a test 

devised by someone at MSHA headquarters (Govt. Exh. No. 1, Tr. 

92). The inspector received the test from her supervisor, but 

she did not know who devised it and she was not told what to do 

with the test other than go to the mine and give it (Tr. 63). 

The test assigns a point value to each question; there are two 

parts to the test Cone of which requires donning ability>; both 

204 
test parts must be passed; and the passing grade for each part is 

specified (Govt. Exh. No. 1, Tr. 36, 42, 59-61). The first time 

the operator learned of the test was when the inspector furnished 

a copy as she began the interviews (Tr. 27, 109). The inspector 

admitted the test is not part of the mandatory standard (Tr. 

58-59). It is difficult to imagine anything more unfair than 

finding the operator guilty of a violation based upon a 

questionnaire and scoring system, of which it had no advance 

notice. Therefore, apart from all the other reasons why this 

citation is invalid, use of the MSHA test under the circumstances 

presented here is improper. 

For a similar result see the recent decision of Administrative Law Judge John J. Morris Secretary of Labor v. Utah Power 

and Light Company, decided January 9, 1989, (Dk. No. West 88-92). 

The briefs of the parties have been reviewed. To the extent 

that they are inconsistent with this decision they are rejected. 

ORDER 

Accordingly, it is ORDERED that Citation No. 3011407 be 

VACATED and that the instant petition for the assessment of a 

civil penalty be DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

William Lawson, Esq., Office of the Solicitor, U. S. Department 

of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL 

35203 (Certified Mail) 

Harold D. Rice, Esq., R. Stanley Morrow, Esq., Jim Walter 

Resources, Inc., Post Office Box C-79, Birmingham, AL 35283 

(Certified Mail) 

H. Gerald Reynolds, Esq., Jim Walter Corporation, 1500 N. Dale 

Mabry Highway, Tampa, FL 33607 (Certified Mail) 

Ms. Joyce Ha~ula, Legal Assistant, UMWA, 900 15th Street, N.W., 

Washington, DC 20005 (Certified Mail) 

/gl 

205 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 6 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. . Docket No. WEVA 88-113 

A.C. No. 46-06722-03556 

v. 

No. 2 Mine 

STONEY COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Ronald E. Gurka, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for the Petitioner; 

William D. Stover, Esq., M.A.E. Services, Inc., 

Beckley, west Virginia, 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). Petitioner seeks civil penalty assessments in the 

amount of $1,500 for two alleged violations of certain mandatory safety standards found in Part 75, Title 30, Code of 

Federal Regulations. The respondent filed a timely answer 

contesting one of the alleged violations, namely section 

104(d)(l) Order No. 2716156, 30 C.F.R. § 75.319, served on the 

respondent by an MSHA inspector on August 25, 1987. The 

respondent opted not to contest the second alleged violation, 

section 104(d)(l) Order No. 2716152, 30 C.F.R. § 75.303, 

served on August 25, 1987, and has agreed to pay the proposed 

civil penalty assessment of $700 (Tr. 3). A hearing was held 

in Beckley, West Virginia, and the parties waived the filing 

of posthearing briefs. However, I have considered the oral 

arguments made by the parties during the course of the hearing 

in my adjudication of this matter. 

206 
Issues 

The issues presented in this case are (1) whether the 

condition·or practice cited by the inspector constitutes a 

violation of the cited mandatory safety standard, (2) the 

appropriate civil penalty to be assessed for the violation, 

taking into account the statutory civil penalty criteria found 

in section llO(i) of the Act, and (3) whether the violation 

was "significant and substantial." Additional issues raised 

by the parties, including the "unwarrantable failure" issue, 

are identified and disposed of in the course of this decision. 

Applicable Statutory and Regulatory Provisions 

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

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

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

3. Commission Rules, 29 C.F.R. § 2700.l et ~· 

Stipulations 

The parties stipulated to the following (Tr. 4): 

1. The presiding judge has jurisdiction 

to hear and decide this matter. 

2. The assessment of a civil penalty for 

the alleged violation in question will not 

affect the respondent's ability to continue in 

business. 

3. The respondent has products which 

enter commerce or has operations which affect 

commerce. 

Discussion 

The contested section 104(d)(l) Order No. 2716156, served 

on the respondent on August 25, 1987, cites an alleged violation of mandatory safety s~andard 30 C.F.R. § 75.319, and the 

cited condition or practice is described as follows: "A separate split of intake air was not provided for the mechanized 

minirrg section being operated in the return air courses, 

35 feet inby the No. 4 drift opening." 

Petitioner's Testimony and Evidence 

MSHA Inspector George Bowman, testified as to his experience and training, and he confirmed that he has conducted 

207 
"quite a few" regular and spot.inspections of the respondent's 

mine. He confirmed that he was at the mine on Friday, 

August 21, 1987, to complete an inspection, and that he 

advised Mine Foreman Don Hughes that he would be back the 

following Tuesday, August 25, to "run dosi~eters on his underground employees." Upon his return to the inine he noticed two 

employees exiting a drift opening where a new fan installation 

was begun over the weekend, and he identified exhibit P-1 as a 

copy of the approved mine map ventilation systen for the area 

where this installation was being made. The entry had been 

advanced approximately 70 feet, and Mr. Bowman confirmed that 

he observed a continuous miner and a shuttle car in khe entry, 

and that he issued Citation No. 2716152, for a violation of 

section 75.303, when he could not find any evidence that a 

preshift examination had been conducted and reported for the 

entry. After observing the employees exit the drift, he 

proceeded into the area and observed that no ventilation line 

curtains had been installed. He also observed other violative 

conditions, and issued a total of six citations for several 

ventilation and electrical violations (Tr. 5-15). 

Mr. Bowman stated that he noticed that the air current 

was coming back down the entries toward the area that was 

being mined, and the "air current was to the extent that you 

could feel it; it was very good movement" (Tr. 15). He then 

proceeded to the mouth of the six left entry toward the six 

left gob, between the first and second crosscuts between the 

two entries to take a reading of the direction of the air flow 

from the pillared area, and he marked the location with an "X" 

on the mine map. He confirmed that he used an anemometer to 

check the air, and that "the vanes of the anemometer did turn 

rapidly," and he determined that the air coming from the gob 

area was flowing toward the drift entry. After making this 

determination, he cited the respondent with a violation of 

section 75.319 (Tr. 16-17). 

Referring to the mine ventilation system map, exhibit 

P-1, Mr. Bowman described and explained the intake air flow 

system through the area in question, and he confirmed that it 

should have been coursing positive toward the outside of the 

mine. He found that the air had apparently reversed through 

the approach to the six left pillared out area and that under 

the approved plan it should have been going in the opposite 

direction toward the gob area rather than toward the new drift 

mouth where the continuous miner and shuttle car were located 

(Tr. 17-20). The coursing of the air in the wrong direction 

presented a hazard in that any methane or "black damp" which 

may have developed during mining would not be coursed away 

from the new drift entry. Since the entry had been mined for 

208 
approximately 69 feet with no line ventilation curtains, contaminants from the pillared area would have passed over or 

near the equipment which was operating, and an arc or blown 

cable rnay·have ignited any methane in that drift entry which 

he marked with the letter "A" on the map. _Mr. Bowman confirmed that this location in the entry was inby the last open 

crosscut (Tr. 22). 

Mr. Bowman identified a copy of a supplemental ventilation plan submitted by the respondent on August 26, 1987, 

after his inspection, and it shows the installation of two 

stoppings across the number one and two entries separating the 

intake split from the air that passed by the six left bleeder. 

These stoppings provided a separate split of intake air to the 

miners working down in the drift opening, and had the effect 

of abating the violation (Tr. 26). 

Mr. Bowman believed that the violation resulted from a 

high degree of negligence because mine foreman Don Hughes was 

aware of the installation of the fan and they had discussed 

the situation the week prior to the inspection of August 25, 

1987, when the drift in question was being developed. The 

drift was constructed in an effort to control some water 

located inby the drift which was freezing and causing problems 

for the fan and travel in the area (Tr. 30). Mr. Bowman confirmed that coal was being mined as the drift was being 

advanced, and upon completion of the drift entry, normal 

mining operations would have continued (Tr. 32). 

On cross-examination, Mr. Bowman confirmed that although 

he discussed the fan installation prior to August 25, 1987, he 

raised no objections about the new drift entry because the 

method of mining the new entry never came up, and he was not 

aware that a new entry would be needed for the fan installation (Tr. 32). He confirmed that he did not go beyond the 

point marked "X" on the map, and did not walk into the gob 

area. He confirmed that he made no methane test in that area, 

and that the anemometer readings which he made indicated that 

the air was corning in the opposite direction from what was 

shown on the approved ventilation plan (Tr. 33). He explained 

the direction of air travel by reference to the map (Tr. 

34-36). 

Mr. Bowman stated that intake air becomes return air when 

it has passed through or ventilated the lasted open crosscut, 

or after it passed the working faces. Assuming the intake air 

was going through the regulator down toward the area being 

developed, it would not have passed any working faces if it 

were travelling that course (Tr. 38). He confirmed that he 

209 
walked the area where the continuous miner had been working 

and made methane tests. Although he could not recall the 

exact methane level, it could not have been over one percent 

(Tr. 40). .However, methane and "black damp" is a concern when 

the air current in a ventilation bleeder system is not 

travelling in the proper course and directi6n, and he believed 

the air was coming from the approaches to the gob area, and 

not the gob area itself (Tr. 41, 44). He confirmed that he 

did not check the bleeder evaluation points in the gob area 

(Tr. 43), but reiterated that the air "wasn't going the way it 

was supposed to be going" as shown on the ventilation plan 

(Tr. 45-46). 

Mr. Bowman identified the "mechanical mining section" 

that was not being ventilated by a separate split of air as 

the area marked "A" on the ventilation map, and he indicated 

that it was 35 feet inby the number four drift (Tr. 48). He 

stated that when that area was initially developed it was an 

entry, and when "he goes back and rehabilitates the area, its 

a crosscut" (Tr. 49). He explained that the area in question 

had no equipment in it when he was at the mine on August 21, 

and it would have been an entry. However, when he returned on 

August 25, the entry had been developed, and it became a 

crosscut (Tr. 54). The air that was ventilating this area was 

return air rather than intake air (Tr. 56). 

Respondent's Testimony and Evidence 

Josiah c. Lilly, mine superintendent, confirmed that he 

was at the mine when Mr. Bowman issued the order on August 25, 

1987, and he explained the work performed to install the fan 

at the number 4 entry or portal in order to increase ventilation and improve the efficiency of the fan. He also confirmed 

that his engineering department informed MSHA about the ventilation changes, but he was not sure that he spoke with 

Mr. Bowman about them, but that the mine foreman did (Tr. 63). 

Referring to a copy of the ventilation map, exhibit ~-1, 

Mr. Lilly explained the working ventilation system prio.c to 

the installation of the fan, and he confirmed that the map was 

in effect at the time the order was issued (Tr. 64-66). 

Mr. Lilly identified two stoppings shown on the map which 

were installed soon after the violation was issued to separate 

the gob area, and he confirmed that they were installed in 

response to the violation. In response to a question as to 

whether or not intake air passed through the regulator shown 

on the map down to the cited area in the number 4 drift 

opening, Mr. Lilly replied that "it was possible," but he did 

not go to the area to check it (Tr. 67). 

210 
Mr. Lilly stated that he walked through the area designated as No. 1 on exhibit R-1, and that the air coming into 

the entries "had to come off the main intake." The bleeders 

were functioning properly, and he stated t~at "the air going 

in at this point, there's no way it could be coming out and 

going to the area where the men had been working" {Tr. 70). 

He tested for methane and found none. He confirmed that the 

regulator stopping marked on the map with a "green R" had some 

blocks out of it and that air was coming through at the 

barrier point. He agreed with Inspector Bowman that air was 

coming out in the wrong direction, and that "it wasn't 

supposed to be travelling in that direction at that point, 

that's correct" {Tr. 70). However, he did not believe there 

was any danger of air coming out of the gob because pressure 

was kept against the gob by means of a blowing fan. 

Mr. Lilly confirmed that he discussed the abatement of 

the violation with the inspector and the company engineering 

department, and that the two stoppings marked in green on the 

map were installed to abate the violation. He also believed 

that the regulator had to be opened more, but he was not sure. 

The effect of the stoppings "prevented any air from coming 

that way, and made all the air come out at one point--out of 

one location, where the regulator is" {Tr. 72). He did not 

check the air after this was done, and he did not know whether 

this made any difference in the amount of air at that point 

{Tr. 72). However, he indicated that the intake air was still 

traveling in the same direction at every location, but that 

the stoppings which were installed eliminated the inspector's 

concern with the air coming off the gob. This change was 

approved by MSHA to abate the violation so that the order 

could be terminated to allow work to continue {Tr. 73). 

On cross-examination, Mr. Lilly confirmed that the ventilation map he referred to, exhibit R-1, is undated, and that 

he did not know when it was prepared or submitted to MSHA. 

Respondent's counsel stated that the map was never submitted 

to MSHA, but was prepared specifically for this case as 

Mr. Lilly's recollection of the ventilation in place at the 

time of the violation {Tr •. 74). Mr. Lilly stated that the 

arrows marked in blue on the map shows the direction of the 

intake air flow going down the entries at the time of the 

violation. When asked whether intake air was in fact going in 

the direction of the arrows, Mr. Lilly replied "I icnow when I 

went into this area that air was going into the gob, and there 

was going this direction also {sic}. These areas were being 

ventilated off of the intake air"CTr. 76). He confirmed that 

he was in the area at 7:30 a.m., after the violation was 

211 
issued at 6:30 a.m., and that he had not previously been there 

for at least 3 months. Prior to the violation, he did not 

know whether intake air was flowing down towards the number 

two entry as indicated by the blue arrows. He also confirmed 

that the four single arrows which he circl~d in red on the map 

indicated the direction of return air, and that according to 

the map, it reflects that intake air and return air were flowing in the same direction down the same air course (Tr. 77-78). 

Mr. Lilly stated that "I feel like myself, that it was more 

intake air than was needed to ventilate the gob area, and that 

was the air that was coming down" (Tr. 78). 

Mr. Lilly confirmed that it was impossible for intake and 

return air to be flowing in the same direction within the same 

air course as shown on the map, but that his testimony regarding the ventilation which he believed existed at the time of 

the violation is based on the map (Tr. 84). When asked 

whether he knew whether intake or return air was going to the 

entry marked number two on the map used by the inspector 

during his testimony, exhibit P-1, Mr. Lilly replied "not at 

the time of the violation, no" (Tr. 85). Mr. Lilly confirmed 

that he was aware of the fact that the fan in question would 

be installed 3 or 4 weeks before the violation was issued, and 

that he made the decision to install it with his engineering 

department. He confirmed that the ventilation system shown on 

his map, exhibit R-1, reflected the planned ventilation 

system, but he could recall no blue or orange coloring on the 

map when he reviewed it (Tr. 86). ~espondent's counsel reiterated that the map was presented "for the purpose of Mr. Lilly's 

recollection" (Tr. 89). Petitioner's counsel confirmed that 

the two maps, exhibits P-1 and R-1, are identical except for 

the blue and orange arrow markings (Tr. 90). 

Mr. Lilly conceded that the cited area in question was 

not being ventilated in the manner shown on the ventilation 

map submitted to MSHA, and respondent's counsel stipulated 

that the plan submitted to MSHA showed that area in question 

"showed that as being the return" (Tr. 90-91). Mr. Lilly 

contended that on the day of the violation, intake air was 

being used to properly ventilate the entry where the fan was 

being installed (Tr. 92). When asked why the stoppings were 

installed after the violation was issued if in fact the area 

was being properly ventilated, Mr. Lilli responded "to get 

everything taken care of to get the violation abated" and "we 

had to get back to work. We had to do what would satisfy 

MSHA" (Tr. 92-93). 

Mr. Lilly stated that the regulator next to the nwnber 2 

entry was removed on the Sunday prior to Inspector Bowman's 

212 
return to the mine on Tuesday, August 25, 1987. He explained 

that the regulator had "quite a few openings" and "wasn't 

plastered to actually seal the air completely off." He stated 

that the removal of the regulator could possibly have had the 

effect of reversing the air flow in the gob area, but he 

believed that this was not the case. He conceded, however, 

that he would not have known this until after he went to the 

area at 7:30 a.m., on the day the violation was issued (Tr. 

103). In explaining his travel through the area, he stated 

that "there were different locations up through here where air 

was coming in, along with the leakage through the stoppings. 

No matter how you build a stopping, it leaks a little" (Tr. 

104-105). When asked to locate those areas, he stated that 

they do not appear on the map, exhibit P-1 (Tr. 105). He confirmed that the regulator had to be removed so that equipment 

could pass through the drift that was being driven (Tr. 107). 

Inspector Bowman was called in rebuttal by the petitioner, 

and he explained the effect of the removal of the regulator on 

the ventilation used for the number 2 entry in question, as 

well as the gob area. Although he was of the opinion that the 

air ventilating the gob was not sufficient to ventilate it 

properly, he conceded that he could not support a citation for 

this purported condition because he could not make such a determination, and he did not know how much air was coming off the 

gob. The only determination that he could make was that "the 

air was coming by the approaches," and that some of it was pulling away from the gob area, as determined by his anemometer 

reading which indicated that "there was enough to turn the 

vanes of the anemometer" (Tr. 111, 113, 115-116). He confirmed 

that he had no knowledge as to the quality of the air going 

over the working area because he did not sample it (Tr. 116). 

On cross-examination, Mr. Bowman stated that the regulator 

marked with a green "R" on respondent's map, exhibit R-1, was 

there during his inspection, and that intake air ~as going 

through it (Tr. 117). 

Petitioner's Arguments 

Petitioner maintains that given the fact that coal producing machinery was located and used for mining in the cited 

mechanized mining section, that area was in fact a mechanized 

mining unit within the meaning of section 75.319. With regard 

to the respondent's arguments concerning the phrase "contiguous working places" as found in the section 75.319-1, the 

definition of a "mechanized mining section," and the definition of "working places," petitioner maintains that the evidence establishes that there was only one working place, 

213 
namely the cited drift area where the mining equipment was 

located. Petitioner points out that the inspector believed 

that the cited location of the violation was inby the last 

open crosscut, and it takes the position that the definition 

found in section 75.319-1, does not requir~ the existence of a 

number of working places at this location. Petitioner asserts 

that the definition was designed for application to a normal 

working face with an open crosscut and several entries going 

up to the working faces, and that a typical mechanized unit 

would have a set of equipment used to work several entries, 

and the definition was designed with this in mind. 

Petitioner asserts that the facts in this case present a 

"unique situation" where mining was being done ju~t inside the 

opening of a well developed mine, and that the primary purpose 

of this mining was to install a ventilation fan whose ultimate 

purpose was to improve mine ventilation. However, given the 

presence of mechanized mining equipment and mining in an entry 

which was not ventilated on a separate split of intake air, 

the hazards designed to be addressed by section 75.319 existed. 

In the event a hypothetical second entry was necessary, and 

was mined prior to the situation found by the inspector, the 

hazard to miners would have been the same because the hazard 

presented comes from the equipment used for mining in the 

area, rather than from the number of entries that the equipment is being used in. By citing section 75.319, and requiring a separate split of intake air to ventilate the area to 

abate the violation, the inspector believed that this was the 

safest method for ventilating the area and preventing possible 

explosions or other hazards (Tr. 118-120). 

With regard to the question of negligence, petitioner 

asserts that the evidence presented clearly demonstrates more 

than "mere negligence" and supports the inspector's "unwarrantable failure" finding. In support of this conclusion, petitioner maintains that the respondent proceeded to install the 

fan without concern for the safety of miners, conducted no 

preshift inspection, and did not check its ventilation plan to 

ensure there was proper ventilation where mining was taking 

place. Given the fact that the respondent "just wanted to go 

in there and get this done and didn't care about the miners in 

there one way or another," counsel concludes that the respondent demonstrated a high degree of negligence (Tr. 120-121)·. 

With regard to the gravity of the violation, petitioner 

points out that the inspector compared it with the "Farmington 

Disaster," which presented a serious explosion hazard, and it 

takes the position that the requested minimlli~ civil penalty 

assessment of $800 is adequate. Petitioner conceded that 

214 
there is no evidence of the presence of any explosive levels 

of methane or that the continuous-mining machine was in other 

than a permissible condition. However, petitioner took the 

position that the mere presence of the miner was a potential 

ignition source, and that the respondent had an obligation to 

preshift the cited area to verify that no h~zardous conditions 

were present (Tr. 123-124). 

Respondent's Arguments 

Respondent asserted that in the absence of any "mechanized 

mining section," the alleged violation of section 75.319, 

cannot stand. Given the definition of "working place" as the 

"area of coal inby the last open crosscut," and the absence of 

any crosscut at the place where the fan was to be installed, an 

"SMU number," and a dust-control plan, respondent concludes 

that there is no evidence of the existence of any "mechanized 

mining section" on the day of the inspection. However, the 

respondent conceded that at the time of the inspection, four 

entries were being driven, and that while the last entry may be 

considered the last open crosscut, given the absence of a 

definition of "crosscut," and the mine map which shows that one 

would have to travel a long way beyond the location of the 

alleged violation to reach a point inby the last open crosscut, 

the respondent questions whether or not these driven entries 

may be considered "contiguous working places," or whether the 

alleged violation took place "inby the last open crosscut" 

within the meaning of section 75.319. Further, respondent 

stated that "contiguous working places" means "more than one 

place you're working," and the only place the respondent 

intended to work "was just to cut this one place for the fan." 

Respondent concluded that "it's stretching the definition quite 

a bit to try to include this area in a mechanized mining 

section" (Tr. 124-126). 

With regard to the alleged use of return air to ventilate 

the area 35 feet inby the drift opening where the respondent 

intended to install a fan, respondent states that the only 

evidence advanced by the petitioner to support this contention 

is the ventilation plan reference on the mine map which 

depicts an arrow showing that return air was ventilating the 

cited location. Respondent maintains that .an arrow drawn on a 

map "does not make it return" air, and that in order for it to 

be return air, the air would have to pass through a working 

place and then out of the mine. ~espondent contends that 

there is no evidence that the air that ventilated the area 

being developed passed through any working place, and that 

"the only smidgeon of evidence or assertion of it passing 

somewhere where it might be turned into return, was the fact 

215 
that it went by an abandoned area." Referring to mandatory 

section 75.311, which states that "Air which has passed by an 

opening of any abandoned area shall not be used to ventilate 

any working place in the coal mine if such air contains .25 

voluine per centum or more of methane," respondent asserts that 

even if the intake air somehow becomes return air by passing 

an abandoned area, it can still be used for ventilation purposes because the petitioner has not established the presence 

of any methane or contaminants in the air (Tr. 127). 

With regard to the lack of any preshift examination, 

respondent pointed out that "you're looking at sixty.feet inby 

the opening of the mine. It's just a question of walking 

sixty feet and coming out and writing it in a book ••• it 

wasn't like the whole mine didn't get pre-shifted" (Tr. 127). 

The respondent concluded as follows at (Tr. 127-128): 

At best, I think that what could have been 

written in regard to the actions that transpired 

here was a technical violation of the ventilation plan. What instead was written was an 

unwarrantable failure of the operator to 

properly ventilate where it was working. And 

there's no allegations that there was improper 

air, improper volumes of air where the mining 

machine was operating. The only allegation is 

that instead of intake air it was return air. 

And that comes back to the definition. When 

did it become return air? Just having the 

arrows on the map doesn't make it return air. 

It's got to be exposed to some contaminants, 

and it's Respondent's position that there was 

no such exposure. 

Respondent asserted that given the "unwarrantable failure" 

standard of proof required by the Commission in Emery Mining 

Corporation, 9 FMSHRC 1997 (Dec. 1987), the respondent's negligence was only "ordinary" because it did not believe it was 

mining in "a mechanized mining section," and that this is "something that's not plain, unambiguous" (Tr. 129). Assuming that 

the facts and evidence establishes an unwarrantable failure, 

respondent concedes that the underlying procedural time 

sequence requi:cements for the issuance of the section 104(d)(l) 

order in question were technically correct (Tr. 129). Given 

the absence of any evidence of improper or insufficient air 

ventilating areas were men were working, respondent concludes 

that no one was exposed to any hazards, and that only three men 

would normally be working in the area where the fan was being 

installed (Tr. 130). 

21c 
Respondent conceded that the cited location was driven 

60 feet on a conventional mining section which utilized a 

continuous~mining machine, bolter, and shuttle car operating 

in sequence, and that it intended to cut the entry in for a 

distance of approximately 100 feet to connect up with the 

nwnber 10 entry. The principal purpose of cutting at the 

cited location was to facilitate the installation of the fan 

which was ultimately installed approximately 3 weeks later 

(Tr. 131). 

Arguing in rebuttal to the respondent's reference to the 

first sentence of section 75.311, petitioner's counsel stated 

that the next sentence of the standard requires that all air 

containing less than .25 volume per centum or more of methane 

be examined during the preshift examination required by section 75.303. Counsel pointed out that the respondent was also 

cited by Inspector Bowman on August 25, 1987, for not performing the required preshift and did not contest that order. Had 

the required preshift been conducted, and the air tested along 

the entire air course as required, and found to be below .25, 

the gravity would have been much less (Tr. 132). Although the 

respondent's counsel stated that "the rest of that area was 

preshifted," and that only the area where the miner was operating was not tested, I take note of the fact that the uncontested order citing a violation of section 75.303, was issued 

for the failure by the respondent to preshift the active workings inby the drift opening in question, and that all areas 

inby the drift opening were ordered withdrawn by the inspector 

(Tr. 132-133). 

Findings and Conclusions 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 75.319, which provides as follows: 

Each mechanized mining section shall be 

ventilated with a separate S?lit of intake air 

directed by overcasts, undercasts, or the equivalent, except an extension of time, not in 

excess of 9 months, may be permitted by the 

Secretary, undec such conditions as he may prescribe, whenever he determines that this subsection cannot be complied with on March 30, 1970. 

The term "mechanized mining section" is defined by 

30 C.F.R. § 75.319-1, as follows: 

217 
The term "mechanized mining section" means 

an area of a mine in which coal is mined with 

one set.of production equipment, characterized 

in a conventional mining section by a single 

loading machine, or in a continuous m~ning section by a single continuous mining machine, and 

which is comprised of a number of contiguous 

working places. Specialized mining sections, 

such as longwall mining sections, which utilize 

equipment other than specified in this section, 

may, if approved by the Coal Mine Safety 

District Manager, be ventilated by a single 

split of air. 

The term "working place" is defined by 30 C.F.R. 

§ 75.2Cg)(2) as "the area of a coal mine inby the last open 

crossctit." The term "crosscut" is synonymous with the term 

"breakthrough," and it is defined in part by A Dictionary of 

Mining, Mineral, and Related Terms, Bureau of Mines, U.S. 

Department of the Interior, 1968, pg. 280, as follows: 

A crosscut may be a coal drivage * * * In 

room and pillar mining, the piercing of the 

pillars at more or less regular intervals for 

the purpose of haulage and ventilation. * * * 

In general, any drift driven across between any 

two openings for any mining purpose. * * * 

"Breakthrough" is defined as "A passage cut through the 

pillar to allow the ventilating current to pass from one room 

to another. * * * An opening made either accidentally or 

deliberately, between two underground openings." Mining 

Dictionary, at pg. 137. 

A "split of air" means a separate air circuit, ~.g., when 

mine workings are subdivided to form a number of separate ventilating districts. The main intake air is split into the 

different districts, each of which is given a specific supply 

of fresh air free from contamination by the air of other districts, and later the return air from the districts reunited 

to restore the single main return air current. Mining 

Dictionary, at pg. 1201. 

~he respondent's contention that the area cited by Inspector Bowman was not a "mechanized mining section" as defined by 

section 75.319-1, because it did not include any "contiguous 

working places" due to the absence of any "last open crosscut" 

and the fact that the only place it intended to work was where 

the fan was to be placed is rejected. The evidence clearly 

218 
establishes that when the violation was issued, the entry in 

question was being actively mined. Inspector Bowman observed 

a continuous-mining machine and shuttle car in the entry, and 

he observed miners leaving the area. Mine Superintendent 

Lilly confirmed the fact that the mining s_equence included the 

use of a continuous miner, shuttle car, and roof bolter, and 

the roof was being bolted as coal was being mined in the 

entry. 

Superintendent Lilly admitted that at the time the violation was issued, the respondent intended to drive the entry 

for a distance of approximately 100 feet to connect it up with 

the number 10 entry, and that the fan was actually installed 

3 weeks after the entry was initially driven (Tr. 131). 

Further, the evidence establishes that at the tLne the entry 

in question was being driven and mined, three additional 

adjacent entries were in existence, and the mine maps reflect 

the presence of crosscuts, stoppings, regulators, and the 

establishment of air ventilation. 

Inspector Bowman's unrebutted testimony reflects that 

while the cited location may have been an entry when it was 

initially designed and cut, once it is driven and rehabilitated due to changes and maintenance resulting from the 

presence of water, that location would be considered the last 

open crosscut (Tr. 49). The evidence establishes that at the 

time the violation was issued, the entry had been driven and 

developed for approximately 70 feet, and the mining cycle 

included the use of a mining machine, shuttle car, and roof 

bolter. Mr. Bowman explained and described the location of 

the last open crosscut (Tr. 23). 

The evidence also reflects that during his inspection of 

August 25, 1987, Inspector Bowman issued an uncontested violation because of the failure by the respondent to conduct an 

adequate preshift examination "in the active workings" inby 

the drift opening in question, and that he also issued several 

other citations for violations of the respondent's approved 

roof-control plan, the failure to adequately protect a continuous miner trailing cable, and the installation of line 

brattice only within 69 feet of the working face, rather than 

10 feet as required by the cited mandatory ventilation standard section 75.302 (Exhibit P-2). This particular standard 

requires that such ventilation devices be continuously used 

from the last open crosscut of an entry or room of each working section in order to provide ventilation to the working 

faces. 

219 
Under all of the aforementioned circumstances, I conclude 

and find that the area cited by Inspector Bowman included contiguous working places within the meaning of section 75.319-1, 

and that it.was in fact a mechanized mining section within the 

scope of cited section 75.319. I also find the testimony of 

Inspector Bowman regarding the existence and location of the 

"last open crosscut" within the area which he cited to be 

credible. See: MSHA v. Jim Water Resources, Inc., Docket 

Nos. SE 87-~SE 86-105-R, decided by the Commission on 

January 13, 1989. 

Inspector Bowman cited a violation of section 75.319, 

because of the failure by the respondent to provide a separate 

split of intake air to ventilate the mechanized mining section 

which was operating in the return air course inby the drift 

opening which had been driven to facilitate the installation 

of a fan. Mr. Bowman confirmed that when he conducted his 

inspection and issued the violation, he observed that the 

entry had been advanced and developed for a distance of approximately 70 feet, and that it was being driven around some 

water located inby the Number 4 drift opening. Mr. Bowman 

observed a continuous-mining machine and a shuttle car in the 

entry, and he also observed several miners coming out the 

drift entry which had been driven and mined. Mr. Bowman proceeded into the area and found that no ventilation curtains 

had been installed, and using an anemometer, he determined 

that the air currents leaving the gob area were flowing in the 

direction of the drift entry where coal was being mined as the 

entry was advanced. Mr. Bowman testified that the anemometer 

vanes were turning rapidly and that he could feel the air movement. Mr. Bowman determined that the air coursing into and 

down the entry towards the drift area in question had apparently reversed itself and was flowing in the "wrong direction" 

contrary to the respondent's ventilation plan, and he concluded that this was ventilation return air rather than intake 

air as required by section 75.319. Since this was the case, 

he issued the violation. 

The respondent contended that the ventilation directional 

arrows shown on the mine ventilation maps, which indicate the 

cited area in question being ventilated by return air, rather 

than intake air, were "engineering mistakes." However, it 

presented no credible engineering testimony or evidence to 

support any such conclusion. The only witness called to rebut 

the inspector's testimony was mine superintendent Lilly. 

Mr. Lilly confirmed that the mine ventil~tion map, exhibit 

R-1, which clearly shows the cited area being ventilated by 

return air, rather than intake air was in effect at the time 

the violation was issued. The evidence shows that Mr. Lilly 

220 
was not at the cited location when the violation was issued, 

had not previously been there for at least 3 months, and that 

he arrived.at the scene an hour after the violation was issued. 

Further, Mr. Lilly agreed with the inspector that the air passing through a regulator from the gob area was moving in the 

"wrong direction," and that the air flow d"irectional arrows 

shown on the mine ventilation map reflecting the ventilation 

pattern for the cited entry shows that the area was being ventilated by return air. Mr. Lilly admitted that at the time 

the violation was issued, he did not know whether the cited 

area was being ventilated by intake air or return air. He 

also agreed with the inspector that air was coursing in the 

wrong direction through a regulator (Tr. 70, 103). 

After careful review of the testimony presented in this 

case, I conclude and find that the credible testimony and evidence presented by Inspector Bowman establishes that the cited 

area in question was being ventilated by return air and that a 

separate split of intake air was not provided to ventilate 

that area. Since the cited standard clearly requires the area 

to be ventilated by intake air, I further conclude and find 

that a violation of section 75.319 has been established. 

Accordingly, the violation issued by Inspector Bowman IS 

AFFIRMED. 

The Unwarrantable Failure Issue 

The governing definition of unwarrantable failure was 

explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided 

under the 1969 Act, and it held in pertinent part as follows 

at 295-96: 

In light of the· foregoing, we hold that an 

inspector should find that a violation of any 

mandatory standard was caused by· an unwarrantable failure to comply with such standard if he 

determines that the operator involved has failed 

to abate the conditions or practices constituting such violation, conditions or practices the 

operator knew or should have known existed or 

which it failed to abate because of a lack of 

due diligence, or because of indifference or 

lack of reasonable care. 

In several recent decisions concerning the interpretation 

and application of the term "unwarrantable failure," the 

Commission further refined and explained this term, and concluded that it means "aggravated conduct, constituting more 

than ordinary negligence, by a mine operator in relation to a 

221 
violation of the Act." Emery Mining Corporation, 9 FMSHRC 

1997 (December 1987); Youghiogheny & Ohio Coal Company, 

9 FMSHRC 2007 (December 1987); Secretary of Labor v. Rushton 

Mining Company, 10 FMSHRC 249 (March 1988). Referring to its 

prior holding in the Emery Mining case, th~. Commission stated 

as follows in Youghiogheny & Ohio, at 9 FMSHRC 2010: 

we stated that whereas negligence is conduct that is "inadvertent," "thoughtless" or 

"inattentive," unwarrantable conduct is conduct 

that is described as "not justifiable" or 

"inexcusable." Only by construing unwarrantable failure by a mine operator as aggravated 

conduct constituting more that ordinary negligence, do unwarrantable failure sanctions 

assume their intended distinct place in the 

Act's enforcement scheme. 

In Emery Mining, the Commission explained the meaning of 

the phrase "unwarrantable failure" as follows at 9 FMSHRC 2001: 

We first determine the ordinary meaning of 

the phrase "unwarrantable failure." "Unwarrantable" is defined as "not justifiable" or 

"inexcusable." "Failure" is defined as "neglect 

of an assigned, expected, or appropriate action." 

Webster's Third New International Dictionary 

(Unabridged) 2514, 814 (1971) ("Webster's"). 

Comparatively, negligence is the failure to use 

such care as a reasonably prudent and careful 

person would use and is characterized by 

"inadvertence," "thoughtlessness," and "inattention." Black's Law Dictionary 930-31 (5th ed. 

1979). Conduct that is not justifiable and 

inexcusable is the result of more than inadvertence, thoughtlessness, or inattention. * * * 

I take note of the fact that at the time he issued the 

section 104{d){l) unwarrantable failure order in question, 

Mr. Bowman made a negligence finding of "Reckless Disregard" 

(item ll{E), Order), but then changed it to reflect a finding 

of "High" negligence (item ll{D)). I also take note of MSHA's 

civil penalty assessment criteria found in Part 100, Title 30, 

Code of Federal Regulations. Section 100.3(d), Table VIII, 

explains the various degrees of negligence associated with a 

violation which is being reviewed for assessment purposes. 

Under these guidelines, "high negligence" is applicable in 

those instances where an "operator knew or should have known 

222 
of the violative condition or practice, and there are no mitigating circumstances," "Reckless disregard" is applicable.in 

those instances where an "operator displayed conduct which 

exhibits the absence of the slightest degree of care." 

In support of his "high negligence" and unwarrantable 

failure finding, Inspector Bowman explained that after completing his prior inspection on August 21, 1987, he advised mine 

foreman Don Hughes, who he knew very well, that he would be 

returning to the mine the following Tuesday, August 25, to 

conduct his noise surveys. Since the for~nan knew he would be 

coming back, and since he advised Mr. Bowman that he had been 

in the area th~ preceding day, Mr. BoMnan questioned "why he 

allowed this to go on" {Tr. 28). Since the foreman was responsible for the operation of the mine, and given the "overall 

conditions" that he found upon his return to the mine, 

Mr. Bowman concluded that the foreman should be held accountable for his failure to address all of these conditions which 

Mr. Bowman believed were readily observable. Although 

Mr. Bowman alluded to the fact that he had a general conversation with the mine foreman concerning the installation of the 

fan within 2 or 3 weeks of his inspection, Mr. Bowman confirmed that he was not aware of the fact that a new entry was 

required for the fan installation, and that this "was never 

brought up" {Tr. 29, 32). 

It seems obvious to me from the facts of this case that 

Inspector Bowman's "high negligence" finding was not limited 

to the conditions which prompted him to cite a violation of 

section 75.319. His justification for issuing the unwarrantable failure order included the additional conditions which he 

found and cited during the course of his inspection, and 

Mr. Bowman tacitly admitted this was the case when he stated 

that "whenever you have several problems that one piece of 

paper can correct, I try to stay that way as much as I can" 

(Tr. 114). 

Mine foreman Hughes was not called. to testify in this 

matter. Superintendent Lilly stated that 3 or 4-weeks prior 

to the inspection he made the decision to install the fan 

after consulting his engineering department. He confirmed 

that he reviewed the ventilation plan prior to the installation of the fan, and that the proposed ventilation changes 

were submitted to MSHA through the engineering department. 

However, he had not visited the cited area for at least 

3-months prior to the inspection, and only discussed the 

matter with Mr. Bowman after the violation was issued in order 

to abate it {Tr. 76-77, 86, 94). Mr. Lilly further explained 

that the fan was installed to improve the ventilation and to 

223 
increase the amount of air used to ventilate the mine, and he 

confirmed that the installation was finally completed approximately 3 weeks after the violation was issued {Tr. 131). 

During the course of oral argument, r~spondent's counsel 

suggested that given the fact that the regulatory definition 

of a "mechanized mining unit" is not plain and unambiguous, 

the respondent could not have known whether the cited location 

was in fact a mechanized mining section which was required to 

be ventilated by intake air pursuant to section 75.319. I 

agree that the interpretation and application of this section 

requires one to refer to the definition of "mechanized mining 

unit" as stated in section 75.319-1, the definition "working 

place" found in section 75.2{g){2), and to make a determination as to the location of the "last open crosscut," and the 

existence of "contiguous working places." Given the complexity of these regulatory and factual determinations, I find 

some merit in the respondent's argument, but find nothing in 

Mr. Lilly's testimony to support a conclusion that he was confused or oblivious to the fact that the cited area was required 

to be ventilated by intake air rather than return air. 

The petitioner takes the position that the additional 

violations issued by Inspector Bowman during the course of his 

inspection shortly before the issuance of the contested 

unwarrantable failure order in question reflects a complete 

disregard for any safety concerns on the part of the respondent, and clearly supports an unwarrantable failure finding in 

this case {Tr. 14, 120-121, 129-130). I disagree. Unlike an 

imminent danger order issued pursuant to section 107{a), which 

may be based on a combination of violative conditions or 

practices, an unwarrantable failure violation and order issued 

pursuant to section 104{d){l) of the Act, is limited to a 

specific violation of a particular mandatory safety or health 

standard. Accordingly, I conclude and find that the degree of 

negligence associated with the additional violations which are 

not in issue in this case must be determined on the particular 

facts associated with those violations and may not be used to 

support an alleged unwarrantable failure by the respondent to 

comply with the requirements of the cited standard section 

75.319. 

Although one of the aforementioned prior violations 

included a negligence finding of "reckless disregard," and was 

included as part of the petitioner's pleadings in this case, 

the respondent subsequently decided not to contest it further 

{Tr. 3; respondent's answer). No information has been forthcoming with respect to the status of the other violations, and 

224 
I take note of the fact that with respect to two of these violations, Inspector Bowman made findings of "moderate negligence," and found "high negligence" with respect to another 

one (Exhibit P-2). 

The respondent's history of prior violations, as reflected 

by an MSHA computer print-out submitted by the petitioner 

reflects that for a 2-year period prior to the inspection by 

Mr. Bowman on August 25, 1987, shows that the respondent paid 

civil penalty assessments for a total of 77 violations of the 

mandatory ventilation standards found in Part 75, Subpart D, 

Title 30, Code of Federal Regulations. Except for two section 

104Cd>Cl> unwarrantable failure citations, one of which was 

issued on October 17, 1985, for a violation of section 75.316, 

and one of which was issued on March 10, 1987, for a violation 

of section 75.319, the same standard cited in this case, the 

remaining citations were all section 104(a) citations, and 29 

of them were "single penalty" non- 11 S&S 11 citations. 

After careful review of all of the evidence and testimony 

adduced in this case, I find no credible or probative evidentiary support for any conclusion that the respondent's conduct in failing to adhere to the requirements of section 

75.319, was aggravated, inexcusable, or egregious, or resulted 

from the absence of the slightest degree of care. Accordingly, 

the inspector's unwarrantable failure finding IS VACATED. 

Modification of the Contested Order 

In view of my unwarrantable failure finding, the contested 

section 104Cd)(l) Order is modified to a section 104Ca> citation. See: Old Ben Coal Company, 2 FMSHRC 1187 (June 1980); 

Consolidation Coal Company, 3 FMSHRC 2207 (September 1981); 

Youngstown Mines Corporation, 3 FMSHRC 1793 (July 1981). 

Significant and Substantial Violation 

A "significant and substantial" violation is described in 

section 104Cd>Cl> of the Mine Act as a ~iolation "of such 

nature as could significantly and substantially contribute to 

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

hazard." 30 C.FaR. § 814Cd)(l). A violation is properly 

designated significant and substantial "if, based upon the 

particular facts surrounding the violation there exists a 

reasonable likelihood that the hazard contributed to will 

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

Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 

1981). 

225 
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "significant and substantial" as follows: 

In order to establish that a violation of 

a mandatory safety standard is signit"icant and 

substantial under National Gypsum the Secretary 

of Labor must prove: Cl) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of 

danger to safety-contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 

1125, 1129, the Commission stated further as follows: 

We have explained further that the third 

element of the Mathies formula "requires that 

the Secretary establish a reasonable likelihood 

that the hazard contributed to will result in 

an event in which there is an injury." U.S. 

Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized that, in accordance 

with the language of section 104Cd)(l), it is 

the contribution of a violation to the cause 

and effect of a hazard that must be significant 

and substantial. U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. 

Steel Mining Company, Inc., 6 FMSHRC 1573, 

1574-75 (July 1984). 

The question of whether any particular violation is significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

(April 1988); Youghiogheny & Ohio Coal Company, 9 ·FMSHRC 2007 

(December 1987). 

Inspector Bowman testified that the mine has a history of 

liberating methane, and since the entry in question had min~d 

and advanced for some 69 feet without the use of ventilation 

line curtains, he was concerned that a buildup of methane and 

mine contaminants or "black damp," which could be present at 

any time in the return air being coursed to the area where 

mining was taking place, could have exposed the miners working 

226 
in the area to an ignition hazard, particularly in the event 

of arcing or a blown electrical equipment cable (Tr. 21-22). 

Superintendent Lilly did not dispute the fact that coal 

was being mined as the drift entry was beipg advanced, and he 

confirmed the fact that the mining sequence included the use 

of a continuous-mining machine, shuttle car, and roof bolter, 

all of which I consider to be potential ignition sources. 

Although the entry had been driven for approximately 69 feet 

at the time of the inspection, Mr. Lilly conceded that the 

respondent had intended to drive it for a distance of 

100 feet, and he did not rebut the inspector's credible testimony with respect to the absence of, or inadequately placed, 

ventilation line curtains in the area where coal was being 

mined. 

Although there is no credible evidence to establish the 

actual presence of explosive mixtures of methane, or the presence of "black damp" in the return air course being used to 

ventilate the working area in question, since all mines freely 

liberate methane, particularly when coal is being cut at the 

face, inadequate ventilation and the use of return air, which 

normally is used to course methane and other contaminants out 

of the mine, to ventilate such areas poses a discrete explosion hazard, as well as a hazard of the miners who could be 

exposed to other mine gases and contaminants commonly known as 

"black damp." Since the clear intent of section 75.319, is to 

insure that such areas are ventilated by "clean" intake air, 

the use of return air for this purpose is contrary to the 

requirements of the standard. 

On the facts of this case, given the fact that three to 

five miners would normally be present in the area while the 

entry in question was being mined and advanced by electrically 

powered machinery which posed a potential ignition source, and 

given the added fact that the right mixture of explosive 

methane and air could be present at any time, particularly in 

an area which has not been preshif ted to insure the absence of 

excessive levels of methane or other mine contaminants, or 

which had not been adequately ventilated by line curtains, I 

believe it is reasonable t·o conclude that a potential .::i.ccident 

or explosion hazard was present at the time of the inspection 

when the violation was issued. In the event of any such occurrenc-es, I further conclude that it vwuld be reasonably likely 

that the miners working in the area would likely suffer fatal 

injuries or injuries of a reasonably serious nature. Under 

all of these circumstances, I agree with the inspector's "significant and substantial" finding, and IT IS AFFIRMED. 

227 
Size of Business and Effect of Civil Penalty on the 

Respondent's Ability to Continue in Business 

Exhibit P-1, an MSHA "Controller Information Report," 

reflects that the respondent's No. 2 Mine produced 244,116 

tons of coal in 1986, and 386,954 tons in 1987, and respondent's counsel characterized the respondent's mining operation 

as "medium." I conclude and find that the respondent's mining 

operation is medium in scope, and I adopt the stipulation by 

the parties that the civil penalty assessment for the violation in question will not adversely affect the respondent's 

ability to continue in business as my finding on this issue. 

History of Prior Violations 

An MSHA computer print-out submitted by the petitioner 

reflects that for the period August 25, 1985 through August 24, 

1987, the respondent paid civil penalty assessments in the 

amount of $24,930, for 372 violations, 219 of which are 

characterized as "significant and substantial" violations. 

Seventy-seven (77) of these prior paid violations were for 

violations of the ventilation requirements found in 30 C.F.R. 

Part 75, Subpart D, but only one was for a prior violation of 

section 75.319. For a mine operation of its size, I conclude 

that the respondent's overall prior compliance history is not 

particularly good, and I have considered this in the civil 

penalty assessment which I have made for the violation in 

question. 

Negligence 

I conclude and find that the violation which has been 

affirmed resulted from the respondent's failure to exercise 

reasonable care, and that this constitutes ordinary or 

moderate negligence. 

Gravity 

For the reasons stated in my "significant and substantial" 

findings and conclusions, I conclude that the violation was 

aerious. 

Good Faith Abatement 

The evidence establishes that abatement was achieved by 

the installation of stoppings to provide a separate split of 

intake air to the miners working in the cited area (Tr. 26, 

71-73), and I conclude an1 find that the respondent timely 

abated the cited condition in good faith. 

228 
Civil Penalty Assessment 

On the basis of the foregoing findings and conclusions, 

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

the Act, I conclude and find that a civil penalty assessment 

in the amount of $450 is reasonable and appropriate for the 

violation which I have affirmed. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment in the amount of $450 for a violation of 30 C.F.R. 

§ 75.319, as stated in the modified section 104(a) "S&S" Citation No. 2716156. If it has not already done so, respondent 

is FURTHER ORDERED to pay a civil penalty assessment in the 

amount of $700 for the uncontested August 25, 1987, section 

104(d)(l) Order No. 2716152, 30 C.F.R. § 75.303. Upon receipt 

of payment by MSHA, this proceeding is dismissed. 

~K~~ Administrative Law Judge 

Distribution: 

Ronald E. Gurka, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail) 

William D. Stover, Esq., M.A.E. Services, Inc., 41 Sagles 

Road, Beckley, WV 25801 (Certified Mail) 

/f b 

229 

- .~-,.,...._- ... ,_ .. _ .. ,. •., . 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 9 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRA'rION ( MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

. . 

. . 

DECISION 

Docket No. KENT 88-161 

A.C. No. 15-02705-03645 

Camp No. 2 Mine 

Appearances: William F. Taylor, Esq., Office of the 

Solicitor, U.S. Department of Labor for the 

Petitioner; 

Eugene P. Schmittgens, Jr., Esq., Peabody 

Holding Company, Inc., St. Louis, Missouri for 

Respondent. 

Before: Judge Melick 

This case is before me upon cross motions for summary 

decision filed pursuant to Commission Rule 64, 

29 C.F.R. § 2700.64. The underlying 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," charges Peabody Coal 

Company (Peabody) with one violation of the regulatory 

standard at 30 C.F.R. §_48.10. The general issues before me 

are whether Peabody violated the cited regulatory standard 

and, if so, the appropriate civil penalty to be assessed in 

accordance with section llOCi) of the Act. 

The citation before me, No. 2836947, issued pursuant to 

section 104Ca) of the Act, charges that "in checking the 

training records for the annual retraining for 1988 held on 

March 14-15, the records indicate that personal [sic] at the 

mine were not being trained on their normal working shift as 

defined in 48.2(d)." 

Section 115 of the Act provides that miners are to 

receive their statutorily mandated health and safety training 

during normal working hours. The regulation at 30 C.F.R. § 

48.lOCa) also states that such training "shall be conducted 

230 
during normal working ho.urs". "Normal working hours" is 

defined in the regulations at 30 C.F.R. § 48.2(d) as follows: 

"normal working hours 11 ':'means a period of time 

during which a miner is otherwise scheduled to work. 

This definition does not preclude scheduling 

training classes on the sixth or seventh working 

day if such a work schedule has been established 

for a sufficient period of time to be accepted as 

the operator's common practice. 

The essential facts are not in dispute. The Camp No. 2 

Mine is an underground facility located in Union County, 

Kentucky. It operates five days a week with three shifts 

on the following schedule: 

1st shift (day shift) - 8:00 a.m. to 4:00 p.m. 

2nd shift (night shift) 4:00 p.m. to 12:00 a.m. 

3rd shift (midnight shift) 12:00 a.m. to 8:00 a.m. 

On March 15 and 17, 1988, the Federal Mine Safety and 

Health Administration (MSHA) District Office in Madisonville, 

Kentucky was notified that Peabody was violating the training 

provisions at 30 C.F.R. § 48.lO(a) in that miners were being 

forced to attend annual refresher training courses during 

hours the miners were not normally scheduled to work. MSHA 

Inspector Ronald Oglesby, thereafter on March 17, 1988, 

visited the Camp No. 2 mine and found that several miners who 

ordinarily worked the second shift, (4:00 p.m. until 12:00 

midnight) were required to attend annual refresher training 

on March 14 and 15, 1988, during the first shift hours from 

8:00 a.m. until 4:00 p.m. 

Upon his arrival at th~ mine Oglesby met with Peabody 

officials Jim Cartwright (Safety Manager) and Matt Haaga 

(Camp No. 2 Mine Foreman), and with Luis Seaton of the United 

Mine Workers of America. Haaga told Oglesby that Peabody did 

not honor the employees' normal shift assignments foe 

purposes of training and acknowledged that two miners, Larry 

Menser and Anthony Edwards, both assigned to work the second 

shift from 4:00 p.m. until 12:00 midnight, were directed by 

him to attend the annual refresher training course on the day 

shift scheduled from 8:00 a.m. until 4:00 p.m. on Monday, 

March 14, 1988. 

The two miners told Haaga that they were second shift 

employees and consequently shoulJ receive their training 

during their scheduled work hours from 4:00 p.m. until 12:00 

midnight. The two miners maintained that they should not be 

forced to attend training during the day shift hours because 

231 
those were not the hours they were otherwise scheduled to 

work. Haaga responded at this point by giving a "direct 

order" to Menser and Edwards to attend the training as 

directed or· "face discipline up to and including discharge." 

The undisputed evidence shows that Meriser reported to 

the Peabody Training Center as directed and attended training 

during the scheduled day shift hours on March 14, 1988. 

After attending this training session he requested to work 

the second shift on March 15, 1988. Peabody granted this 

request and Menser was paid at the overtime rate for that 

work. The evidence further shows that Edwards called in sick 

on March 14, 19B8, and did not attend the training session as 

ordered. Edwards subsequently attended the training course 

on March 15, 1988, during the day shift hours from 8:00 a.m. 

until 4:00 p.m. but did not work the second shift on 

March 15, 1988. 

The Secretary maintains that these miners who were 

ordinarily assigned to work the second shift were unlawfully 

required to attend training on the first shift on March 14 

and 15, 1988--times other than their "normal working hours". 

Peabody maintains on the other hand that the evidence in this 

case demonstrates that cross-shifting between shifts was such 

a regular practice at the Camp No. 2 Mine as to have 

established it as a "common practice". Under this rationale 

the subject training could therefore be given to the noted 

miners on the day shift on March 14 and 15, 1988, as their 

"normal working hours." 

Under certain circumstances the mine operator has the 

right to cross-shift miners for the purpose of providing the 

required training if cross-shifting is a common practice at 

the mine. See Consolidation Coal Co. v. Secretary of Labor, 

4 FMSHRC 578 (1982) CALJ); Secretary of Labor v. Peabody Coal 

Co., 7 FMSHRC 1039 (1985) CALJ). In order for Peabody to 

prevail in this case then, it must establish that such a 

"common practice" existed at the Camp No. 2 Mine in March 

1988. "Common practice" is defined in the latter decision 

as "that which is generally done, the prevailing practice." 

In this case it is not disputed that there were 

approximately 291 miners employed at the Camp No. 2 Mine 

during the period January through March 1988, and of the 

approximately 180 shifts worked during that period there ware 

more than 100 shift changes. In all but two cases during 

this period however the shift changes occurred at the request 

of the individual miners and not at the direction of Peabody. 

Thus if there was any "common practice" of cross-shifting it 

was limited to cross-shifting initiated by the miners. The 

232 
existence of only two involuntary "cross-shifts" during the 

period January through March 1988 over approximately 180 

shifts does not support a finding that there was a "common 

practice" of involuntary cross-shifting at the mine. Under 

the circumstances requiring the miners at issue to attend 

annual refresher training on March 14, and·1s, 1988, during 

the first shift was not during the "normal working hours" of 

those miners and accordingly was in violation of the cited 

regulation. 

I find however that the operator is chargeable with but 

little negligence. The precise legal issue appears to be one 

of first impression and it cannot be said that Peabody's 

position was entirely frivolous. In assessing a penalty 

herein I have considered all of the criteria under section 

llOCi) of the Act. Under the circumstances I find that a 

civil penalty of $50 is appropriate. 

Peabody Coal Company is 

of $50 within 30 days of the 

Distribution: 

ORDER 

directed to pa~ a civil penalty 

date of this decision. ~ I . ' 

L/~ .-·•t ·;, I t !lf ~,~ ·,;~- tvf' ~ ~ 

/;ary ~Melick . \ I • I \. Adm1n1strat1ve\ Law Judge 

( 703 ~~· 756-6261\ 

"" 

w. F. Taylor, Esq., OffL::e of the Solicitor, U.S. Department 

of Labor, 2002 Richard J:,es Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Eugene P. Schmittgens, Jr., Peabody Coal Company, 301 N. 

MemQ~ial Drive, P.O. Box 373, St. Louis, MO 63166 (Certified 

"Mail> 

nt 

233 

. ' ,~ 

' ! ~(' 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 · 

FEB 9 1989 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH . . ADMINISTRATION (MSHA), . . Docket No. KENT 88-153 

Petitioner . 

. A.C. No • 15-14872-03512 

v. . . 

. . No • 1 Surf ace 

TWIN OAK CONSTRUCTION . . COMPANY, 

Appearances: 

Before: 

. . Respondent . . 

. DECISION 

Anne T. Knauff, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for Petitioner. 

Judge Fauver 

The Secretary of Labor brought this proceeding for civi·l 

penalties for alleged violations of safety standards under the 

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

et seg. 

The case was called for hearing in Huntington, 

West Virginia, on January 18, 1989. Government counsel 

appeared with her witnesses and documentary evidence. 

Respondent did not attend the hearing. 

The Government's inspector was sworn and testified, and 

the documentary evidence was received. 

Because of Respondent's default, it is held that the 

Secretary is entitled to a default decision. Therefore, the 

allegations in the six citations involved are deemed to be 

true and are incorporated in this Decision as findings oi fact. 

Also, the allegations of violations of the cited safety 

standards are deemed to be true and are incorporated in this 

Decision as conclusions of law. 

Respondent has demonstrated a persistent and deliberate 

failure to pay prior civil penalties for violations of mine 

234 
safety standards that are long overdue and not in present 

litigation. In the 24-month period preceding the citations 

involved in this case, Respondent was assessed $2,813 for 24 

violations and of that amount, Respondent has not paid any of 

the civil penalties. The recalcitrance shqwn by this record 

of nonpayment is part of Respondent's compliance history, 

cognizable under section llOCi> of the Act. In light of this 

poor compliance record, I agree with the Secretary's proposal 

that the civil penalties in this case should be higher than 

the original amounts proposed. 

Based upon the above, and the other criteria for civil 

penalties in section llO(i) of the Act, I assess civil 

penalties for the following violations in the amounts shown: 

Citation No. 

2979395 

2979396 

2979397 

2979398 

2979399 

2979400 

Civil Penalty 

ORDER 

$ 250 

$ 250 

$ 250 

$ 250 

$ 300 

$ 300 

$1,600 

WHEREFORE IT IS ORDERED that Respondent shall pay the 

above civil penalties of $1,600 within 30 days of this 

Decision. 

-d~~VVt.- Administrative Law Judge 

Distribution: 

Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 CCertif ied Mail) 

Mr. Hobert Newman, President, Twin Oak Construction Company, 

Box .8, Bevinsville, KY 41606 (Certified Mail) 

/f b 

235 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041. 

FEB 13 1989 

SECRETARY OF LABOR, : CIVIL PENATY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EL PASO SAND PRODUCTS, INC., 

Respondent 

. . 

: Docket No. CENT 88-53-M 

A.C. No. 41-00046-05520 

. . 

. . 

El Paso Quarry & P~ant 

DECISION APPROVING SETTLEMENT 

AND 

ORDER TO PAY 

Before: Judge Koutras 

The parties have filed a motion to approve a settlement 

of this case. The originally assessed civil penalty 

assessment for the violation in question was $345, and the 

parties proposed to settle the matter for a civil penalty 

payment of $258.75. In support of their settlement proposal, 

the parties have submitted a~guments and information for my 

consideration, and after due consideration of same, I conclude 

and find that the proposed settlement is reasonable and in the 

public interest. The motion IS GRANTED and the settlement IS 

APPROVED. 

ORDER 

The respondent IS ORDERED to pay $258.75 to MSHA within 

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

upon receipt of payment by MSHA, this matter is dismissed • 

.. /!/ ~::t // _,I-·· __ / . ...- .'41./1-J/ /-"l -- I {--t..._,, ~ _..-~ ~drgefi-. Koutras 

Administrative Law Judge 

236 
Distribution: 

E. Jeffery Story, Esq., Office of the Solicitor, U.S. 

Department of Labor, 525 Griffin Street, Suite 501, Dallas, TX 

75202 (Certified Mail) 

Mr. Todd M. Turley, Safety Director, El Paso Sand Products, 

Inc., #1, McKelligon Canyon, P.O. Box 9008; El Paso, TX 79982 

(Certified Mail) 

/f b 

237 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 FEB 16 1989 

ROBERT BOELKE, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

Docket No. WEST 86-192-D 

DENV-CD 86-8 

THUNDER BASIN COAL COMPANY, 

Respondent 

. . Black Thunder Mine 

DECISION 

Appearances: Mr. Robert W. Buelke, Gillette, Wyoming, 

pro ~-1 

Before: 

Charles w. Newcom, Esq., Sherman and Howard, 

Denver, Colorado, 

for Respondent. 

Judge Cetti 

This case is before me upon the complaint by Robert Buelke 

under section 105(c)(3) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 801 et seq., the "Act", alleging that his 

layoff on January 31, 1986, by Thunder Basin Coal Company, 

(Thunder Basin), was in violation of section 105Cc)(l) of the 

Act. ~/ 

1/ Section 105Cc)(l) of the Act provides as follows: 

No person shall discharge or in any manner discriminate against 

or cause to be discharged or cause discrimination against or 

otherwise interfere with the exercise of the statutory rights of 

any miner, representative of miners or applicant for employment 

in any coal or other mine subject to this Act because such miner, 

representative of miners or applicant for employment, has filed 

or made a complaint under or related to this Act, including a 

complaint notifying the operator or the operator's agent, or the 

representative of the miners at the coal or other mine of an 

alleged danger or safety or health violation in a coal or other 

mine or because such miner, representative of miners or applicant 

for employment is the subject of medical evaluations and · 

potential transfer under a standard published pursuant to section 

101 or because such representative of miners or applicant for 

employment has instituted or caused to be instituted any proceedings under or related to this Act or has testified or is 

about to testify in any such proceeding, or because of the 

exercise by such miner, representative of miners or applicant for 

employment on behalf of himself or others of any statutory right 

afforded by this Act. 

238 
On January 31, 1986, Thunder Basin Coal Company conducted a 

layoff at its Black Thunder Basin mine near Wright, Wyoming. In 

that layoff, the workforce was reduced by approximately 140 

employees. Approximately 100 of those employees were hourly 

employees, and approximately 40 of those employees were 

management employees. Eight of the miners laid off were 

electricians who fell within the reduction in workforce criteria 

established and used by the company in conducting a layoff at its 

mine. One of the eight electricians laid off was Mr. Buelke, 

complainant in this action. 

Complainant contends that he fell within the reduction in 

workforce criteria established by the Company because he engaged 

in activities protected under the Act. Thunder Basin denies that 

it in any way discriminated against Mr. Buelke in violation of 

Section 105(c) of the Act. Thunder Basin states that Mr. Buelke 

was one of approximately 140 employees, including 40 management 

employeees, laid off on January 31, 1986 because of lack of work 

and that the lay off occurred under reduction in force criteria, 

which was established in 1983. 

Thunder Basin also contends that Mr. Buelke's claim is not 

timely and should be dismissed for failure to comply with the 

applicable statute of limitations. 

ISSUES 

1. Is complainant's complaint barred by time limitations? 

2. Was complainant selected for layoff or otherwise 

discriminated against because of activity protected under the 

Act? 

TIME LIMITATIONS 

The threshold issues which must be addressed is whether Mr. 

Buelke's claim is timely. Mr. Buelke layoff occurred on January 

31, 1986. On March 31, 1986 Mr. Buelke filed a discrimination 

complaint with the Mine Safety and Health Administration (MSHA). 

MSHA investigated Mr. BuelKe's complaint and based upon that 

investigation determined that a violation of section 105(c) of 

the A~t had not occurred. MSHA so advised Mr. Buelke by letter 

dated May 13, 1986. The May 13, 1986 letter also advised Mr. 

Buelke that if he disagreed with MSHA's determination, he had 30 

days after the receipt of that "notice" to file his own action 

with the Commission. 

Mr. Buelke's pro~ complaint was received and stamp-dated 

in the Commission office on June 24, 1986. This was his initial 

contact with the Commission. He dated the letter (complaint) 

June 16, 1986. Exhibits R-21, R-22, and R-23. The envelope which 

enclosed Mr. Buelke's letter was postmarked June 19, 1986. It is 

noted tha.t June 16, 1986 was a Monday and June 19, 1986, the date 

239 
the letter was postmarked was a Thursday. Mr. Buelke's appeal to 

the Commission was not filed within 30 days of the date of MSHA's 

May 13, 1986 notice. MSHA's May 13, 1986 letter was signed for 

on May 16, 1986 by a friend of Mr. Buelke who he was having pick 

up his mail for him. Mr. Buelke also testified regarding various 

personal problems and circumstances which occurred in May and 

June of 1986 to explain the delay in filing his action with the 

Commission such as stress due to the illness of a friend and the 

death of his aunt. 

Mr. Buelke states that he has had approximately 225 hours of 

college credit; that he understood he needed to file with the 

Commission within 30 days of the May 13, 1986 notice from MSHA if 

he should disagree with MSHA's determination. 

Section 105(c)(2) of the Act provides that a miner who 

believes that he has been discriminated against may, within 60 

days after such violation occurs, file a complaint with the 

Secretary. The Act further provides that upon receipt of a 

complaint by a miner, the Secretary shall commence an investigation within 15 days, and if he determines that discrimination 

has occurred, he shall immediately file a complaint with the 

Commission. It directs the Secretary to notify the miner in 

writing within 90 days of the receipt of a complaint of his 

determination whether a violation has occurred. The Act further 

provides that if the Secretary, upon investigation, determines 

that the provisions of 105(c) have not been violated, the 

"complainant shall have the right, within 30 days of notice of 

the Secretary's determination, to file an action in his own 

behalf before the Commission, charging discrimination ••• ". 

On review of the legislative history of the Federal Mine 

Safety and Health Act of 1977 and Commission cases involving 

section 105(c), I am satisfied that the time limitations of 

section 105(c) were not intended to be jurisdictional. See S. 

Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), reprinted in 

Senate Subcommittee on Labor, Committee on Human Resources, 95th 

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

and Health Act of 1977 at 624 (1978). 

The Commission has indicated that dismissal of a complaint 

for late filing is justified only if the respondent shows 

material, legal prejudice attributable to the delay. Cf. 

Secretary/Hale v. 4-A Coal Company, Inc., 8 FMSHRC 905 (1986). 

No such showing has been made here. Although respondent alleges 

prejudice and some of the potential witnesses are no longer -_ 

employed by Thunder Basin, I find that respondent has not shown 

material legal prejudice attributable to the delay. Respondent's 

contention that Mr. Buelke's claim must be dismissed for failure 

to comply with the statute of limitations contained in section 

105(c) of the Act is rejected. 

240 
ADVERSE ACTION - THE LAYOFF 

Due to lack of work Thunder Basin on January 31, 1986 laid 

off approximately 140 employees including 40 management employees. 

Mr. Buelke was one of the 8 electricians in the electric department that fell within the reduction in work force criteria used 

by Thunder Basin in conducting a layoff at its mine. This reduction in work force criteria consisted primarily of the same 

criteria previously established and used by Thunder Basin in an 

earlier, 1983, reduction in work force. The basic relevant 

criteria under which Mr. Buelke was laid off is set forth in 

Exhibit 1 as follows: 

THUNDER BASIN COAL COMPANY 

REDUCTION IN WORKFORCE, 1986 

1. ANY THUNDER BASIN COAL COMPANY EMPLOYEE THAT FALLS UNDER 

THE FOLLOWING 1983 CRITERIA WILL BE SEPARATED REGARDLESS 

OF SENIORITY STATUS: 

5 PERFORMANCE RATING, 

3RD STEP CORRECTIVE ACTION, 

4 PERFORMANCE RATING, 

3- PERFORMANCE RATING AND TWO CORRECTIVE ACTIONS, 

TWO CORRECTIVE ACTIONS. 

There was no evidence that the criteria used in the 

reduction in force layoff on January 31, 1986, was improper or 

unfair criteria for Thunder Basin to use in conducting the layoff 

and Mr. Buelke clearly fell within· the reduction in work force 

criteria. At the time of January 31, 1986 layoff Mr. Buelke had 

two third step corrective actions in his personnel file. Exhibit 

R-7 and R-12. The most recent performance review in his file was 

a 3- rating. (Exhibt R-17). In addition Mr. Buelke had a total 

of four corrective actions in his file (Ex. R-2, R-3, R-7, and 

R-12). Thus, Mr. Buelke fell within three of the five 

performance criteria which were the first factors looked to in 

selecting employeess for the 1986 layoff (Exhibit R-1). Under 

the established criteria Mr. Buelke would have been selected for 

layoff if he fell within only one of the five performance 

criteria. 

With regard to the four corrective actions Mr. Buelke was 

initially disciplined for using code 33 to record three 

different absences during 1984. Thunder Basin contends that this 

was contrary to company policy set forth in Exhibit R-36. It is 

241 
clear from the record that Mr. Buelke used the code 33 designation on his absences even though he had been specifically instructed by his supervisor "O. W. Wendell" Johnson that he should 

not do that. 

Next Mr. Buelke received a step II corrective action for 

leaving his work area without permission. (Exhibit R-3). He then 

received two step III corrective actions, one for failure to 

remove company property from his locker, (Exhibit R-7} and a 

second for unsafe conduct when he was involved in a serious 

accident. (Exhibit R-12}. 

Mr. Buelke also had a 3- evaluation in his file at the time 

of the layoff. (Exhibit R-17) Mr. Stanforth testified that in 

making his evaluation of Mr. Buelke, he was concerned with Mr. 

Buelke's short attention span and concentration, inattention to 

safety, and lack of urgency in repairing equipment. 

Evidence was also presented that Mr. Buelke had received a 3 

evaluation in December of 1985 while Mr. Buelke was working for 

Mr. Munn at the Coal Creek Mine of Thunder Basin, a mine 

approximately 25 miles from Black Thunder Mine where Mr. Buelke 

usually worked. This evaluation never reached Mr. Buelke's 

personnel file which was left at the Black Thunder Mine. Nothing 

in the record suggest that the loss of this evaluation was in any 

way tied to any protected activity by Mr. Buelke. However, even 

if the evaluation had been in Mr. Buelke's file, he still would 

have been laid off under the reduction in work force criteria 

because of the corrective actions he had received. Mr. Buelke 

had a total of four corrective actions and needed only two 

corrective actions to be laid off. He also had two 3rd-step 

corrective actions and needed only one 3rd-step corrective 

actions to be laid off under the established reduction in work 

force criteria. 

DISCRIMINATION 

It is well settled that 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 protected activity and (2) 

the adverse action complained of was motivated in any part by 

that protected activity. Secretary on behalf of Fasula v. 

Consoldiation 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 

242 
may defend 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. Fasula, 

supra; Robinette, supra. See also Eastern Assoc. Coal Corp. v. 

FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford 

Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. 

FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically 

approving the Commission's Fasula-Robinette test). Cf. NLRB v. 

Transportation Management Corp., 462 U.S. 393, 397-413 

(1983)(approving nearly identical test under National Labor 

Relations Act. 

PROTECTIVE ACTIVITY 

Mr. Buelke fully established that he engaged in protective 

activity. At the safety meetings he and his fellow electricians 

would voice safety concerns. He often took the lead in voicing 

those concerns. One of the major items with which he became 

concerned early in 1983 was a high voltage underground feeder 

wire buried directly into the earth (no conduit, no concrete). 

He testified that he was concerned about the risk of a fatality 

from this underground buried cable. Mr. Buelke states that 

Thunder Basin "seem to be dragging their feet for over two years" 

and that "after about two years of trying to get the company to 

correct the condition, I and two other electricians hired a 

private attorney to confront the company". A meeting was held in 

June 1984 but there was no immediate correction. He states that 

early in 1984 he had a job that involved this underground service 

feeder. He refused to work on these lines. He disconnected 

them, grounded them and tagged them out with a "do not operate 

tag". Mr. Buelke testified that thereafter Bob Bassett, 

electrical supervisor, ordered two other electricians to remove 

the tag and put this underground feeder back into service. Early 

in January 1985 Mr. Buelke complained to MSHA about the 

underground cable. He met with MSHA in conjunction with his 

complaint. This led to the January 31, 1985 MSHA inspection and 

investigation. As the result of the investigation and inspection 

MSHA did not issue any citation because the company was in 

process of replacing these underground feeder cables. (Exhibit 

R-10). 

MOTIVATION 

I~ is Mr. Buelke's contention that his poor performance 

evaluations and corrective actions were based upon misinterpreted, misunderstood, or nonexistent company policies which were 

applied against him without using proper facts or investigation. 

It is recognized that direct evidence of motivation is 

rarely encountered and that reasonable inferences of motivation 

may be drawn from circumstantial evidence showing such factors as 

243 
knowledge of protective activity, coincidence in time between the 

protective activity and the adverse action, and disparate treatment. See Secretary on Behalf of Chacon v. Phillips Dodge Corp., 

3 FMSHRC 2508 (November 1981), rev'd on other grounds, 709 F.2d 

86 (D.C. Cir. 1983). Nevertheless it has been held that an 

employee's "mere conjecture that the employer's explanation is a 

pretext for intentional discrimination is an insufficient basis 

for denial of summary judgment." Branson v. Price River Coal 

Co., 853 F.2d 768, 46 FEP Cases (BNA) 1003 (10th Cir. 1988). 

There must be evidence of discriminatory intent or evidence from 

which a reasonable inference of discriminatory intent can be 

drawn. 

The essential question is not whether Thunder Basin has 

treated Mr. Buelke in a reasonable, fair, and nondiscriminatory 

manner, but whether any adverse action was taken against him in 

any part because of his protected activity. I find no persuasive 

evidence, direct or circumstantial, from which to draw a reasonable inference of discriminatory intent because of Mr. Buelke's 

protective activity. I find no bases on this record for 

inferring that any adverse actions taken against Mr. Buelke were 

taken in some part because of his protective activity. No 

evidence was presented indicating that Thunder Basin's actions in 

disciplining him and in selecting him for a layoff were in any 

part related to any of his protected activity. Thus, Mr. Buelke 

has failed to present a prima facie case of discrimination. 

Accordingly, I find that while Mr. Buelke did engage in 

protected activity and suffered adverse action, the preponderance 

of the evidence presented fails to establish that the adverse 

action was motivated in any part by the protected activity. The 

case is there:e dismissed • ...;J( ~ 

Distribution: 

Aug t F. Cetti 

'nistrative Law Judge 

Mr. Robert w. Buelke, Box 4091, Gillette, Wyoming, 82716 

(certified Mail> 

Charles w. Newcom, Esq., Thomas F. Linn, Esq., 2900 First 

Interstate Tower North, 633 17th Street, Denver, CO 80202 

(Certified Mail) 

/bls 

244 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 16 1989 

RIVCO DREDGING CORPORATION, 

Contestant 

CONTEST PROCEEDINGS 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, CMSHA), 

Respondent 

. . 

DECISION 

Docket No. KENT 88-25-R 

Order No. 2985273; 9/29/87 

Docket No. KENT 88-26-R 

Order No. 2985274; 9/29/87 

River Dredge Mine 

Mine I.D. #15-12672 

Appearances: Gene A. Wilson, President, Rivco Dredging Corp., 

Louisa, Kentucky, for the Contestant 

G. Elaine Smith, Esq., Department of Labor, 

Office of the Solicitor, Nashville, Tennessee, 

for the Respondent. 

Before: Judge Maurer 

Rivco Dredging Corporation (Rivco) has contested two 

section 104·(b) orders issued by the Secretary of Labor 

(Secretary> on September 29, 1987. A hearing on this matter was 

held in Huntington, West Virginia on October 21, 1988. 

This rather unusual case began when the original two 

section 104(a) citations, Citation Nos. 2985271 and 2985272 were 

issued on September 17, 1987 by the Secretary and 6 days were 

allowed for abatement of the violative conditions. Due to the 

fact that the contestant failed to abate these violations in a 

timely manner, i.e., within the 6 days allowed, the two section 

104(b) orders at bar, Order Nos. 2985273 and 2985274 were then 

issued. 

The underlying section 104(a) citations were not contested 

within 30 days of their issuance and therefore the Commission was 

without subject-matter jurisdiction to adjudicate Rivco's 

objections to these citations. Freeman coal Mining Corp., 1 MSHC 

1001 (1970); Alexander Bros., Inc., 1 MSHC 1760 (1979); Island 

Creek Coal Co., 1 MSHC 2143 (1979). Therefore the contest 

proceedings docketed at KENT 88-23-R and KENT 88-24-R, which 

concerned these section 104 (a) citations were dismissed at 10 

FMSHRC 889 (July 12, 1988) (ALJ). 

245 
Accordingly, the factual and legal bases for these 

underlying section 104(a) citations.are no longer at issue and 

the fact of violation of the mandatory standards cited therein is 

not subject to collateral attack in the contest proceedings 

concerning the section 104(b) orders at bar~ 

The remaining issues I will deal with in this decision are: 

1. Are the violative conditions described in the 

two orders at bar abated? 

2. Were the violations described in the underlying citations abated within the period of 

time originally fixed therein or as 

subsequently extended? 

3. If the answer to No. 2, above, is "no," 

[which it is] was the time set for abatement 

reasonable or should the time set for 

abatement have been extended or further 

extended without issuing the instant section 

104Cb) orders? 

The Secretary stipulates that the original citations are 

abated as of the date of the hearing in this matter, and the two 

section l04(b) orders at bar have been terminated. 

The condition cited in Citation No. 2985272 is as follows: 

A safe means oi access is not provided to the shaker 

screens, motor and flywheels at the upstream screening 

plant, where workers are required to travel for 

maintenance, repair and/or examination in that no 

steps, platform nor hand rail is present thereon. 

A worker is required to climb up approx. 7-12' above 

ground on the plane structure for access and a fall 

therefrom can inflict serious injury. 

When Inspector Hatter issued Citation No. 2985272 on 

September 17, 1987, he envisioned abatement to be construction of 

a catwalk around the shaker. He allowed six days for that 

abatement to take place; one day to order the materials, one day 

for delivery and four days to do the construction work. He 

considered this to be a reasonable amount of time based on his 

experience. 

On September 29, 1987, section 104Cb) Order No. 2985273 was 

issued by Inspector Hatter because the operator had still failed 

to provide a safe means of access to the coal shaker even though 

246 
the time for abatement of Citation No. 2985272 had passed. He 

further testified that at the time of this visit, some eleven 

Cll) days after he had issued the citation, nothing had been done 

to abate the condition, no additional time was requested by the 

operator to abate the condition and to the best of his knowledge, 

the operator has never alleged that the time given for abatement 

was inadequate. 

Interestingly, the catwalk around the shaker was never 

built, but the citation was subsequently abated and the 

section 104Cb) order terminated by a different inspector bn 

June 21, 1988, upon the operator furnishing a Grove RT 518 

"cherry-picker," equipped with a cage to safely perform 

maintenance, and assembly/disassembly of the coal shaker. 

Inspector Hatter disagrees with this method of abatement/ 

termination, to say the least, but the order is nonetheless 

terminated and the citation abated. 

In summary, the operator made no attempt to abate the 

citation within the six days allowed or in the eleven days that 

passed between the issuance of the citation and the section 

104(b) order. Nor did the operator request any extension of the 

abatement period. 

I conclude from my review of the record that the violative 

condition set out in the citation was abated on June 21, 1988, 

and the order was terminated at that time. The condition was 

obviously not abated in a timely fashion, but in fairness to the 

operator it should be pointed out that Inspector Hatter, who 

wrote the section 104Cb> order would not have accepted the 

abatement method that was ultimately the basis for the 

abatement/termination. Nevertheless, I find and conclude that 

the original abatement period of six (6) days was reasonable, 

especially in light of the fact that the operator made no 

objection to this time limit set for abatement and did not 

request any enlargement of time in which to abate the cited 

violative condition. Therefore, the now terminated Order No. 

2985273 will be affirmed. 

The other condition we are concerned with in these cases is 

cited in Citation No. 2985271 and the violative condition is set 

out therein as follows: 

The insulated conductor wiring providing power to the 

240/480 VAC 30 fresh water pump is not properly 

maintained to assure safe operating condition in that 

it is not protected from moisture nor physical abuse. 

Such wiring is partially laid in a 15" casing pipe for 

about 100', in the ground partially buried for about 

41', then through approx. 16'-15" CM pipe and then 

247 
approx. 40' is laid on the ground over the river bank 

to the pump, where it is subject to deterioration and 

contact by workers. 

This citation was likewise issued on September 17, 1987 and 

once .=.gain, Inspector Hatter allowed six day·s· for abatement. He 

reasoned that was sufficient time to make arrangements for an 

electrician to do the work and to obtain the necessary materials. 

On Septembar 29, 1987, eleven Cll) days after issuing the 

underlying citation, Inspector Hatter issued section 104(b) Order 

No. 2985274 because the operator had still failed to p~otect the 

wiring to the fresh water pump from moisture and physical abuse 

even though the time for abatement of Citation No. 2985271 had 

passed. As before, the inspector also testified that no additional time was requested by the operator to abate the condition 

and to the best of his knowledge, the operator had never 

complained that the time allowed for abatement of the condition 

was unreasonable or inadequate. 

On June 21, 1988, Inspector Thomas Goodman, an MSHA 

electrical inspector, inspected the Rivco Dredging Company 

location and spoke with Mr. Wilson, the President of the company, 

to determine if the cited condition had been abated and found 

that it still had not. He advised Mr. Wilson at that time that 

the Company needed to be in compliance with the standards for 

pump wiring set forth in the National Electrical Code or the 

applicable MSHA regulations. 

On July 5, 1988, Inspector Good1nan returned to the site to 

find the cited condition had'still not been abated. A conference 

was held with Mr. Wilson, as a result of which he agreed to 

comply with the requirements of the National Electrical Code, 

which he subsequently did. Section 104Cb) Order.No. 2985274 was 

therefore finally terminated on July 25, 1988, with the notation 

that: "The pump circuit was installed in condu'it." 

I find and conclude from my review of the record that the 

violative condition set out in the citation was abated on 

July 25, 1988, and the order was terminated at that time. The 

condition was not actually abated until approximately 10 months 

after it was first pointed out to the operator. I find that 

abatement to be untimely in.the extreme and furthermore conclude 

that the original abatement time of six days set by Inspector 

Hatter was reasonable and sufficient. Therefore, the now 

terminated Order No. 2985274 will also be affirmed. 

248 
ORDER 

WHEREFORE IT IS ORDERED THAT: 

1. Order Nos. 2985273 and 2985274 ARE AFFIRMED. 

Law Judge 

Distribution: 

Mr. Gene A. Wilson, Rivco Dredging Corporation, Post Office 

Box 702, Louisa, KY 41230 (Certified Mail) 

G. Elaine Smith, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite 201-B, Nashville, 

TN 37215 (Certified Mail) 

/ml 

249 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 16 1989 

WILFRED BRYANT, 

Complainant 

v. 

DINGESS MINE SERVICE, 

WINCHESTER COALS, INC., 

MULLINS COAL COMPANY, 

JOE DINGESS AND 

JOHNNY DINGESS, 

Respondents 

. . 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 85-43-D 

DECISION ON REMAND 

Before: Judge Broderick 

On September 29, 1988, the Commission reversed my 

determination that Mullins and Winchester were not liable for the 

discrimination for the discriminatory discharge of Complainant, 

but affirmed my determination that the adverse action was 

terminated when complainant refused reemployment. The proceeding 

was remanded to me for a redetermination of the award of 

attorneys' fees to complainants attorneys. 10 FMSHRC 1173 

(1988), affirming in part and reversing in part 9 FMSHRC 336, 9 

FMSHRC 940 (1987). 

Pursuant to my order, Complainant's attorneys submitted a 

revised statement of attorneys' fees, together with affidavits 

and other documents in support of their request. They also 

submitted a legal memorandum arguing that their fee should be 

increased above the lodestar because of the contingent nature of 

the case, and that the fee should not be reduced because 

complainant was unsuccessful in his claim for reinstatement and 

because his back pay recovery was very limited. 

Respondent replied to the attorneys' fee request, and argued 

that an enhancement of the fee because the case was contingent is 

inappropriate, and that the fee award should be reduced to 

reflect the limited success achieved. 

REASONABLE HOURLY RATE-HOURS REASONABLY EXPENDED 

Complainant's attorneys have submitted a revised statement 

of fees for their hours expended prior to the appeal of the case 

to the Commission, and a supplemental statement of fees for the 

250 
work performed since that time. Respondents' counsel has not 

commented either on the hourly rate or on the hours claimed to 

have been expended. ~he revised statement claims different 

hourly rates for court time ($80 per hour for Sheridan; $90 per 

hour for Fleischauer), for consultation with co-counsel ($40 per< 

hour for each attorney), and for other legal work ($65 per hour 

for Sheridan; $75 per hour for Fleischauer). Although the 

proposed fee does in part respond to my Supplemental Decision of 

May 13, 1987, by reducing the fee request for hours expended in 

consulting with each other, it fails to respond to my concern 

that each attorney was seeking full compensation for the time 

they spent jointly in taking despositions and participating in 

the hearing. Nor does it explain or justify the time spent 

calling unidentified persons and travelling. 

I conclude (1) that $75 per hour is an appropriate rate for 

Ms. Fleischaurer and $65 per hour is an appropriate rate for 

Mr. Sheridan. I do not agree that they each should receive an 

increased rate for court time. I do agree that they should 

receive a reduced rate for consultation with each other and for 

their joint efforts. I have reviewed the statements of counsel 

and am persuaded that my prior conclusion that 100 hours of 

Ms. Fleischauer's services and 75 hours of Mr. Sheridan's are 

properly billable at the full rate was correct. The r~naining 

hours involve consultation with each other, duplication of 

services, calls to unidentified persons, travel time between 

Morgantown, West Virginia (Fleischauer's office) and Logan, West 

Virginia (Sheridan's office), etc. Therefore, I will approve 100 

hours of Ms. Fleischauer's time and 75 hours of Mr. Sheridan's 

time at the regular rates of $75 and $65 respectively. I will 

approve fees for the remainder of the time at the rate of $40. 

On this basis Ms. Fleischauer's fee would total $11,340; Mr. 

Sheridan's, $6715. 

With respect to services performed since June 1987, counsel 

request approval of fees of $75 per hour (Sheridan) and $100 per 

hour (Fleischauer) for regular services; $100 per hour (Sheridan) 

and $125 per hour (Fleischauer) for court time and $50 per hour 

for consultation with co-counsel. Mr. Sheridan claims 35.15 

hours of regular oervices and 3.4 hours consultation time. 

Ms. Fleischauer claims 49.85 hours of regular services, 3.4 hours 

of consultation time and 2.25 hours of court time. Most of this 

time of course is related to the appeal which was in part 

successful (Mullins and Winchester were held li~ble as mine 

operators). I will approve the fees requested: $2800 for 

Sheridan and $5400 for Fleischauer and I will approve the 

reimbursement of Fleischauer's expenses of $254.34. 

251 
ENHANCEMENT FOR CONTINGENCY 

Counsel did not request an upward adjustment of their fees 

for contingency at the time their statements were originally 

submitted. Nor does the Commission's remand direct me to 

consider such a request. Nevertheless, in order to make a 

complete record, I will consider their request at this time. 

There may be circumstances in which enhancement of a 

reasonable lodestar to compensate for the contingent nature of 

the attorney's employment is justified. But these circumstances 

are rare. See Pennsylvania v. Delaware Valley Citizens' Council, 

483 U.S. , 97 L.Ed. 2d at 603 (concurring opinion of O'Connor, 

J.). Laf'f'eY v. Northwest Airlines, Inc., 746 F.2d 4 (D.C. Cir. 

1984). I previously determined that this case was of average 

complexity. It did not involve any unique legal theory or 

factual difficulty. There is no basis for concluding that 

without an enhancement of the fee because of contingency, 

competent counsel would not have been available to complainant. 

Complainant's request for an "upward adjustment" of their fee by 

50 percent is DENIED. 

RESULTS OBTAINED 

Complainant was not successful in his claim for 

reinstatement. His back pay recovery was limited to nine days, 

because of the determination that he refused offered reemployment 

and resigned his position. His recovery therefore is limited to 

$1297.48 plus interest after April 24, 1987. In a statute such 

as the Mine Act, the amount recovered is not the determining 

factor in fixing a reasonable attorney's fee. But it is one 

factor. As I stated in my Supplemental Decision "a substantial 

part of the time for which fees and claimed was 'spent litigating 

issues upon which plaintiff did not ultimately prevail,'" citing 

Copeland v. Marshall, 641 F.2d 880 CD.C. Cir. 1980). Because of 

the limited recovery, I will reduce the attorneys' fees by 15 

percent. Therefore I will approve a total fee for Ms~ 

Fleischauer in the amount of $15,229 ($11,340 + $5400 less 15%). 

I will approve a total fee for Mr. Sheridan in the amount of 

$8088 ($6715 + $2800 less 15%). I will also approve 

reimbursement of Ms. Fleischauer's expenses. 

ORDER 

In accordance with the Commission's remand, Respondents are 

ORDEREO to pay within 30 days of the date of this decision the 

following amounts: 

252 
(1) To Barbara Evans Fleischauer, Esq., $15,229 attorney's 

fees and $820.52 as litigation expensesi 

(2) ·To Paul Sheridan, Esq., $8088 attorney's fees. 

~:1::a~ Administrative Law Judge 

Distribution: 

Barbara Evans Fleischauer, Esq., 346 Watts Street, Morgantown, WV 

26505 (Certified Mail) 

Robert Q. Sayre, Jr., Esq., Goodwin & Goodwin, 1500 One Valley 

Square, Charleston, WV 52301 (Certified Mail) 

Paul R. Sheridan, Esq., Appalachian Research & Defense Fund, 

Inc., 504 White & Browning Bldg., Logan, WV 25601 (Certified 

Mail) 

Dingess Mine Services, Mr. Joe Dingess, Mr. Johnny Dingess, P.O. 

Box 1024, Chapmanville, WV 25508 (Certified Mail) 

slk 

253 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 22, 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 88-328-M 

A. C. No. 42-01153-05501 

v. 

. . 

. . Kennecott Carr Fork 

MCFARLAND & HULLINGER, 

Respondent 

Before: 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Judge Merlin 

On December 22, 1988, the Solicitor submitted a motion to 

approve settlement of the three violations involved in this case. 

On January 13, 1989, I issued an order approving settlement for 

two of the violations, disapproved the settlement for the remaining violation and ordered the Solicitor to submit additional information for that violation. The Solicitor now has submitted an 

amended motion containing the required additional information. 

The one citation rffinaining in this case was issued for a 

violation of 30 C.F.R. § 57.9037 because a dump truck had been 

left on a grade with the parking brakes on, but the wheels 

neither blocked nor turned into a bank or rib. The truck started 

to roll and the driver was fatally injured as he attempted to 

climb aboard. The penalty was originally assessed at $1,000 and 

the proposed settlement is for $800. The Solicitor represents 

that the reduction is warranted because operator negligence is 

less than originally thought. The Solicitor advises in this 

respect as follows: 

"Prehearing preparation had revealed that 

Melvin Steward, the decedent, had earlier in 

the day witnessed a highway accident which 

resulted in the death of an elderly gentleman 

who was killed when his camper ran a stop 

sign. This occurrence greatly disturbed and 

upset Mr. Steward. In fact, he not only telephoned his wife to relate his observations 

but decided to tell the shop lead man Ivan 

Zenger what he had witnessed. His idiosyncratic behavior in locking the truck brakes 

yet failing to lock the trailer brakes can 

only be explained by his agitated state of 

254 
mind. Secondly, it was disclosed that Mr. 

Zenger was not a shop foreman but a lead man 

who did not exercise any supervision, direct 

or· indirect, over Mr. Steward." 

I accept the foregoing representations, and based upon them 

I approve the recommended settlement. 

Accordingly, the motion to approve settlement for this 

violation is GRANTED and the operator is ORDERED TO PAY $800 

within 30 days from the date of this decision. 

In the prior partial settlement approval, I approved settlements for the two other violations involved in this case. 

If it has not already done so, the operator is ORDERED TO PAY 

$300 for these violations within 30 days from the date of this 

decision. 

Distribution: 

~--r--' \ 

Paul Merlin 

Chief Administrative Law Judge 

Robert J. Murphy, Esq., Office of the Solicitor, u. s. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Mr. Sidney K. Hullinger, McFarland & Hullinger, Box 238, Tooele, 

UT 84074 (Certified Mail) 

Thomas Mascolino, Esq., Counsel, Trial Litigation, Office of the 

Solicitor, U. s. Department of Labor, 4015 Wilson Boulevard, 

Suite 414, Arlington, VA 22203 (Handcarried) 

/gl 

255 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

KENNETH HOWARD, 

v. 

B & M TRUCKING, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 2 7 1989 

. . DISCRIMINATION 

.Complainant . . 

. . Docket No. KENT 

. . BARB CD 88-56 

Respondent . 

. No • 2 Mine 

ORDER OF DISMISSAL 

Before: Judge Melick 

PROCEEDING 

89-2-D 

On December 2, 1988, a show cause order was issued 

directing the Complainant to provide inter alia service a-nd 

proof of service of his complaint to the Respondent mine 

operator within 30 days of that date or be subject to 

dismissal of his complaint. 

The Complaiant has failed to respond to t :e show cause 

order and accordingly his complai must be di missed. 

I 

Distribution: 

Phyllis Robinson Smith, Esq., P.O Box 1230, Heden, KY 41749 

(Certified Mail) 

B & M Trucking, 204 Virginia Avenue, Pineville, KY 40977 

(Certified Mail) 

nt 

256 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH 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 CMSHA), 

Petitioner 

v. 

MID-CONTINENT RESOURCES, 

INC., 

Respondent 

January 4, 1989 

. . 

. . 

. . 

. . 

: 

: 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 88-121 

A.C. No. 05-00301-03629 

Docket No. WEST 88-122 

A.C. No. 05-00301-03630 

Docket No. WEST 88-123 

A.C. No. 05-00469-03642 

Docket No. WEST 88-124 

A.C. No. 05-00469-03643 

Dutch Creek No. 1 and No. 2 

Mines 

ORDER GRANTING SECRETARY'S MOTION 

Respondent, Mid-Continent, has indicated, in these and other 

proceedings, that it wishes to establish by evidence, including 

statistical data, that the enforcement documents (Orders and 

Citations) issued by the Secretary are examples of and the 

products "of a pattern of harassment and enforcement abuse by 

MSHA directed at Mid-Continent." l; This issue is for 

convenience being referred to as the "abuse" issue. 

Petitioner, the Secretary, in a Motion in Limine filed on 

November 29, 1988, seeks to have an order issued prohibiting 

Respondent from submitting evidence on both the "abuse" issue and 

on the issue relating to its alleged failure to follow its own 

regulations in proposing penalties. Both parties have submitted 

briefs in support of their positions. 

In Docket No. WEST 89-3-R, Judge John J. Morris determined 

that the Commission does not have jurisdiction to review alleged 

abuse of discretion by the Secretary in enforcing the Mine Safety 

Act at Respondent's Dutch Creek Mine and granted the Secretary's 

motion to dismiss Respondent's "broad allegation of alleged 

abuse ••• ". Having carefully considered the arguments and 

authorities presented by the parties on this issue. I am in full 

accord with the views and holdings of Judge Morris expressed in 

!/ In a preliminary hearing held in these four proceedings in 

Denver on November 2, 1988, Respondent also indicated its intent 

to establish that the Secretary did not follow her own regulations in proposing penalties for the alleged violations. 

257 
his Order dated December 22, 1988, in Docket No. WEST 89-3-R, and 

such are fully incorporated herein by reference as an integral 

part of my decision here. It is specifically concluded that the 

Commission and its judges have no jurisdiction to hear the 

"abuse" issue. Evidence bearing on this issue and subject matter 

will thus be deemed irrelevant and excluded at the evidentiary 

hearings to be held in the four subject proceedings. 

With respect to the allegation that MSHA did not follow its 

regulations in proposing penalties for the alleged violations, it 

is first noted that Respondent, at the prehearing conference, 

indicated that it did not desire to have penalty assessments sent 

back to MSHA's penalty assessment office for reassessment 

(Transcript of Prehearing Conference, p. 66). One of the 

purposes of the de novo formal hearings scheduled in these 

matters is to develop a record with respect to the various mandatory penalty criteria which are to be considered by the Judge and 

Commission in the event a violation is established. 

Respondent also argues Cat page 8 of its brief) that the 

Secretary's failure to follow her own regulations "is a further 

indication of abuse ••• ". Since I have previously determined the 

Secretary's position with respect to the lack of jurisdiction to 

hear the "abuse" issue is meritorious, this argument of 

Respondent is rejected. Evidence on this issue and subject 

matter will also be excluded at the evidentiary hearings in these 

proceedings. 

~~ .. ./~/ 6': ~~~ ~' Michael A. Lasher, ;fr. 

Administrative Law Judge 

Distribution: 

Margaret A. Miller, Esq., James H. Barkley, Esq., Office of the 

Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 

Stout Street, Denver, CO 80294 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, Drawer 790, 

Glen.wood Springs, CO 81602 

/bls 

258 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE. 

FALLS CHURCH, VIRGINIA 22041 

January 12, 1989 

SECRbTARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFBTY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

KENTUCKY MOUNTAIN RESERVE, 

INC., 

Respondent 

Docket No. KENT 88-157 

A.C. No. 15-16154-03505 

Mine No. 1 

ORDER DENYING PROPOSED SETTLEMENT 

NOTICE OF HEARING 

On July 25, 1988, ,the Secretary of Labor filed a petition 

for assessment of a civil penalty before this Commission. 

On January 3, 1989, the Secretary submitted a proposed 

settlement in which Respondent agreed to pay the proposed 

penalties of $10,000 in full. Included as part of that 

proposal however was the following stipulation: 

Nothing contained herein shall be deemed an 

admission by Respondent of a violation of the 

Feaeral Mine Safety and Health Act or any 

regulation or standard issued· pursuant 

thereto in any action (other than an action 

or proceeding under the Federal Mine Safety and. 

Health Act where the official record of the 

operator under MSHA enforcement may be relevant). 

No party other than the parties to this agreement 

may use this settlement agreement for any purpose. 

Without restricting the generality of the foregoing, it is specifically understood that respondent 

enters into this stipulation in reliance on its 

sole and exclusive purpose being to expeditiously 

and inexpensively resolve a single item of administrative litigation without affecting in any 

way any other cause, claim or litigation, of 

either a private or governmental nature, that 

may now be pending or that may be initiated in 

the future. Moreover, it is not intended that 

this stipulation or the settlement resulting 

259 
therefrom establish a standard of care or 

adjudge compliance therewith. By this 

settlement, the parties do not intend to 

be collaterally estopped from raising any 

issue or defense in any civil proceeding. 

I find this disclaimer to be so contradictory and ambiguous 

as to be in violation of the principles set forth by this 

Commission in Amax Lead Company of Missouri, 4 FMSHRC 975 

(1982) • 

Accoraingly the Motion to Approve Se tlement is denied 

and this case is rescheduled for hearing to commence at 8:30 

a.m., on February 1, 1989, in untington, West Virgi a. 

GL!'\..A-~ } -Gary M lick I 

Adminti trative w Judge 

(703) l 56-6261 ' 

Distribution: 

G. Elaine Smith, Esq., U.S. Department of Labor, Office of 

the Solicitor, 2002 Richard Jones Road, Suite B-201, 

Nashville, TN 37215 (Certified Mail) 

Michael T. Heenan, Esq., 1110 Vermont Ave., N.W., Suite 400, 

Washington, D.C. 20005-3593 (Certified Mail) 

slk 

260 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

February 8, 1989 

KTK MINING AND CONSTRUCTION, 

Contestant, 

-v. 

SECRE·rARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

. . 

. . 

: 

CONTEST PROCEEDING 

Docket No. KENT 89-47-R 

Citation No. 2772892~ 11/2/88 

No. 3 Mine 

Mine ID 15-16308 

ORDER DENYING MOTION TO DISMISS 

The Secretary of Labor has moved to dismiss the instant 

proceeding for untimely filing. The evidence is undisputed 

that the citation at bar, Citation No. 2772892, was issued 

pursuant section 104Ca) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et seq., the "Act", on 

November 2, 1988. It is further undisputed that Contestant, 

KT K Mining and Construction, Inc., CKTK), mailed its notice 

of contest by certified mail to the Office of the Solicitor, 

U.S. Department of Labor, Mine Safety Division on 

December 12, 1988. The Secretary argues in her Motion to 

Dismiss that KTK's Notice of Contest was not timely because 

it was not received by the Office of the Solicitor until 

December 5, 1988, more than 30 days after the receipt of the 

citation by KTK. 

Section 105Cd) of the Act requires an operator to notify 

the Secretary within 30 days of the receipt of a citation, 

(or notice of proposed assessment of penalty) that it intends 

to contest the issuance of the citation (or notice of 

proposed assessment of penalty). The Secretary argues that 

section 105Cd) requires that the Secretary receive "actual" 

notice of an operators intent to contest within .30 days and 

that, therefore, KTK's certified mailing was not effective as 

it was not received until December 5, 1988. 

In Secretary v. J. P. Burroughs and Son, Inc., 3 FMSHRC 

854 (1981) the Commission addressed the validity of a Notice 

of Contest which was mailed to the Secretary within the 

specified 30 days but which was not received until after that 

deadline had expired. The mine operator in J. P. Burroughs 

mailed its Notice of Contest to the Secretary on the 30th day 

after receipt of a proposed assessment of penalty. The 

261 
Secretary rec~ived the Notice of Contest two days later. The 

issue in that case was similarly whether the Secretary must 

receive the operator's Notice of Contest within 30 days or 

whether the operator satisfies the requirement of notifying 

the Secretary if it mails its Notice of Contest within 30 

days. The Commission found therein that in fact mailing 

within 30 days constituted sufficient and effective notice 

under the Act. While the J. P. Burroughs case involved 

interpretation of Section 105(a) of the Act, Section 105(d) 

of the Act contaitis virtually identical language requiring 

notice to the Secretary within 30 days of receipt of the 

challenged citation. J. P. Burroughs is accordingly 

persuasive authority on the interpretation to be placed upon 

section 105Cd) of the Act. Accordingly I find that the 

mailing by KTK within the 30 day time period set forth in 

section 105Cd) of the Act by certified mail meets the filing 

requirement under that section of the Act and ace rdingly KTK 

filed its Notice of Contest in a timely manner. he 

Secretary's Motion to Dismiss is herefore denied 

Distribution: 

·Gary 

Administ Mel·~ ~tive Law Ju 

( 703) 75 '-6261 

\ 

! 

e 

W. F. Taylor, Esq., G. Elaine Smith, Esq., Office of the 

Solicitor, U.S. Department of Labor, 2002 Richard Jones Road, 

Suite B-201, Nashville, TN 37215 (Certified Mail) 

Barbara L. Krause, Esq., Smith, Reenan & Althen, Suite 400, 

1110 Vermont Avenue, N.W., Washington, D.C. 20005-3593 

(Certified Mail) 

nt 

262 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

February 8, 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION C MSHA), 

Petitioner 

v. 

DEVELOPERS INTERNATIONAL 

SERVICE CORPORATION, 

Respondent 

. . 

. . 

: 

. . 

. . 

. . 

: 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 88-132-M 

A.C. No. 03-00479-05501 

Wilson Springs Pit ~ Plant 

ORDER DENYING PROPOSED SETTLEMENT 

NOTICE OF HEARING 

On September 19, 1988, the Secretary of Labor filed a 

petition for assessment of a civil penalty before this 

Commission proposing a penalty of $4,000 for a "significant 

and substantial" regulatory violation allegedly causing the 

electrocution of a miner. In a motion to approve settlement 

filed with this Commission on January 13, 1989, and seeking a 

25 percent reduction in penalty the Secretary stated as 

follows: 

The proposed assessments were reduced for the 

following reasons: 

a. Respondent de~onstrated extraordinary good faith 

in achieving rapii compliance. 

b. Respondent does not have a lengthy history of 

prior violations. 

c. Respondent's size of business is relatively small. 

d. Payment of the fine will not materially impair 

Respondent's ability to continue in business. 

4. Respondent has paid the agreed proposed penalty of 

$3,000 sought by Petitioner: therefore, Respondent 

hereby withdraws the notice of contest filed i~ this 

case. 

5. Respondent states that Respondent will comply 

with the Federal Mine Safety and Health Act of 

1977, 30 o.s.c. 801 et seg. 

The information provided by the Motion is totally 

inadequate for an independent and proper evaluation of the 

alleged violation under the criteria set forth in Section 

llOCi) of the Federal Mine Safety and Health Act of 1977. 

263 
The motion provides no factual bais to support any of the 

criteria that must be considered by the Commission under 

Section llOCi>. Indeed the motion fails to even address the 

important issues of negligence and gravity. 

Section llOCk) of the Act provides th~t "no proposed 

penalty which has been contested before the Commission under 

section 105Ca> shall be compromised, mitigated, or settled 

except with the approval of the Commission." Penalty 

proceedings before the Commission are de novo. Neither the 

Commission nor its Judges are bound by~he-5ecretary's 

proposed penalties. Rather, they must determine the 

appropriate amount of penalty, if any, in accordance with the 

six criteria set forth in section llOCi) of the Act. 

Secretary v/ Phelps Dodge Corp., 9 FMSHRC 920 (Chief Judge 

Merlin 1987); Sellersburg Stone Co., v. FMSHRC, 736 F.2d 1147. 

In Secretary v. Wilmot Mining Co., 9 FMSHRC 684 (1987) 

the Commission stated as follows: 

Settlement of contested issues and Commission 

oversight of that process are integral parts of 

dispute resolution under the Mine Act. 30 u.s.c. § 

820Ck>; see Pontiki Coal Corporation, 8 FMSHRC 

668 (1986). The Commission has held repeatedly 

that if a Judge disagrees with a penalty proposed 

in a settlement he is free to reject the settlement 

and direct the matter for hearing. See e.g. Knox 

County Stone Company, 3 FMSHRC 2478, 2480-81 (1981). 

A judges oversight of the settlement process "is an 

adjudicative function that necessarily involves 

wide discretion." Knox County, 3 FMSHRC at 2479. 

Under the circumstances the Motion to Approve Settlement 

Agreement is denied and this case is set for hearing on the 

merits on March 7, 1989 at 8:30 a.m. in Hot Springs, Arkansas. 

The specific courtroom in which the hearin will be held will 

be designated at a later date. 

I 

Ii I 

G "'-"'kL; ry Me .... "" 

A<jlminis rati11e 

(703) 7 6-6261 

264 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

703-756-6232 

February 9, 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EL PASO SAND PRODUCTS, INC., 

Respondent 

. . 

: Docket No. CENT 88-53-M 

A.C. No. 41-00046-05520 . . 

: Docket No. CENT 88-65-M 

A.C. No. 41-00046-05521 . . Docket No. CENT 88-79-M 

: .A.C. No. 41-00046.-05522 . . 

: Docket No. CENT 88-83-M 

: A.C. No. 41-0004~-05523 

: Docket No. CENT 88-104-M 

: A.C. No. 41-00046~05524 

Docket No. CENT 88-141-M 

: A.C. No. 41-00046-05525 . . 

: El Paso Quarry & Plant 

ORDERS REJECTING PROPOSED SETTLEMENTS 

Statement of the Proceedings 

These proceedings concern proposed civil penalty assessments filed by the petitioner against the respondent pursuant 

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

1977, 30 u.s.c. § 820(a). The petitioner is seeking civil 

penalty assessments in the amount of $8,835.00, for 23 alleged 

violations of certain mandatory safety and health standards 

found in Part 56, Title 30, Code of Federal Regulations. 

These cases were docketed for hearing in El Paso, Texas, 

during the hearing term January 10-12, 1989. However, the 

hearings were continued and cancelled after the parties 

informed me that they had reached a proposed settlement in all 

of the cases. The parties have now filed motions seeking 

approval of the proposed settlements, the terms of which 

require the respondent to pay civil penalty assessments in the 

amount of $6,626.25, in settlement of all of the alleged violations. The alleged violations, initial proposed civil penalty 

265 
assessments, and the proposed settlement amounts are as 

follows: 

DOCKET NO. CENT 88-53-M 

30 C.F.R. 

Citation No. Date Section 

3060567 06/24/87 56.14003 

DOCKET NO. CENT 88-65-M 

30 C.F.R. 

Citation No. Date Section 

2869424 04/23/87 56.14029 

DOCKET NO. CENT 88-79-M 

Citation No. 

3060786 

3060788 

3060789 

3060793 

3060795 

Date 

01/11/88 

01/12/88 

01/12/88 

01/12/88 

01/12/88 

DOCKET NO. CENT 88-83-M 

Order No. 

3060996CA) 

3060996(B) 

3060785 

3060790 

3060847 

Date 

10/15/87 

10/15/87 

01/11/88 

01/12/88 

02/17/88 

30 C.F.R. 

Section 

56.9022 

56.11001 

56.12032 

56.20003 

56.20011 

30 C.F.R. 

Section 

56.14001 

56.14029 

56.3131 

56.4201(5)(b) 

56.3131 

DOCKET NO. CENT 88-104-M 

Citation No. 

30'60571 

3060791 

3062861 

Date 

06/25/87 

01/12/88 

03/01/88 

30 ·c • .F.R. 

Section 

56.12028 

56.16006 

56.12030 

266 

Assessment Settlement 

$345 $258.75 

Assessment Settlement 

$126 $ 94.50 

Assessment 

$178 

$ 79 

$ 79 

$ 79 

$ 79 

Assessment 

$1,000 

$1,000 

$1,000 

$ 20 

$2,000 

Assessment 

$ 20 

$ 79 

$ 36 

Settlement 

(Total of 

$370.50 for 

all citations) 

Settlement 

(Total of 

$3,765 for all 

citations) 

Settlement 

(Total of 

$262.50 for 

all citations) 
3062862 03/01/88 56.12030 $ 20 

3062863 03/01/88 56.12030 $ 36 

3062864 03/01/88 56.11001 $ 68 

3062865 03/01/88 56.9002 $ 91 

DOCKET NO. CENT 88-141-M 

Citation/ ·30 C.F.R. 

Order No. Date Section Assessment Settlement 

3062866 03/01/88 56.15005 $1,000 (Total of 

3062867 03/01/88 56.9022 $ 500 $1,875 for all 

3062868 03/01/88 56.3200 $ 600 citations) 

3062869 03/01/88 56.6001 $ 400 

After review and consideration of the motions filed by 

the parties, and for the reasons which follow below, I have 

approved one of the proposed settlements (Docket No. 

CENT 88-53-M), tentatively approved two of the proposed settlements (Docket Nos. CENT 88-79-M and CEN~ 88-104-M), subject to 

the filing of additional information, and I have rejected 

three of the proposed settlements (Docket Nos. CENT 88-53-M, 

CENT 88-83-M, and CENT 88-141-M), subject to their re-filing 

with additional information. 

Discussion 

The Commission's Rules concerning proposed settlements 

are found at 29 C.F.R. § 2700.30, and they provide as follows: 

(a) General. No proposed penalty that 

has been contested before the Com.'llission shall 

be compromised, mitigated, or settled except 

with the approval of the Commission after agreement by all parties to the proceeding. 

(b) Contents of settlement. A proposal 

that the Commission approve a penalty settlement shall include the following information 

for each violation involved; Cl) the amount of 

the penalty proposed by the Office of Assessments of the Mine Safety and Health Administration; (2) the amount of the penalty proposed by 

the parties to be approved: and (3) facts in 

suoport of the appropriateness of the penalty 

proposed bY the parties. 

267 
Cc> Order approving settlement. Any 

order by the Judge approving a proposed settlement shall be fully supported by the record. 

In this regard, due consideration, and discussion thereof, shall be given to the sjx statutory ~riteria set forth in section llOCi) of 

the Act. Such order shall become the final 

decision of the Commission 40 days after 

approval unless the Commission has directed 

that such approval be reviewed. [Emphasis 

added.] 

In support of the proposed settlements and reductions of 

the initial proposed civil penalty assessments for each of the 

violations in issue, the parties rely in part on the following 

"boilerplate" argument which is included in each of the 

motions filed in these cases: 

There was little or no negligence 

involved, since the violations could not have 

been reasonably predicted. 

Probability of injury was overevaluated 

since very few employees were exposed to the 

risk, these employees were not, during the 

normal course of their work, exposed to the 

risk with any great frequency, these employees 

were not in the zone of danger, and the 

employees were not working under stress or 

where their attention would be distracted. 

(Emphasis added). 

A review of MSHA's initial pleadings, including the 

citations/orders, and the "narrative findings" by MSHA's 

Office of Assessments, reflects the following: 

Docket No. CENT 88-65-M 

Section 104Ca> Citation No. 2869424. The citation states 

that a miner became entangled in the tail pulley of a conveyor 

belt while it was in motion, and that he suffered severe 

injuries to his left arm. It also states that the plant 

operator could not observe the miner and that the miner was 

entrapped between the pulley, belt, and support structure 

until he was rescued by another miner. The inspector found 

that permanently disabling injuries occurred. The violation 

was issued because of the failure to shut off the machine or 

to otherwise block it against motion. 

268 
Docket No. CENT 88-83-M 

Imminent Danger Order No. 3060996CA & B). The order and 

narrative findings made by MSHA's assessment officer reflects 

that an enployee was shoveling up spillag~ from under an 

unguarded conveyor tail pulley, and that the shovel was within 

4 inches of the pulley, and the miner was within 1 foot of the 

pulley. This work was being performed while the machine was 

in motion and the power on. The inspector found that the 

employee's exposure to the unguarded pulley pinch point would 

highly likely result in permanently disabling injuries, and 

that the violations were the result of a high degree of negligence by the respondent. 

Imminent Danger Order No. 3060785. This order was issued 

on January 11, 1988. The inspector observed a loader operator 

and two haulage units working at and near the base of a pit 

highwall approximately 60 to x feet high, and the highwall 

contained "loose boulders and unconsolidated materials above 

the employees and equipment." The inspector found that the 

cited conditions would highly likely result in fatalities, and 

that the violation resulted from a high degree of negligence. 

Imminent Danger Order No. 3060847. This order was issued 

on February 17, 1988, after the inspector observed a front-end 

loader and two haul trucks loading materials from the base of 

an 80 to 90 foot highwall. The loader was observed operating 

directly below loose materials located approximately 60 to 

70 feet from the base of the highwall. The inspector took 

note of the fact that this violative condition took place in 

the same area where he issued the previous January 11, 1988, 

order, and he concluded that fatal injuries were highly likely. 

The inspector made a negligence finding of "Reckless 

Disregard." 

Docket No. CENT 88-141-M 

Imminent Danger Order No. 3062866. This order was issued 

by the inspector after he observed a drill operator working on 

top of a 40-foot highwall within 2 feet of the edge of the 

highwall, and the drill helper walking around the front of the 

drill within approximately 16 inches from the edge of the highwall. Neither employee was wearing a safety belt or line, and 

the inspector concluded that they were in danger of falling 

off the highwall, and that it was highly likely that a fatality would occur. 

Unwarrantable Failure Citation No. 3062867. This citation was issued at 2:40 p.m., on March 1, 1988, after the 

269 
inspector observed that the outer edge of a roadway approaching the "upper-most bench" of the quarry was not bermed or 

guarded with guardrails to prevent vehicles using the roadway 

from droppirig off of the 40 to 100 foot "drop off." The roadway was used to haul explosives to the top of the hill, and 

other vehicles and equipment also used the roadway, including 

a truck used to transport two drill operators to the top of 

the bench. The inspector noted that the superintendent 

admitted that he had inspected the area at 6:30 a.m., on the 

same day the violation was issued, and that the roadway was 

not bermed or otherwise guarded. The inspector also found 

that permanently disabling injuries were highly likely. The 

inspector found that the violation resulted from a high degree 

of negligence. 

Unwarrantable Failure Order No. 3062868. This order was 

issued by the inspector at 2:45 p.m., on March 1, 1988, after 

he observed two drillers drilling and travelling the upper 

bench of the quarry where loose boulders were "hanging on the 

wall" which was approximately 30 to 40 feet high. The inspector noted that some boulders had fallen off the face of the 

highwall from vibration from a nearby blast. The inspector 

found that permanently disabling injuries were highly likely, 

and that the violation resulted from a high degree of 

negligence. 

Unwarrantable Failure Order No. 3062869. The order was 

issued after the inspector found two blasting caps in an 

off ice desk drawer of an employee. The inspector found that 

permanently disabling injuries were reasonably likely, and 

that the violation was the result of a high degree of 

negligence. 

Contrary to the assertions by the parties that no 

employees were "in the zone of danger," the aforementioned 

information with respect to each of the violations reflects 

that miners were directly exposed to hazards, and that one 

miner suffered serious disabling injuries to his arm when it 

was caught in a moving conveyor belt. Further, the assertion 

that employees were not exposed to any risk "with any great 

frequency" is irrelevant. ·From a gravity point of view, the 

issue is whether or not any employee was exposed to any 

hazard, regardless of its frequency. For example, the 

employee who caught his arin in a moving conveyor may have only 

been exposed to a risk on this one occasion, but the result 

was disastrous. 

With regard to the question of negli~ence, the 

unexplained assertions by the parties that there "was little 

270 
or no negligence" is totally without foundation. The inspectors found that the violations noted above were the result of 

a high degree of negligence, and in one case, the inspector 

made a negligence finding of reckless disregard. 

I have-reviewed the answers filed by the respondent in 

each of these cases, including the defenses advanced with 

respect to each of the violations. If the parties believe 

that these defenses have merit, or should be considered by the 

judge in mitigation of the civil penalties, it is incumbent on 

the parties to place these arguments clearly and succintly 

before the judge for his consideration. Reliance on boilerplate contradictory language that bears no rational or reasonable relationship to the particular facts of a case is simply 

unacceptable, and I will continue to reject such submissions 

in support of proposed settlements. In this regard, this is 

not the first time I have rejected a proposed settlement filed 

by the Dallas Regional Solicitor's Office based on the 

identical language used in these cases. See: Secretary v. 

Boorhem-Fields, Incorporated, Docket No. CENT 88-56-M, 

August 29, 1988, Order Rejecting Proposed Settlement. 

Apart ·from the gravity and negligence contradictions 

noted above, the Commission's rules governing proposed settlements requires the judge to consider and discuss all information with respect to the civil penalty criteria found in 

section llOCi) of the Act. The failure by the parties to 

submit clear and complete information to the judge as part of 

their submissions in support of any settlement puts the judge 

in the untenable position of attempting to decipher MSHA's 

civil penalty "point system." In these cases, the parties 

have failed to provide any narrative discussion with respect 

to the section llO(i) criteria concerning the respondent's 

size, good faith abatement, or history of prior violations. 

They simply state that they have reviewed and reconsidered the 

operator's size, good faith, and prior history of violations, 

but have failed to advance any arguments or conclusions as to 

how this information may impact on the proposed settlements or 

civil penalty assessment reductions. They simply refer me to 

"Exhibit .A to the Complaint." It is incumbent on the parties, 

and not the judge, to extrapolate this information, and to 

submit it in some meaningful narrative form. 

With regard to Docket Nos. CENT 88-79-M, CENT 88-83-M, 

CENT 104-M, and CENT 88-141-M, the proposed settlement amounts 

for each of the violations are lumped together in one lump sum. 

Commission Rule 30(b), 29 C.F.R. § 2700.30, requires the 

parties to submit a proposed settlement amount for each violation. Again, it is incumbent on the parties, not the judge, 

271 
to prorate or allocate the specific amounts to be assessed for 

each individual violation, and unexplained lump sum proposals 

are simply unacceptable. 

CONCLUSIONS AND ORDERS 

In view of the foregoing, I make the following dispositions of these cases: 

1. Docket No. CENT 88-53-M. I will approve the proposed 

settlement of this case, and a separate dispositive decision 

will follow. 

2. Docket Nos. CENT 88-79-M and CENT 88-104-M. The 

proposed settlements in these cases are tentatively approved, 

subject to the submission and receipt of further information 

from the parties with respect to the section llOCi> civil 

penalty criteria concerning the respondent's size, good faith 

abatement, history of prior violations, and the allocation of 

the specific settlement amounts for each of the violations. 

Upon receipt of this information, I will issue further dispositi ve decisions. 

3. Docket Nos. CENT 88-65-M, CENT 88-83-M, and 

CENT 88-141-M. The proposed settlements in these cases are 

rejected, subject to their re-filing. The parties ARE ORDERED 

to resubmit amended motions with a full discussion and explanation clarifying or justifying the proposed penalty reductions 

in light of the apparent gravity and negligence contradictions 

noted herein. The parties ARE FURTHER ORDERED to submit a 

discussion concerning the civil penalty criteria with respect 

to the respondent's size, good faith abatement, history of 

prior violations, and the allocation of the specific settlement amounts for each of the violations. 

The parties ARE FURTHER ORDERED to submit all of the 

aforementioned information to me within thirty (30) days of 

the receipt of these Orders. 

272 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARD 

DENVER. CO 80204 

February.17, 1989 

FMC WYOMING CORPORATION, 

Cont~stant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

CONTEST PROCEEDING 

Docket No. WEST 88-312-R 

Order No. 2648287; 7/13/88 

FMC Trena Mine 

ORDER DENYING SECRETARY OF LABOR'S 

MOTION TO DISMISS 

On August 25, 1988, Contestant FMC mailed its Notice of 

Contest herein; such was received August 30, 1988. Thereafter, 

in November, 1988, the Secretary combined the proposed assessment 

for the Citation involved here- No. 2648482 -- with three other 

Citations. Such combined assessment for all four Citations was 

paid by FMC in one check. Thereafter, on January 30, 1989, the 

Secretary filed a Motion to dismiss, citing Old Ben Coal Company, 

7 FMSHRC 205 (1985). In response thereto, FMC pointed out that 

such payment for Citation 2648482 was made in error, and 

supported such contention with an affidavit of its Safety 

Manager, Julius Jones. Mr. Jones affidavit clearly indicates 

that the payment of the proposed assessment for the subject 

Citation was made in error. The Commission's decision in Old 

Ben, supra, clearly points out that its ultimate conclusion that 

the contest should be barred because of payment of the proposed 

penalty, might have been different had the mine operator paid 

such penalty by "mistake", rather than intentionally. I conclude 

in the circumstances here that payment of the proposed penalty 

through mistake or inadvertence does not bar a mine operator from 

proceeding with its contest proceeding where such is timely filed. 

There is no question in this record that Contestant did indeed 

intend to contest the subject Citation. Accordingly, the 

Secretary's Motion to Dismiss is denied. 

j)#~// #' ~/d~r Michael A. Lasher, Jr. 

Administrative Law Judge 

273 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

February 22, 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

ON BEHALF OF 

DONALD J. ROBINETTE, 

Complainant 

v. 

BILL BRANCH COAL COMPANY, 

INC., 

Respondent 

SECRE·rARY OF LABOR, 

MINE SAFE·rY AND HEAL'rH 

ADMINISTRATION CMSHA), 

ON BEHALF OF JOEY F. HALE, 

Complainant 

v. 

BILL BRANCH COAL COMPANY, 

INC., 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. VA 87-21-D 

NORT CD 87-5 

Mine No. 8 

DISCRIMINATION PROCEEDING 

Docket No. VA 87-22-D 

NORT CD 87-7 

: Mine No. 8 

. . 

. . 

STAY ORDER 

In a Decision issued September 29, 1988, finding Respondent 

violated section 105Cc} of the Act, the Complainants were 

directed to file statements indicating the specific relief 

requested, and Respondent was granted a right to reply. 

Respondent has subsequently filed in United States Bankruptcy 

Court for reorganization in bankruptcy pursuant to Title 11 of 

the United States Code, and thereby the proceedings herein in the 

above captioned cases are subject to an automatic stay Cll u.s.c. 

§ 362(a)(l)). The Solicitor, on behalf of Complainants, filed in 

United States Bankruptcy court, a Motion For A Determination That 

Stay Does Not Apply. 

Accordingly, it is ORDERED that proceedings in the above 

captioned cases be STAYED pending a determination by the United 

States Bankruptcy Court that the automatic stay does not apply. 

U. S. GOVERNMENT PRINTING OFFICE 1989/241-155/04753 

Avram Weisberger 

Administrative Law Judge 

(703) 756-6210 

274