APRIL 1987 

COMMISSION DECISIONS 

04-07-87 

04-14-87 

04-30-87 

04-30-87 

Canon Coal Company 

Sec. Labor for Andy Brackner v. 

Jim Walter Resources, Inc. 

Youghiogheny & Ohio Coal Company 

Wilmot Mining Company 

ADMINISTRATIVE LAW JUDGE DECISIONS 

04-02-87 

04-03-87 

04-06-87 

04-06-87 

04-07-87 

04-07-87 

04-08-87 

04-09-87 

04-09-87 

04-14-87 

04-14-87 

04-14-87 

04-14-87 

04-14-87 

04-14-87 

0.4-14-87 

04-15-87 

04-15-87 

04-15-87 

04-16-87 

04-22-87 

04-22-87 

04-22-87 

04-22-87 

04-22-87 

04-22-87 

04-27-87 

04-28-87 

04-29.-87 

Silver State Mining Corporation 

Larry B. Anderson v. Consol Pennsylvania 

Coal Company 

Reading Anthracite Company 

Rushton Mining Company 

United Minerals, Inc. 

Emery Mining Corporation 

Consolidation Coal Company 

Sulphur Springs Stone Company 

Consolidation Coal Company 

Harley M. Smith v. Bow Valley Coal Resources 

Alvin Ritchie v. Kodak Mining Company, Inc. 

Texasgulf, Inc. 

Falcon Explorations 

Southern Ohio Coal Company 

Consolidation Coal Company 

Consolidation Coal Company 

Sec. Labor for Yale Hennessee v. Alamo Cement Co. 

Pyro Mining Company 

Eugene C. McPherson 

Larry D. Scroggins v. Peabody Coal Company 

Rushton. Mining Company 

Mears Enterprises, Inc. 

Jim Walter Resources, Inc. 

Western Avella Contractors, Inc. 

Emery Mining Company 

Utah. Power & Light Company (Emery Mining) 

Street & Whited Coal Co., Inc. 

Triple D Coal Company 

Johri Ervin Paugh v. Mettiki Coal Corporation 

PENN 85-201 

SE 86-69-D 

LAKE 84-98 

LAKE 85-47 

WEST 84-145-M 

PENN 86-221-D 

PENN 86-275 

PENN 86-300 

LAKE 87-36 

WEST 86-84 

WEVA 86-215-R 

KENT 86-32-M 

WEVA 87-2 

KENT 86-23-D 

KENT 86-138-D 

WEST 85-148-M 

WEST 87-2-M 

WEVA 86-186-R 

WEVA 86-210-R 

WEVA 86-482 

CENT 86-151-DM 

KENT 86-6 

LAKE 86-101-M 

LAKE 87-28-D 

PENN 86-100-R 

PENN 87-11 

SE 87-35-R 

VA 86-36 

WEST 86-217 

WEST 86-240 

VA 86-49 

WEVA 86-432 

YORK 86-9-D 

Pg. 667 

Pg. 671 

Pg. 673 

Pg. 684 

Pg. 691 

Pg. 705 

Pg. 707 

Pg. 708 

Pg. 710 

Pg. 712 

Pg. 717 

Pg. 719 

Pg. 727 

Pg. 735 

Pg. 744 

Pg. 748 

Pg. 768 

Pg. 775 

Pg. 782 

Pg. 786 

Pg. 789 

Pg. 793 

Pg. 797 

Pg. 799 

Pg. 800 

Pg. 812 

Pg. 813 

Pg. 818 

Pg. 820 

Pg. 824 

Pg. 825 

Pg. 827 

Pg. 829 

APRIL 1987 

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

Harlan L. Thurman v. Queen Anne Coal Company, Docket No. SE 86-121-D. 

(Judge Weisberger, March 5, 1987) 

Secretary of Labor on behalf of Bobby G, Keene v. S & M Coal Company, 

Prestige Coal Co. & Tolbert Mullins, Docket No. VA 86-34-D. (Judge 

Melick, March 2, 1987) 

Rushton Mining Company v. 

PENN 86-44-R, PENN 86-92. 

Secretary of Labor, MSHA, Docket Nos. 

(Judge Broderick, March 19, 1987) 

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

Secretary of Labor, MSHA v. Texas Utilities Generating Company, 

Docket No. CENT 86-119. (Petition for Interlocutory Review of Judge 

Weisberger's February 4, and March 19, 1987 Orders.) 

Alfred Cox v. Pammlid Coal Company, Docket No. WEVA 86-73-D. (Judge 

Koutras, March 5, 1987) 

Secretary of Labor on behalf of Andy Brackner v. Jim Walter Resources, 

Inc., Docket No. SE 86-69-D. (Motion for Reconsideration of Commission 

Decision, March. 20, 1987) 

Rushton Mining Company v. Secretary of Labor, MSHA, Docket Nos. 

PENN 85-253-R, 86-1. (Motion for Clarification of Commission Order, 

March 30, 1987) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CANON COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 7, 1987 

Docket No. PENN 85-201 

BY: Ford, Chairman; Backley, Doyle, Lastowka and Nelson~ 

Commissioners 

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding involving Canon Coal Company 

("Canon") arises under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 ~ seq. (1982). Commission Administrative Law Judge Roy 

J. Maurer issued a decision that in relevant part vacated a withdrawal 

order alleging a violation of 30 C.F.R. § 75.200. 8 FMSHRC 696, 705-10 

(May 1986) (ALJ). 1/ The Commission directed review on its own motion 

(30 U.S.C. § 823(d}(2)(B)), limiting review solely to the legal question 

of whether the judge properly had construed section 75.200. For the 

reasons that follow, we conclude that the essence of the judge's 

decision is consistent with the appropriate construction of this 

important standard and we affirm. 

On October 9, 1984, a fatal roof fall accident occurred in Canon's 

Pitt Gas Mine, an underground coal mine located in Clarksville, 

ll In pertinent part, section 75.200 provides: 

Each operator shall undertake to carry out on a 

continuing basis a program to improve the roof 

control system of each coal mine and the means and 

measures to accomplish such system. The roof and 

ribs of all active underground roadways, travelways, 

and working places shall be supported or otherwise 

controlled adequately to protect persons from falls 

of the roof or ribs. 

(Emphasis supplied.) 

667 
Pennsylvania. Following its accident investigation, the Department of 

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

several citations and orders, all alleging violations of section 75.200. 

In his decision, Judge Maurer, in relevant part, vacated the order that 

is the subject of the present proceeding. In reaching this conclusion, 

the judge stated, among other things, that "[w]hile ••. it is not 

necessary to prove a violation of the roof control plan in order to 

sustain a violation of [section] 75.200, the evidence must s.how that the 

operator knew or should have known that a condition existed that 

required additional support and yet it was not provided." 8 FMSHRC at 

709. Focusing on this language, the Commission on its own motion 

directed review of that portion of the judge's decision vacating the 

order. (The Secretary did not seek review of the judge 1 s decision.) 

Section 75.200, which reflects section 302(a) of the Mine Act, 30 

U.S.C. § 862(a), is a mandatory safety standard of central importance in 

the crucial regulatory area of roof control in underground coal mines. 

With respect to the requirement in section 75.200 that roof and ribs "be 

supported or otherwise controlled adequately," this standard is 

expressed in general terms so that it is adaptable to myriad roof 

condition and control situations. See generally Kerr-McGee Corp., 3 

FMSHRC 2496, 2497 (November 1981). Questions of liability for alleged 

violations of this broad aspect of this standard are to be resolved by 

reference to whether a reasonably prudent person, familiar with the 

mining industry and the protective purpose of the standard, would have 

recognized the hazardous condition that the standard seeks to prevent. 

Cf. Ozark-Mahoning Co., 8 FMSHRC 190, 191-92 (February 1986); Great 

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

5 FMSHRC 3, 5 (January 1983); Alabama By-Products Corp., 4 FMSHRC 2128, 

2129 (December 1982). Specifically, the adequacy of particular roof 

support or other control must be measured against the test of whether 

the support or control is what a reasonably prudent person, familiar 

with the mining industry and protective purpose of the standard, would 

have provided in order to meet the protection intended by the standard. 

We emphasize that the reasonably prudent person test contemplates an 

objective -- not subjective -- analysis of all the surrounding 

circumstances, factors, and considerations bearing on the inquiry in 

issue. See, ~·· Great Western, supra, 5 FMSHRC at 842-43; U.S. Steel, 

supra, 5 FMSHRC at 5-6. 

While the judge's decision contains some language not completely 

congruent with the wording of the reasonably prudent person test 

consistently applied by this Commission in determining the applicability 

of broad standards to particular factual circumstances, we are satisfied 

that the judge applied that construction in essence and that his 

decision is consistent with it. In its post-hearing brief, Canon 

expressly had urged upon the judge the reasonably prudent person 

constru~tion of this standard. The judge proceeded to examine all the 

objective circumstances surrounding the roof fall. 8 FMSHRC at 700-10. 

He concluded, in essence, that the Secretary had failed to produce 

evidence that objective signs existed prior to the roof fall that would 

have alerted a reasonably prudent person to install additional roof 

support beyond the support that actually had been provided by the 

operator. 8 FMSHRC at 710. Therefore, because the judge's application 

668 
of the standard is consistent with the appropriate interpretative 

approach and this was the limited concern of our direction for review, 

we find no reason to disturb the judge's holding. 

Accordingly, the judge's decision is affirmed insofar as it is 

consistent with this decision. 

J;L~ L. Clair Nelson, Commissioner 

669 
Distribution 

Joseph Mack, III, Esquire 

Thorp, Reed & Armstrong 

One Riverfront Center 

Pittsburgh, Pennsylvania 15222 

Jerald S. Feingold, Esquire 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

Administrative Law Judge Roy J. Maurer 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

670 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

1730 K STREET NW, &TH FLOOR 

WASHINGTON, D.C. 20006 

April 14, 19~ . .., 

on behalf of ANDY BRACKNER 

v. Docket No. SE 86-69-D 

JIM WALTER RESOURCES, INC. 

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

Commissioners 

ORDER 

BY THE COMMISSION: 

Jim Walter Resources, Inc. ("JWR"), has filed a Motion for 

Reconsideration requesting that the Commission reconsider its March 20, 

1987 order denying JWR's previously filed petition for discretionary 

review in this matter. Upon consideration of the motion and the 

Commission's previous order, the motion for reconsideration is denied. 

~ ordB:rd, Chairman 

~..&(.,U.t?/I'.&~ Richard V. Backley, Commissioner 

~astowk4, Commissioner 

I '-71·1 I ~ 

r.. · ,' ,-· i I ·'--~~-<....-'"' l \_,.,(_.\[_ b-v 

L. Clair Nelson, Commissioner 

671 
Distribution 

David M. Smith, Esq. 

Maynard, Cooper, Frierson & Gale, P.C. 

12th Floor, Watts Bldg. 

Birmingham, AL 35203 

Ann Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge James Broderick 

Federal Mine Safety and Health 

Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

672 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 30, 1987 

Docket No. LAKE 84-98 

YOUGHIOGHENY & OHIO COAL COMPANY 

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 ~seq. (1982)(the "Mine 

Act"), the issues are whether a Commission administrative law judge 

erred in holding Youghiogheny & Ohio Coal Co. ("Y&O") in default; 

whether two violations of a mandatory safety standard were "significant 

and substantial" within the meaning of section 104(d)(l) of the Mine 

Act, 30 U.S.C. § 814(d)(l); and whether the procedure followed in 

assessing civil penalties for the violations was proper. For the 

reasons that follow, we conclude that, to the extent that the judge 

characterized his disposition as a default, he erred. Further, we 

affirm the judge 1 s findings that the violations were significant and 

substantial and his civil penalty assessments. 

Y&O's Nelms No. 2 Mine, an underground coal mine, is located in 

Harrison County, Ohio. On March 14, 1984, Robert Cerana, an inspector/ 

ventilation spacialist of the Department of Labor's Mine Safety and 

Health Administration ("MSHA"), conducted a ventilation inspection of 

the 013 section of the mine. In the "C" entry the inspector observed 

coal dust filtE'.ring through the man doors in the stopping line between 

the "C" and "D" entries. The inspector had detected recirculation of 

air on the 013 section twice during the two months prior to March 1984. 

The coal dust indicated to the inspector that the section again might be 

experiencing recirculation of air. Utilizing a smoke tube, the 

inspector determined that return air in the "D" entry was recirculating 

into the "C" entry and was traveling from the "C" entry to the face. 

The inspector believed that the recirculation was caused by an auxiliary 

fan on the section. The inspector found .1% to .2% of methane in the 

673 
section. (The mine liberates methane at a rate of approximately 1.5 

million cubic feet per minute.) 

The inspector issued a citation alleging a violation of 30 C.F.R. 

§ 75.302-4. 1/ Although the inspector estimated that the violation 

could be corrected in about one hour, he allowed approximately two hours 

for abatement. During that time the section foreman tried unsuccessfully to abate the violation. The inspector did not extend the 

abatement period and issued a withdrawal order pursuant to section 

104(b) of the Mine Act. 30 U.S.C. § 814(b). 

Subsequent to the issuance of the withdrawal order, the mine 

superintendent was summoned to the area. The superintendent ordered the 

installation of three canvas-type baffle curtains behind the auxiliary 

fan. Installation of the baffle curtains stopped the recirculation of 

air. 

On April 5, 1984, the inspector conducted another inspection at 

the mine. When he arrived at the 021 section he observed three miners 

working and several pieces of electrical equipment in operation, 

including an auxiliary fan, a roof bolting machine, and a continuous 

mining machine. The inspector took a mean entry air velocity reading at 

the continuous mining machine. The reading indicated a mean entry air 

velocity of 30 feet a minute. 30 C.F.R. § 75.301-4(a) requires a 

minimum mean entry air velocity of 60 feet a minute. (A citation was 

issued for this violation but it is not before us). To increase the air 

velocity, the tail tube was removed from the back of the auxiliary fan. 

Approximately fifteen minutes later the inspector observed coal 

dust suspended in the atmosphere in the "B" entry. The inspector 

determined that air was recirculating on the section between the "A" and 

"B" entries. The inspector also detected methane in the section, .5% at 

the face of the "A" entry and between .2% and .3% in the "B" entry. The 

inspector issued a citation alleging a violation of section 75.302-4(a) 

and found that the violation was significant and substantial. 

The violation was abated when the foreman installed three baffle 

curtains behind the auxiliary fan. This procedure was suggested to the 

foreman by the inspector after the foreman indicated that he did not 

know how to abate the violation. 

11 30 C.F.R. § 75.302-4(a) provides in part: 

In the event that auxiliary fans and tubing are 

used in lieu of or in conjunction with a line 

brattice system to provide ventilation of the 

working face: 

(a) The fan shall be a of permissible type, 

maintained in permissible condition, so located and 

operated to avoid any recirculation of air at any 

time, and inspected frequently by a certified person 

when in use. 

674 
Because the inspector's supervisor believed that the recirculation 

problem 11 reoccurs consistently" (Exh. M"'.'5), the supervisor recommended 

that MSHA specially assess both violations under 30 C.F.R. § 100.5. ~I 

Consequently, the Secretary proposed specially assessed civil penalties 

of $850 and $950 for the violations. 

At the conclusion of an evidentiary hearing, former Commission 

Administrative Law Judge Joseph B. Kennedy issued a bench decision in 

which he found that the violations of section 75.302-4(a) occurred and 

that they were significant and substantial. The judge assessed civil 

penalties of $1,000 and $950. Later, the judge confirmed his bench 

decision in writing (7 FMSHRC 1185 (August 1985)(ALJ)) but on review, 

the Commission concluded that the content of the written decision failed 

to conform to the requirements of Commission Procedural Rule 65(a), 29 

C.F.R. § 2700.65(a). The Commission remanded the case to the judge for 

the entry of a decision in accordance with the Commission's Rules of 

Procedure. 7 FMSHRC 1335-36 (September 1985)" 

On remand, the judge ordered both parties to file briefs with 

proposed findings of fact and conclusions of law. One day before Y&O's 

submission was due, it petitioned the Commission for interlocutory 

review, requesting relief from the judge's order and asserting that a 

submission would be futile in view of the judge~s prior rulings. The 

Commission denied Y&0 1 s petition. The judge next ordered Y&O to show 

cause why it should not be deemed to be in default for failing to make 

any submission. Y&O did not respond and the judge issued his final 

decision in part purporting to default Y&O and ordering the payment of 

the same penalties he had previously assessed. di 8 FMSHRC 121 (January 

1986)(ALJ). In addition, the judge set forth reasons and bases for his 

finding the violations significant and substantial and for his penalty 

assessments. In response to Y&O's argument that the Secretary had not 

complied with his Part 100 regulations in proposing penalties for the 

violations and that therefore MSHA should reassess the penalties, the 

judge held that the Commission exercises independent judgment in civil 

penalty assessments, is not bound by the manner in which MSHA arrives at 

civil penalty proposals, and that therefore reassessment by MSHA was 

unnecessary. 8 FMSHRC at 134. 

On review Y&O argues that the judge erred in finding it in 

default. Y&O also challenges the judge's findings that the violations 

were significant and substantial, as inconsistent with the Commission's 

£1 30 C.F.R. Part 100 sets forth the criteria and the procedures by 

which the Secretary of Labor, through MSHA, proposes the assessment of 

civil penalties under sections 105 and 110 of the Mine Act. 30 U.S.C. 

§§ 815 and 820. Under 30 C.F.R. § 100.5 of these procedures, MSHA may 

elect to waive its regular penalty assessment formula (30 C.F.R. § 

100.3) or single penalty assessment provision (30 C.F.R. § 100.4) and 

instead specially assess penalties for violations. 

JI Y&O's failure to respond to the judge's order was the subject of a 

disciplinary referral by the judge and has been addressed previously by 

the Commission. Disciplinary Proceeding, 8 FMSHRC 663 (May 1986). 

675 
decision in Cement Division, National Gypsum Co., 3 FMSHRC 822 (April 

1981). Finally, Y&O asserts that the judge erred in refusing to require 

the Secretary to reassess his proposed penalties under Part 100.3 or 

100.4. 

We hold that the judge's purported "default" of Y&O was in name 

only, and had no practical adverse impact on Y&O or upon the substance 

of the decision. Commission Procedural Rule 62, 29 C.F.R. § 2700.62, 

empowers a Commission judge to require the submission "of proposed 

findings of fact, conclusions of law, and orders, together with 

supporting briefs." 4/ Commission Procedural Rule 63(a) authorizes a 

Commission judge to ~nter an order of default "[w]hen a party fails to 

comply with an order of a judge after an issuance of an order to show 

cause ••.. " 29 C.F.R. § 2700.63(a). However, Commission Procedural Rule 

63(b), 29 C.F.R. § 63(b), states that in a civil penalty proceeding the 

judge, after finding a party in default, is required to "also enter a 

sununary order assessing the [Secretary's] proposed penalties as 

final •••. 11 (Emphasis added). '2/ One of the purposes of these rules is 

to provide for the Commission's assessment of civil penalties in those 

instances where, because of a party's default, there is an inadequate 

record upon which to base a judge's independent penalty determination. 

Here~ the judge did not assess the Secretary's proposed penalties as 

final, rather he assessed the penalties de !!2YQ., based upon the complete 

record developed at the hearing before him and in accordance with the 

statutory penalty criteria. In essence, therefore, the judge's 

disposition was on the merits, it was not a "default." 

We now address Y&O's challenge to the significant and substantial 

findings and the other penalty aspects of this case. In concluding that 

4/ 29 C.F.R. § 2700.62, titled "Proposed findings, conclusions and 

orders," states: 

The Judge may require the submission of proposed 

findings of fact, conclusions of law, and orders, 

together with supporting briefs. The proposals 

shall be served upon all parties, and shall contain 

adequate references to the record and authorities 

relied upon. 

'ii 29 C.F.R. § 2700.63, titled "Sununary disposition of proceedings," 

states: 

(a) Generally. When a party fails to comply with 

an order of a judge or these rules, an order to show 

cause shall be directed to the party before the 

entry of any order of default or dismissal. 

(b) Penalty proceedings. When the Judge finds the 

respondent in default in a civil penalty proceeding, 

the Judge shall also enter a sununary order assessing 

the proposed penalties as final, and directing that 

such penalties be paid. 

676 
the first violation of section 75.302-4(a) was significant and 

substantial, the judge found that there existed a reasonable likelihood 

that the hazard contributed to by the violation could result in a 

serious or extremely serious injury. 8 FMSHRC at 131-132. £/ 

We have previously held that a violation is properly designated 

significant and substantial "if, based on the particular facts 

surrounding that violation, there exists a reasonable likelihood that 

the hazard contributed to will result in an injury or illness of a 

reasonably serious nature." National Gypsum, 3 FMSHRC at 825. In 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), we explained: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary 

must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

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

contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will 

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

that the injury in question will be of a reasonably 

serious nature. 

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). 

(Emphasis deleted). We have emphasized that, in accordance with the 

language of section 104(d)(l), it is the contribution of a violation to 

the cause and effect of a hazard that must be significant and 

substantial. 6 FMSHRC at 1836. 

Y&O admits that air was recirculating on the 013 section. The 

evidence establishes that the discrete safety hazard contributed to by 

the violation was the accumulation of methane and coal dust and a 

resulting danger of explosion or fire. The key issue is whether there 

was a reasonable likelihood that the hazard contributed to would result 

in an event in which there is an injury. 

We conclude that substantial evidence supports the judge's finding 

that such a reasonable likelihood existed. As the judge properly 

recognized, the violation must be eva~uated in terms of continued normal 

£/ We recognize that the judge, ~ sponte, made a finding that the 

violation was significant and substantial, where no such charge was 

alleged by the Secretary. In its petition for discretionary review, Y&O 

did not challenge the judge's authority to make such a finding, nor did 

we ~ sponte direct review of the issue. Thus, we leave for another 

day the question of whether a Conunission judge may make findings that a 

violation is significant and substantial absent a Secretarial allegation 

to that effect. 30 U.S.C. §§ 823(d)(2)(A)(iii), 823(d)(2)(B); 29 C.F.R. 

§§ 2700.70(f), 2700.71. 

677 
mining operations. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 

1984). The air on the section was recirculating and coal was being 

mined. Although the concentration of methane was low at the point in 

time that the violation was cited, the mine liberates large quantities 

of methane and the inspector testified without contradiction that sudden 

releases of methane can occur at any time: In fact, as the judge noted, 

due to the amount of methane liberated at the mine it is on the frequent 

inspection cycle mandated by section 103(i) of the Act, 30 U.S.C. 

§ 813(i). Thus, had normal mining operations continued, methane could 

have accumulated in unsafe concentrations. See U.S. Steel Mining Co., 

7 FMSHRC 1125, 1130 (August 1985). Further, several potential ignition 

sources were present on the section in the form of an electrically 

powered ram car, a roof bolting machine, a scoop and an auxiliary 

ventilation fan. 

In order to establish the significant and substantial nature of 

the violation, the Secretary need not prove that the hazard contributed 

to actually will result in an injury causing event. The Commission has 

consistently held that proof that the injury-causing event is reasonably 

likely to occur is what is required. See,~·· U.S. Steel Mining Co., 

7 FMSHRC at 1125; U.S. Steel Mining Co.j 7 FMSHRC 327~ 329 (March 1985)0 

Y&O's challenge to the judge's significant and substantial 

designation of the second violation of section 75.302-4(a) must also be 

rejected in light of the substantial evidence supporting the judge's 

decision. 

Here, the inspector testified that at the time of the violation he 

found .5% methane at the face. He further testified that a sudden 

release or outburst of methane had occurred recently at the mine, which 

resulted in a concentration of 1.8%. (As noted above ·the mine is on a 

section 103(i) inspection cycle.) The presence of the electrically 

powered continuous mining machine constituted a possible ignition 

source. Accordingly, the judge's findings of significant and 

substantial violations must be affirmed. 

Finally, we turn to the penalty aspects of this case, and to Y&0 1 s 

assertion that the judge erred in failing to require the Secretary to 

redetermine his proposed penalties under the Secretary's regular penalty 

assessment procedure of section 100.3 or his single penalty procedure of 

section 100.4. 

At the outset, we acknowledge that the argument raised by Y&O here 

differs somewhat from that presented in other cases addressing the 

separate roles of the Secretary and the Commission under the Mine Act 1 s 

bifurcated penalty assessment scheme. In the prior cases cited by the 

parties the central issue has concerned whether in assessing penalties 

in contested cases the Commission and its judges are bound by the 

penalty assessment regulations adopted by the Secretary in Part 100. We 

have consistently rejected assertions that, in serving our separate and 

distinct function of assessing appropriate penalties based on a record 

developed in adjudicatory proceedings before the Commission, we are 

bound by the Secretary's regulations, which are intended to assist him 

in proposing appropriate penalties. See, ~-, Sellersburg Stone Co., 5 

678 
FMSHRC 287 (March 1983), aff•d, 737 F.2d 1147 (7th Cir. 1984); Black 

Diamond Coal Mining Co., 7 FMSHRC 1117 (August 1986); U.S. Steel Mining 

Co., 6 FMSHRC 1148 (May 1984). 

In the present case, however, Y&O makes it clear that it is not 

arguing that the Commission is required to adhere to the Secretary's 

penalty regulations. Rather, it argues that when the Secretary fails to 

conform to his own regulations in proposing penalties, the Commission 

must require the Secretary to re-propose a penalty in a manner 

consistent with his regulations. We have carefully considered Y&O's 

argument. For the reasons that follow, we conclude that the 

Commission 1 s independent penalty assessment authority under the Mine 

Act•s bifurcated penalty assessment scheme serves to provide the 

necessary and appropriate relief in the vast majority of instances where 

the Secretary fails to follow his penalty assessment regulations in 

proposing penalties. We further hold, however, that in certain limited 

circumstances the Commission may require the Secretary to re-propose his 

penalties in a manner consistent with his regulations. 

As has been stated, "[i]t is axiomatic that an agency must adhere 

to its own regulations." Brock v. Cathedral Bluffs Shale Oil Co., 796 

F.2d 533 (D.C. Cir. 1986)(Scalia, J.). citing Accardi v. Shaughnessy~ 

347 U.S. 260, 265-67 (1954). The Secretary's Part 100 penalty 

regulations were formally promulgated and are published in the Federal 

Register. Therefore, if the regulations were to be considered in 

isolation they would appear to fall within the purview of the referenced 

axiom and fidelity by the Secretary to his regulations would be 

essential to assessment of an appropriate penalty. Id. Viewing the 

Secretary's regulations in their proper context in the Mine Act 1 s 

overall penalty assessment scheme, however, we conclude that it 

generally is neither required nor desirable to require the Secretary to 

re-propose a penalty. The Commission possesses explicit, statutory 

authority to independently assess an appropriate penalty based on the 

record evidence pertaining to the statutory criteria specified in 

section llO(i), 30 U.S.C. § 820(i), developed before it. The record 

developed in an adversarial proceeding concerning the statutory penalty 

criteria invariably will be more complete, current and fairly balanced 

than the information that is normally available to the Secretary at the 

pre-hearing stage when he must unilaterally determine and propose a 

penalty. Further, because the Commission is itself bound by proper 

consideration of the statutory criteria and its penalty assessments are 

themselves subject to judicial review under an abuse of discretion 

standard, no compelling legal or practical purpose would be served by 

requiring the Secretary to undertake again to propose a penalty where a 

preferable record already has been developed before the Commission. 

Therefore, we hold that, once a hearing has been held, a determination 

by the Commission or one of its judges that the Secretary failed to 

comply with Part 100 in proposing a penalty does not require affording 

the Secretary a further opportunitv t-n propose ·· _,..,,n:"'lty. Rather, in 

such circumstances the appropriate course is for the L:onunission or its 

judges to assess an appropriate penalty based on the record. 

We further conclude, however, that it would not be inappropriate 

for a mine operator prior to.a hearing to raise and, if appropriate, be 

679 
given an opportunity to establish that in proposing a penalty the 

Secretary failed to comply with his Part 100 penalty regulations. If 

the manner of the Secretary's proceeding under Part 100 is a legitimate 

concern to a mine operator, and the Secretary's departure from his 

regulations can be proven by the operator, then intercession by the 

Commission at an early stage of the litigation could seek to secure 

Secretarial fidelity to his regulations and possible avoidance of full 

adversarial proceedings. However, given that the Secretary need only 

defend on the ground that he did not arbitrarily proceed under a 

particular provision of his penalty regulations, and given the 

Commission's independent penalty assessment authority, the scope of the 

inquiry into the Secretary's actions at this juncture necessarily would 

be limited. 

We recognize that in the present case Y&O did attempt to raise 

this issue at an early stage of the proceedings, but was rebuffed by the 

judge who failed to distinguish Y&0 1 s argument from those that had been 

previously considered by the Commission. On this record, however, the 

judge's error was harmless. Y&O has not established that the special 

penalty assessments proposed by the Secretary were arbitrarily made. 

30 C.F.R. § 100.5 provides that "MSHA may elect to waive the regular 

assessment formula (§ 100.5) or the single assessment provisions 

(§ 100.4) if the Agency determines that conditions surrounding the 

violation warrant special assessment. 11 It further states, "[S]ome types 

of violations may be of such a nature or seriousness that it is not 

possible to determine an appropriate penalty [by using the regular or 

the single penalty assessment provisions]." The regulation provides 

that 11 [a]ccordingly, the following categories [of violations] will be 

individually reviewed to determine whether a special assessment is 

appropriate: 

* * * 

(h) Violations involving an extraordinarily high 

degree of negligence or gravity or other unique 

aggravating circumstances." 

30 C.F.R. § 100.S(h). MSHA's supervisory mining engineer who reviewed 

the citations at issue and recommended that they be specially assessed 

testified that he made the recommendations, among other reasons, because 

recirculation was a continuing problem at the mine, because he believed 

Y&O exhibited a high degree of negligence in permitting the violations 

to exist, and because of the seriousness uf the hazard posed by the 

violations. These considerations all fall within the purview of section 

100.S(h) as a basis for a special assessment, and we cannot conclude 

that in proposing the special assessments , mder section 100. 5 the 

Secretary acted arbitrarily. Therefore, it was proper for the judge to 

assess penalties based on the record developed at the hearing. 

Although Y&O further challenges the judge's penalty assessments as 

they relate to the negligence and gravity criteria, we hold that 

substantial evidence supports the judge's negligence and gravity 

findings regarding both violations. It is not disputed that 

recirculation previously occurred at the mine. Approximately one month 

680 
before the first violation was cited the mine superintendent discussed 

the mine's recirculation problems with MSHA district personnel. During 

these discussions the superintendent was told. that the use of baffle 

curtains offered a possible solution. When the second recirculation 

violation here was cited, three weeks after the first, the section 

foreman apparently still was not aware that the use of baffle curtains 

could prevent the recirculation problem encountered. Regarding the 

gravity of the violations, the mine liberates large amounts of methane, 

some methane was present in the sections at the time each violation was 

cited, and ignition sources were also present. In view of these 

factors, the judge properly evaluated the gravity of the violations as 

being serious. We further find that the amount of the penalties 

assessed by the judge are supported by the record, are consistent with 

the statutory penalty criteria, and will not be disturbed. Shamrock 

Coal Co., 1 FMSHRC 469 (June 1979). 

681 
Accordingly, the decision of the administrative law judge is affirmed 

insofar as it is consistent with this decision. 

Joyce 

</~tl~Cc A. Doyle~ Commi~ 

ames A. Lastowka~ Commissioner 

~'11LQ_~ L. Clair Nelson, Commissioner 

682 
Distribution 

Gerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Robert C. Kota, Esq. 

Youghiogheny & Ohio Coal Company 

P .0. lfox 1000 

St. Clairsville, Ohio 439.50 

Gerald P. Duff~ Esq. 

Hanlon, Duff~ Paleudis Co., LPA 

46770 National Road West 

St. Clairsville, Ohio 43950 

683 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WILMOT MINING GOMPAJ."\JY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 30, 1987 

Docket No. LAKE 85-47 

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

Connnissioners 

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), the 

following issues are presented on review: (1) whether the Commission 

administrative law judge below abused his discretion in rejecting a 

proposed settlement between the parties; (2) whether the cited operator~ 

Wilmot Mining Company ("Wilmot"), violated 30 C.F.R. § 48.28(a), a miner 

training regulation; (3) whether Wilmot was negligent in connection with 

the use of a front-end loader without a rollover protective structure 

("ROPS"); and (4) whether Wilmot violated 30 C.F.R. § 77.1605(b) by 

failing to equip a front-end loader with adequate brakes and, if so, 

whether Wilmot was negligent in connection with that violation. For the 

reasons that follow, we reverse the judge's conclusion that a violation 

of 30 C.F.R. § 48.28(a) was established, but otherwise affirm the 

judge's decision. 

At about 2:00 p.m. on May 25, 1984, John Schrock, Stripping 

Superintendent in charge of Wilmot 1 s North Mine, a surface coal mine 

located in Navarre~ Ohio, was leaving the 001-0 pit driving a Terex 72-

41 front-end loader (HTerex11 ). As Schrock was exiting the pit, he 

stopped about 100 feet from the bottom and backed down the road to make 

room for a descending coal truck. Schrock's Terex began to roll 

backwards, went off the road, struck the face of the highwall and rolled 

over. The cab was crushed and Schrock was killed. 

Not long before the accident, Harold Bain, Wilmot 1 s General 

Manager, observed Schrock with the Terex planting trees near the road 

leading into the pit area. Bain gave Schrock paychecks to deliver to 

the miners working in the pit. Just before the accident, Schrock drove 

684 
the Terex to the equipment parking lot near the pit entrance and told a 

mechanic that he had 11 lost" his brakes. Before the mechanic could 

inspect the brakes, however, Schrock drove the Terex into the pit area 

where the fatal accident occurred. 

An inspector of the Department of Labor 1 s Mine Safety and Health 

Administration ( 0 MSHA") investigated the accident. He found that the 

Terex did not have a ROPS and cited Wilmot for a violation of 30 C.F.R. 

§ 77.403a(a), a mandatory safety standard requiring loaders and certain 

other specified types of heavy mobile equipment to "be provided with ••• 

ROPS. 11 The inspector also checked the Terex 1 s brake system after the 

Terex was removed from the pit. The inspector found that the brake 

lines and cylinders were intact but that the brake fluid. was low. When 

the brakes were tested on level ground, at a 1ereasonably slow speed~ 11 

the Terex took 36 feet to stop. The inspector opined that the Terexis 

normal stopping distance in such a test should have been five to ten 

feet. Consequently, he cited Wilmot for a violation of 30 C,F.R. 

§ 77.1605(b), a mandatory safety standard requiring mobile equipment to 

be "equipped with adequate brakes." 

The inspector also reviewed Wilmot's records and his 

review indicated that the last training at the mine had been given in 

1980 and that Wilmot had provided no annual refresher training in 1982 

or 1983. 30 C.F.R. § 48.28(a) provides: "Each miner shall receive a 

minimum of 8 hours of annual refresher training as prescribed in this 

section." The inspector cited Wilmot for violating section 48.28(a) by 

failing to provide eight hours of annual refresher training in 1982 or 

1983 to the fourteen miners employed at the mine at the time of 

citation. 

Commission Judge William Fauver scheduled a hearing in this 

proceeding for August 20, 1985, and directed the parties to explore 

settlement. On August 15, 1985, the Secretary of Labor requested the 

judge to approve a proposed settlement including stipulated civil 

penalties totalling $2,300. The judge continued the hearing until 

August 27, 1985, and the hearing went forward on that date. The judge 

issued no order stating that settlement was rejected and provided no 

notation or explanation on the record addressing the proposed 

settlement. 

In his decision, the judge concluded that the Secretary had 

established a prima f acie case of a violation of the annual refresher 

training regulation. 8 FMSHRC 509, 512-13 (April 1986)(ALJ). The judge 

stated: "The Secretary ••• show[ed] that 14 miners were employed at the 

time of the inspection [in May 1984], that the mine was a going concern 

in 1982 and 1983, and that no refresher training was conducted for any 

miner in 1982 or 1983." 8 FMSlIRC at 512. In sustaining the ROPS 

citation, the judge found that Schrock operated the Terex front-end 

loader without a ROPS and that, consequently, the standard was violated. 

8 FMSHRC at 513. In assessing a civil penalty, the judge determined 

that Wilmot was grossly negligent in allowing Schrock to operate the 

Terex in the pit. The judge concluded that Bain knew that Schrock was 

operating the Terex without the ROPS when he gave Schrock the paychecks 

and that Bain knew or should have known that Schrock would drive the 

685 
Terex into the pit to deliver the paychecks. 8 FMSHRC at 510, 514. In 

addition, the judge found Schrock grossly negligent in driving the Terex 

into the pit and imputed that negligence to Wilmot. 8 FMSHRC at 514. 

The judge also sustained the brake citation finding that the brakes were 

defective. Underlying this conclusion were the judge's findings that 

the cylinders were very low in brake fluid and that when the Terex was 

tested on level ground it took 36 feet to stop and that on a steep road 

such as the pit road the loader "would have virtually no brakes at all." 

8 FMSHRC at 515. In assessing a civil penalty, the judge emphasized 

that Schrock's conduct in driving with brakes known to be defective was 

gross negligence, which was imputed to Wilmot. 8 FMSHRC at 515. The 

judge assessed civil penalties totalling $7,500 for the three 

violations. 

Wilmot argues as a threshold issue that the judge, without 

explanation, improperly rejected the settlement agreement. Settlement 

of contested issues and Commission oversight of that process are 

integral parts of dispute resolution under the Mine Act. 30 U.S.C. 

§ 820(k); ~ Pontiki Coal Corp., 8 FMSHRC 668, 674 (May 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, !..:_g., Knox County Stone Co.~ 3 FMSHRC 

2478, 2480-81 (November 1981). A judge 1 s oversight of the settlement 

process "is an adjudicative function that necessarily involves wide 

discretion." Knox County, 3 FMSHRC at 2479. 

On the present record, we cannot conclude that the judge committed 

error. Wilmot apparently never objected to the judge's procedure in 

going forward with the hearing. It did not object at the hearing or 

argue this point to him in its post-hearing brief. Failure to object in 

a timely manner to an alleged procedural error ordinarily waives the 

right to complain of the error on appeal, and the Mine Act prohibits, 

except for good cause shown, the raising of matters not first presented 

to the judge. 30 U.S.C. §_823(d)(2)(iii); 29 C.F.R. § 2700.70(d). 

Wilmot has not shown good cause for its failure to raise this objection 

before the judge and consequently we cannot consider it. l/ 

With respect to the alleged violation of section 48.28(a), Wilmot 

argues that the Secretary failed to show that any of the fourteen 

employees at issue were miners who required annual refresher training 

during 1982 and 1983 and did not receive it. We agree. 

The requirement for miner annual refresher training is contained 

in section 115(a)(3) of the Mine Act, 30 U.S.C. § 825(a)(3), and is 

implemented by the Secretary's training regulations at 30 C.F.R. Part 

48. The requirement for annual refresher training means that an 

operator must provide each covered miner in its employ with refresher 

11 In general, however, we believe that better practice requires that 

if a judge rejects a written settlement proposal he issue an order to 

that effect. Specifying the reasons for the rejection might sharpen the 

issues for trial and even possibly encourage an acceptable settlement 

proposal. 

686 
training within twelve months of his last training. Emery Mining Corp., 

5 FMSHRC 1400, 1401-03 (August 1983), aff 1 d, 744 F.2d 1411 (10th Cir. 

1984)(construing section 115(a)(3) of the Mine Act and 30 C.F.R. 

§ 48.8(a), a regulation identical to section 48.28(a) providing for 

refresher training for underground miners). The Secretary's evidence as 

to the alleged training violation here is insufficient. The Secretary 

showed that the last training was given in 1980; that no records 

reflected that the operator had provided annual refresher training for 

the years 1982 and 1983; and that fourteen employees were on Wilmot 1 s 

payroll at the time of the citation in May 1984. These facts alone, 

however, do not prove that any of the employees in question needed 

refresher training during any twelve month period ending in the cited 

time frame of 1982-83 and were not provided such training. In sum, we 

find lacking any relevant proof as to the employment and training 

histories of the fourteen employees in question. Significantly, in 

Emery, supra, the Secretary proved the violation by showing that five 

miners had received refresher training in June 1980 and that fifteen 

months had elapsed since their last training. 5 FMSHRC at 1401. Thus, 

we conclude that in the present case the Secretary did not establish a 

violation of section 48.28(a) as to any of the fourteen individuals 

during the time period to which the citation refers and that there is 

not substantial evidence supporting the judge's finding of a violation" 

Turning to the issue of the operator's failure to provide a ROPS 

on the loader, Wilmot does not contest the judge's finding of a 

violation of section 77.403a(a) but argues that it was not negligent in 

connection with that violation. Wilmot submits that it was 

unforeseeable that Schrock would drive the Terex into the pit without a 

ROPS and that his negligence in doing so should not be imputed to the 

company. We disagree. 

It is well established that the negligent actions of an operator's 

foremen, supervisors, and managers may be imputed to the operator in 

determining the amount of a civil penalty. See, ~., Southern Ohio 

Coal Co., 4 FMSHRC 1459, 1463-64 (August 1982). In Nacco Mining Co., 

3 FMSHR.C 848 (April 1981), the Conunission recognized a narrow and 

limited exception to this principle. The Commission held that the 

negligent misconduct of a supervisor will not be imputed to an operator 

if: (1) the operator has taken reasonable steps to avoid the particular 

class of accident involved in the violation; and (2) the supervisor's 

erring conduct was unforeseeable and exposed only himself to risk. 

3 FMSHR.C at 850. The Commission emphasized, however, that even a 

supervisory agent's unexpected, unpredictable misconduct may result in a 

negligence finding where his lack of care exposed others to risk or harm 

or the operator was otherwise blameworthy in hire, training, general 

safety procedures, or the accident or dangerous condition in question. 

3 FMSHR.C at 851. We reject Wilmot's assertion that a ~ defense was 

established. 

With regard to the foreseeability of Schrock 1 s conduct, substantial evidence supports the judge's finding that Bain, as general 

manager, knew or should have known that Schrock would drive to the pit 

in the Terex loader when he gave Schrock the paychecks to deliver to the 

miners in the pit. 8 FMSHR.C. at 514. At the time Bain gave the pay687 
checks to Schrock, the superintendent of the pit, Schrock was working 

with the Terex near the access road to the pit. It was or should have 

been foreseeable to Bain that Schrock would use the Terex for delivery 

of the paychecks in the pit area. Also, Wilmot has not established that 

it took reasonable steps to avoid the particular class of violation 

involved here, specifically, it has not shown that it took effective 

steps to prevent a loader without a ROPS from being operated in the pit 

area. 

We emphasize that managers, such as Schrock, who was superintendent and overall supervisor of the pit operation, must be held to a 

demanding standard of care in safety matters. Managers and supervisors 

in high positions must set an example for all supervisory and nonsupervisory miners working under their direction. Such responsibility 

not only affirms management's conunitment to safety but also, because of 

the authority of the manager, discourages other personnel from 

exercising less than reasonable care. 

Wilmot contests the judge's findings of a violation of section 

77.1605(b) and associated negligence. Concerning the violation, Wilmot 

argues essentially that the record evidence does not support the judge's 

finding as to the cause of the inadequacy of the brakes. To prove a 

violation of this standard, however, the Secretary is not required to 

elaborate a complete mechanical explanation of the inadequacy of the 

brakes. A demonstrated inadequacy itself may be sufficient. The 

inspector checked the Terex 1 s brake fluid levels and found them to be 

below normal. He detected no leaks in the braking system and found the 

major components of the system to be undamaged by the accident. When 

the Terex was tested at a reasonably slow speed, thirty-six feet and 

successively greater distances were required to stop the vehicle. His 

testimony that at normal "operating capacity" during such a test the 

Terex should have stopped within five to ten feet was unrefuted. We 

note also that Bain conceded that the brakes were inadequate (Tr. 112), 

disputing only the cause, which, in his view, was a blown booster 

cylinder. Whatever the precise cause of the braking defect, the 

evidence amply supports the judge's finding that the Terex was not 

"equipped with adequate brakes," in violation of the cited standard. '1:_/ 

On the issue of negligence, Wilmot again raises a Nacco defense. 

There is no question that Schrock's conduct was highly negligent; he 

told a mechanic shortly before the accident that he had "lost" his 

brakes but proceeded to drive the Terex down a grade into the pit area. 

Whether Schrock's actions were foreseeable, the judge properly found 

that his conduct "greatly endangered himself and other persons who might 

have been injured in an accident involving the Terex." 8 FMSHRC at 515. 

Therefore, the Nacco defense was not established. 3 FMSHRC at 850-51. 

'l:_/ Wilmot objects to the judge's finding that "when fluid was added 

to the normal level, it took only five to ten feet to stop." 8 FMSHRC 

at 515. There is no evidence that the inspector added braking fluid in 

testing the Terex. The evidence sununarized above, however, independently supports the finding of violation. 

688 
Finally, Wilmot 1 s argument that the penalties proposed by the 

Secretary and assessed by the judge are excessive is rejected, with 

respect to the 30 C.F.R. § 77.403a(a) and§ 77.1605(b) violations. The 

penalties assessed are supported by the record and reflect proper 

consideration of the statutory penalty criteria. We will not disturb 

them on review. Shamrock Coal Co., 1 FMSHRC 469 (June 1979). 

Accordingly, we reverse the judge's finding that Wilmot violated 

30 C.F.R. § 48.28(a) and vacate the penalty assessed for that violation. 

We affirm the judge 1 s decision as to the other violations and civil 

penalties. 

=-c~~,,a:s....- Backley, Commissioner 

a~a~, Joyce A. Doyle, ConlllliSSier 

L. Clair Nelson, Commissioner 

689 
Distribution 

Mary Griffin, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Thomas G. Eddy, Esq. 

Eddy & Osterman 

1430 Grant Bldg. 

Pittsburgh, Pennsylvania 15219 

Administrative Law Judge William Fauver 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

690 
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 

APR 2 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SILVER STATE MINING CORP., 

Respondent 

: 

. . CIVIL PENALTY PROCEEDING 

Docket No. WEST 84-145-M 

A.C. No. 05-03695-05511 

: Iron Clad Mine and Mill 

DECISION 

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

Solicitor, U.S. Department of Laboru Denverv 

Colorado, for Petitioner~ 

Randy L. Parcel, Esq.u Parcel & Maurou Denverv 

Colorado, for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to section 

105(d) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801, et ~, the "Act," charging the Silver 

State Mining Corporation (Silver State) with four violations 

of regulatory standards.l/ The general issues before me are 

whether Silver State violated the cited regulatory standards 

and, where alleged, whether those violations were of such a 

nature as could significantly and substantially contribute to 

the cause and effect of a mine safety or health hazard, 1·~·, 

whether the violations were "significant and substantial." 

If violations are found, it will also be necessary to 

determine the appropriate civil penalty to be assessed in 

accordance with section llOCi> of the Act. 

1/ Three days of hearings were held in this case before 

Judge John Carlson in Denver, Colorado, commencing August 21, 

1985. _On October 21, 1986, the case was referred to the 

undersigned following the untimely death of Judge Carlson. 

The parties requested that a decision be rendered on the 

existing record without further hearings and filed 

supplemental briefs. 

691 
Background 

During relevant times, Silver State operated the subject 

gold mine and mill in Cripple Creek, Colorado. In the 

milling process, gold is leached from gold ore using a sodium 

cyanide solution. After a period of usage, the pipes and 

vats in the system become clogged with a mineral build-up 

known as scale. Silver State decided to use a hydrochloric 

acid (HCl) wash to remove the scale even though it had never 

used this procedure before. 

The HCl could not safely be added directly to the 

leaching system since the resulting chemical reaction would 

produce highly toxic cyanide gas (hydrogen cyanide or HCN) if 

combined with sodium cyanide. To avoid this dangerous 

situation, as much of the cyanide leaching solution as 

possible was first removed from the tanks. Inasmuch as drain 

valves were located 10 inches from the bottom of the tanks, 

however, not all of the cyanide solution could be removedo 

Accordingly, approximately 700 gallons of the cyanide 

solution remained in each of the 2 smaller tanks and 

approximately 2,300 gallons remained in each of the 3 larger 

tanks. 

During the evening of December 2, 1983, 5,000 gallons of 

sodium hypochlorite Chypochlorite) was added to neutralize 

the cyanide in the remaining solution and in the scale. If 

sodium cyanide is not neutralized, the highly toxic cyanide 

gas is produced as soon as the cyanide is mixed with HCl. 

After the hypochlorite had been pumped through the system, 

the remaining solution was discharged into an outside waste 

holding pond. 

Eight hundred gallons of a 30 percent solution of HCl, 

in fourteen 40 and 50 gallon barrels was to be placed in the 

system on December 3, 1983, by a number of employees, 

including Bill Richter, George Swank, Loren Rice, 

J.W. Brumley and Doug Holley. Swank, Rice and Richter wore 

safety glasses (not goggles) and Wilson respirators with R-25 

cartridges during the acid wash process. The Wilson R-25 

cartridges protected against 10 parts per million (ppm) 

chlorine and 50 ppm hydrogen chloride. Three full-face 

respirators were also available at the work site. One was 

apparently worn at least part of the time by Tom Stone, a 

control room operator, another by Burt Bielz, the Supervisor 

in charge of the acid pouring operation and present for a 

disputed period of time, and the third was available on the 

control room wall but, for reasons never made clear, was 

never used. 

692 
During a safety meeting the previous month, the 

operation of the Wilson half-face respirators was explained 

to the employees and they were told that replacement 

cartridges would be available during the acid wash operation. 

There is a dispute as to whether the R-25 replacement 

cartridges actually did arrive, but the employees apparently 

believed that the only replacement cartridges available were 

Wilson R-lS's affording inadequate protection from the 

anticipated gases. The respirators were also tested for 

proper seal and no one involved in the process had facial 

hair that would affect the seal. As a half-face respiratoru 

the Wilson did not cover or protect the eyes. 

The acid was introduced into the system by manually 

dumping the barrels through a grate on top of one of the 

tanks into the liquid 5 feet below. The tank was 

approximately one-half full of the sodium 

cyanide-hypochlorite solution. The acid barrels were first 

placed on top of the tank with an electric lift. Swank and 

Rice then tipped the barrels over allowing the acid to splash 

through the grate and into the tank. What happened next is 

in dispute. 

Swank and Rice maintain that within seconds of dumping 

the first barrel of acid they were enveloped with fumes and 

that within 10 seconds the fumes penetrated their respirators. 

They experienced burning in their eyes and throats, and had 

difficulty breathing. The acid purportedly ate holes in 

Swank's coat and peeled the paint off the walls and pumps 

where it splashed. Rice says that he was also nauseous by 

the time the third barrel was dumped. At the same time, 

Swank was coughing and gagging and had a runny nose and chest 

pain. The inside of the building became enveloped in a 

yellowish-brown cloud and, after dumping 8 of the 14 barrels 

they reportedly could no longer tolerate the fumes. Rice was 

disoriented and had difficulty moving. Later he was 

overcome, fell to the floor and had to be helped from the 

building by a co-worker, Doug Holley. Swank and Richter 

later struggled out of the building to the parking lot where 

they began vomiting. Swank and Rice both suffered a skin 

irritation that looked like a sunburn. 

The dumping of the 8 barrels of acid took about 

30 minutes. All of the men inside the building were exposed 

to the fumes and some apparently had similar symptoms. After 

the dumping began, the building was evacuated. After the 

acid was dumped into the system, the solution was routed 

through the pipes and vats of the leaching system for 

approximately 6 hours. During this period, the men would 

stay outside as long as possible, then hold their breath, 

693 
return to check on the system, and then return outside. The 

yellow-brown cloud continued to linger in the building. 

Bielz left the mill after the acid dumping and was not 

present for the acid wash which took place between December 3 

and December 6. Even Bielz, who was wearing a full-face, 

self-contained respirator, acknowledged that he detected 

fumes through his respirator that smelled like "chlorox" and 

that he saw HCl mist during the acid dumping operation. ~/ 

When Swank awoke the morning after the acid dumping, he 

could not open his eyes. After his wife helped him wash 

them, he was eventually able to open them, but still could 

not read the numbers on a digital clock next to his bedo His 

doctor prescribed ointment for his eyes and cream for the 

burns on his face. Swank also experienced chest painu 

coughing and breathing problems. Swank's diagnosis, was 

severe conjunctivitis (an inflammation of the mucous lining 

under the eyelid and on the eyeball itself) and dermatitis 

(an inflammation of the skin) caused by chemical exposureo 

Swank continued to experience shortness of breath and blurred 

vision. 

Rice worked intermittently between December third and 

the eighth. Some 4 hours after the incident, Rice's nose 

began to bleed and bled for almost 11 days. Rice experienced 

continued coughing for a number of days. By the eighth of 

December, Rice had developed difficulty in breathing and was 

coughing up greenish/blackish sputum. His eyes were badly 

burned and some skin on his arms was peeling. On 

December eighth, Rice visited his doctor. 

Hydrogen chloride is a gas. When mixed in an aqueous 

(water) solution it becomes hydrochloric acid • Harmful 

exposure to the acid can result from splashing of mist or 

from the gas contacting a moist surface, such as a nasal 

membrane. Hydrogen chloride may be slightly yellow in color, 

and has a sharp, pungent, irritating odor. At a 

~/ To the extent that Bielz's testimony conflicts with that 

of Swank and Rice, I find it to be less credible. Bielz has 

a compelling interest in the outcome of this case as he is 

the subject of related proceedings under section llO(c) of 

the Act. Moreover, the testimony of Rice and swank provides 

significant cross-corroboration which is further supported in 

important respects by the medical evidence. Finally, I find 

that Bielz had falsely represented to MSHA Inspector 

James Atwood during his investigation of this incident that 

all of the employees had been issued and were wearing 

full-face respirators during the acid wash process. 

694 
concentration of one part per million (ppm) it can be 

detected by smell and its smell becomes disagreeable at 5 to 

10 ppm. It begins to cause throat irritation at 35 ppm and 

work becomes barely tolerable between 50 and 100 ppm. The 

threshold limit value CTLV) is 5 ppm. 

Chemical respirators may be used for disagreeable, but 

relatively harmless, concentrations of this gas, however, 

cartridge respirators are not recommended where toxic 

quantities may be encountered. Contact with the eyes rapidly 

causes severe irritation of the eyes and eyelids, and if not 

quickly removed, can cause permanent and total sight loss. 

Inhalation of excessive concentrations causes severe 

irritation of the upper respiratory tract resulting in 

coughing, burning of the throat, and a choking sensation. If 

inhaled deeply, edema of the lungs (the potentially fatal 

outpouring of body fluid into the lungs) may occur. 

The NIOSH/OSHA Occupational Health Guidelines for 

Chemical Hazards sets forth the minimum respiratory 

protection required above 5 ppm of hydrogen chloride. 

Between 5 ppm and 50 ppm a chemical cartridge is allowed~ 

over 50 ppm but less than 100 ppm the same type of respirator 

is allowed but with a full-face piece~ over 100 ppm, or in 

unknown concentrations, a self-contained breathing apparatus 

with full-face piece is required. 

The properties of chlorine are also set out in the 

NIOSH/OSHA Occupational Health Guidelines for Chemical 

Hazards and are noted as follows: 

Chlorine gas may cause severe irritation of the 

eyes and respiratory tract with tearing, runny 

nose, sneezing, coughing, choking and chest pains. 

Severe breathing difficulties may occur which may 

be delayed at the onset. Pneumonia may result. 

Severe exposure may be fatal. 

The TLV for chlorine is 1 ppm. Concentrations of l to 

3 ppm result in slight irritation, but work is possible 

without interruption. Concentrations of 3 to 6 parts per 

million of chlorine cause burning of the eyes, nose, throat, 

lachrymation, sneezing, coughing, bleeding nose or 

blood-tinged sputum. For concentrations of chlorine above 

1 ppm, but less than 25 ppm, the NIOSH minimum respiratory 

protection requires a chemical cartridge respirator with a 

full-face piece or air-supplied respirator. For 

concentrations over 26 ppm, NIOSH requires a self-contained 

breathing apparatus. 

695 
The Alleged Violations 

Citation No. 2099742, as amended, alleges a "significant 

and substantial" violation of the regulatory standard at 

30 C.F.R. § 55.5 (presently 30 C.F.R. § 56.5005) and charges 

as follows: 

Between December 3, 1983 and December 6, 1983, 

while performing an inherently hazardous 

maintenance operation, miners were exposed to 

airborne contaminants exceeding permissible levels 

and were not provided appropriate respiratory 

protective equipment& Several employees were 

exposed to gas concentrations that had a reasonable 

potential to cause death. 

The cited standard reads as follows: 

Control of employee exposure to harmful airborne 

contaminants shall be, insofar as feasibleu by 

prevention of contamination, removal by exhaust 

ventilation, or by dilution with uncontaminated airo 

However, where accepted engineering control 

measures have not been developed or when necessary 

by the nature of work involved (for example, while 

establishing controls or occasional entry into 

hazardous atmospheres to perform maintenance or 

investigation), employees may work for reasonable 

periods of time in concentrations of airborne 

contaminants exceeding permissible levels if they 

are protected by appropriate respiratory protective 

equipment. Whenever respiratory protective 

equipment is used, a program for selection, 

maintenance, training, fitting, supervision, 

cleaning, and use shall meet the following minimum 

requirements: 

(a) Mine Safety and Health Administration approved 

respirators which are applicable and suitable for 

the purpose intended shall be furnished, and 

employees shall use the protective equipment in 

accordance with training and instruction. 

Cb) A respirator program consistent with the 

requirements of ANSI Z88.2-1969, published by the 

American National Standards Institute and entitled 

"American National Standards Practices for 

Respiratory Protection ANSI Z88 2-1969," approved 

August 11, 1969, which is hereby incorporated by 

reference and made a part hereof. This publication 

696 
may be obtained from the American National 

Standards Institute, Inc., 1430 Broadway, New York, 

New York 10018, or may be examined in any Metal and 

Nonmetal Mine Safety and Health District or 

Subdistrict Off ice of the Mine Safety and Health 

Administration. 

It is not disputed that MSHA's respirator selection and 

approval procedure ref erred to in the above regulation is 

found in 30 C.F.R. Part 11. Under section 11.2-1 entitled 

"Selection, fit, use and maintenance of approved 

respirators," respirator selection is to be made in 

accordance with ANSI Standard Z88.2. ANSI Standard Z88.2 

(1969) does not, however, set forth the specific types of 

respirators to be used for specific concentrations of air 

contaminants. Rather, in Part 6y it sets forth only the 

criteria for the selection of a respirator. 

The Secretary argues that the Wilson respirators with 

R-25 cartridges selected by Respondent were not appropriate 

and were in violation of the cited standard under two 

theories: (1) since the respirators were overcome and 

penetrated by gas fumes, they were not appropriatev and (2) 

the selection criteria under ANSI Standard Z88.2 was violated. 

In support of the first theory, the Secretary observes that 

two of the men directly involved in the acid dumping, i.e., 

Rice and swank, testified that their Wilson respirators - became ineffectual almost immediately after the acid dumping 

began. They experienced coughing, runny noses, gagging, 

burning throats, burning eyes, and difficulty 

breathing--symptoms consistent with exposure to hydrochloric 

acid mist, hydrogen chloride gas, and chlorine gas. The 

Secretary argues that if the respiratory protection had been 

appropriate, then Swank and Rice would have been able to work 

for at least 35 minutes in a concentration of 500 ppm 

chlorine, and for 50 minutes in a concentration of 500 ppm of 

HCl (Table 11, Ex. P-5), without experiencing discomfort. 

The Secretary further argues that since Rice was overcome 

within minutes and later had to be helped from the building, 

and that since both men once outside began vomiting, the 

respirator protection was demonstrably inadequate. 

Respondent argues, on the other hand, that Mssrs. Swank 

and Rice are not credible and, presumably, that they 

therefore really did not suffer the severe discomfort and 

injuries they allege or that they failed to properly fit . their respirators, thereby causing their own discomfort and 

injuries. I find, however, adequate corroboration in the 

medical evidence and undisputed physical manifestations of 

injury, to conclude that Swank at least suffered severe 

697 
conjunctivities and dermatitis and most likely suffered 

chemical pneumonitis from short-term exposure to a 

hydrochloric acid mist (Exs. P-8 and R-6). In addition, the 

medical evidence clearly supports a finding that Rice at 

least sufferred chemical pneumonitis and chemical 

conjunctivities from exposure to hydrochloric acid mist. (Ex. 

R-12). It is also undisputed that acute chemical 

pneumonitis, when severe, can be disabling or fatal (Ex. 

R-12) and that exposure of the eyes to hydrochloric acid can 

cause permanent and total sight loss. 

Under the circumstances it may reasonably be inferred 

that at least two miners were exposed to airborne 

contaminants exceeding permissible levels and were not 

provided appropriate respiratory protective equipmento It is 

also clear therefore, that the violation was serious and 

"significant and substantial." Secretary v. Mathies Coal 

Co., 6 FMSHRC 1 (1984). 

In reaching these conclusions I have not disregarded 

Respondent's allegations that the employees failed to 

properly fit the respirators provided and that it had a 

full-face, self-contained, air-supplied respirator availableo 

There is no affirmative evidence, however, that the 

respirators were not properly fit. The employees had 

previously been instructed in the proper use of the 

respirators and it is unlikely that all of the affected 

employees would have had ill-fitting respirators. In 

addition, the chemical over-exposure is corroborated by the 

medical evidence of dermatitis and conjunctivitis. 

Moreover, the one remaining full-face, self-contained, 

air-supplied respirator was insufficient for the number of 

employees involved in the acid dumping operation. Finally, 

since the credible evidence is that the respirators actually 

worn by Swank and Rice were penetrated almost immediately, it 

is immaterial whether or not replacement R-25 cartridges were 

available. The Respondent's allegations herein are 

accordingly rejected. 

I further find that the violation was the result of 

operator negligence in failing to provide appropriate 

respirators in sufficient quantity for contaminants 

reasonably expected from the acid wash operation. Bielz was 

admittedly concerned that hydrochloric acid mist, cyanide, 

and chlorine gas could be generated by the acid dumping 

process and he knew that exposure to such gasses without 

adequate protection could lead to serious and even fatal 

injuries. 

698 
I further find that the violation is established under 

the Secretary's alternative theory, i.~., that the selection 

criteria set forth in ANSI Standard Z88.2 was violated. The 

Secretary argues in this regard that the selection criteria 

was violated based on what Silver State knew and expected 

before the acid dumping and also based on what actually 

occurred. There were three air contaminants that could have 

or did develop from the acid wash, i.e., HCl gas and HCl acid 

mist generated by pouring the acid, cyanide gas if the 

remaining leaching solution had not been sufficiently 

neutralized when the HCl was added, and chlorine gas if the 

remaining leaching solution had too much neutralizing agent 

when the HCl was added. 

Under Part 2 of ANSI Standard Z88.2, the phrase 

"immediately dangerous to life and health11 is defined as 

follows: 

Included are conditions that pose an immediate 

threat to life or health and conditions that pose 

an immediate threat of severe exposure to 

contaminants such as radioactive materials which 

are likely to have adverse delayed effects on 

health. 

In addition, each of the three gases cited CHCN, HCl,and 

chlorine) is classified as a gas or vapor contaminant in 

Table 1. Under the heading ''Combinations of Gas, Vapor, and 

Particulate Contaminants" and Note 2 of Table 1 the hazards 

are described as follows: 

Conbinations of contaminants may occur 

simultaneously in the atmosphere. Contaminants may 

be entirely different substances (dusts and gases 

from blasting) or the particulate and vapor forms 

of the same substance. Synergistic effects (joint 

action of two or more agents that result in an 

effect which is greater than the sum of their 

individual effects) may occur. Such effects may 

require extraordinary protective measures. 

NOTE 2: CONDITIONS IMMEDIATELY DANGEROUS TO LIFE 

OR HEALTH (see Section 2, Definitions) may result 

from most of the above hazards with the probable 

exception of nuisance or low toxicity dusts. Such 

conditions constitute atmospheres that would 

rapidly lead to death or to injury that would 

eventually impair health. For example, a 

ten-minute exposure to 120 parts per million (ppm) 

of phosgene may be fatal, and exposure to very high 

699 
concentrations of radioactive material such as 

plutonium 239 could present a danger to health from 

delayed effects of radiation damage to body 

tissues. 

From Note 2 of Table 1, it is clear that HCN, HCl and 

chlorine are considered to be immediately dangerous to life 

and health since they are not nuisance or low toxicity dusts. 

The table also describes the synergistic effect of the 

combined agents and the necessity for extraordinary 

protective measures under those conditions. The credible 

evidence in this case is that the gases may indeed have had a 

synergistic effect thereby requiring extraordinary protective 

measures. In any event, because the gases herein 

lndividually posed an immediate danger to life or healthv and 

because the synergistic effect was even more dangerous¥ the 

use of half-face chemical cartridge respirators was in 

violation of the standard. See Parts 6.3.2.1 and 6.3.2.2. 

Accordingly, considering the gases that were anticipated 

by Silver State before the acid dumping, ANSI Standard Z88.2 

required air supplied respirators. Alternativelyv 

considering by reasonable inference the gases that did in 

fact develop, the standard also required air supplied 

respirators. These findings are further corroborated by the 

health professionals, who testified for the government, who 

found that the Wilson respirators with R-25 cartridges were 

inappropriate. Significantly, this testimony was not 

rebutted by Respondent's experts, Ors. Repsher and Kornberg. 

The cited standard may also be interpreted to require 

respiratory protection consistent with safe industry 

practice. In this regard, chemical cartridge respirators as 

opposed to a self-contained breathing apparatus are not 

recommended for protection where toxic quantities of 

hydrochloric acid or hydrogen chloride may be encountered 

(see Ex. P-6 ! 5.3.3(e)). Similarly, where unknown 

concentrations of chlorine may be encountered a 

self-contained breathing apparatus with a full-face piece is 

required. (See Ex. P-4 p. 5). 

In this case, Silver State knew or had reason to believe 

of the potential exposure to its employees from unknown 

quantities of cyanide, chlorine, hydrochloric acid and 

hydrogen chloride resulting from the acid dumping process 

yet did not provide a sufficient number of self-contained 

breathing devices with full-face coverage to protect these 

employees. Accordingly, for this additional reason, I find 

the "significant and substantial" violation to be proven as 

charged. 

700 
Citation No. 2099741 alleges "significant and 

substantial" violation of the standard at 30 C.F.R.§ 55.5-2 

and reads as follows: 

On December 3, 1983, miners began performing an 

inherently hazardous maintenance operation that did 

result in the the liberation of toxic gases. This 

operation continued until December 6, 1983. During 

this time gas, mist or fumes surveys were not 

conducted as frequently as necessary to determine 

gas concentrations. Several employees working in 

the mine were exposed to this noxious gas resulting 

in injuries which had a reasonable potential to 

cause death. 

The cited standard then in effect provided that "dust, 

gas, mist, and fumes survey shall be conducted as 

frequently as necessary to determine the adequacy of 

control measures." 

Burt Bielz, Silver Stateis processing and laboratory 

supervisor during relevant times and the supervisor in charge 

of the acid wash process at issue herein acknowledged his 

concern about the potential for employee exposure to cyanide, 

hydrochloric acid mist and chlorine during the acid dumping 

and wash process. Bielz also acknowledged that he had 

testing devices available during this process only to detect 

the presence of cyanide. Moreover, the available cyanide 

detection tubes were rendered ineffective because of the 

mixture of gases present. ·under the circumstances, fume 

surveys could not be made for any of the three anticipated 

gases. Accordingly, the violation herein is proven as 

charged. 

I find that the violation was also serious and 

"significant and substantial." Had Silver State provided 

adequate fume surveys during the acid dumping process, it may 

reasonably be inferred that the injuries suffered by its 

employees could have been reduced or avoided by speedy 

evacuation. Conversely, it is reasonably likely that the 

failure to provide these tests led to the serious injuries 

herein. Inasmuch as Bielz was also concerned with potential 

exposure to hydrogen cyanide, hydrogen chloride, and chlorine 

gas during the acid dumping process, yet failed to provide 

fume any surveys for the latter two gases, it is clear that 

the violation was the result of operator negligence. 

Citation No. 2099579 alleges a violation of the standard 

at 30 C.F.R. § 50.10 and charges as follows: 

701 
Evidence indicates that MSHA was not immediately 

contacted when an accident occurred at this mine 

from December 3, 1983 through December 6, 1983. On 

those dates an unplanned inundation of gas occurred 

at the mine. This inundation of noxious gas caused 

illness and injuries which had a reasonable 

potential to cause death. 

The cited standard requires in essence that if an 

accident (as defined in 30 C.F.Ro § 50.2) occurs, the mine 

operator shall immediately contact MSHA. Under 30 C.F.R. § 

50.2 the term "accident" includes nan injury to an individual 

at a mine which has a reasonable potential to cause death~ 

and nan unplanned inundation of a mine by a liquid or gas.n 

Even accepting Respondentis medical evidence from 

Drs. Repsher and Kornberg that neither Rice nor Swank 

suffered an injury which had a reasonable potential to cause 

death, there is sufficient evidence to find that there was an 

unplanned inundation of a mine by hydrogen chloride and/or 

hydrochloric acid mist. There is persuasive credible 

evidence that the interior of Respondentvs mill contained a 

dense yellow-brown cloud following the commencement of the 

acid dumping process and even Respondent's own witness 

acknowledged the presence of a visible hydrochloric acid mist 

during the acid dumping process. In addition, the medically 

documented injuries and discomfort suffered by Swank and Rice 

are clearly consistent with a serious exposure to at least 

hydrogen chloride or hydrochloric acid mist. Within this 

framework of evidence, I am satisified that the Secretary has 

met his burden of proving that a reportable accident 

occurred. 

The evidence further shows that the "unplanned 

inundation" occurred on December 3, 1983, and that MSHA did 

not learn of the accident until January 5, 1984, by way of an 

anonymous phone call. Accident reports purportedly prepared 

by the operator on December 29, 1983, had not been received 

by MSHA as of the date of the anonymous phone call and there 

is no evidence as to when the accident reports were actually 

received. In any event, it is clear that the reporting on 

January 5, 1984, of an accident that occurred on December 3, 

1983, was not an immediate contact within the meaning of the 

cited standard. The violation is accordingly proven as 

charged. I also find that the violation was the result of 

operator negligence. Even assuming, arguendo, that its 

employees delayed a full day in informing management of the 

injuries sustained during the acid dumping process, there is 

no valid reason why management could not have contacted MSHA 

702 
immediately thereafter. There is simply no excuse for its 

failure to file a report or contact MSHA for almost a month 

after the inundation. 

Citation No. 2099580 alleges a violation of the standard 

at 30 C.F.R. § 50.12 and charges as follows: 

Evidence indicates that an accident involving an 

unplanned inundation of gas occurred from 

December 3, 1983 through December 6, 1983. The 

accident site was altered by the mine operator 

shortly after the accident without permission from 

MSHA. 

The cited standard then in effect reads as follows~ 

Unless granted permission by an MSHA district 

manager or subdistrict manager, no operator may 

alter an accident site or an accident related area 

until completion of all investigations pertaining 

to the accident except to the extent necessary to 

rescue or recover an individualq prevent or 

eliminate an imminent dangerr or prevent 

destruction of mining equipment. 

The Secretary argues in his posthearing brief that once 

the acid had been removed and the fumes disbursed from the 

acid wash process Respondent should not have altered the site 

by resuming production. The Secretary fails to show however, 

how the accident site was indeed "altered" following the 

removal and disbursal of the fumes. It is apparent moreover, 

as Respondent observes in its brief, that the Secretary is 

confusing the standard here at issue with the requirements 

for the immediate reporting of an accident. The thrust of 

this standard is the "alteration" of an accident scene, a 

matter that has simply not been proven by the Secretary. 

Accordingly, Citation No. 2099580 is dismissed and vacated. 

In determining the appropriate civil penalties to be 

assessed in this case I have also considered the evidence 

that the operator was not large had a relatively modest 

history of violations. It also appears that the violative 

conditions were abated in compliance with the Secretary's 

directions. Under the circumstances, I find the following 

civil penalties to be appropriate: Citation No. 2099742 -

$5,000, Citation No. 2099741 - $1,000 and Citation No. 

2099579 - $ 100. 

703 
ORDER 

Citation No. 2099580 is vacated. The Silver State 

Mining Corporation is directed to pay civil penalties of 

$6,100 within 30 days of the date of t is decision. 

Judge 

Distribution: 

James H. Barkleyu Esq.q Office of the Solicitorv U~So 

Department of Labor, 1585 Federal Building, 1961 Stout 

Street, Denver, CO 80204 (Certified Mail) 

Randy L. Parcel, Esq., Parcel & Maurou Suite 3600v 1801 

California Street, Denveru CO 80202 (Certified Mail) 

rbg/slk 

704 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYl.INE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 3 1987 

LARRY B. ANDERSON, 

Complainant . 

0 

DISCRIMINATION PROCEEDING 

v. 

CONSOL PENNSYLVANIA COAL 

COMPANY, 

Respondent 

Docket No. PENN 86-221-D 

SUPPLEMENTAL DECISION 

Appearances: Michael J. Healey, Esq., Healey & Davidsoriu 

Pittsburgh, Pennsylvania~ for Complainant~ 

Michael R. Peelish, Esq.v Pittsburghu 

Pennsylvania, for Respondento 

Before: Judge Broderick 

On March 5, 1987, I issued my decision in this proceeding in 

which I determined that Respondent violated section 105(c) of the 

Act when it removed Complainant's application from consideration 

for employment at the subject mine. 

I ordered Respondent to reinstate Complainant's application 

and consider it in good faith for openings for which he is 

qualified without regard to his alleged absentee record at Consol 

mines and without regard to his alleged reporting of his 

supervisor's safety violations. I also ordered Respondent to 

reimburse Complainant for his reasonable attorney fees and costs 

of litigation. 

On March 23, 1987, counsel for Respondent submitted a copy 

of a memorandum from counsel to the Industrial and Employee 

Relations Supervisor at the subject mine directing him to 

reinstate Complainant's application and consider it in good faith 

for openings for which he is qualified. Counsel stated that the 

application has been reinstated. Counsel for Respondent further 

stated that he agreed with Complainant's counsel on the attorney 

fees and costs of litigation and would pay the agreed amount to 

Complainant's attorney. 

Complainant's attorney has not responded to Respondent's 

submission. 

705 
Premises considered, IT IS ORDERED: 

Cl) The decision issued March 5, 1987, is reaffirmed. 

(2) Respondent has complied with order (1) and (3) in said 

decision. 

(3) Respondent shall reimburse Complainant for his attorney 

fees in the amount agreed upon by counsel. 

(4) This decision is final. 

J

',fl AA\...('.'.. s ,/ dvt~d,/_,,1/l e-f€_ vvn< . .K1 

James A. Broderick · Administrative Law Judge 

Distribution: 

Michael J. Healey, Esq.e Healey & Davidsone 1906 Law and Finance 

Bldg.u Pittsburghff PA 15219 (Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Rd., Pittsburgh, PA 15241 (Certified Mail> 

slk 

706 
FEDERAL Ml'NE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 6 l987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

READING ANTHRACITE COMPANY, 

Respondent 

. 

0 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-275 

A.C. No. 36-01966-03519 

New St. Nicholas Breaker 

DECISION APPROVING SETTLEMENT 

Before: Judge Weisberger 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety 

and Health Act of 1977 (the Act)o Petitioner has filed a 

motion to approve a settlement agreement and to dismiss the 

case. Respondent has agreed to pay the proposed penalty of 

$3,600 in full. I have considered the representations and 

documentation submitted in this case, and I conclude that the 

proffered settlement is appropriate under the criteria set 

forth in Section llO(i) of the Act. 

WHEREFORE, the motion for approval of settlement is 

GRANTED, and it is ORDERED that Respondent pay a penalty of 

$3,600 within 30 days of this order. 

Distribution: 

Avram 

~L_ Weisberger 

Administrative Law Judge 

Susan M. Jordan, Esq., Office of the Solicitor, u. s. Department of Labor, Room 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Edward E. Kopko, Esq., 200 Mahantongo Street, Pottsville, PA 

17901 (Certified Mail) 

dcp 

101 
FEDERAL MUIE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 APR6 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

RUSHTON MINING COMPANY, 

Respondent 

RUSHTON MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 1 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-300 

A.C. No. 36-00856-03569 

Rushton Mine 

CONTEST PROCEEDINGS 

Docket No. PENN 86-114-R 

Order No. 2692920; 3/13/86 

Docket NOo PENN 86-128-R 

Order NOo 2690105; 3/20/86 

Rushton Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

This case is before me upon a petition for assessment 

of civil penalties under section lOS(d) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. 801, et seq. 

Petitioner has filed a motion to approve a settlement agreement 

and to dismiss the case. I have considered the representations 

and documentation submitted and I conclude that the proffered 

settlement is consistent with the criteria in section llO(i) 

of the Act. 

ORDER 

WHEREFORE IT IS ORDERED that the motion for approval of 

settlement is GRANTED. Order No. 2690105 is VACATED. Order 

No. 2692920, Respondent shall pay the approved penalty of 

$100.00 within 30 days of this Deci~ion. Upon such payment 

this proceeding is DISMISSED. Pursuant to the settlement, 

Docket Nos. PENN 86-114-R and PENN 86-128-R are DISMISSED. 

Distribution: 

708 

tr)~ :.)-~v'tA-- William FJi~er Administrative Law Judge 
Therese I. Salus, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Joseph T. Kosek, Jr., Esq., Greenwich Collieries, P.O. Box 

367, Ebensburg, PA 15931 (Certified Mail) 

kg 

709 
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), Petitioner 

v. 

UNITED MINERALS, INC., 

Respondent 

April 7, 1987 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 87-36 

A. C. No. 12-01979-03503 

Black Mountain Pit Mine 

DECISION APPROVING SETTLEMENTS 

Before: Judge Merlin 

The Solicitor has filed a motion to approve settlements of 

the eight violations involved in this case. The total of the 

originally assessed penalties was $469 ana the total of the 

proposed settlements is $405. 

The Solicitor's motion discusses the violations in light of 

the six statutory criteria set forth in section llO(i) of the 

Federal Mine Safety and Health Act of 1977. The Solicitor represents that a reduction from the original assessments is warranted 

because the size of the mine was incorrectly stated by the Office 

of Assessments at the time of the original assessment. An estimated figure of 200,000 tons of coal for the year 1986 was used 

by the Office of Assessments to compute the penalties involved in 

the case. Reports submitted by the operator, however, show that 

the production of coal for its mine in 1986 did not exceed 80,000 

tons of coal. The Solicitor accepts this information and represents that proposed settlements reflect the actual size of the 

operator. 

The proposed settlements represent modest reductions from 

the original assessments. In light of new data regarding the 

operator's correct size and the other criteria set forth in section llO(i), I accept the Solicitor's representations and 

approved recommended settlements. 

710 
Accordingly, the motion to approve settlements is GRANTED 

and the operator is ORDERED TO PAY $405 within 30 days of the 

date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Di stri but ion: 

Miguel J. Carmona 9 Esq. 9 Office of the Solicitor~ U.S. Department of Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified 

Mail ) 

Mr. Greg Olinger~ President 9 United Minera1S 9 Inco 9 P.O. Box 239s Huntingburg~ IN 47542 (Certified Mail) 

I g l 

711 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE. SUITE 400 APR 7 1987 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

EMERY MINING CORPORATION, 

Respondent 

Before~ Judge Morris 

DECISION 

Docket No. WEST 86-84 

A.C. No. 42-00121-03598 

Deer Creek Mine 

The Secretary of Laborr on behalf of the Mine Safety and 

Health Administration, (MSHA), charges respondent with violating 

safety regulations promulgated under the Federal Mine Safety and 

Health Actu 30 u.s.c.A. § 801 et seq.v (the Act). 

Prior to a hearing on the merits the parties submitted the 

case on stipulated facts. 

The two citations involved here allege respondent violated 

30 C.F.R. § 75.200 which mandates roof control programs and plans. 

Issues 

The issues concern the appropriate civil penalties for the 

violations. 

Stipulation 

The parties stipulated as follows: 

1. The citations at issue in this penalty proceeding were 

at issue in the contest cases docketed as WEST 86-35-R and WEST 

86-36-R, which were fully tried on March S, 1986. A decision in 

the cases was rendered on June 10, 1986. 

* 2. A full record was developed by the parties on the issues 

of violation and unwarrantable failure and the decision of the 

presiding judge on those issues was not reviewed by the Conunission. 

3. Having been decided in the contest proceedings, the 

issue of violation in this penalty proceeding is res judicata. 

Thus, the only issues in this penalty proceeding involve application of the six statutory factors required under § llO(i) for 

determination of an appropriate civil penalty to be assessed 

against Emery for the violation. 

*see an amended page 1 of this decision on page 716 of this issue 

712 
4. The Secretary and Emery believe the record in WEST 

86-35-R and WEST 86-36-R can be used by the presiding judge to 

evaluate the gravity and negligence connected with the violation and stipulate, without further argument, to the use of 

that record for such purpose. 

5. The Secretary and Emery stipulate that the violations 

which were the subject of WEST 86-35-R and WEST 86-36-R were 

abated in good faith. 

6. The Secretary and Emery further stipulate that Emery 

was a large mine operator and assessment of a penalty in this 

case will not affect ability to continue in business. 

7. To permit the presiding judge to evaluate Emeryvs 

history of violations, the Secretary has submitted a computer 

listing of violations issued at Emeryas Deer Creek Mine for 

the two-year period terminating on October 21, 1985. Emery 

stipulates to the accuracy of such a list. 

8. The parties request that the presiding judge render a 

decision assessing appropriate civil penalties in this case. 

Discussion 

The statutory mandate to access civil penalties is contained in § llO{i) of the Act, now codified at 30 u.s.C.A. 

§ 820(i). 

In considering the record I find that these violations 

occurred as a result of an inspection on October 22, 1985. The 

computer printout indicates that the operator was assessed 518 

violations in the two-year period ending October 21, 1985. The 

evidence accordingly establishes that the operator has a high 

adverse prior history. However, the number of violations has 

decreased considerably from the 1210 violations that were 

assessed before October 22, 1983. 

Inasmuch as Emery is a large operator, it appears that the 

penalty is appropriate in relation to the size of the company. 

In addition, the penalties will not affect the company's ability 

to continue in business. 

In connection with WEST 86-35-R, the company should have 

known of the violative condition because supervisors traveled 

through the area where the deteriorated roof was located. Further, the violative condition existed for at least a week, 

possibly months. These factors establish the operator's negligence. 

713 
In connection with WEST 86-36-R, the violative condition 

of the large loose rib in the switching area existed over a 

period of months. The area itself should have been examined by 

a preshift examiner. On balance, the operator was negligent 

in failing to remedy the obvious violative condition. 

The gravity in each case is apparent. In WEST 86-35-R 

the areaway was used daily by over 200 miners. If the roof 

failed in the immediate area, miners could have been killed or 

injured. In addition, miners could have been trapped inby any 

fallen rock. On balance, I conclude the gravity of the violation is relatively high. 

In connection with WEST 86-36-R, the gravity is likewise 

high. If the large rib came down it could crush any miners 

in the immediate area. 

It is to the operator 1 s credit that it immediately abated 

the violative condition. 

In view of the statutory criteria, I deem the penalties 

set forth in the order of this decision are appropriate civil 

penalties for the violationso 

Conclusions of Law 

Based on the record and the stipulation of the parties, 

the following conclusions of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. A civil penalty should be assessed for the violation 

of Citation 2503818. 

3. A civil penalty should be assessed for the violation 

of Citation 2503819. 

ORDER 

Based on the foregoing stipulation and conclusions of 

law I enter the following order: 

1. A civil penalty of $1500 is assessed for the violative 

condition alleged in Citation 2503818. 

2. A civil penalty of $500 is assessed for the violative 

condition alleged in Citation 2503819. 

Law Judge 

714 
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) 

Timothy M. Biddle, Esq., Crowell & Moring, 1001 Pennsylvania Ave. 0 

N.W., Washington, D.C. 20004-2505 (Certified Mail) 

/ot 

715 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W, COLFAX AVENUE, SUITE 400 

DENVER. COtORAOO 80204 MAY 5 1987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EMERY MINING CORPORATION, 

Respondent 

. . 

. . 

. . 

. . 

Docket No. WEST 86-84 

A.c. No. 42-00121-03598 

Deer Creek Mine 

AMENDED DECISION 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, (MSHA), charges respondent with violating 

safety regulations promulgated under the Federal Mine Safety and 

Health Act, 30 u.s.c.A. § 801 et seg. 0 (the Act)o 

Prior to a hearing on the merits the parties submitted the 

case on stipulated facts. 

The two citations involved here allege respondent violated 

30 C.F.R. § 75.200 which mandates roof control programs and plans. 

Issues 

The issues concern the appropriate civil penalties for the 

violations. 

Stipulation 

The parties stipulated as follows: 

1. The citations at issue in this penalty proceeding were 

at issue in the contest cases docketed as WEST 86-35-R and WEST 

86-36-R, which were fully tried on March 5, 1986. A decision in 

the cases was rendered on June 10, 1986. 

2. A full record was developed by the parties on the issue 

of violation and the decision of the presiding judge was not 

reviewed by the Commission. 

3. Having been decided in the contest proceedings, the 

issue of violation in this penalty proceeding is res judicata. 

Thus, the only issues in this penalty proceeding involve application of the six statutory factors required under § llO(i) for 

determination of an appropriate civil penalty to be assessed 

against Emery for the violation. 

716 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 8 1987 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABORv 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)u 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

0 

0 

. . 

. . 

CONTEST PROCEEDINGS 

Docket No. WEVA 86-215-R 

Order No. 27111041 2/27/86 

Docket No. WEVA 86-239-R 

Order No. 2713431; 3/14/86 

Docket No. WEVA 86-240-R 

Order No. 2711566~ 3/20/86 

Humphrey No. 7 Mine 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 86-328 

A.C. No. 46-01453-03701 

Docket No. WEVA 86-329 

A.C. No. 46-01453-03702 

Humphrey No. 7 Mine 

CORRECTED DECISION APPROVING 

SETTLEMENT AND DISMISSING PROCEEDINGS 

Before: Judge Broderick 

The Secretary's Motion to Approve Settlement in the above 

cases stated that an agreed settlement had been reached between 

the parties in the amount of $1325. This was in error, and the 

error was repeated in my decision. The decision issued March 5, 

1987, is CORRECTED to read as follows: 

On February 19, 1987, the Secretary filed a motion for an 

order approving a settlement agreement in the two civil penalty 

cases listed above. Three violations are involved originally 

assesed at a total of $2000. The parties propose to settle for a 

total payment of $1075. 

Order 2711566 was issued alleging a violation of 30 C.F.R. 

§ 75.1725 because a feeder wire cut off switch handle was missing. 

The motion states that the violation should not have been deemed 

unwarrantable and the action has been modified from a 

717 
section 104Cd)(2) order to a section l04(a) citation. Because 

the negligence factor has been reduced, the parties propose a 

reduction in the penalty from $650 to $150. Order 2713431 

alleged a violation of 30 C.F.R. § 75.1725Cd) because a junction 

box on a portal bus motor was open. The bus had not been 

operated for a week, and the operator has a practice of checking 

buses before putting them to use. For that reason the motion 

proposes a reduction in the penalty from $650 to $450. Order No. 

2711104 charged a violation of 30 C.F.R. § 75.1403-S(d) because 

the clearance space on the side at the underground shop switch 

had sloughage and dirt on the bottom. The parties propose a 

reduction in the penalty from $700 to $475 because the sloughage 

was on the tight side of the track and not on the side with the 

walkway. 

I have considered the motion in the light of the criteria in 

section llOCi) of the Act and conclude that it should be 

approved. 

Acordingly, the settlement is APPROVED andu Respondent 

having paid, the case is DISMISSEOo 

IT IS FURTHER ORDERED that the contest proceedingsu Docket 

Nos. WEVA 86-215-R, WEVA 86-239-R, and WEVA 86-240-R are with the 

consent of the parties DISMISSED. 

Distribution: 

~t-~ .AJ3t"tl~6tC ,;1WJam7s,A. Br~derick Administrative Law Judge 

Michael Peelish, Esq., Consolidation Coal Co., 1800 Washington 

Road, Pittsburgh, PA 15241 (Certified Mail) 

Linda M. Henry, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

slk 

718 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 9 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SULPHUR SPRINGS STONE 

COMPANY l1 

Respondent 

. . 

. 

. CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 86-32-M 

A.C. No. 15-14035-05502 

Docket No. KENT 86-39-M 

A.C. No. 15-14035-05501 

Noo l Mine 

DECISION 

Appearances: Joseph Luckett, Esq.v Office of the Solicitoru 

U.S. Department of Laboru Nashvilleu Tennesseeu 

for Petitioner9 

There was no appearance for Respondento 

Before: Judge Broderick 

STATEMENT OF THE CASE 

In these proceedings, the Secretary seeks civil penalties 

for a total of 26 alleged violations of mandatory health and 

safety standards, all being issued during an inspection on 

October 8, 1985. Respondent by Bill J. Morse, President, filed 

answers to the petitions. I issued a notice of hearing on 

January 7, 1987, scheduling the cases for hearing in Owensboro, 

Kentucky on March 3, 1987. According to the postal return 

receipt in the file, the notice was received by Bill J. Morse on 

January 9, 1987. When the case was called for hearing on 

March 3, 1987, no one appeared for Respondent. An attempt was 

made by Petitioner's representative to contact Mr. Morse by 

telephone but was unsuccessful. I found Respondent in default, 

and directed the Secretary to submit evidence concerning the 

alleged violations, and concerning the questions of gravity and 

negligence. Eric Shanholtz testified on behalf of the Secretary. 

Posthearing briefs were not filed. On the basis of the entire 

record, I make the following decision. 

719 
FINDINGS OF FACT AND CONCLUSIONS OF LAW COMMON TO ALL ALLEGED 

VIOLATIONS 

1. In 1985, Respondent was the owner and operator of a 

stone mine in Ohio County, Kentucky, known as the No. 1 Mine. 

Respondent was subject to the provisions of the Federal Mine 

Safety and Health Act (the Act) in the operation of the mine. 

gross 

mine. 

was a 

2. In 1985, Respondent produced 13,557 tons of stone for a 

dollar amount of $33,892. Five people were employed at the 

This was the only mine operated by Respondento Respondent 

small operator. 

3. No citations were issued by MSHA to Respondent in the 

two years prior to October 8, 1985. 

4. The mine is no longer in operationo 

submitted by mail a copy of what purports to 

income tax return, showing a loss of $62,680 

$43,893. 

Respondent 

be a 1984 federal 

on gross receipts of 

5. The Secretary has stipulated that Respondent made 

reasonable efforts to achieve compliance after the citations were 

issued. 

FINDINGS AND CONCLUSIONS RELATED TO EACH CITATION DOCKET NO. 

KENT 86-39-M 

CITATION 2657202 

The citation charged a violation of 30 C.F.R. § 56.13021 

because safety chains were not being used on the 2 inch hose 

going from a compressor to a track drill. The drill was in 

operation with 90 pounds air pressure. The violation was 

established, was moderately serious, in that it could have 

injured employees in the area. The violation was obvious and 

therefore resulted from Respondent's negligence. I conclude that 

an appropriate penalty for the violation is $100. 

CITATION 2657221 

This citation charged a violation of 30 C.F.R. § 56.14001 

because the V-Belt drive to the discharge conveyor was not 

guarded. The mill was in operation. The exposed belt was 

approximately 4 feet from ground level. The violation was 

established, and was moderately serious, in that it could have 

resulted in an injury to an employee. The violation was evident 

and therefore resulted from Respondent's negligence. I conclude 

that an appropriate penalty for the violation is $100. 

720 
CITATION 2657222 

This citation charged a violation of 30 C.F.R. § 56.12032 

because a make up box cover was not provided for the drive motor 

to the discharge conveyor of the hammer mill. The violation was 

established. It was not serious but resulted from negligence 

since it was evident. I conclude that an appropriate penalty for 

the violation is $20. 

CITATION 2657223 

This citation charged a violation of 30 C.F.R. § 56.14003 

because the head pulley for the feed conveyor to the secondary 

screen was inadequately guarded. The conveyor was in operationa 

There was a walkway adjacent. The pinch point was approximately 

30 inches from floor level. The violation was established. It 

was not serious because of low employee exposure. The operator 

should have known of the violation. Therefore, it resulted from 

negligence. I conclude that an appropriate penalty for the 

violation is $30. 

CITATION 2657224 

This citation charged a violation of 30 C.F.R. § 56.1203 

because a 110 volt energized receptacle in the electrical shack 

had a broken face, exposing energized parts. The receptacle was 

approximately 3 feet from floor level. The violation was 

established. It was serious because employees could have touched 

the energized parts. It was evident and, therefore resulted from 

Respondent's negligence. I conclude that an appropriate penalty 

for the violation is $100. 

CITATION 2657225 

This citation charged a violation of 30 C.F.R. § 56.14001 

because three stacking conveyor tail pulleys were not guarded. 

They were accessible to employees and were at ground level. The 

violation was established. It was moderately serious because of 

the possibility of serious injury. Respondent should have been 

aware of the condition. I conclude that an appropriate penalty 

for the violation is $100. 

CITATION 2657226 

This citation charged a violation of 30 C.F.R. § 56.14035 

because a V-belt drive to a conveyor was inadequately guarded. 

Pinch points, 3 feet from ground level, were accessible to 

employees. The belt was in operation. The violation was 

established. It was moderately serious because serious injury 

could occur. The operator should have been aware of the 

721 
condition. I conclude that an appropriate penalty for the 

violation is $100. 

CITATION 2657228 

This citation charged a violation of 30 C.F.R. § 56.14001 

because the take-up pulley to a rock conveyor was not guarded. 

There was an exposed pinch point approximately 3 feet from ground 

level. The violation was established. It was moderately serious 

because of the likelihood of injury. The condition was evident. 

I conclude that an appropriate penalty for the violation is $1000 

CITATION 2657227 

This citation charged a violation of 30 C.F.R. § 56.12032 

because a drive motor for a rock conveyor was not provided with a 

makeup box cover. The motor was 6 to 8 feet high and there was 

low employee exposure. The violation was established. It was 

not serious. I conclude that an appropriate penalty for the 

violation is $20. 

CITATION 2657229 

This citation charged a violation of 30 C.F.R. § 56.12032 

because a drive motor for another rock conveyor was not provided 

with a makeup box cover. There was low employee exposure. The 

violation was established. It was not serious. I conclude that 

an appropriate penalty for the violation is $20. 

DOCKET NO. KENT 86-32-M 

CITATION 2657203 

This citation charged a violation of 30 C.F.R. § 56.5003 

because an employer was drilling without using the water system 

thus exposing him to dust. The possibility of injury or disease 

resulting was not high. The violation was not serious. I 

conclude that $20 is an appropriate penalty for this violation. 

CITATION 2657204 

This citation charged a violation of 30 C.F.R. § 56.15002 

because employees were working in the pit and crusher area 

without hard hats. Hazards in the form of falling rock and 

flyrock existed in the area. The practice was likely to result 

in injury. The operator should have been aware of the practice. 

The violation was established and was moderately serious. I 

conclude that $75 is an appropriate penalty for this violation. 

722 
CITATION 2657205 

This citation charged a violation of 30 C.F.R. § 56$15003 

because an employee was observed drilling without adequate foot 

protection. The practice was likely to result in injury. the 

operator should have been aware of the practice. The violation 

was established and was moderately serious. I conclude that $75 

is an appropriate penalty for this violation. 

CITATION 2657206 

This citation charged a violation of 30 C.F.Ro § 56a9002 

because berms were not provided along the upper bench of the pit 0 

the elevated road leading from the upper benchu and the elevated 

ramp leading to the crusher charging bin. Front end loaders and 

dump trucks were operating in these areaso The condition was 

reasonably likely to result in serious injury. The operator was 

aware or should have been aware of the condition. The violation 

was established and was serious. I conclude that $125 is an 

appropriate penalty for this violation. 

CITATION 2657207 

This citation charged a violation of 30 C.F.R. 

§ 56.4230Ca)(l) because three diesel powered pieces of equipment 

were not provided with fire extinguishers. The violation was 

established. It was not serious. I conclude that $20 is an 

appropriate penalty for this violation. 

CITATION 2657209 

This citation charged a violation of 30 C.F.R. § 56.6005 

because dry grass about two feet high surrounded the powder 

magazine. The condition was not deemed likely to result in 

injury because of little employee exposure. The violation was 

established but was not serious. I conclude that $20 is an 

appropriate penalty for this violation. 

CITATION 2657210 

This citation charged a violation of 30 C.F.R& § 56.6020Ci) 

because suitable danger signs were not posted at the magazine. 

The condition was unlikely to result in injury. The violation 

was established and was not serious. I conclude that $20 is an 

appropriate penalty. 

CITATION 2657211 

This citation charged a violation of 30 C.F.R. § 56.9002 

because an outside mirror was missing from a haul truck. The 

723 
absence of the mirror was unlikely to result in injury. The 

violation was established and was not serious. I conclude that 

$20 is an appropriate penalty. 

CITATION 2657212 

This citation charged a 

because two haul trucks were 

although the operator's view 

traffic in the area was low. 

was not serious. I conclude 

CITATION 2657213 

violation of 30 C.F.R. § 56.9087 

not provided with back-up alarms, 

to the rear was obstructed. Foot 

The violation was established and 

that $20 is an appropriate penaltyo 

This citation charged a violation of 30 C.F.R. § 56.14001 

because the main shaft for the crusher protruded and provided a 

pinch point accessible to employees. The crusher was operating. 

There was a walkway beside the crusher. The condition could 

result in serious injury. It was evident and the operator should 

have been aware of it. The violation was established and was 

moderately serious. I conclude that $100 is an appropriate 

penalty. 

CITATION 2657214 

This citation charged a violation of 30 C.F.R. § 56.14001 

because several V-belt drives on the impact crusher were 

unguarded. They were 4 to 5 feet from ground level and were 

accessible to employees. There was foot traffic in the area. 

The condition was likely to result in serious injury and should 

have been known to the operator. The violation was established 

and was moderately serious. I conclude that $100 is an 

appropriate penalty. 

CITATION 2657215 

This citation charged a violation of 30 C.F.R. § 56.11012 

because of an unguarded opening in the bin by the impact crusher. 

The bin was about 8 feet deep and was empty. There was foot 

traffic in the area. The condition was likely to result in 

injury and the operator should have been aware of it. The 

violation was established and was moderately serious. I conclude 

that $75 is an appropriate penalty. 

CITATION 2657217 

This citation charged a violation of 30 c.F.R. § 56.14001 

because a V-belt drive to the primary shaker screen was unguarded. 

The inspector deemed an injury unlikely because of low employee 

exposure. The condition was evident. The violation was 

724 
established. It was not serious. I conclude that $30 is an 

appropriate penalty. 

CITATION 2657218 

This citation charged a violation of 30 C.F.R. § 56.14001 

because the tail pulley to the waste rock conveyor was unguarded. 

A walkway made the exposed pulley accessible to employees. It 

was approximately 2 feet from floor level. The inspector deemed 

an injury unlikely because of low employee exposure. The 

operator should have been aware of the condition. The violation 

was established and was not serious~ I conclude that $30 is an 

appropriate penalty. 

CITATION 2657219 

This citation charged a violation of 30 C.F.R. § 56.14007 

because of an inadequate guard on the V-belt drive to the 

crusher-hammer mill. Two pinch points existed above 30 inches 

from the floor. The inspector deemed an injury unlikely. The 

operator should have been aware of the condition. The violation 

was established but was not serious. I conclude that $30 is an 

appropriate penalty. 

CITATION 2657220 

The citation charged a violation of 30 C.F.R. § 56.11001 

because three conveyors were not adequately provided with 

handrails. The conveyors were approximately 20 feet from ground 

level and were used as access to service the head pulleys. The 

condition was reasonably likely to result in injury and should 

have been known to Respondent. The violation was established and 

was moderately serious. I conclude that $80 is an appropriate 

penalty. 

ORDER 

Based on the above findings of fact and conclusions of law 

IT IS ORDERED: 

1. The citations are AFFIRMED. 

2. Respondent shall, within 30 days of the date of this 

decision, pay the following civil penalties for violations found 

herein. 

CITATION 

2657202 

2657221 

725 

PENALTY 

$ 100 

100 
2657222 

2657223 

2657224 

2657225 

2657226 

2657228 

2657227 

2657229 

2657203 

2657204 

2657205 

2657206 

2657207 

2657209 

2657210 

2657211 

2657212 

2657213 

2657214 

2657215 

2657217 

2657218 

2657219 

2657220 

Distribution: 

20 

30 

100 

100 

100 

100 

20 

20 

20 

75 

75 

125 

20 

20 

20 

20 

20 

100 

100 

75 

30 

30 

30 

80 

Total $1530 

~ ' 1' 

I • ·' ){~ £ 1~5 ~ 4,A tz:.ac, t 1 t!/t._ 

() James A. Broderick 

Administrative Law Judge 

Joseph B. Luckett, Esq., U.S. Department of Labor, Office of the 

Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Bill J. Morse, Esq., P.O. Box 193, Hartford, KY 42347 (Certified 

Mail) 

slk 

726 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

April 9, 1987 

SECRETARY OF LABOR, 

MINE SAFETY ANO HEALTH 

ADMINISTRATION (MSHA}t 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY 9 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 87-2 

Ao C. No. 46-01867-03692 

Blacksville No. 1 Mine 

Docket No. WEVA 87-4 

A. C. No. 46-01968-03684 

Blacksville No. 2 Mine 

Docket Noo WEVA 86-457 

A. C. NOo 46-01867-03687 

Blacksville No. l Mine 

DECISION APPROVING SETTLEMENTS 

Before: Judge Merlin 

These cases are petitions for the assessment of civil pen- alties filed by the Secretary of Labor against Consolidation Coal 

Company for violations of Part 50 of the Secretary's regulations. 

Part 50 imposes upon mine operators subject to th~ Act the requirements, inter alia, immediately to notify the Mine Safety and 

Health Administrat~(MSHA) of accidents, to investigate accidents, and to file reports pertaining to accidents, occupational injuries and occupational illnesses. 

By prehearing order dated January 6, 1987, the parties were 

directed to discuss possible settlement and advise me of the 

results of their discussion by February 17, 1987. By further 

order dated January 29, 1987, the parties were directed that if 

they were unable to reach settlement, pretrial statements would 

be due 9n March 10, 1987, and the cases would be heard on 

March 31, 1987. 

The parties informed me that they were unable to reach settlement and on February 27, 1987, the operator filed a motion to 

dismiss on the ground that ?art 50 was invalid, to which the Solicitor responded with a memorandum of law in opposition. The 

Solicitor and the operator filed prehearing statements on 

March 11 and 12, 1987, respectively. 

727 
Thereafter, on March 23, 1987, counsel for both parties contacted me by means of a conference telephone call, stating that 

they now had reached an agreement to settle these cases. The 

terms of the settlement were explained. The original assessments 

for the four violations were $350 and the proposed settlements 

were for $2,000. I indicated my tentative approval and directed 

the Solicitor to file an appropriate motion by March 25, 1987, 

which he did. The scheduled hearing was cancelled. 

Section llO(k) of the Act sets forth the settlement 

authority of the Commission and its Judges as follows: 

(k) No proposed penalty which has been contested before the Commission under section 105(a) shall be compromised, mitigated, or settled except 

with the approval of the Commissiono * * * 

The purposes of secti~n llO{k) is 'explained in the 

legislative history as follows: 

In addition to the delay in assessing and 

collecting penalties 9 another factor which re 

duces the effectiveness of the civil penalty as 

an enforcement tool under the Coal Act is the 

compromising of the amounts of penalties actually paid. In its investigation of the 

penalty collection system under the Coal Act, 

the Committee learned that to a great extent 

the compromising of assessed penalties does 

not come under public scrutiny. Negotiations between operators and Conference Officers of 

MESA are not on the record. Even after a 

Petition for Civil Penalty Assessment has been 

filed by the Solicitor with the Office of 

Hearings and Appeals, settlement efforts 

between the operator and the Solicitor are 

not on the record, and a settlement need not 

be approved by the Administrative Law Judge. Similarly, there is considerable opportunity for off-the-record settlement negotiations with representatives of the Department of 

Justice while cases are pending in the 

district courts. 

While the reduction of litigation and collection expenses may be a reason for the 

compromise of assessed penalties, the 

Committee strongly feels that since the 

penalty system is not for the purpose of 

raising revenues for the Government, and 

is indeed for the purpose of encouraging 

operator compliance with the Act•s requirements, the need to save litigation and 

728 
collection expenses should play no role in 

determining settlement amounts. The 

Committee strongly feels that the purpose 

of civil penalties, convincing operators 

to comply with the Act's requirements, is 

best served when the process by which these 

penalties are assessed and collected is carried 

out in public, where miners and their representatives, as well as the Congress and other 

interested parties, can fully observe the 

process. 

To remedy this situation, Section 111(1) pro- vides that a penalty once proposed and contested 

before the Commission may not be compromised except with the approval of the Commission. Similar= 

ly, under Section 111(1) a penalty assessment 

which has become the final order of the Commission 

may not be compromised except with the approval of 

the Court. By imposing these requirements~ the 

Committee intends to assure that the abuses involved in the unwarranted lowering of penalties 

as a result of off-the-record negotiations are 

avoided. It is intended that the Commission and 

the Courts will assure that the public interest is 

adequately protected before approval of any reduction in penalties. 

The Committee recognizes that settlement of 

penalties often serves a valid enforcement purposeo The provisions of Section 111(1) only require that 

such settlements be a matter of public record and 

approved by the Commission or Court. 

S. Rep. No. 95-181, 95th Cong., 1st Sess. 41-5 (1977), 

reprinted in Senate Subcommittee on Labor, Committee on Human 

Resources,-g5th Cong., 2d Sess., Legislative History of the 

Federal Mine Safety and Health Act of 1977, at 632-633 (1978). 

In compliance with the mandate of section llO(k), the circumstances of these cases and the terms of the proposed settlements are set forth as follows. 

Part 50, finally published on December 30, 1977, became 

effective on January 1, 1978. 42 Fed. Reg. 65534 (1977). This 

was, of course, between November 9, 1977, the enactment date of 

the Mine Act, and March 9, 1978, its effective date. Section 

30l(b) of the 1977 Amendments, provided for the transfer to the 

Mine Act of all mandatory health and safety standards in effect 

on November 9, i977. However, it has always been the Secretary's 

position that the reporting and other requirements, both as they 

now exist in Part 50 and as they were contained in prior versions, are mandatory regulations and not mandatory health and 

729 
safety standards. There are conceptual and practical justifi- cations for the Secretary's stance. Mandatory standards relate 

to actual practices inherent in the process of mining itself, 

whereas Part 50 deals with recording, reporting, and investigating certain events which arise out of mining activity,~., 

accidents and injuries. Considerable deference is due to the 

longstanding and established views of the Secretary in light of 

his enforcement responsibilities. Brock v. Cathedral Bluffs 

Shale Oil Co., et al., 796 F.2d 533, 538 (D.C. Cir. 1986). As a 

mandatory regulation, there is no question that Part 50 was 

properly adopted. And as such there is no question that it was 

properly transferred to the Mine Act pursuant to section 

301(c)(2) of the 1977 Amendments which provided that all orders, 

decisions and regulations issued, or allowed to become effective 

in the exercise of functions transferred under the law and which 

were in effect on March 9, 1978, should continue in effect until 

modified, terminated or set aside. The Commission, taking specific note of the procedures pursuant to which Part 50 was 

adopted, held Part 50 consistent with and reasonably related to 

the statutory provisions under which it was issued. Freeman 

United Coal Mining Company, 6 FMSHRC 1577 (1984). Accordingly, a 

violation of Part 50 constitutes a violation of its parent statutory provisions, including section 103(a), l03(b), 103(d), and 

103(j). Finally, in Helca Mining Company, 1 FMSHRC 1872 (1979), 

Administative Law Judge Koutras upheld the validity of Part 50. 

Nothing I am aware of would justify a departure from 

Judge Koutras's decision. 

The subject cases involve four violations of 30 C.F.R. 

§ 50.20(a) which requires inter alia, that an operator report to 

MSHA accidents and occupational injuries which occur in its mine 

within 10 working days. 

In Docket No. WEVA 87-2, Citation No. 2713196, dated 

June 12, 1986, sets forth that the operator failed to submit an 

accident-injury report on 7000-1 form to MSHA within 10 pro~ 

duction days after an injury occurred to Mr. Kenneth Fox. On 

January 29, 1986, Mr. Fox, who was an underground mechanic, 

injured his back while attempting to lift a continuous miner pot. 

Mr. Fox went to the doctor on January 30, 1986, _and was diagnosed 

as having a sprain to his back-spine area. The doctor wrote on a 

slip that Mr. Fox should be on light duty for two weeks. Mr. Fox 

returned to work on January 30, 1986, but for the next two weeks 

he merely sat in the bathhouse and lay on the benches there when 

his back hurt him. During the second week he was told to check 

permissibility on light sockets, but not to climb any ladders. 

During this period he was not scheduled for Saturday work whereas 

almost everyone else performed their Saturday shift as usual. 

Based upon the foregoing, the inspector determined that Mr. Fox 

did not return to his regular job as underground section 

mechanic, because he was unable to do so and that he remained in 

a restricted capacity status for approximately two weeks. The 

inspector further stated .. that due to the type of assignment and 

730 
location of this assignment it appeared the operator was aware of 

the situation. 

Citation No. 2713197, dated June 16, 1986, sets forth that 

the operator failed to submit an accident-injury report on the 

specified 7000-1 form to MSHA after an injury occurred to Mr. 

Richard E. Leighty. Mr. Leighty injured his back picking up two 

wooden crib blocks. This work was being done on March 31, 1986, 

at approximately 7 p.m. on the afternoon shift. Shortly thereafter, Mr. Leighty went to the hospital by ambulance. The doctor 

prescribed a muscle relaxer and pain killer and instructed him to 

return if his back was not better in seven days. The doctor Jlso 

instructed Mr. L~ighty to take it easy for the next week. Mr. 

Leighty resumed work on April 8, 1986. Accordingly, the inspector found that there were at least 5 days away from the mine 

which constituted time lost due to injury. And the inspector 

determined, therefore, that the operator failed to meet the requirement of 30 C.F.R. §50.20(a) by not submitting a 7000-1 form 

indicating at least 5 lost work days due to the injury sustained 

by Mr. Leighty. 

In Docket No. WEVA 87-4, Citation No. 2713199, dated 

July 16, 1986, sets forth that the operator failed to submit an 

accident and injury report on the 7000-1 form after an injury occurred to Mr. Roy Watson. On November 4, 1985, Mr. Watson 

fractured his right wrist in two places while attempting to cross 

over the continuous mining machine. He was a classified roof 

bolt operator and was roof bolting at the time of injury. On 

return from the hospital his right wrist was immobilized by a 

leather brace and placed in a cast four days later. The next 

shift he worked was on November 5, 1985, as a dispatcher on the 

surface. It further appeared that during the period Mr. Watson 

was a dispatcher, he underwent autroscopic surgery on his wrist 

to assist in healing and that it was projected he would have 

additional surgery. In light of the foregoing, the inspector 

concluded that during the time Mr. Watson was a dispatcher he was 

unable to perform his usual job as roof bolter and was on restricted duty. Accordingly, the inspector determined that the 

operator should have submitted a 7000-1 form indicating a 

reportable injury and the number of days of restricted duty • 

. In Docket No. WEVA 86-l57, Citation No. 2713193, dated 

June 4, 1986, sets forth that the operator failed to submit an 

accident report on the 7000-1 form after an injury to Mr. Kenneth 

Fox. On April 28, 1986, at approximately 6:30 p.m. Mr. Fox was 

injured while removing a fuse from a panel of a roof bolting 

machine •. The injury was to Mr. Fox's eyes due to a flash that 

occurred. Mr. Fox went to the doctor on the same evening of his 

injury and the doctor gave him medication for his eyes. The 

doctor told Mr. Fox that he should take the medication when he 

got home and that it should relieve much of the sand-in-the-eye 

feeling and irritation that might occur in the following 12 or so 

hours. The doctor indicated that Mr. Fox should be able to re731 
turn to work on April 30, 1986. Mr. Fox remained at home. 

According to the Citation, on April 29, 1986, Mr. Gross, the 

operator's safety supervisor, visited Mr. Fox who was in his 

garage at the time and asked him if he was coming to work. Mr. 

Fox said no and that he was going to follow the doctor's orders 

and return on the 30th. Mr. Gross followed up the visit with a 

phone call at approximately 3:30 p.m. and again asked Mr. Fox if 

he was coming to work and indicated to Mr. Fox that if he did 

not, it would be a lost-time day for the mine. Mr. Gross asked 

Mr. Fox to take a vacation day to prevent this record. Mr. Fox 

took the vacation day and returned to work on the afternoon shift 

of April 30, 1986. When the inspector asked Mr. Fox if he used 

the medication in his eyes, Mr. Fox said he did as soon as he got home and that it helped him a lot. When the inspector asked if 

he could have returned to work on the afternoon shift April 29~ 

1986, Mr. Fox said maybe, but with the sand-in-the-eye irritation 

he would have been afraid to return~ because he might hurt ·himself further as well as other miners. His main concern was that 

he did not inflict further damage to his eyes while they were 

still irritated~ with other types of mine dusto Mro Fox said 

that upon returning to work he did not have to turn in a doctoris 

slip. On June 3, 1986, the inspector told the operator t should 

submit a lost-time injury report under Part 50~ but the operator declined, alleging that because Mr. Fox had been working in his 

garage when the operator's safety supervisor visited him, he 

should have returned to work without any shift interruption. 

Relying upon the medical evidence and Mr. Fox's statements, the 

inspector required the.operator to comply with Part 50 by submitting the appropriate 7000-1 form for the injury, indicating 

days away from work due to his injury and any days of restricted 

duty. 

The motion for approval of settlements submitted by the 

Solicitor on March 25, 1987, is as follows: 

Now comes the Secretary of Labor (Secretary), by his undersigned attorney, and hereby moves for 

approval of a settlement which is acceptable to 

the Secretary. The parties agree that the voluntary civil penalty payment of $500.00 for each 

of the four violations of 30 C.F.R. Part 50 

involved in these proceedings for a total 

penalty payment of $2,000.00 is an appropriate 

resolution of this matter. The four violations 

were originally assessed penalties totaling $350.00. 

These cases were set for hearing on March 31. 

On March 6, 1987, the parties entered into a 

motion to stay other similar cases pending the 

resolution of these proceedings. The January 14, 

1987, prehearing order in these proceedings 

required the parties to file a response on 

732 
March 10, 1987. The Respondent had filed a 

motion to dismiss on procedural grounds and 

the Secretary had filed a response in 

opposition to that motion. 

After the parties reviewed their respective legal positions and the facts set forth in the 

files of these proceedings, discussions related 

to the hearing of these and other cases began 

on March 19, 1987. Extensive negotiations began 

on March 20, and on March 23, the parties agreed 

to settle these particular cases. A conference 

call was held with the presiding judge to advise 

him of the settlement. 

The Secretary submits that the Respondent is a 

large operator. The Secretary further submits that 

each of the violations involved a high degree of 

both negligence and seriousness. The files include 

information related to the fact that the violations 

were abated after issuance in good faith and that 

the payment of the agreed to penalties will not 

adversely effect the Respondent 1 s ability to 

remain in business. Respondent has an average history of prior violations for a mine operator of its size. 

Thereafter by letter filed March 31, 1987 the operator stated that the parties had agreed to include the following language in the settlement motion which had been submitted: 

The Respondent takes the position that for 

purposes of actions other than actions or 

proceedings under the Federal Mine Safety and Health Act, nothing contained herein shall 

be deemed an admission that Respondent violated 

the Mine Act's regulations or standards. 

Each of the violations in Docket Nos. WEVA 87-4 and 

WEVA 86-457 was originally assessed at $75 and each of the two 

violations in Docket No. WEVA 87-2 was priginally assessed at ~100 for total original assessments of $350. The proposed settlements of $500 for each of the four violations constitute very substantial increases from the original amounts. I have carefully reviewed the entire record to determine if they are 

justified. Upon such review, it is clear that the settlement 

motion i.s on strong ground in asserting the violations involved a 

high degree of seriousness and negligence. Gravity cannot be 

doubted in view of the fact that Part 50 is the cornerstone of 

enforcement under the Act. Since Part 50 statistics provide the 

basis for planning, training and inspection activities, accurate 

reporting is essential. Moreover, failure accurately to report 

could have extremely dangerous consequences by concealing problem 

733 
areas in a mine which should be investigated by MSHA inspectors. In short, without proper compliance by the operator under Part 

50, the Secretary could not know what is going on in the mines 

and, deprived of such information, he would be unable to decide 

how best to meet his enforcement responsibilities. The citations 

which are unusually detailed, further disclose an extraordinary degree of negligence and fault on the operator's part. The Solicitor's representations concerning size, history, ability to continue, and good faith abatement are accepted. In light of the 

statutory criteria set forth in section llO(i) of the Act~ I 

determine the proposed settlements are appropriate and proper" 

As set forth in the legislative history of section llO(k)2 quoted 

supra, these penalties are intended to encourage the operator 1 s 

compliance with the Act's requirements. 

Accordingly 9 it is ORDERED the recommended settlements be 

APPROVED. 

It is further ORDERED the operator pay $2,000 within 30 days from the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Edward H. Fitch, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Oonzel E. Ammons, Vice President, Consolidation Coal Company, P. O. Box 24, Wana, WV 26590 (Certified Mail) 

Michael H. Holland, Esq., UMWA, 900 15th Street, N.W., 

Washington, DC 20005 (Certified Mail) 

/gl 

734 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 14, 1987 

HARLEY M. SMITH, 

Complainant 

: DISCRIMINATION PROCEEDINGS 

v. Docket No. KENT 86-23-D 

BOW VALLEY COAL RESOURCES BARB CD 85-69 

INC., 

Respondent 

0 

0 

. . 

DECISION 

Docket Nao KENT 86-84-D 

BARB CD 86-7 

Oxford No. 5 Mine 

Appearances: David M. Taylor, Esq., Harlan, Kentucky, for the 

Complainant1 

Joshua E. Santana, Esq., Lexington, Kentucky, for 

the Respondent. 

Before: Judge Weisberger 

STATEMENT OF THE CASE 

On or about September 18, 1985, Complainant filed a Complaint 

with the Federal Mine Safety and Health Administration alleging 

that after making safety complaints to Respondent, commencing on 

December 13, 1984, he was required to work both as a miner's 

helper and also as a ventilation man. He also alleged that he was 

discriminated against unlawfully in that he did not receive benefits "while I was off." On October 21, 1985, Complainant was 

advised that the Mine Safety and Health Administration determined 

that a violation of § 105(c) had not occurred. On or about 

November 18, 1985, Complainant filed his Complaint with the 

Commission. 

On or about November 15, 1985, Complainant filed another 

complaint with the Mine Safety and Health Adminis~ration alleging 

that he was served a letter, on November 12, 1985, terminating 

his employment and that the termination was related to his discrimination complaint that he filed on September 18, 1985. On 

February 24, 1986, the Mine Safety and Health Administration 

735 
advised Complainant that it determined that a violation of 

§ 105Cc) had not occurred. On or about March 7, 1986, 

Complainant filed his Complaint with the Commission. 

Subsequent to notice, these cases were scheduled and heard 

in Harlan, Kentucky, on November 18 and 19, 1986. After the 

hearing, based upon a joint request from the Parties, the time to 

file briefs was extended until February 20, 1987. Complainant 

filed its brief on February 13, and Respondent filed its brief on 

February 20, 1987. Based on a joint request by the Parties the 

time to file reply briefs was extended until March 20u 1987u and 

reply briefs were filed on March 23, 19870 

Harley Smith, Lawrence Taylor, Larry Joe Grossu and Leon 

Allen testified for Complainant. Clyde E. Goinsu David Howardv 

Dewey Simpsonv Isom G. Smithv Henry Sayloru Roy Chasteenv 'I'om 

Bakerv Amato Hoskins, and Glen Green testifie~ for Respondent. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Complainant and Respondent are protected by u and subject ·;:c 

the provisions of the Mine Safety Act 0 specifically Section 105(c 

of the Act. I have jurisdiction to decide this caseo 

The Commission, in a recent decision, Goff v. Youghiogheny 

& Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reiterated 

the legal standards to be applied in a case where a miner has 

alleged acts of discrimination. The commission, Goff, supra, at 

1863, stated as follows: ~~ 

A complaining miner establishes a prima facie case of 

prohibited discrimination under the Mine Act by proving 

that he engaged in protected activity and that 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 Fasula-Robinette test). 

Protected Activities 

Harley Smith, the Complainant, who has been a mine foreman, 

miner operator, and scoop operator, started to work for the 

Respondent in 1976. In December 1984, Smith was transferred to 

736 
the Oxford No. 5 Mine as a miner's helper. In the period from 

March through April 1985, Smith complained to Amato Hoskins, 

Respondent's section mine foreman, that roof bolts were placed 

more than 4 feet apart. In the same period, Smith told Leon 

Allen, Respondent's outside foreman, of various loose rock that 

was hanging and also that some bolts were not secure. Also in 

the same time period Smith told Hoskins and Roy Chas.teen, 

Respondent's mine superintendent, that a ventilation curtain was 

down. Further in the same time period, Smith told Hoskins that 

there were no straps in the third and forth entry. Smith also 

made a request of Chasteen for a canopy for the mining machine. 

It is clear that all these complaints made to Respondent 1 s agents 

were safety related, and as such are protected activities within 

the purview of Section 105{c) of the Act. 

Adverse Actions 

At the hearing, Counsel for Complainant indicated that only 

two adverse actions were being alleged as a consequence of protected activities: Cl) that Complainant was assigned the job of 

a miner operator and also that of a ventilation man in December 

1984; and (2) that the Complainant was fired in November 1985. 

1. Complainant was required to work simultaneously as a 

miner's helper and ventilation man. 

Smith testified that on October 10, 1984 he was injured at 

Respondent's Dulcimer No. 1 Mine. Smith did not work for a 4 to 

5 week period following his injury. Smith attempted to return to 

work and did so for 3 days and 2 hours, however, he claimed that 

when he returned to work he reinjured his back. Smith finally 

returned to work December 3, 1984, and at that time was transferred from the Dulcimer Mine to the Oxford No. 5 Mine. Ten days 

after his transfer to Oxford No. 5 Mine, the ventilation man, who 

had been assigned to Smith's section was transferred to another 

section at the Bow Valley Mine. Smith testified that from this 

time until he was forced to go back on sick leave on July 31, 

1985, he was required by Hoskins to perform both his first 

assigned job as a miner's helper, and also the tasks of the ventilation man. Smith testified that to his knowledge he was not 

aware of any other employee of Bow Valley who was assigned both 

tasks. 

However, in essence, it was the credible testimony of 

Clyde E. Goins, Respondent's president, David Howard, Respondent's 

operations manager, Leon Allen, outside foreman, and Gl8n Green, 

Respondent's personnel manager, all of whom have knowledge of the 

overall operations of Respondent's mine, that, in general, miners 

do perform two jobs at the mine. I adopted their testimony, 

737 
because their knowledge of the overall operation of the mine, 

makes them more competent than Smith to establish the working 

practices in the entire mine. Howard's uncontradicted testimony 

was to the effect that Smith received the higher pay rate of the 

two jobs that he performed. Also, Goins testified that normally 

if a section is short handed, the miner's helper also performs 

work as a ventilation man. It was the testimony of Lawrence 

Taylor, who operated the miner on Smith's shift, that he operated 

the miner 4 hours, and that the rest of the time he (Taylor) hung 

curtains and watched out for the cable, both of which are the 

functions of the ventilation man. Thus, it is clear that the 

requirement of Respondent for Smith to perform two jobs, was a 

normal practice at Respondent's mine and was not an adverse 

action. 

2. The firing of the Complainante 

It was Smith's uncontradicted testimony that on or about 

November 10, 1985, he received a letter from Respondent which 

indicated that he was being terminated from his job with 

Respondent. This clearly constitutes an adverse actiono 

Motivation 

1. Complainant's prima facie case. 

The evidence is uncontradicted that between February and 

April 1985, Smith made at least five safety complaints to 

Respondent. On September 18, 1985, Smith filed a complaint of 

discrimination alleging, in essence, discrimination in job assignment due to safety complaints he had made. On or about November 

10, 1985, Smith received a letter of termination from Respondent. 

This letter did not state any reasons for the termination. 

Accordingly, due to the coincidence of time between the safety 

complaints, the filing of a complaint of discrimination, and the 

letter of termination, and due to the fact that this letter did 

not state any reasons, it might reasonably be inferred that the 

termination was motivated in part by Smith's protected activities$ 

Thus, it is found that Complainant has established a prima facie 

case. 

2. Respondent's rebuttal and affirmative defense. 

Facts 

In the latter part of 1984, when Smith returned to work 

after his back injury, he worked at the Dulcimer No. 1 Mine and 

his section foreman was Henry Saylor. During that time Saylor 

had noted that Smith, while using a miner, had left cap coal in 

the ceiling and requested Smith to remove it. Smith refused on 

738 
the ground that it would involve, in essence, cutting the rock. 

Dewey Simpson, the roof bolter on Saylor'_s crew in the Dulcimer 

No. 1 Mine, indicated that he had asked Smith to remove cap coal, 

that Smith refused and that he (Simpson) then told Saylor about 

Smith's refusal. Simpson also testified that there were problems 

getting Smith to clean up. Saylor testified that both Isom G. 

Smith, a roof bolter on his crew, and Simpson complained of Smith 

not cleaning up and his refusing to cut cap coal. Both Tom Baker, 

Respondent's safety director, and Leon Allen, Respondent's outside 

foreman, testified that they had received complaints, from the 

bolters in Dulcimer No. 1 Mine, that Smith had left cap coal and 

had not cleaned up before the bolters. David Howard, Respondent's 

operations manager, testified, in general, that he was aware of 

complaints that Smith had not been cleaning up before the bolters 

and had left cap coal. He also testified that Saylor had told him 

that Smith was making complaints about the other employees in the 

section and that there were lots of disruptions. He said, in 

essence, that Saylor had stated that he (Saylor) would rather quit 

than work with Complainant. (This was corroborated by Saylor.) 

Subsequently, Howard and Chasteen met with Green concerning the 

difficulty that the roof bolters had with complaints from Smith 0 

and with the latter not cleaning up. It was determined that Smith 

be transferred to the Oxford No. 5 Mine as the foreman there 0 

Amato Hoskins, had more experience. 

Hoskins testified that, after Smith was assigned to Oxford 

No. 5 Mine, in general, there were no problems with Smith operating the miner, that he never left cap coal, and that he was 

"pretty good" at cleaning up. (Tr. II, 170.) 

Hoskins further testified that Smith complained to him that 

the bolters 11 •••• were leaving the bolts too wide, not strapping 

the rocks, stuff like that. 11 (Tr. II, 173.) Hoskins indicated 

that two of the bolters told him that Smith told them that they 

were not performing their job properly. However, Hoskins indicated that Smith was not a disruptive influence in the section. 

Lawrence Taylor, who ran the miner at Oxford No. 5 Mine on 

Smith's shift, testified, in essence, that Smith complained to 

him about the face boss not having the straps and bolts put in 

properly. Taylor indicated initially upon direct examination 

that Smith did not make any complaints to him about Hoskins. 

However, upon cross examination he indicated that Smith did tell 

him that Hoskins was not doing his job. I observed the witness' 

demeanor and find the latter version testified to upon cross 

examination to be credible. In addition, Taylor testified that 

several times Smith said that the repairman should help with the 

curtains. 

739 
Smith, in rebuttal, indicated that he did not make any complaints to the bolting crew at Oxford No. 5 Mine, but that he did 

show Hoskins where the bolting crew missed kettle bottoms. He 

also told both Chasteen and Howard that hill seams were not being 

strapped. 

Howard indicated that after Smith was transferred to Oxford 

No. 5 Mine, he complained that the bolters were not doing their 

job and tha~, in general, Smith was disruptiveo Chasteen also 

characterized Smith as being disruptive in Oxford No. 5 Mine. 

Green testified that after being told by Chasteent Ditty 0 and 

primarily Howard, that Smith was complaining about problems with 

the bolters not doing their job properly 6 he had a meeting with 

the miners in the section to prevent friction between the miners. 

According to Howard, he consulted with Goins three or four times 

in June 1985, concerning, in general 0 Smith 1 s complaints about 

the work performance of otherso In June or July 1985, Howardu 

Chasteen, and Ditty met with Green and discussed whether they 

should take any action or make any recommendation with regard to 

Smith. No action was taken at that time. On or about July 31 

1985, Smith injured his back and went out on sick leaveo He did 

not receive any benefits while on sick leaveo 

In a follow up meeting called by Green in August 1985, with 

Howard, Chasteen, and Ditty it was decided that the Smith was 

disruptive and that termination was the only solution. Hoskins 

was not consulted with regard to the firing of Smith. 

Green testified that he was not aware of the nature or the 

numbers of Smith's safety complaints. Green discussed with Goins 

the decision to terminate, and the latter agreed. 

Goins testified that in August 1985, he made the decision to 

dismiss Smith, effective when Smith would be able to return to 

work from sick leave, so that Smith would be able to get sick 

leave benefits in the interim. Goins testified that he did not 

have any knowledge of the safety complaints made by Smith. 

On or about November 7, 1985, Smith's physician released him 

to go back to work effective November 11, 1985. Smith took the 

doctor's statement to Green, who would not accept it. The latter 

explained that he would have to have a doctor's report. Subsequently, on or about November 10, Smith received notification 

that he was terminated, but the notification did not contain any 

reason. Prior to receiving the letter of termination Complainant 

had never been reprimanded or suspended. 

740 
Discussion 

I conclude that the Respondent has not rebutted Complainant 1 s 

prima facie case, nor has it established an affirmative defense. 

It has not adduced sufficient evidence to rebut the credible testimony of Smith that he engaged in protected activities in making 

safety related complaints. Nor has Respondent presented sufficient 

evidence to establish either that its action, in terminating Smith, 

was in no part motivated by Smith's protected activities, or that 

it would have terminated Smith based only on unprotected activitieso 

Respondent, in essence, argues that Smith was terminated 

because of disruptive behavior in criticizing co-workersv and 

because of his poor performance in not cleaning the mine floor 

properly, not cutting cap coal, cutting roof boltsu and operating 

a miner in high tram. The record establishes that there were 

conflicts between Smith and the roof bolters at Dulcimer No" l 

Mine with regard to Smith's performance. The weight of the testimony establishes that after Smith was transferred to Oxford No. 5 

Mine, he continued to complain about the performance of the roof 

bolters. The only testimony with regard to the specific contents 

of the complaints to or about the roof boltersf was from Hoskins 

Smithu and Taylor. I conclude, based on their testimonyu that 

any complaints made to or about the roof bolters or face boss had 

to do with alleged improper bolting and strapping. Accordingly, 

these complaints are safety related and are protected activities. 

Since these complaints were part of the reason to fire Smith, I 

can not conclude that Respondent was in no part motivated by the 

protected activities. 

I further find that any allegations with regard to Smith 0 s 

poor performance, related solely to the period when he worked at 

Dulcimer No. 1 Mine, and that there is no evidence of poor performance at Oxford No. 5 Mine. Goins testified that after Smith 

was transferred to Oxford No. 5 Mine, he continued to receive 

reports that the latter was continuing to cut out roof bolts and 

operate the miner in high tram. However, the balance of the 

testimony does not establish that there were any complaints of 

these alleged activities by Smith after he was transferred to 

Oxford No. 5 Mine. Saylor, who was Smith's foreman at Dulcimer 

No. 1 Mine, was the only witness to the alleged cutting of coal 

in high tram. There was no testimony from any witness who 

observed Smith performing this activity at Oxford No. 5 Mine. 

The only other witnesses who indicated any knowledge of any 

alleged high tramming was Howard. However, his knowledge was 

based upon what Saylor had told him about Smith's operation of 

the miner only at Dulcimer No. 1 Mine. Also, the only evidence 

concerning Smith's cutting of roof bolts and leaving cap coal or 

not cleaning up was testimony from Howard, Simpson, Isom Smith, 

741 
Saylor, and Baker, and related only to incidents at Dulcimer 

No. 1 Mine. Significantly, Hoskins, the foreman at Oxford No. 5 

Mine, indicated that Smith never left cap coal and was pretty 

good at cleaning up. Thus, it can be seen that any alleged acts 

of Smith indicative of poor performance occurred only at Dulcimer 

No. 1 Mine. Inasmuch as Respondent allegedly decided to terminate Smith in August 1985, 8 months after he was transferred out 

of Dulcimer No. 1 Mine, it can not be found that the decision to 

terminate was motivated solely by the alleged unprotected activities of poor performance at Dulcimer No. 1 Mine. 

Even if evidence of Smith's alleged improper performance at 

Dulcimer No. 1 Mine is considered in combination with evidence of 

nonsafety complaints by Smith to and about other miners, I find 

that it has not been established that the Respondent would have 

terminated Smith for the unprotected activities alone. In 

reaching this conclusion, I considered the fact that the decision 

to terminate Smith allegedly came 8 months after he was transferred from Dulcimer No. 1 Mine, where all alleged acts of poor 

performance occurred. Also Goins who made the final decision to 

terminate Smith did not specifically indicate that Smith 1 s allege& 

failure to perform his job properly was one of the reasons for 

termination. (Tr. I, 118-119.) Further~ it is significant that 

Hoskins, the foreman at Oxford No. 5 Mine, who had indicated that 

Smith was not a disruptive influence, was not consulted when 

Green, Howard, Ditty, and Chasteen discussed the firing of Smith. 

Further, it is significant that the termination notice did not 

indicate any of the alleged unprotected activities as the reason 

for the termination. Indeed, the notice did not give any reason 

for the termination. Goins had testified that, in essence, pursuant to customary company practice the notice of termination was 

sent to Smith not in August when the decision was made Cwhen Smith 

was off work on sick leave), but in November (when Smith was able 

to return to work>, in order to enable Smith to get sick leave 

benefits, and that Respondent continued him on benefits while he 

was off on sick leave. However, it was Smith's testimony that 

during this period he did not receive any benefits, and to his 

knowledge his medical bills were not paid. Based on my observations of the witness' demeanor I adopted Smith's version. 

Therefore, I do not find credible Goins' explanation of the time 

lag between the decision to terminate in August and the notif ication of Smith in November. It is more credible that the actual 

decision to terminate was taken in November 1985, on or about the 

date the notice to ~erminate was sent to Smith. It is thus significant that the termination decision was made within 2 month of 

Smith's filing of a complaint of discrimination with MSHA, and 

within a few months after he had made various safety related 

complaints. 

742 
Taking into the account all the above factors, it is concluded, that the complainant has established a prima facie case 

that a violation by Respondent of Section 105Cc) of the Act 

occurred when his employment was terminated. This prima f acie 

case has not been rebutted by Respondent, nor has Respondent 

established an affirmative defense. 

It is further concluded that the Complainant has abandoned 

his allegation as contained in the first Complaint that he filed 

in September 1985, that he was discriminated against unlawfully 

in not being paid benefits in 1984 when he was injured and was 

off from work. 

ORDER 

It is ORDERED that~ 

1. The complaint filed in November 1985, Docket No. 

KENT 86-23-D is DISMISSED. 

2o Complainant shall file a statement within 20 days of 

this decision indicating the specific relief requestedo This 

statement shall show the amount he claims as back pay~ if any. 

and interest to be calculated in accordance with the formula in 

Secretary/Bailey v. Arkansas Carbona, 5 FMSHRC 2042 (1984). The 

statement shall also show the amount he requests for attorney's 

fees and necessary legal expenses if any. The statements shall 

be served on Respondent who shall have 20 days from the date 

service is attempted to reply thereto. 

3. This decision is not final until a further order is 

issued with respect to Complainant's relief and the amount of 

Complainant's entitlement to back pay and attorney's fees. 

~~ Avram Weisberger 

Administrative Law Judge 

Distribution: 

David M. Taylor, Esq., Smith & Carter Law Officers, P. O. Box 710, 

Harlan, KY 40831 (Certified Mail) 

Joshua E, Santana, Esq., Brown, Bucalos, Santana & Bratt, P.S.C., 

201 W. Short Street, Lexington, KY 40507 (Certified Mail) 

dcp 

743 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ALVIN RITCHIE, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 14, 1987 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-138-D 

BARB CD 86-43 

KODAK MINING COMPANY, INC., 

Respondent 

Emmons Plant No. 1 

Appearances: 

Before: 

DECISION 

Alvin Ritchie, Happy, Kentucky, pro se; 

Leslie Sr. Clairu Esq., and John-W:- Fischerv 

Esq., Denlinger, Rosenthal & Greenberg, 

Cincinnati, Ohio, for Respondent. 

Judge Melick 

This case is before me upon the Complaint by Alvin 

Ritchie under Section lOS(c) (3) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq., the "Act," 

alleging that Kodak Mining Company, Inc.~(Kodak) laid him 

off and offered him a lower paying job on May 7, 1986, in 

violation of Section lOS(c} (1) of the Act because he had 

been injured in a truck accident and had reported health and 

safety complaints to agents of the mine operator . .!/ 

In order for the complainant to establish a prima f acie 

violation of Section 105(c) (1) of the Act, he must prove by a 

preponderance of the evidence that he engaged in an activity 

protected by that section and that the discriminatory action 

taken against him was motivated in any part by that protected 

activity. Secretary on behalf of Pasula v. Consolidation Coal 

Company, 2 FMSHRC 2786 (1980), rev'd on other grounds sub 

nom. Consolidation Coal Company v. Marshall, 663 F.2d 1211 

(3rd Cir. 1981). The respondent may rebut the prima facie 

1/ Section lOS(c) (1) of the Act provides in part 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 ••• in any coal or other mine subject 

to this Act because such miner •.. has filed or made a complaint 

under or related to this Act, including a complaint notifying 

the operator or the operator's agent .•• of an alleged danger or 

safety or health violation in a coal or other mine ... or because 

of the exercise by such miner .•. on behalf of himself or others 

of any statutory right afforded by this Act." 

744 
case by showing either that no protected activity occurred or 

that the adverse action was not motivated in any part by protected activity. Secretary on behalf of Robinette v. 

Castle Coal Co., 3 FMSHRC 803 (1981). 

If the respondent cannot rebut the prima f acie case in 

this manner, it may nevertheless defend affirmatively by 

proving that (1) it was also motivated by the miner's unprotected 

activities, and (2) it would have taken the adverse action in 

any event for the unprotected activities alone. The respondent 

bears the burden of proof with regard to the affirmative deHaro v. Magma Copper Co., 4 FMSHRC 1935 (1982). The 

ultimate burden of persuasion does not shift from the complainant. Donovan v. Stafford Construction Co.v 732 F.2d 954 

(D.C" Cir 1984); Baich v. FMSHRC 1 719 F.2d 194 (6th • 1983). 

The Supreme Court has approved the National Labor Relations 

Board's virtually identical analysis for discrimination cases 

arising under the National Labor Relations Act. NLRB v. 

Transportation Management Corp., 462 U.S. 393 (19~ 

Alvin Ritchie was l off by Kodak from his pos as 

the Emmons Preparation Plant operator on May 7v 1986v and 

offered a lower paying job as night watchman. Ritchie declined 

that job and thereafter filed this complaint of discrimination. 

There is no dispute that Mr. Ritchie engaged in protected 

activity by repeatedly complaining orally and in writing to 

his foreman, Oman Sandlin, about what he reasonably believed 

were unhealthful and unsafe conditions at the Emmons Preparation Plant. It is undisputed that Ritchie made periodic complaints about excessive coal dust at the plant from the time 

he was first em9loyed as the plant operator in 1983 and that 

he more recently complained of broken boards on the second 

1 walkway at the plant. 2/ Accordingly, Mr. Ritchie has 

established the first element of a prima facie case. 

Mr. Ritchie has failed, however, to establish the second 

element of a prima facie case, i.e., he has not shown that the 

adverse action by the operator was motivated in any part by 

those health and safety complaints. The undisputed evidence 

is that Mr. Ritchie had made periodic complaints about dust 

his entire period of employment as plant operator with 

Kodak, yet was not laid off almost 3 years. The evidence 

also shows that other employees made similar complaints over 

2/ Mr. Ritchie also alleged in his initial complaint that arm 

Injuries he sustained after ling out of a company pickup 

truck constituted protected activity. He has failed to show, 

however, how those injuries come within the scope of the 

activities protected by Section 105(c) (1), and, accordingly, 

the allegation is rejected. 

745 
the years, some of whom were laid off at the same time as 

Ritchie, and others were not. Coworker David Spencer had 

also complained to Sandlin about the loose floorboards at 

the plant. While Spencer was also laid o=f with Ritchie, he 

was subsequently rehired. In addition, it was one of 

Mr. Ritchie's duties as preparation plant operator to report 

to his supervisor, and/or to maintenance personnel, these 

and other problems in the operation of the plant. 

There is also credible evidence of valid business 

reasons for the layoff of Ritchie and 7 other employees on 

May 7, 1986. Thomas W. Kemp, Vice President for Finance and 

Processing for Kodak testified that the layoffs were dictated 

by the depressed coal marketo According to Kemp there was 

significant overcapacity in production in the coal market 

over the previous 2 years, resulting in lowered prices and 

tremendous cost pressure to stay in business. As a result 

there had been a series of layoffs at Kodak beginning in May 

1985 followed by layoffs in December 1985v February 1986 9 

April 1986v May 1986 (the layoff in issue), and in February 

19870 

Kemp testified that the May 7, 1986, layoff was dictated 

by loss of the night shift at the Chester Preparation Plant 

which in turn was dictated by their forecast for lowered 

coal production. The decision was made by the Executive 

Committee consisting of Kemp, President Bowling, Vice President 

Cauley, and Charlene Walker. Processing Superintendent Estell 

Adams determined which particular miners were to be laid off 

in the processing sector after consulting with his foremen, 

Oman Sandlin and Jack Hall. 

Estell Adams testified that the selection of miners to 

be laid off was made in accordance with the company personnel 

handbook (Exhibit R-1). The handbook provides as here relevant as follows: 

Employees are selected for layoff and recall 

primarily on the basis of their ability to perform the work needed together with their depend 

ability. If these factors are equal, then preference is given to the employee with longer 

service. 

According to Adams, using that criteria he and his 

foremen prepared an analysis of the processing plant employee 

job skills similar to that found in Exhibit R-5. 

746 
The skills noted in Exhibit R-5 are not disputed and 

clearly demonstrate that those employees laid off in May 

1986, including Complainant Ritchie, were those with the 

fewer critical skills. It is clear from this evidence that 

the May 7, 1986, layoff of Ritchie and seven other processing 

plant employees had a legitimate business-related and nonprotected basis. Thus even had Mr. Ritchie established a 

prima f acie case herein, that case was clearly rebutted by 

the operator's evidence. Under the circumstances, the 

Complaint herein must be dismissedo 

ORDER 

The complaint of discrimination 

Distribution: 

,/c· \...'\.'· 

Gary relick 

Adrnin.strati e Law ,Judge 

Alvin Ritchie, Box 383, Happy, KY 41746 (Certified Mail) 

Leslie St. Clair, Esqo, and John W. Fischer, Esq., Denlingerp 

Rosenthal & Greenberg, 2310 First National Bank Center, 425 

Walnut Street, Cincinnati, ·OH 45202 (Certified Mail) 

yh 

747 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE. SUITE 400 

DENVER, COLORADO 80204 APR 14 1987 

SECRET.JiRY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TEXASGULF, INC., 

Respondent 

. . 

. . 

. 

0 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 85-148-M 

A.C. No. 48-00639-05515 

Docket No. WEST 86-83-M 

A.C. No. 48-00639-05517 

Wyoming Soda Ash 

DECISION 

Appearances~ Tobias Fo Fritzv Esq., Office of the Solicitoc. 

U.S. Department of Labor, Kansas Cityv Missouriu 

for Petitioner; 

Thomas E. Downey, Jr., Esq., Downey & Murrayu 

Englewood, Coloradou 

for Respondent. 

Before: Judge Lasher 

This matter arises pursuant to Section llO{a) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. Section 820Ca) 

(herein the Act). Petitioner seeks assessment of penalties for 

three violations which are cited in the three Citations involved 

in these two dockets which were consolidated for hearing and 

decision by Notice dated June 19, 1986. All three Citations, 

issued under Section 104(a) of the Act, charged Respondent with 

infractions of 30 C.F.R. § 57021078, entitled "Permissible Equipment" which provides: 

"Only permissible equipment maintained in permissible 

condition shall be used beyond the last open crosscut 

or in places where dangerous quantities of flammable 

gases are present or may·· enter the air current." 

The Citations were issued by MSHA Inspector Martin B. Kovick 

on three different inspection dates. 

The descriptions of the violations shown on the three 

Citations are as follows: 

1. Citation No. 2983339 issued April 10,. 1985c 

"In No. 5 miner panel there is a gap of .005 in the main 

control panel. The miner is in the last open crosscut. A 

methane check showed 0.0% with a CSE this condition could 

possibly create a hazard to employees in this panel." 

748 
2. Citation No. 2083401 issued April 24, 1985. 

"In miner No. 4 panel there is a gap of .006 in the connection box located under the seat of miner No. 4. The miner is 

beyond the last open crosscut in room No. 8025. A CSE reading 

shows 0.0%. This condition could possibly cause a hazard to 

employees in this panel." 

3. Citation No. 2083419 issued October 15, 1985. 

"In miner No. 9 there is a gap of .011 in the right head 

light on miner No. 9. The miner is in the last open crosscut on 

the shortwall section. A CSE shows 0.0% methane in this areaQ 

This condition could possibly cause a hazard to employees in this 

panel." 

On a five-part "Gravity 11 scale ("No Likelihood";; "Unl ikely 11 r 

"Reasonably Likely", "Highly Likely", and "Occurred") provided 

on the face of the citation form, all three Citations were marked 

"Reasonably Likely". 

The Citations issued under Section 104(a) of the Act;; also 

charged that the violations were "significant and substantial" 

<herein "S & S"). 

In Secretary v. Consolidation Coal Company, 6 FMSHRC 189 

(1984), this Commission held that S & S findings may be made in 

connection with a citation issued under Section 104(a} of the Act. 

Considering this ruling in conjunction with U.S. Steel Mining 

Company, 6 FMSHRC 1834 <1984), where the mine operator was 

allowed to contest S & S findings entered on Section 104(d}(l} 

citations in a penalty case, it is initially concluded that 

S & S findings are properly reviewable in this penalty proceeding. 

The matter came on for hearing in Rock Springs, Wyoming on 

August 20, 1986. Both parties were well represented. 

The Respondent concedes the occurrence of the three 

violations but urges that such were not S & s, thus raising the 

major issue posed and only issue aside from the amount of appropriate penalties. The Secretary seeks a penalty of $157 for 

each violation. 

Having carefully considered the transcript of testimony and 

the briefs submitted by both parties, the position of Respondent 

is found supported in the record and meritorious. 

FINDINGS 

At the outset of the hearing the parties entered the 

following stipulations on the record: 

(a) Respondent is a large mine operator; 

749 
Cb) Payment of reasonable penalties in this matter will not 

jeopardize Respondent's ability to continue in business; 

(c) Respondent, after receiving notice of the three subject 

violations, proceeded in good faith to promptly abate the same; 

(d) Respondent had but one violation in over 200 

inspections days prior to the issuance of each of the three 

subject violations and I conclude therefrom that Respondent has 

an extremely commendable compliance history. 

During the hearing it was further agreed that the 

permissibility requirements of 30 C.F.R. § 18.31 applied to each 

of the three machines found in violation and that the maximum 

plane flange gap permissible under 30 C.F.R. § 18.31 is .004 inch 

CT. 77-78). 

It is further found that Respondent operates a trona mine in 

Sweetwater Countyv Wyomingu l; and tha such mine hasv at all 

relevant tirnesv been classified as 11 gassy" by the State of 

Wyoming CT. 4v 16l)v and is a 11 gassy 11 mine for purposes of this 

proceeding CT. 10, 161-164, 229). 

The subject mine is one of five trona mines CT. 37v 117) 

located inside an area called the Trona Patch in Wyomingo Mining 

"beds" therein are numbered "l" through "30"1 Respondent mines in 

Bed 20. (T. 157-160)0 Somewhere between 10% and 30% of the 

subject mine's reserves have been developed CT. 309-310). Mining 

is conducted approximately 1400 feet below the surface five days 

a week by three shifts daily (2 production and 1 maintenance> CT. 

267). 

Despite its designation by the State of Wyoming as "gassy", 

the subject mine is "considerably less" gassy than the other four 

mines in the Trona Patch (T. 41), and does not require frequent 

inspections under federal law, CT. 39-41). Under Section 103(i) 

of the Act extra inspections at fifteen day intervals are 

required if a mines produces 200,000 cubic feet of gas per day. 

30 U.S.C. § 813Ci). The outpit from this mine has been measured 

at only 50,000 to 90,000 cubic feet of methane gas per day well 

below the lowest trigger of Section 103(i). CT. 40, 161). 

To be in permissible condition gaps in boxes housing 

electrical equipment, such as those involved in the three matters 

under discussion, shall not exceed certain tolerances. For the 

three pieces of equipment involved herein, as previously noted, 

gaps in excess of .004 inches were prohibited (T. 45, 77-78, 

106-107; 30 C.F.R. § 18.31). 

On April 10, 1985, Citation No. 2083339 was issued citing 

continuous miner No. 5, which was then located in the last open 

crosscut of the mine. Inspector Kovick detected a gap of .005 

1/ Trona, which is incombustible, is a hard ore used to make 

glass CT. 156). 

750 
inches in the main control panel of this Miner. On April 24, 

1985, Inspector Kovick issued Citation No. 2083401 citing a .006 

inch gap in the connection box located under the seat of Miner 

No. 4. On October 15, 1985, Inspector Kovick issued Citation No. 

2083419 after he found a gap of .011 inches in the right head -

light on continuous Miner No. 9. The record is clear that the 

three pieces of electrical equipment involved were in impermissible condition when cited and Respondent concedes the 

occurrence of the violations. 

The contemplated hazards to which the three violations 

contributed are methane ignitions and methane explosions (To 

50-51, 54-55, 85). A methane ignition is of a lesser degree than 

an explosion (T. 54). 

The three machines (miners) involved were beyond the last 

open crosscut when cited (To 47, 50) and from two to six employees would ordinarily have been exposed to the hazard {T. 94v 

230-231). 

At the times the three Citations were issued, both the 

ventilation system and methane monitoring equipment were properly 

functioning and adequate CT. 47-48, 57-58q 74v 80)f and the 

methane reading taken by hand-held instrument was zerou that is 

0.0% (T. 48, 84). 

The methane monitors on the miners in question automatically 

turn off the equipment when they detect that the methane level 

has reached 1.5% CT. 51-52, 73-74, 196-197, 255) and such were in 

proper working order on the three citation issuance dates in 

question CT. 256, 257-261). However, a lag time of five to six 

seconds runs between the time the methane monitor first sniffs 

the methane gas and the miner shuts down (T. 262). 

Methane monitors, which are checked only weekly for proper 

calibration, need frequent calibration, and are regularly found 

to be out of calibration (approximately one out of four each 

week), one cause of which is vibration CT. 52, 122-123, 248, 

256, 262-264). 

It is possible to have a methane ignition even where there 

is adequate ventilation where there occurs a "sudden rush" or 

"outburst" of liberated methane which can overpower the ventilation system (T. 51-52, 120, 134). Such possibility, however, 

is remote CT. 156, 199, 221, 226, 322). Ventilation systems are 

·also subject to breakdown CT. 53, 121-122, 234) and other 

problems CT. 51-52, 214-220). 

On the three dates pertinent herein, some 30 to 50 pieces of 

permissible equipment were in the mine CT. 176-177). None of the 

three pieces of machinery (electrical boxes) involved here were 

shown to be arcing or sparking (or malfunctioning) at the time 

the Citations were issued and there existed only the possibility 

of their arcing or sparking CT. 50-52, 56, 57, 81, 112-115, 128, 

205, 274~ 275-277; 284-286)0 

751 
No method or technology exists for predicting or determining 

where concentrations of methane may exist or be encountered in 

Bed 20 where the subject mine is located CT. 54, 58, 159, 

298-302, 303, 315, 327). 

While there is a possibility of encountering an accumulation 

of methane (T. 51-54, 58, 70, 75, 89, 93, 327-328) such is highly 

unlikely (T. 62, 328) • 

The methane level where explosions can occur ranges from 5% 

to 15%; the methane level where ignitions can occur is 1% to 2% 

CT. 68-69, 168). The methane levels found by the Inspector on 

the three occasions in question were not sufficient to permit 

ignitions (T. 69, 79, 84). 

Over the eight years that Inspector Kovick had inspected the 

mine, he had never detected explosive levels methane in the 

mine, had never found methane in excess of 1%~ CT. 39, 62), and 

had never detected ignitable or explosive levels of methane (T. 

62, 75, 86). Inspector Kovick conceded that methane must be at 

an explosive or ignitable level before it is reasonably likely to 

cause injury CT. 75, 80, 84-85). Over the mine 1 s 10-year (approximate) history, methane emission levels have remained fai 

constant CT. 165), i.e., negligible to non-existent (T. 166)0 

The mine has no history of fires or explosions (T. 197, 227). 

The possibility that methane would reach either ignition or 

explosion levels was remote (T. 89-90, 156, 161-165, 166, 

169-174, 194-195, 197, 202, 205-206, 230, 242, 251). 

Both the magnitude and the probability of an ignition of 

methane in a trona mine are less than a methane ignition in a 

coal mine due to the fact there would be no involvement of 

flammable coal dust in a trona mine. Where only methane is 

ignited, injuries and fatalities will result only to those in the 

area where the methane exists or within the area affected by the 

concussion or pressure from such ignition (T. 120, 163-165). 

DISCUSSION 

While characterizing violations in the abbreviated "serious 

and substantial" mode is convenient for general reference it is 

misleading as to the actual substantive meaning articulated by 

Congress and resort to the entire phrase from which such was 

taken is more, but not entirely, helpful. Thus, so stated, the 

the main question here is whether the subject section 104(a) 

Citations cited violations which were "of such nature as could 

significantly and substantially contribute to the cause and 

effect of a ••• mine safety or health hazard" as that phrase Cl> 

is used in Sections 104(d)(l) and 104(e)(l) the Act and (2) has 

been fleshed out by the Federal Mine Safety and Health Review 

Commission. 
More fully, Section 104(d)(l) of the Act, in which the full 

S & S clause originates provides: 

If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that 

there has been a violation of any mandatory health or 

safety standard, and if he also finds that, while the 

conditions created by such violation do not cause 

imminent danger, such violation is of such nature as 

could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety or 

health hazard 5 and if he finds such violation to be 

caused by an unwarrantable ilure of such operator to 

comply with such mandatory healty or safety standards 0 

he shall include such finding in any citation given to 

the operator under this Act.ooo 

30 U.S.C. § 814(d)(l)(emphasis added)o As previously noted, 

Section 104(e) of the Act, 30 u.s.c. § 814Ce), relating to 

"pattern 11 violations, contains similar S & S language. 

A. Background 

The S & S clause in mine safety law has been in the past 

and has newly become a term of art having separate and special 

meaning apart from the normal dictionary meanings of the various 

words themselves, necessitated no doubt by the fact that the 

pertinent language of the Act is not itself artfully worded. The 

history of the development of the S & S clause offers some 

perspective for the practical application of what I refer to 

herein as the National Gypsum/Mathies formula which is further 

discussed subsequently. Briefly, the roots of the S & S concept 

were bound up with the first use of withdrawal orders which first 

showed up in the 1952 Act. Later, under the 1965 Amendments Act, 

the entire S & S concept was fleshed out in terms quite similar 

to those in the 1977 Amendments to the 1969 Act 6 and such 

terminology was largely incorporated into Section 104Cc)(l) of 

the 1969 Act. Strangely enough, such S & S language as words of 

art primarily addressed the nature of the accidents or events 

contemplated, more specifically those of a great or disastrous 

potential. 

Many Citations now specify alleged violations as S & S even 

though they are issued under section 104(a) of the Act-rather 

than under the section which originally contained the S & S 

language, 104(d)(l), as a prerequisite to issuance of unwarrantable failure withdrawal orders. The apparent purpose of this 

practice stems from the value of a 104(a) Citation with s & S 

designation in section 104(e) "pattern" enforcement with its 

potential and forceful withdrawal order sanction. 

The history of withdrawal orders and S & S terminology are 

intertwined .. 

753 
The use of withdrawal orders as an enforcement tool was 

first implemented by Congress in its passage of Title II of the 

Federal Coal Mine Safety Act, Public Law 552 (July 16, 1952) 66 

Stat. 294, 30 u.s.c. § 473. Most significantly, the purpose, as 

announced in the heading of this 1952 legislation, was the 

prevention of "Major Disasters" in mines. Thus, Section 

203(a)(l) of the 1952 Act provided for the issuance of a withdrawal order upon the inspector's finding of a "danger that a 

mine explosion, mine fire, mine inundation, or man-trip or 

man-hoist accident will occur *** 11 • Section 203(b) provided for 

the issuance of a notice (a Citation in current jargon) where the 

inspector found a violation which did not create the dangers 

listed in section 203(a)" Section 203(c) provided for withdrawal 

orders if the violations found in the section 203(b) notice were 

not abated within a reasonable time. The 1952 Act did not 

provide for so-called "unwarrantable failure" orders. 

The 1952 Act as above noted, was amended by the Federal CoaJ. 

Mine Safety Act Amendments of 1965, 80 Stat. 85 (1966), 

hereinafter referred to as the 1965 amendments. Specificallyv 

Section 203 of the 1952 Federal Coal Mine Safety Act was amended 

by adding a new subsection Cd) and a new subsection (e)u which 

provided that when an inspector found on an inspection that, l 

a violation existedu (2) the conditions created by such violation 

did not cause danger that a mine explosionu mine f ireu mine 

inundation, or man-trip or man-hoist accident would occur 

immediately or before the imminence of the danger could be 

eliminated, (3) such violation was of "such nature as could 

significantly and substantially contribute to the cause or effect 

of a mine explosion, mine fire, mine inundation, or man-trip or 

man-hoist accident", and (4) such violation was caused by an unwarrantable failure of the operator to comply, he should issue a 

notice of violation and make such findings in the noticeo 

Subsection (d){l) went on to provide that the Bureau should reinspect the mine within 90 days after the issuance of the notice 

to determine if any similar violation existed in the mine, and if 

so, to issue a withdrawal order provided such violation was also 

found to be caused by an unwarrantable failure of the operator to 

comply. Section 203(d)(2) of the 1965 Amendments then provided 

that thereafter a withdrawal order should be issued by an inspector who found upon any subsequent inspection violations 

"similar to those that resulted in the issuance of the withdrawal 

order issued under paragraph (l)" of subsection (d) until such 

time as an inspection of such mine disclosed no similar violations. 

It is thus seen that the 1965 Amendments were, in structure 

and concept, almost identical to section 104{c), subsections Cl) 

and (2) of the Federal Coal Mine Health and Safety Act of 1969, 

and to Section 104(d) of the 1977 Act. The 1965 Amendments set 

forth a four-part foundation for the issuance of the 11 unwarrant754 
able failure" notice requiring: (1) a violation (2) no imminent 

danger 2;, (3) that the violation, while not involving imminent 

danger,-be of a nature that could significantly and substantially 

contribute to a disaster type accident, ~/and <4> that such 

violation be caused by an unwarrantable failure of the operator 

to comply with the safety requirements of the Act. 

Under the 1952 Act and the 1965 Amendments, the nature of 

the conditions targeted by the legislation were those that might 

lead to major disasters. The Legislative History (Sen. Rep. 

1055, 89th Cong. 2d Sess., 3 U.S. Code and Cong. News 2072) of 

the 1965 Amendments contains this explanation of the pertinent 

section in its reference to "Major Provisions of the Bill~ at 

page 2074: 

*** The proposal amends the "Findings and orders" section 

of the act by adding a provision that, if a violation of 

the safety requirements of section 209 is found, not involving imminent danger, but of a nature that could 

significantly and substantially contribute to a disastertype accident, and if such violation was caused by an unwarrantable failure of the operator to comply with the 

safety requirements of the act, a reasonable time for 

abatement shall be fixed." (Emphasis supplied.) 

There is no question but that the authors of the 1969 Act 

used the S & S phraseology of the 1965 Act Amendments as their 

frame of reference in drawing up the provisions of section 104(c) 

relating to issuance of "unwarrantable failure" withdrawal orders. 

The 1977 Act, in turn, followed the 1969 language. The 1965 

Amendments thus became the principal source of interpretive aid 

for the 1969 Act. The ambiguity in the 1969 Act resulting from 

the use of the phrase "similar, etc." in section 104Cc)(2) would 

be nonexistent had the phrase "similar, etc." been first used in 

the section authorizing the underlying Cl04(c)(l)) withdrawal 

order, as was the case in the 1965 Amendments where the 

"underlying order" violation was required to be similar to the 

"notice" violation, and the reinspection "order" violation had to 

be similar to "those" two. Under the 1965 Amendments, it is 

clear that the phrase "similar, etc." referred back to the 

"nature" of the violation mentioned in preceding sentences 

authorizing issuance of the underlying notice, and that the 

"nature" of the underlying conditions was that as could cause a 

disaster, i.e., "as could significantly and substantially 

contribute~the cause and effect of a mine explosion, mine 

2/ The concept of "imminent danger" under both statutes was the 

same, although the language differs. 

3/ The high-magnitude accident aspect of this concept was 

abandoned in the subsequent administration of both the 1969 Mine 

Act and the 1977 amendments thereto. 

755 
fire, mine inundation, or man-trip or man-hoist accident, * * *." 

The meaning of the phrase "similar, etc." in the 1965 Amendments 

is ascertainable because the line was clearly drawn between the 

phrase "similar, etc." and the phrase unwarrantable failure of 

such operator to comply"-- both phrases being set forth as 

separate prerequisites for the issuance of the underlying 

withdrawal order. By contrast, in the 1969 Act, the phrase 

"similar, etc. 11 was not invoked in connection with issuance of 

the underlying withdrawal order, but first appeared in section 

104(c)(2) permitting issuance of unwarrantable failure withdrawal 

orders upon subsequent inspections provided there have been no 

intervening inspections disclosing "no similar violations". Thus, the ambiguity& While it can be maintained that 

the omission of the phrase in question from sections 104(c)(l) 

was intended to accomplish the excision of the "substantial and 

significant" requirement, for the various reasons stated hereinv 

I believe there was no such intention. To begin withv having 

just used the phrase "unwarrantable failure etc. 01 in the two 

parts of section 104(c)(l), Congress abandoned it in 104(c}{2) 

and opted in favor of "similar etc.• -- words of art already 

possessing specific meaning. 

Comparison of the 1965 Amendments with the 1969 Act reveals 

various other instances whereu for brevityv authors of the 

1969 Act made omissions or placed labels on contrived conceptso 

It appears that the enumeration of the major disastersv which 

were the targets of the 1965 Amendments, was shortened in the 

1969 Act to the phrase "mine safety or health hazard". A signi-

;icant example of an omission is that in drafting the second part 

of section 104(c)(l) authorizing issuance of the underlying 

order, the authors of the 1969 Act did not see fit to reiterate 

the requirement set forth in the first part that the conditions 

constituting the prerequisite violation not result in an 

"imminent danger". 4; By implication, therefore, one must read 

into the pertinent language, the requirement that if the inspector did find "imminent danger", he would not order withdrawal 

pursuant to the provisions of 104(c)(l), but rather would proceed 

under section 104(a). The omission of the requirement in the 

1969 Act that the violation involved in the issuance of the 

underlying 104(c)(l) order be of such nature as could significantly and substantially contribute to a hazard appears to have 

been left out in the same manner, but this point is not crucial 

to the ultimate conclusion reached that "similar etc." referred 

not only to unwarrantable failure but also to the "nature" of the 

underlying violations as specified by Congress. It is clear that 

4/ It seems that the intent of Congress in promulgating the 1969 

Act was that if an inspector, upon his inspection of a mine 

should determine that imminent danger existed, he should issue an 

order of withdrawal on that basis. Imminent danger orders under 

section 104(a) thus overrode the other two types, i.e., "failure 

to abate" orders issued under 104Cb), and "unwarrantable failure 

to comply" orders under 104Cc). 

756 
under the 1965 Amendments: (1) the legislative scheme involved in 

the pertinent provision was the utilization of withdrawal orders 

as a means of eliminating the occurrence of serious, or disastertype, accidents; and (2) the nature of violations which might 

cause such accidents was expressly described as those that would 

create the danger of a mine explosion, mine fire, mine 

inundation, etc. Then during the administration of the 1969 Act, 

the extraordinary meaning previously given S & S terminology 

disappeared (See discussion of Alabama By-Products, Inc., 7 IBMA 

85, in National Gypsum). It is unknown if the question whether 

Congress, in enacting the 1969 Act (or the 1977 Act) intended to 

carry through the meaning previously attributed to this phrase 

was ever litigated. 

Had S & S in its early idiom been deemed to have been revitalized by succeeding mine safety legislationu the current 

shaping of various enforcement procedures would have been 

significantly affected. Had the original "Major Disaster" 

objective of Congress been sustained through the 1977 Amendments, 

the panoply of enforcement devices, in an abstract sense, would 

have taken on a certain logic in fittingo In such scenariov the 

essence of an imminent danger violation would be the possibili 

of its occurrence "at any time"v i.e.r its inuninence or immediacy; the essence of an S & S violation would be its potential 

for harm posed-- both qualitatively and quantitatively, i.e., its 

magnitude, ~/; and the essence of an "unwarrantable failure" 

violation would be a combination of Cl) the negligence 

(recklessness and wilfulness) involved in its commission, i.e. 

culpability, and (2) magnitude. We turn now to prevailing S & S 

precedents. 

B. Governing Precedents 

The Federal Mine Safety and Health Review Commission has in 

several opinions crafted a special meaning to the S & S language 

contained in the 1977 Mine Act. Thus, the Commission's first and 

landmark interpretation of this language appeared in Cement 

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

which it held: 

••• [Al violation is of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety or health hazard if, based on the 

particular facts surrounding the violation, there exists 

a reasonable likelihood that the hazard contributed to 

will result in an:>Jnjury or illness of a reasonably serious nature. ·,,, 

~/ This is contrasted with the emphasis of the National/Gypsum 

Mathies formula, which governs the S & S determination iri ·this - proceeding, which is on the probability of the violation's 

occurrence - not the magnitude of the accident envisioned. 

757 
3 FMSHRC at 825 (emphasis added). In Mathies Coal Company, 6 

FMSHRC 1 (January 1984), the Commission reaffirmed the analytical 

approach set forth in National Gypsum, and stated: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum, the Secretary of Labor must prove: 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. 

6 FMSHRC at 3-4 (footnote omitted). Accord Consolidation Coal 

Company, 6 FMSHRC 189, 193 (February 1984)0 

Additional aspects of the Mathies decision must be 

considered here. As to the four elements set forth in Mathies, 

the Commission, in Secretary v. U.S. Steel Mining Corp.v 6 FMSHRC 

1834 (1984), noted that the reference to "hazard 11 in the second 

element was simply a recognition that the violation must be more 

than a mere technical violation -- i.e., that the violation 

present a measure of danger. See National Gypsum, supra, 3 

FMSHRC at 827. It also noted that the reference to "hazard" in 

the third element in Mathies contemplates the possibility of a 

subsequent event: that the Secretary establish a reasonable 

likelihood that the hazard contributed to will result in an event 

in which there is an injury. The fourth element in Mathies 

requires that the potential injury be of a reasonably serious 

nature. Finally, in U.S. Steel Mining Co., Inc., 6 MSHRC 1573, 

1574 (1984), the Commission re-emphasized its holding in National 

Gypsum that the contribution of the violation to the cause and 

effect of a mine safety hazard is what must be signif icant and substantial. Thus, in National Gypsum, supra, at page 

827 the Commission held: 

"The interpretation we have placed upon the significant and 

substantial provisions is, we believe, consonant with the 

statutory language and with the overall enforcement scheme. The 

provision involved applies to violations that "could signif icantly and substantially contribute to the cause and effect of a 

coal or other mine safety or health hazard." Although the Act 

does not define the key terms "hazard" or "significantly and 

substantially", in this context we understand the word "hazard" 

to denote a measure of danger to safety or health, and that a 

violation "significantly and substantially" contributes to the 

cause and effect of a hazard if the violation could be a major 

cause of a danger to safety or health. In other words, the 

contribution to cause and effect must be significant and 

substantial. 11 (emphasis supplied). 

758 
Under the above Commission precedents, the words "significant and substantial" once again became words of art, different 

than in the past, and this phrase now modifies the word 

"contributes" (as part of a literal interpretation of the Act) 

and does not jump over the word "contributes" to modify and 

enlarge the magnitude of the hazardous event contemplated. 

The four-element test set forth in Mathies involves a major 

conceptual expansion of the S & S language of the Act itself as 

well as to part of the Commission's landmark discussion of the 

subject in National Gypsum. Thus, the requirement in the third 

element of Mathies (itself derived from National Gypsum) that the 

Secretary estabish a "reasonable likelihood" that the hazard 

contributed to "will" result in an event in which there is an 

injury is additional to the literal S & S language of Section 

104(d)(l). Secondly, a linkage is created from the violation to 

the occurrence of an injury - rather than to the violation 1 s 

"contribution" to the cause and effect of a hazard. Stretching 

it, it seems maintainable that the "linkageu• expansion is covered 

by a violation's "contribution" to the "effect" of a hazard. 

These two independent proof requirements ("likelihood" and 

"contribution"), which do not qualify each ot , were positioned 

together in United States Steel Mining Company: Inca, 7 FMSHRC 

1125, 1129, as follows: 

11 We have explained further that the third element of the 

Mathies formula "requires that the Secretary establish a 

reasonable likelihood that the hazard contributed to will 

result in an event in which there is an injury." U.S. Steel 

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

emphasized that, in accordance with the language of section 

104{d)(l), it is the contribution of a violation to the 

cause and effect of a hazard that must be significant and 

substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC 

1866, 1868 (August 1984)1 U.S. Steel Mining Company, Inc., 6 

FMSHRC 1573, 1574-75 (July 1984)." 

Thus, while the evidence in this matter clearly shows, in 

the language of the Act, there exists a significant and 

substantial contribution to the cause and effect of a hazard, the 

Secretary even so must additionally show that there is a reasonable likelihood that such hazard "will" (not 11 may 11 or "could") 

result in an event Chere, an ignition or explosion) in which 

there is an injury of a reasonably serious nature. 

c. Reasonable Likelihood and Imminent Danger 

In the context of this case, it is manifest that for the 

hazard, in the words of Mathies, "to result in an injury", the 

hazard must come to fruition, that is, an ignition or explosion 

must occur. As recognized by the parties, the question becomes 

in this matter, and I believe in most S & s cases, whether there 

is a reasonable likelihood that the hazard will actually come 

about. If the occurrence of such event is reasonably likely, 

759 
does such mine condition, as so defined, constitute an "imminent 

danger" - a situation the existence of which is expressly 

prohibited by Section 104(d)(l) of the Act as a prerequisite to 

the validity of an "unwarrantable failure - not S & S - enforcement paper? This is so, because both the ordinary dictionary 

meaning and the legal meaning of the phrase 11 reasonable 

likelihood" (and the corollary phrase "reasonably likely") is 

synonymous with "probability" - not "possibility". In this 

connection, the question must be asked: are not the vast 

majority of safety and health standards directed against substantial hazards and perils, that is, are they not designed to 

prevent, or in some cases alleviate, mine conditions or practices 

which could result in serious physical injuries or health 

problems? 

D. Reasonable Likelihood 

Under existing Commission precedent the phrase 11 signif icant 

and substantial" has no generic relationship to the phrase 

"reasonable likelihood", and its usage runs literally, as it is 

used in Section 104(d), as a modifier of the contribution a 

violation makes to the cause and effect of a hazard. The key is 

no longer the mother phrase, S & S, but uo reasonable likelihood nn o 

nLikelihood" is defined in Webster 1 s New Collegiate 

Dictionary (1979, G & C Merriam Co.) as "probability" and in the 

Random House College Dictionary (Rev. ed., 1980) as "the state of 

being likely or probable~ probability." Again, in Webster's 

Third New International Dictionary (Unabridged ed., 1976, G & C 

Merriam Co.) its primary definition is "probability". 

Review of Words and Phrases and other texts and precedents 

again reveals that "likely11 means "probably" and "likelihood" 

means "probability." It also appears that the adjective 

"reasonably" used to modify the subject word imparts no 

significant change of meaning to the base word. For example, in 

connection with a similar phrase, "reasonably to be expected", 

the Interior Department's Board of Mine of Mine Operations 

Appeals has held that use of the word "reasonably" in the 1969 

Mine Act's Section 3Cj) definition of "imminent danger" simply 

meant that the test of imminence was objective and that the 

government inspector's subjective opinion need not be taken at 

face value. Freeman Coal Mining Corporation, 2 IBMA 197 (1973). 

In General Adjustment Bureau, Inc. v. General Ins. Adjust. 

Co., 381 F.2D 991 (10th Cir., 1967) the court affirmed the nearly 

universal meaning given the term: 

"It is argued there is a difference between the "likely" 

test and the "probably" test. We do not agree. "Likely" 

means "probably". The Random House Dictionary of the 

English Language, 830 (Unabridged ed. 1966). The Oklahoma Supreme court used both the "likely" language and 

"probably" language, without distinction, in Stillwater 

Milling Company v. Eddie, 108 P.2D 126, 128-129 (Okla. 

1940). Since the adoption of the Oklahoma Business 

760 
Corporation Act in 1947 the Oklahoma court has continued 

to consider the tests as synonymous." 

Again, in U.S. v. Powell, 761 F.2d 1227, at 1233 (8th Cir., 

1985), the same result ws reached: 

"The issue here is the meaning of the word "likely" in 

the statute. We believe the word should be read in its 

ordinary sense, as referring to something that is more 

likely to happen than not. 

If one asks whether a horse is likely to win a race, 

and the answer is yes, the person who asked the question 

naturally understands that the chances of the horse's 

winning are greater than those of its losing. He would 

not ordinarily believe that a "yes" answer meant only 

that the horse had a greater than negligible (in the 

legal context, nonfrivolous) chance of winning." 

In this proceeding for purposes of determining if the three 

violations are S & s, the National Gypsum/Mathies phrase "reasonable likelihood" will be deemed synonymous with "probability .... ~/ 

~/ As an aside, it is of some interest that the subject of 

possibilities and probabilities is placed, under the Plan of 

Classification in Roget's Thesaurus (New ed., St. Martin"s Press, 

1965), under the broad class "Intellect", under the Division 

"Formation of Ideas" and under the subsection thereof pertaining 

to "Materials for Reasoning." Considered then as "degrees of 

evidence" are the concepts of Possibility, Impossibility, 

Probability, Improbability, Certainty and Uncertainty. 

In common and legal reasoning the general ideas of 

possibility and probability seem to require clear distinction in 

their application to situations and in their use as guides to 

future conduct. Both probability and possibility have 

ranges- "probability" can bump against certainty at the top end 

of the scale, and "possibility" can nudge "impossibility" at the 

bottom end of its range. In reviewing various mine safety cases, 

one finds that "reasonable likelihood" is sometimes applied to 

what appears to be mid-range possibilities rather than to any 

degree of probability. A clear line of demarcation between the 

concepts appears useful and necessary for S & S application to 

mine safety conditions. The question must be asked, was any 

range of probability actually intended in National Gypsum and 

Mathies? The conclusion has been reached here that use of the 

frequently-used phrase "reasonable likelihood" mandates a finding 

of at least some level of probability. Speaking in the abstract 

or vernacular without reference to this record or mine safety 

matters generally, my impression is that there prevails in both 

common and legal reasoning (1) three levels of possibility, 

remote (low-level), substantial (mid-level), and strong 

(high-level); and (2) two levels of probability, ordinary and 

strong-- with impossibility and certainty at either end of the 

spectrum. 

761 
E. Imminent Danger 

In delineating the actual test for determining whether the 

three subject violations are S & s violations, the question 

arises whether the third element of Mathies does not approximate 

the current formula for determining imminent danger. As will be 

noted, the phraseology is now closely analogous. If indeed, in 

practical application in a given matter, there is no distinction 

between the S & S and imminent danger formulas as a matter of 

theory and concept, then a problem arises; Should the National 

Gypsum/Mathies test for pure S & S cases be carried over to 

"unwarrantable failure" matters arising under Section 104Cd)(l) 

of the Act, then an impossibility of 104(d)(l) enforcement is 

created. This is so because "unwarrantable failure" Citations 

and Orders issued under 104(d)(l) must involve violations which 

are not only S & S but which also "do not cause imminent danger o no 

To avoid this direct contradiction of terms in unwarrantable 

failure situations, there mustv as a matter of logicv be some 

major conceptual difference or differences between S & S and 

imminent danger. What then is the prevailing approach for 

determining imminent danger? 

The term "imminent danger 01 is found in both the Federal Coal 

Mine Health and Safety Act of 1969 and the Amendments thereto 

which comprise the Federal Mine Safety and Health Act of 1977v 30 

U.S.C. § 801 et seq., and the definition thereof currently found 

in section 3(j) of the 1977 Act is for all intents and purposes 

identical in both Acts, to wit: 

"the existence of any condition or practice in a coal or 

other mine 21 which could reasonably be expected to cause 

death or serious physical harm before such condition or 

practice can be abated." (emphasis added). 

The United States Court of Appeals for the 7th Circuit in Freeman 

Coal Mining Company v. Interior Board of Mine Operations Appeals, 

et al., 504 F.2d 741 (1974), gave this definition of "imminent 

danger": 

An imminent threat is one which does not necessarily 

come to fruition but the reasonable likelihood that it 

may, particularly when the result could well be disastrous, is sufficient to make the impending threat virtually an immediate one. (Emphasis supplied). 

During the enactment of the 1977 Act, the Senate Committee 

on Human Resources, made this statement: 

"The Committee disavows any notion that imminent danger 

can be defined in terms of a percentage of probability 

that an accident will happen; rather the concept of im7/ By virture of Section 102(b)(4) of the 1977 Mine Act the 

~hrase "or other" was added after the word "coal" to expand the 

Act's coverage to all mines. 

762 
minent danger requires an examination of the potential 

of the risk to cause serious physical harm at any time. 

It is the Committee's view that the authority under this 

section is essential to the protection of miners and 

should be construed expansively by inspectors and the 

Commission." (Leg. Hist. of the Federal Mine Safety & 

Health Act of 1977, 95th Cong., 1st Sess. (hereinafter 

Leg. Hist. 1977 Act) at 38.) (emphasis added). 

Under the 1977 Act, decisional emphasis seems to be on the 

individual factual configurations involved rather than on 

discrete tests and formulas for determining imminent dangero 

See, for example, Secretary of Labor v. U.S. Steel Corporationu 4 

FMSHRC 163 (1982). At this time, the Act's section 3(j) 

definition appears to be the primary legal touchstone. See 

National Gypsum, supra, at page 828. Evaluating the dangerous 

condition or practice - whether or not a violation-in the 

perspective of continued mining operations, as is required with 

S & S violations, also appears to be a prerequisite in 

determining the validity of an imminent danger order. There also 

is a case for treating these as prerequisites~ (1) that the 

hazard (risk) foreseen must be one reasonably likely to induce 

fatalities or injuries of a reasonably serious nature, and (2) 

that such hazard or risk have an immediacy to it, that is, it 

could come to realization "at any time." See C.D. Livingston; 8 

FMSHRC 1006, 1013-1016 (1986). 

In summary, it is concluded that in practice the formulas 

for determining S & S and imminent danger presently coincide in 

all respects except for "immediacy. 11 8/ If, as I have previously 

determined, the Mathies/National Gypsum "reasonable likelihood" 

concept is synonymous with "probability", the potential hazard 

contemplated in S & S violations in many cases, for all practical 

purposes may be perceived to be susceptible of occurring "at any 

time," or in Section 3(j) terminology "before such condition or 

practice can be abated". 

Finally, it should be noted that in National Gypsum, supra, 

at part 828, it was recognized that imminent danger "contains 

elements of likelihood and gravity" - as now does S & s. 

~/ In Secretary v. Halfway, Inc., 8 FMSHRC 8 (1986), the 

Commission made the following point in connection with the timing 

of an S & S Citation: 

The fact that a miner may not be directly exposed to a 

safety hazard at the precise moment that an inspector issues a 

citation is not determinative of whether a reasonable likelihood 

for injury existed. The operative time frame for making that 

determination must take into account not only the pendency of the 

violative condition prior to the citation, but also continued 

normal mining operations. National Gypsum, supra, 3 FMSHRC at 

8251 U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 

1984). 

(footnote continued on page 17) 

763 
We turn now to the conclusions to be drawn from the factual 

factors established in the perspective of the foregoing 

delineation of the National Gypsum/Mathies test and with the 

understanding that when the Citations were issued there was no 

significant presence of methane, the ventilation system and 

methane monitors were working properly, and there was no arcing 

or malfunction inside the three electrical boxes involved. 

F. Factual Conclusions 

From the process of relating the various factual findings 

with the legal interpretations set forth above, it is concluded 

that with respect to all three violations there was but a remote 

possibility that a r ease of methane would occur, and thnt there 

was more than a remote possibility but less than a strong 

possibility, that is, a substantial possibilityu that the methane 

monitoring devices might malfunction or otherwise fail in the 

context of continuing mining operations" As to Respondentis 

ventilation system, I also conclude that there was both a 

realistic and substantial possibility that such would fail to 

prevent methane from reaching the three pieces of electrical 

equipment in question shouldv in the context of continued miningu 

a release of methane have occurred Finally 8 on the basis of 

this record, I find it only a remote possibility that arcing or 

sparking would have occurred at the time any of the subject 

equipment was in impermissible condition. 

Based on the above findings, I conclude that there existed 

but a very remote possibility that some or all of the various 

factors mentioned (methane release, inadequate ventilation, 

methane monitor failure, arcing, and impermissible conditions) 

would occur simultaneously or otherwise coincide in such manner 

as to result in an ignition (or explosion). Thus, I ultimately 

conclude that there did not exist a reasonable likelihood, or 

probability, that the hazard the three violations contributed to 

would result in an injury, although such violations in the 

language of National Gypsum, "could" each be a "major cause" of a 

danger to safety ••• "and did, in fact, contribute "a measure of 

danger" to safety. 

It having been determined that one of the required elements 

of the National Gypsum/Mathies formula was not established, the 

designation of the three violations as being "of such nature as 

could significantly and substantially contribute to the cause and 

effect of a ••• mine safety •.• hazard" is found unsubstantiated 

and subject to deletion. 

f n 8 continued - Nevertheless, it would seem that in the reality of most 

mining situations that if a violative condition will probably 

result in a serious injury, the happening of the contemplated 

accident or event will often be imminent, that is, capable of 

occurring "at any time." The theoretical line between S & Sand 

imminent danger seems very thin. 

764 
G. Ultimate Conclusions 

The three permissibility violations in this matter each 

significantly and substantially contributed to the cause-and 

effect-of a mine safety hazard. 

However, in terms of the third element of the National 

Gypsum/Mathies formula, there was not a reasonable likelihood 

that the hazard contributed to would result in an event in which 

there is an injury, that is, it was not reasonably likely 

(probable) that the hazard would happen, or stated another wayu 

that the contemplated event Ca methane ignition or explosion) 

would occur so as to cause serious injuries or fatalities" 

PENALTY ASSESSMENT 

The regulation involved here, in setting tolerance (gap) 

limits for electrical boxes, works as a fail-sa or "last 

resort" CT. 53, 75, 85) procedure to prevent ignitions and 

explosions if methane should escape during mining and a potent 

percentage thereof reach machinery with potential ignition 

sources. Aside from innate mine design, two other means 

-ventilation and methane monitoring devices-- are the other links 

in a chain of preventive measures which can serve to block 

methane from contacting arcing inside control panels and 

electrical boxes. While ventilation systems and methane 

monitors, like electrical box tolerances, can be controlled by 

safety regulation, the escape of methane itself, being an event 

which ordinarily, and in terms of this record, can't be 

anticipated or pinpointed as to time or place CT. 298-320, 303) 

is not susceptible to certain prevention by regulation. In terms 

of the causal chain described in this matter, the premium is best 

placed on the causal link subject to the most effective control 

and regulation-- on this record, excessive tolerances. The three 

violations made clear contributions to the creation of serious 

safety hazards. While it was not reasonably likely that such 

hazards would come to fruition and result in an injury to the 

several miners exposed thereto, had an ignition (or explosion) 

occurred serious injuries or fatalities would have resulted. 

While I have found the violations were not S & s, I do conclude 

that such were of a relatively high degree of seriousness. 

It has not been contended, and there is no probative 

evidence that the Respondent was negligent with respect to the 

three violations CT. 94, 95). The Respondent, a large mine 

operator with a conunendable compliance history, also has been 

found to have proceeded in good faith to promptly abate the three 

violations upon notification thereof. A penalty of $150.00 for 

each violation is found appropriate. 

765 
ORDER 

The three subject Citations, numbered 2983339, 2083401, and 

2083419, are modified to delete the ns & sn designations therein 

and are otherwise affirmed. 

Respondent shall pay the Secretary of Labor the total sum of 

$450.00 ($150.00 for each violation) as and for civil penalties 

on or before 30 days from the date of this decision. 

Distribution~ 

/ / /7 ~ ~~/,?..; rt,;b. 'tif.#P.~ U..--- ~-'-"' / - -

chael A. Lasher, Jr. 

Administrative Law Judge 

Tobias B. Fritz, Esq., Office of the Solicitor, U.S. Department 

of Labor, 911 Walnut Street, Room 2106, Kansas City, MO 64106 

{Certified Mail} 

Thomas E. Downey, Jr.u Esq., Downey & Murrayu Boettcher Buildingv 

Suite 400, 8400 East Prentice Avenueu Englewoodu CO 80111 

(Certified Mail) 

/bls 

766 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 APR 171987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

TEXASGULF, INC., 

Respondent 

ERRATA 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 85-148-M 

A.C. No. 48-00639-05515 

Docket No. WEST 86-83-M 

A.C. No. 48-00639-05517 

Wyoming Soda Ash 

At page 5 of my Decision in this matter issued approximately 

April 10, 1987, in the first sentence following the heading 

"Discussion" the quoted phrase "serious and substantial" is 

amended to read "significant and substantial" to correct the 

author's error. 

Distribution: 

.,;-"' < ,..... ·' ·.' ... ,./'~ ·: / ~ ;?/t~~t./ /?r ~'l/'h;; />' ~-

Michael A. Lasher, Jr. 

Administrative Law Judge 

Tobias B. Fritz, Esq., Office of the Solicitor, U.S. Department 

of Labor, 911 Walnut Street, Room 2106, Kansas City, MO 64106 

(Certified Mail) 

Thomas E. Downey, Jr., Esq., Downey & Murray, Boettcher Building, 

Suite 400, 8400 East Prentice Avenue, Englewood, CO 80111 

(Certified Mail) 

/ot 

767 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FALCON EXPLORATIONS, 

Respondent 

April 14, 1987 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 87-2~M 

A.C. No. 26-01527-05503 

Tonopah Divide Mine 

DECISION 

Appearances: Marshall P. Salzman, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, 

California, 

for Petitioner; 

Mr. Everett Berg, Falcon Explorations, Emeryville, 

California, 

pro se. 

Before: Judge Cetti 

This civil penalty proceeding arises under the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et~., (the 

"Mine Act"). After notice to the parties, a hearing on the 

merits was held before me at Oakland, California, on January 15, 

1987. The parties presented oral and documentary evidence, and 

submitted the matter for decision, without exercising their right 

to file post-trial briefs. The mine operator admits the violations charged occurred but questions the appropriateness of 

MSHA's administrative penalty assessments. 

ISSUE 

The single issue presented is what penalty is appropriate 

for each of the admitted violations. 

STIPULATIONS 

The parties stipulated as follows: 

1. The history of previous violations is good. 

2. The size of the mining operation was small. 

3. The penalty would not affect the ability of the operator 

to continue in business. 

768 
4. The mine operator demonstrated good faith in attempting 

to achieve rapid compliance after notification of the violations. 

SUMMARY OF EVIDENCE 

Background 

A small three-""man heap leaching operation was the only 

activity at the mine site at any time relevant to this 

proceeding. The operation consisted of using a weak solution of 

cyanide, water, and lime in an attempt to extract what minimal 

gold and silver might remain in the heap leach' pad. The mine had 

been reopened for this limited purpose two months before the 

inspection. This limited operation was completed and the mine 

closed six months after it opened. 

The only persons employed in this operation was the manager, 

Mr. Waterson, and his two adult sons. Each of these miners had a 

mobile trailer home at the site. 

On May 20th and 21st of 1986, Federal Mine Inspector Earl 

McGarrah made a routine inspection of this three-man heap leaching operation and issued three citations charging the operator 

with violations of Title 30 C.F.R. § 56.12068, 56.12028, and 

56.15001. Thereafter this proceeding was initiated by the filing 

of a proposal for assessment of a civil penalty by the Secretary 

of Labor on behalf of the Mine Safety and Health Administration 

pursuant to Section llO(a) of the Mine Act. The operator filed a 

timely appeal. 

Citation No. 2673962 - Transformer Enclosures '---~·~~~~---'' ' 

This citation charges a violation of 30 C.F.R. § 56.12068 

which in its entirety provides: 

"Transformer enclosures shall be kept locked against 

unauthorized entry." 

The citation charges that three enclosures of energized 

transformers were not locked and that one person was affected by 

the violation. 

The mine inspector and the mine manager Mr. Waterson drove 

up to the three transformers to check them out. The transformers 

were located in an area between the three trailer houses and the 

small mill building. Each of the two smaller transformers (440 

volts) had a factory manufactured enclosure (housing). Each enclosure had an access door which was closed but not locked. When 

the manager opened the access door for inspection the energized 

terminals inside the housing enclosure were exposed. The mine 

inspector testified if a person were to come in contact with the 

energized terminal he could be very seriously injured or killed. 

769 
The mine inspector testified that the violations were abated 

by the manager within 30 minutes. 

The third transformer (4160 volt) was enclosed by a fence 

which had a gate that was closed but unlocked. A person would 

have to open the closed gate to get to the transformer. 

The mine manager promptly abated the violations by taking 

three locks from his trailer home and immediately locking each of 

the enclosures. 

The mine inspector stated that when he asked the manager why 

the transformer enclosures were not locked the manager told him 

that he was busy and "just forgot." 

On cross examination the mine inspector testified that he 

made an earlier inspection of the mine site and at that time the 

three transformer enclosures were "probably" locked since he did 

look at them and did not issue a citation. 

DISCUSSION AND FINDINGS 

The mine operator admitted the violation and it is 

here as established fact. 

The only issue is what penalty is appropriate under the 

facts of this case. 

In determining the appropriate penalty Section llO(i) of the 

Mine Act requires the Commission and its Judges to consider the 

mine operators size, its negligence, its good faith in attempting 

to achieve rapid compliance after notification of a violationu 

its history of prior violations, the effect of the monetary 

penalty on its ability to continue in business and the gravity of 

the violation. 

This was a very small three man operation consisting of a 

father and his two adult sons. The parties stipulated that the 

size of the operation was small. 

Evidence was presented that the access doors and gate to the 

transformer enclosures were closed but were not locked at the 

time of the inspection No evidence whatsoever was presented as 

to how long the doors or gate had been unlocked. Appropriate 

locks were provided by the operator and were readily available9 

The only evidence we have as to why the doors were unlocked is 

the hearsay statement that Mr. Waterson "forgot". Accepting this 

statement as true this constitutes ordinary simple negligenceo 

The parties stipulated to the operator's good faith in 

achieving rapid compliance. This was based no doubt on the fact 

the access doors and the gate to the transformer enclosures were 

locked within 30 minutes after the violation was first noted. 

770 
With respect to the gravity of the violation we are not 

dealing in this case with a concealed or hidden danger or a trap 

for the unwary. The danger is an obvious one. Miners are aware 

of the inherent danger of exposing themselves to the energized 

electrical parts inside a transformer. 

The only way one could be exposed to this hazard is to 

deliberately and intentionally open the closed access door of the 

transformer enclosure. It is most unlikely that a miner could 

accidentally or inadvertently be exposed to the hazard. 

While these considerations may be irrelevant as to the 

existence of the violation they are valid considerations in 

termining the gravity of the violation for purposes of setting 

the appropriate penalty. 

In this case there was no evidence of actual exposure to 

hazard. There was only a possibility that if an unauthorized 

person were to open the closed door or closed gate of one of the 

enclosures that the unauthorized person could be exposed to the 

hazard of contacting one of the energized parts. There was no 

evidence that any of the three miners who had potential access to 

the transformers were or were not authorized or qualified 

persons. 

The parties stipulated with respect to four of the six 

mandatory statutory criteria set forth in Section llO(i) of the 

Mine Act. The parties in addition to stipulating to the small 

size of the mining operation and its good history, also 

stipulated to the operators good faith and to the fact that the 

penalty would not affect the operator's ability to continue in 

business. All four stipulations are accepted and adopted as my 

finding of fact. 

After due consideration of the six statutory criteria I conclude that the appropriate penalty for the violation in this case 

is $30. 

Citation 2673963 - Grounding Systems Test Record 

This citation alleges a violation of 30 CAF.R. § 56.12028. 

This section not only requires testing of grounding systems for 

continuity and resistance immediately after installation but also 

requires a record of the resistance measured be made available on 

request by a Federal mine inspector. 

Evidence was presented that two months before the inspection 

the mine was reopened for a small temporary milling operation. 

It was a small, three-persons, six-months long, operation to 

attempt to extract what minimal gold and silver might remain in 

771 
the heap-leach pad. Just before the reopening the mill was rewired by Logan Electric for the new Merilcro mill that was installed specifically for this temporary leach pad operation. The 

grounding system was installed in compliance with all relevant 

safety regulations. Tests performed after the inspection revealed all measurements and test results were in compliance with 

the National Electric Code and the relevant safety regulations. 

The mine inspector testified that at the time of the inspection Mr. Waterson did not know whether the electrical contractor had "run these tests or not". Mr. Waterson looked for 

the record but he could not find it. 

The mine inspector testified that the purpose of testing the 

grounding system was to make sure that it was working properly 

He stated that if it wasn't working properly its npossible" somebody could be electrocuted. 

DISCUSSION AND FINDINGS 

30 C.FeR. § 56.12028 not only requires testing of the 

grounding system immediately after installation but also requires 

a record of the resistance measured during the most recent test 

be made availab on request by a federal mine inspectoro 

The record clearly shows that the mine manager was not able 

to make available to the mine inspector a record of the resistance measured. His failure to make sure that the required 

record be made and kept available on request constitutes ordinary 

negligence. 

Since the grounding system was installed in compliance with 

the National Electricity Code and with the relevant safety 

regulations, the violation did not result in any potential hazard. 

The gravity, therefor, is considered minimale 

The parties stipulated to four of the six statutory criteria 

mandated by section llO(i) of the Mine Act. The parties 

stipulated that the history of previous violations was good, that 

the size of the three man mining operation was small; that a 

penalty would not affect the operator's ability to continue in 

business, and that good faith was demonstrated in attempting to 

achieve prompt abatement of the violationo The stipulations are 

accepted and adopted as my finding of fact. 

In the light of my finding on the six statutory penalty 

criteria I can conclude the appropriate penalty for the violation 

in this case is $10. 

Citation 2673964 - First Aid Material 

The citation charges that "adequate first aid materials were 

not provided at the mine. A cyanide kit was not at the 

property". The operator admits that these allegations are true. 

772 
When the mine inspector asked why there was no first aid kit 

at the mine, Mr. Waterson told him that before commending the 

temporary heap leaching operation the mine had been shut down. 

Since they did not plan on reopening, they sold the first aid and 

the cyanide kit. Since reopening for the small three-man heap 

leaching operation he has been so busy he had neglected to 

purchase a first aid kit or a cyanide kit. 

When asked by the Solicitor what was the danger of failing 

to provide a first aid kit the mine inspector replied "they do 

have eye washes and things like that in it along with band aids, 

to aspirin." Asked as to what was the danger of not having a 

cyanide kit with amyl nitrate, the mine inspector stated that the 

miners were using cyanide in the heap-leaching operation and the 

cyanide kit would be used in the event that an employee was 

overcome by cyanide. He explained that in order to revive such a 

person you need to immediately get him to fresh airu break open a 

amyl nitrate capsule, and get him breathingo He stated "its 

possib 11 that not having a first aid and a cyanide kit could 

result in death. 

Mr. Berg, the mine owner, testified that the miners used a 

very weak solution of cynaide mixed with water and lime in the 

heap leaching operation but that the solution was so very weak 

and that it was "very unlikely that anybody even drinking the 

solution would die." 

DISCUSSION AND FINDINGS 

The operator has admitted the violation of § 56.15001 as 

alleged in the citation and it is accepted here as established 

fact. 30 C.F.R. § 56.15001 mandates that 11 adequate first-aid 

materials" shall be provided at places convenient to all working 

areas. 

The purpose of this safety standard is to enable those at 

the work site to provide needed emergency treatment until such 

time as professional help can be obtained. When there is a 

sudden serious injury or illness first aid is an attempt to keep 

the victim alive and in the best condition possible until medical 

help arrives. In certain cases there is a critical period in 

which the availability of adequate first aid materials can mean 

the difference between life and death for the victim. However, 

in many other cases the lack of adequate first aid material is 

not critical. on balance I would evaluate the gravity of the 

violation in this case as moderate. 

The only evidence we have as to negligence is the hearsay 

statement that the mine manager was busy and forgot. I conclude 

that this was plain ordinary negligence. 

The parties stipulated with respect to four of the six 

statutory criteria set forth in section llOCi> of the Mine Act. 

The parties stipulated that the history of previous violations 

was good, that the mining operation was small, that the penalty 

773 
would not affect the operator's ability to continue in business, 

that the operator demonstrated good faith in attempting to 

achieve prompt abatement of the violation. These stipulations 

are accepted and adopted as my finding of fact on four of the six 

statutory criteria. 

With respect to the two remaining statutory criteria it is 

found that the violation was caused by ordinary negligence of the 

mine manager <which is properly imputed to the operator) and that 

the gravity of the violation was moderate. 

Based upon my consideration of the six statutory penalty 

criteria, I conclude that $60.00 is the appropriate penalty in 

this case for the admitted violation of 30 C.F.R. § 56.15001. 

CONCLUSIONS OF LAW 

Based upon the entire record and the findings made in the 

narrative portion of this decision, the following conlcusions of 

law are entered: 

1. The Commission has jurisdiction to decide this case. 

2 0 Respondent violated 30 C.F.R. § 56.12068, Citation 

2673962 should be affirmed, and a civil penalty of $30 assessed" 

3. Respondent violated 30 C.F.R. § 56.12028, Citation 

2673963 should be affirmed, and a civil penalty of $10 assessed. 

4. Respondent violated 30 C.F.R. § 56.15001, Citation 

2673964 should be affirmed, and a civil penalty of $60 assessed. 

ORDER 

Accordingly each of the citations herein is ordered 

affirmed; and Falcon Explorations is ordered to pay a civil 

penalty totaling $100.00 within 30 days of the date of this 

decision. 

nistrative 

t F. Cetti 4~ Law Judge 

Distribution: 

Marshall P. Salzman, Esq., Office of the Solicitor, U.S. Department of Labor, 11071 Federal Building, 450 Golden Gate Avenue, 

San Francisco, CA 94102 <Certified Mail) 

Falcon Explorations, Mr. Everett E. Berg, 1900 Powell Street, 

Suite 460, Emeryville, CA 94608 (Certified Mail) 

/bls 

774 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 14, 1987 

SOUTHERN OHIO COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. WEVA 86-186-R 

Order No. 2713975; 2/10/86 

Docket No. WEVA 86-189-R 

Order No. 2713980: 2/14/86 

Docket No. WEVA 86-193-R 

Order Noo 2705919; 2/24/86 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 86-235 

A. C. No. 46-03805-03719 

Docket No. WEVA 86-284 

A. Co No. 46-03805-03725 

Martinka No. 1 Mine 

DECISION 

Appearances: David M. Cohen, Esq., American Electric Power 

Service Corporation, Lancaster, Ohio, for Contestant/Respondent; 

Before: 

James H. Swain, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, for Respondent/Petitioner. 

Judge Maurer 

STATEMENT OF THE CASE 

Contestant, Southern Ohio Coal Company (SOCCO), has filed 

notices of contest challenging the issuance of Order No. 

2713975 (Docket No. WEVA 86-186-R), Order No. 2713980 (Docket 

No. WEVA 86-189-R}, and Order No. 2705919 (Docket No. WEVA 

86-193-R) at its Martinka No. 1 Mine. The Secretary of Labor 

(Secretary} has filed petitions seeking civil penalties concerning these alleged violations in the total amount of $2,200. 

At the commencement of the hearing on these cases, which 

was held on December 30, 1986, in Morgantown, West Virginia, 

the parties jointly moved for approval of their settlement of 

775 
Docket No. WEVA 86-284 and that portion of Docket No. WEVA 

86-235 that pertains to Order No. 2713975. I approved a reduction in civil penalty from $700 to $500 in Docket No. WEVA 

86-284 (Tr. 5) and similarly approved a reduction from $850 

to $500 concerning Order No. 2713975 (Tr. 8). This action 

had the effect of mooting Docket Nos. WEVA 86-186-R and WEVA 

86-193-R. 

Therefore, the case left to be tried and which was tried 

concerned only Order No. 2713980 (Docket No. WEVA 86-189-R) 

and so much of Docket No. WEVA 86-235 as pertains to that 

particular order. 

Both parties have filed post-hearing proposed findings 

of fact and conclusions of law, which I have considered 

along with the entire record herein. I make the following 

decision. 

STIPULATIONS 

The parties have agreed to the following stipulations 9 

which I accept (Tr. 8-9) ~ 

1. The Southern Ohio Coal Company is the owner and 

operator of the Martinka No. 1 Mine. 

2. The operator and the mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977. 

3. The presiding Administrative Law Judge has jurisdiction over this proceeding. 

4. The inspector who issued the subject order was a 

duly authorized representative of the Secretary of Labor. 

5. A true and correct copy of the subject order was 

properly served upon the operator. 

6. The imposition of any penalties in this proceeding 

will not affect the operator's ability to continue in business. 

7. The operator is to be considered large in size for 

penalty assessment purposes. 

8. The conditions set forth in the order, Order No. 

2713980, constituted a violation of the cited mandatory 

3tandard, 30 C.F.R. § 75.518. 

The issues remaining before me for decision then are 

·hether the admitted violation of the cited standard was 

significant and substantial" and caused by the "unwarrantable 

776 
failure" of the mine operator to comply with that standard as 

well as the appropriate civil penalty to be assessed for the 

violation, should any be found. 

Order No. 2713980, issued pursuant to section 104(d) (2) 

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

§ 801 et seq. (the Act) alleges a violation of the regulatory 

standard at 30 C.F.R. § 75.518 !./ and charges as follows: 

There was inadequate short circuit protection for 

the belt take up motor for 2 East B belt. The 

motor was a 25 horsepower, 575voltu 26.2 full 

load amps and was protected by a 400 amp circuit 

breaker with a trip range of 800 to 1600 amperes. 

MSHA Inspector John Paul Phillips issued the order at 

bar at the Martinka No. l Mine on February 14, 1986. On that 

date, he went to a location in the mine that was variously described in the record as being either the 2 East B Section or 

the 2 East C Section. In any eventv he found that the short 

circuit protection for the belt take-up motor there was provided by a 400 amp circuit breaker with a magnetic trip range 

from 800 to 1600 amperes. This motor is a 25 horsepower, 575 

volt motor which has a continuous rated capacity of 26.2 full 

load amps. The regulations require short circuit protection 

for this motor to be in accordance with the National EJectric 

Code of 1968, and the maximum allowable short circuit protection for this motor is 700 percent of the full load current of 

the motor, 183.4 amps in this case. The parties have stipulated 

that this amounts to a violation of 30 C.F.R. § 75.518. 

SOCCO contends, however, that the order was improperly 

designated a "significant and substantial" violation. 

The Commission has held that a violation is properly 

designated significant and substantial if, based on the particular facts surrounding that violation, there exists a 

reasonable likelihood that the hazard contributed to will 

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

Cement Division, National Gypsum Co., 3 FMSERC 822, 825 

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

1984), the Commission explained: 

!/ 30 C.F.R. § 75.518 provides as follows: 

Automatic circuit-breaking devices or fuses of the 

correct type and capacity shall be installed so as to 

protect all electric equipment and circuits against 

short circuit and overloads. Three-phase motors on all 

electric equipment shall be provided with overload protection that will deenergize all three phases in the 

event that any phase is overloaded. 

777 
In order to establish that a violation of a mandatory safety standard is significant and substantial 

under National Gypsum the Secretary of Labor must 

prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard--that 

is, a measure of danger to safety--contributed to 

by the violation; (3) a reasonable likelihood that 

the hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. 

The Commission subsequently explained 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)" 

In the instant case, it is stipulated that a violation of 

the cited standard occurred. Therefore, we may use that fact 

as a starting point for an examination of the other relevant 

factors. 

Inspector Phillips testified that the hazard presented 

in his opinion by this lack of short circuit protection would 

be fire and smoke with the resulting possibility of lost work 

days or restricted duty at the least. 

Mr. Shriver, an electrical engineer employed by MSHA, was 

called as an expert witness. He stated that the most probable 

situation in which a motor such as the one involved in this 

case would develop a short circuit of less than 800 amps would 

be where a motor bearing went bad. This would permit the 

cylindrical rotor of the motor to get cocked somewhat inside 

the stator windings. There is an extremely close clearance 

maintained between the rotor and stator and it would, therefore, be conceivable that a short could occur from phase to 

phase contact within the motor without making contact with 

ground. The impedance of the windings would then reduce the 

current flow below the 800 ampere range. Mr. Shriver went on 

to opine that in the absence of short circuit protection for 

less than the 800 amps, the short would be capable of eroding 

a hole completely through the motor to the outside very rapidly. If there were coal dust present, that could be ignited 

and generate smoke. 

On cross-examination, the witness conceded that there 

was about an equal chance that a bearing failure that would 

cause a short by phase to phase contact would also contact 

ground. In that event, the ground protection devices would 

work to shut off the circuit. There was testimony to the 

effect that the ground phase protection was operating properly. 

778 
James Lunden, a staff electrical engineer employed by 

SOCCO, was also called as an expert witness. He testified 

that the belt take-up motor at issue here is only in operation 

once or twice a day and only operates 10 to 20 seconds at a 

time. The point being that if only because of the limited use 

of the motor, the chances of a short circuit occurring in the 

motor are highly unlikely. 

The Secretary's witness referred to the potential problem 

of the rotor touching the power wires inside the motor because 

of a failed bearing. Given that scenario, Mro Lunden opined 

that the rotor would contact ground. A short circuit would 

exist, but it would be a phase-to-ground fault conditiono In 

that case, the ground fault relay, which is used to deenergize 

a circuit in the event of a phase-to-ground short conditionr 

would cut the circuit off instantaneouslyo I note that there 

is no contention that the ground fault relay was not operational at the time the instant order was written. 

To summarize Mr. Lunden's testimony concerning the probability of a hazard resulting from the stipulated violation 

of the standard, he stated that if a phase to phase short circuit condition were to exist, it would almost certainly contact ground, resulting in a grounded phase condition which 

would cause the circuit breaker to trip instantaneously. 

Secondly, even in the unlikely case where a phase to phase 

short circuit condition were to occur that did not contact 

ground, the circuit breaker as set would have a very good 

probability of switching off the circuit. Finally, as a 

third protection, there is an overload relay, although. it 

takes time to operate, which would nevertheless deenergize 

the circuit in time. For example, in a short circuit of 340 

amps, the overload protection device would operate after 

five seconds. With greater amperage, the time required for 

the overload relay device to operate would be less. 

With regard to any potential shock hazard, Mr. Lunden 

explained that the shock hazard protection is supplied by 

the ground wire which connects the frame of the take-up 

motor to the belt power center. That equipment was functional on the day of the inspection. There is also the 

neutral grounding resistor which is located in the belt 

power center. It works in conjunction with the ground wire, 

the ground monitor relay and the ground fault relay so that 

if an electrical phase to ground short circuit were to occur, 

the maximum voltage that would appear on the frame of the 

take up motor would be limited to a safe value. All this 

equipment was likewise functional at the time the order 

was written. 

779 
The inspector alleged that the violation at bar was 

"significant and substantial" because a rotor bearing could 

fail, causing the rotor to damage the inner windings of the 

motor which would in turn result in a short circuit that could 

melt through to the outside of the motor and ignite coal and/or 

coal dust, thereby creating a smoke and fire hazard in the area. 

I find that it is established that the stipulated violation contributed to a discrete safety hazard that could contribute to an injury if there was an uncontrollable short 

circuit of less than SOO amps coexistent with an accumulation 

of coal or coal dust in the immediate area of the motoro If 

such a short circuit should develop, it would instantaneously 

create intense heat sufficient to melt steel and clearly capable of burning a hole through the motor to the outside where 

it could ignite accumulated coal or coal dust, if there were 

any such accumulations. However, I also find that the Secretary has failed to establish that there is any reasonable 

likelihood that an uncontrollable short circuit of less than 

800 amps would ever actually occurv given the design of the 

motor and the other circuit protection devices installedo 

Also, the only evidence in this record as to the existence of 

any coal or coal dust accumulations in the area of the motor 

was to the effect that there were none. The unrebutted evidence demonstrates the area was well rock dusted and clean. 

Accordingly, I find that the Secretary has not established 

that there was a reasonable likelihood that an accident or 

injury would occur. Therefore, the inspector•s "significant 

and substantial" finding is vacated and the order is modified 

to reflect a "non-S&S" violation. 

Nonetheless, I find that the violation was caused by the 

"unwarrantable failure" of the operator to comply with the 

standard. 

In Zeigler Coal Company, 7 IBMA 280 (1977), the Interior 

Board of Mine Operations Appeals interpreted the term "unwarrantable failure" as follows: 

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 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 lack of due diligence, or because 

of indifference or lack of reasonable care. 

The Commission has concurred with this definition to 

the extent that an unwarrantable failure to comply may be 

780 
proven by a showing that the violative condition or practice 

was not corrected or remedied prior to the issuance of a citation or order, because of indifference, willful intent, or 

serious lack of reasonable care. United States Steel Corp. v. 

Secretary of Labor, 6 FMSHRC 1423 at 1437 (1984). 

The testimony from the operator's own witnesses establishes 

that the wrong part was placed on the motor approximately two 

months prior to the order being written. I therefore find 

SOCCO's failure to locate this violative condition in spite of 

frequent electrical equipment inspections to be a serious lack 

of reasonable care to see that the said condition was abated 

in a timely fashion. 

Based on the criteria in section llO(i) of the Act 1 I 

conclude that an appropriate penalty for the violation is $2500 

ORDER 

Based on the above findings of fact and conclusions of 

law, IT IS ORDERED: 

1. Order No. 2713980, contested in Docket No. Y'l'EVA 86-

189-R, IS AFFIRMED as a non-S&S violation of 30 C.F.R. ~ 75.518. 

Further, the order properly concluded that the said violation 

resulted from SOCCO's unwarrantable failure to comply with the 

standard involved. 

2. The motion for approval of settlement with regard to 

Order Nos. 2713975 and 2705919, contested in Docket Nos. WEVA 

86-186-R and WEVA 86-193-R, respectively, IS GRANTED and 

therefore those two contest cases are now moot and are hereby 

DISMISSED. 

3. The respondent IS HEREBY ORDERED TO PAY a civil penalty of $1,250 within 30 days of the date of this decision. 

Upon payment, the civil penalty proceedings ARE DISMISSED. 

rer 

trative Law Judge 

Distribution: 

David M. Cohen, Esq., American Electric Power Service Corp., 

P. O. Box 700, Lancaster, OH 43130 (Certified Mail) 

James H. Swain, Esq., Office of the Solicitor, u. s. Department 

of Labor, 3535 Market St., Philadelphia, PA 19104 (Certified 

Mail) 

781 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 14, 1987 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

CONSOLIDATION COAL COMPANY, 

Respondent 

0 

. 

. 

0 

. . 

. . 

CONTEST PROCEEDING 

Docket No. WEVA 86-210-R 

Order No. 2713402; 3/10/86 

Osage No. 3 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 86-481 

A.C. NOo 46-01455-03640 

Osage Noo 3 Mine 

DECISION 

Appearances: William T. Salzer, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary of Labor; 

Michael R. Peelish, Esq., Consolidation Coal Co., 

Pittsburgh, Pennsylvania, for Consolidation Coal 

Company. 

Before: Judge Melick 

These consolidated cases are before me pursuant to 

Section 105(d) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801, et. seq., the "Act" to challenge a withdrawal 

order issued under Section 104(d)(l) of the Act and charging a 

violation of the standard at 30 C.F.R. § 75.1105. ~/ The general 

1/ Section 104(d){l) provides as follows: 

"If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there has 

been a violation of any mandatory health or safety standard, and 

if he also finds that, while the conditions created by such 

violation do not cause imminent danger, such violation is of such 

(continued on page 2) 

782 
issue before me is whether Consolidation Coal Company (Consol) 

violated the cited regulatory standard, and, if so, whether the 

violation was the result of "unwarrantable failure" and whether 

the violation was of such a nature as could significantly and 

substantially contribute to the cause and effect of a mine safety and health hazard, i.e., whether the violation was "significant 

and substantial." If a violation is found, it will also be 

necessary to determine the appropriate civil penalty to be 

assessed in accordance with § llO{i) of the Act. 

The order at bar, No. 2713401, reads as follows~ 

The 7 West belt drive power center was not adequately 

ventilated to the return. When chemical smoke was 

released at the front of, 3 feet back, and 6 feet backu 

over the electrical box the smoke was carried out into 

the track entry and no smoke could be seen traveling 

toward the 8 inch by 8 inch vent hole. 

The cited standard, 30 C.F.R. § 75.1105u provides in 

relevant part that "air currents used to ventilate structures or 

areas enclosing electrical installations shall be coursed 

directly into the return." 

The essential facts in this case are not in dispute. 

Lynn Workley, an experienced inspector for the Mine Safety and 

Health Administration (MSHA), was performing a regular inspection 

of the 7 west section of the Osage No. 3 Mine on March 10, 1986, 

when he noticed warm air coming out of a crosscut containing an 

energized power center. There is no dispute that the power 

center was an "electrical installation" within the meaning of the 

cited standard. Workley observed that there were no stoppings or 

ventilation curtains to direct the air ventilating the power 

center through the small vent hole leading to the return. He 

also observed little air movement through that vent hole. Under 

the circumstances, he considered it necessary to conduct further 

tests by releasing smoke from a smoke tube. 

Thereafter, in the presence of John Morrison, the Consol 

safety escort, and Joseph Jimmie, the Union escort, Workley 

released smoke at four locations over the power center (Ex. G-3, 

p. 2, positions A, B, C and X). It is not disputed that when the 

smoke was released from positions A, B, and c, it proceeded 

(Footnote 1 continued) 

nature as could significantly and substantially contribute to the 

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

and if he finds such violation to be caused by an unwarrantable 

failure of such operator to comply with such mandatory health or 

safety standards, the shall include such finding in any citation 

given to the operator under this Act." 

783 
toward the haulage or track entry {depicted as position R-2, Ex. 

G-3) and away from the vent hole ventilating the power center 

into the return. Workley acknowledged that he did not see any of 

the smoke actually move into the haulage entry but saw the smoke 

pass in that direction through the cap light beams of Morrison 

and Jimmie. Both Jimmie and Morrison told workley that none of 

the smoke passed into the haulage and Morrison so testified at 

hearing. Both Morrison and Workley agreed that the smoke 

dissipated and neither was able to ascertain whether it 

thereafter passed back over the power center and through the vent 

hole. 2/ 

Within this framework of evidence, I have no difficulty in 

finding that the violation is proven as charged. The definition 

of the word "directly" taken from Webster 1 s Third New 

International Dictionary, (1981 Edition Unabridged)u is not 

contested. "Directly" is therein defined as "in a straight line 

without deviation of course; by the shortest way." using this 

definition, it is clear from the undisputed evidence that the air 

currents being used to ventilate the power center at issue were 

not coursed directly through the vent hole and into the returno 

According to Inspector workley, the violation was 

"significant and substantial" because of the danger of fire and 

smoke from the power center to employees operating in the haulage 

entry. It is not disputed that should smoke exit the power 

center into the haulage entry it would travel approximately 300 

feet over the track area before exiting into the bleeder system. 

It is also undisputed that the track was used to transport 

workers, inspection parties, and supplies several times a shift 

thereby exposing those persons to serious and potentially fatal 

injuries from smoke (carbon monoxide) inhalation. Accordingly, I 

find the violation to be serious and "significant and 

substantial." Secretary v. Mathies Coal Company, 6 FMSHRC 1 

( 19 84). 

~/ While Inspector Workley "inferred" that the smoke continued 

into the haulage entry based on his observation that the smoke 

was passing in the direction of Morrison and Jimmie, I do not 

find that inference to be reasonable under the circumstances. 

Jimmie and Morrison were certainly in a better position Cat the 

mouth of the crosscut where it joined the haulage entry> to 

observe whether the smoke passed into the haulage entry and both 

told Workley that it did not. Morrison testified at hearing, 

moreover, that the smoke did not pass into hau~age entry. 

784 
I also conclude that the violation was the result of 

"unwarrantable failure" and operator negligence. I observe 

initially that it is the operator's contention that so long as 

the power center was eventually ventilated to the return there 

was no violation even though it was not "directly" ventilated 

into the return. This interpretation is clearly contrary to the 

plain language of the cited regulation yet the operator allowed 

these violative conditions to continue. Accordingly, I find that 

the operator violated the standard because of indifference, 

willful intent, or a serious lack of reasonable care. United 

States Steel Corp. v. Secretary, 6 FMSHRC 1423 (1984); Zeigler 

Coal Co., 7 IBMA 280 (1977). 

In determining an appropriate civil penalty to be assessed 

in this case, I have also considered that the operator is large 

in size and has a substantial history of violationso I have also 

considered that the cited condition was promptly abated within 

time set forth by the Secretary. 

ORDER 

Order Noo 2713402 is affirmed and the Contest Proceeding 

Docket No. WEVA 86-210-R is denied. The C nsolidation Coal 

Company is directed to pay a civil penalty of $700 within 30 days 

of the date of this decision. 

'A e Law Judge \ 

Distribution: 

William T. Salzer, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

slk 

785 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 141987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 86-482 

A.C. No. 46-01867-03691 

Blacksville No. l Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding filed by the petitioner 

against the respondent pursuant to section llO(a) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), seeking 

a civil penalty assessment in the amount of $168 for an alleged 

violation of mandatory safety standard 30 C.F.R. § 75.200, as 

stated in a section 104(a) Citation No. 2712924, issued at the 

mine on August 5, 1986. 

The respondent filed a timely answer and contest, and the 

case was scheduled for hearing in Morgantown, West Virginia, on 

April 21, 1987. However, the petitioner has filed a motion 

pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, seeking 

approval of a settlement of the case. The proposed settlement 

agreement requires the respondent to pay a civil penalty assessment in the amount of $30 for the violation in question. 

Discussion 

In support of the proposed settlement disposition of this 

case, the petitioner has submitted information pertaining to 

the six statutory civil penalty criteria found in section llO(i) 

of the Act. In addition, the petitioner has submitted a full 

discussion and disclosure as to the facts and circumstances 

surrounding the issuance of the citation in question, and a 

reasonable justification for the reduction of the original 

proposed civil penalty assessment. 

786 
In support of its argument with respect to the reduction of 

the initial civil penalty assessment, petitioner states that the 

citation was issued when the inspector found that the approved 

roof-control plan was not being complied with on the P-3 section. 

The approved roof-control plan requires maximum 60-inch spacing 

under normal roof conditions and 48-inch spacing when there are 

exposed roof conditions. The inspector observed four rows of 

bolts in the No. 2 entry spaced 58 to 66 inches apart, and the 

bolts had been incorrectly installed on the previous midnight 

shift. However, the respondent was in the process of repairing 

the cited condition at the time the inspector issued the violation. When the day shift came on the section that morningu the 

continuous miner operators observed the bolt spacing problems 

and alerted the section foreman, and initial steps had already 

been taken to rebolt the area. The continuous miner had been 

moved back and supplies brought to the immediate area. 

The petitioner asserts that while the roof-control plan 

required 60-inch bolt spacing for non-exposed roof and 40-inch 

spacing for exposed roof, it was the inspector's opinion that 

the roof was exposed in this area and, therefore, subject to 

the 48 inch spacing requirement. The respondent, on the other 

hand, was of the opinion that not all of the areas cited by the 

inspector constituted exposed roof, thus, making two of the 

areas within the 60-inch spacing requirement. The respondent 

would present evidence by way of extensive testimony that not 

all of the roof was exposed and, therefore, the violation was 

not as extensive as cited by the inspector. 

The petitioner states that the reduced civil penalty 

assessment properly considers the gravity and probability of 

harm associated with the violation. Recognizing the fact that 

inadequate roof bolting exposed miners working in the area to the 

hazards of a roof 1, petitioner asserts that the fact that 

the violation came into existence during the end of the last 

shift and actions were taken to correct the condition would 

reduce the likelihood of such an occurrence. Further, the 

petitioner points out that the respondent clearly demonstrated 

a good faith effort to abate the violative condition in that 

roof bolters were about to install additional bolts, and in 

fact, four additional rows of bolts were installed to reduce the 

spacing within 1 hour that the condition was cited. 

787 
Conclusion 

After careful review and consideration of the pleadings, 

arguments, and submissions in support of the motion to approve 

the proposed settlement of this case, I conclude and find that 

the proposed settlement disposition is reasonable and in the 

public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30v 

the motion IS GRANTED, and the settlement IS APPROVED" 

ORDER 

Respondent IS ORDERED to pay a civil penalty in the amount 

of $30 in satisfaction of the citation in question within 

thirty (30) days of the date of this decision and orderv and 

upon receipt of payment by the petitioner, this proceeding is 

dismissed. 

..:~1;~/j~ VGeorgel1L K6ulr~i !} £,~.~ Administrative Law Judge 

Distribution: 

Susan M. Jordan, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail} 

/fb 

788 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 151987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF 

YALE E. HENNESSEE, 

Complainant 

Vo 

ALAMO CEMENT COMPANY, 

Respondent 

ALAMO CEMENT COMPANY, 

Contestant 

Vo 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) I 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

ALAMO CEMENT COMPANY, 

Respondent 

DISCRIMINATION PROCEEDINGS 

Docket No. CENT 86-151-DM 

MSHA Case No. MD 86-35 

Docket No. CENT 87-16-DM 

MSHA Case No. MD 86-35 

1604 Quarry & Plant 

CONTEST PROCEEDINGS 

Docket No. CENT 87-17-RM 

Citation No. 2661516; 11/19/86 

Docket No. CENT 87-18-RM 

Order No. 26615171 11/19/86 

Docket No. CENT 87-19-RM 

Citation No. 2661518; 11/19/86 

1604 Quarry & Plant 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 87-43-M 

A.C. No. 41-03019-05507 

Docket No. CENT 87-44-M 

A.C. No. 41-03019-05508 

1604 Quarry & Plant 

DECISIONS APPROVING SETTLEMENTS 

AND 

ORDER OF DISMISSAL 

Before: Judge Koutras 

789 
S ta.tement o:f the Proceedings 

The captioned proceedings were initiated by a discrimination complaint filed by MSHA on behalf of Yale E. Hennessee 

(complainant) against the respondent pursuant to section 105(c) 

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

§ 815(1). The complainant was discharged by the respondent on 

April 22, 1986, for insubordination because of his alleged 

refusal to perform a work assignment. ~he complainant claimed 

that his refusal to perform the work in question was based on 

his belief that the work could not be done safely, and that his 

work refusal was protected activity under the Act. 

Docket No. CENT 86-151-DM concerns an Application for 

Temporary Reinstatement filed by MSHA on September 10 0 1986v 

seeking the complainant 1 s temporary reinstatement pending the 

adjudication of the merits of his complaint. Docket No. 

CENT 87-16-DM is the discrimination complaint filed by MSHA on 

November 18, 1986. As part of its relief, MSHA proposed a 

$1,600 civil penalty assessment against the respondent for the 

alleged violation of section 105(c) of the Act. 

A hearing on MSHA's Application for Temporary Reinstatement 

was held in San Antonio, Texas, on October 23, 1986, and on 

November 6, 1986, I issued a decision ordering the complainant's 

temporary reinstatement pending further adjudication of the 

merits of his complaint, 8 FMSHRC 1649 (November 1986). The 

respondent appealed my temporary reinstatement order to the 

Commission, and while the appeal was pending, filed a request 

with me for modification of my order. Since the matter was on 

appeal, no dispositive ruling was made with respect in the 

request. 

On December 8, 1986, the Commission issued an order affirming my temporary reinstatement order, and remanded the matter 

for further adjudication, 8 FMSHRC 1857 (December 1986). Subsequently, on December 30, 1986, I issued an order denying the 

respondent's request for modification of my November 6, 1986, 

temporary reinstatement order, and the respondent was again 

ordered to reinstate the complainant pending the adjudication of 

his complaint. The respondent filed a petition with the 

Commission seeking review of my denial of its request for modification, and on February 2, 1987, the Commission issued an 

order denying the respondent's request for further review, and 

ordered the respondent to comply forthwith with my previously 

issued temporary reinstatement order. Thereafter, on February 18, 

1987, I issued a Notice of Hearing advising the parties that a 

hearing would be held during April 21-23, 1987, in San Antonio, 

Texas, on all matters then pending before me in these proceedings. 

790 
The captioned contests concern two section 104{a) citations 

and one section 104(b) order served on the respondent because 

of its alleged failure to comply with my temporary reinstatement 

order of November 6, 1986. The captioned civil penalty proceedings are the companion civil penalty proposals filed by MSHA 

in connection with the contested citations and order. 

By motion filed with me on April 7, 1987, MSHA seeks my 

approval of a proposed settlement agreement executed by the parties, including the complainant Yale E. Hennessee, with respect 

to the discrimination and civil penalty proceedings. Upon 

approval of the proposed settlement, MSHA requests that all of 

the captioned proceedings be dismissed. A copy of a Release 

Full executed by Mr. Hennessee, and a Memorandum of Understanding 

between MSHA and the respondent, setting forth the complete terms 

of the settlement agreement are included as part of MSHA's 

motion. 

Discussion 

In support of its proposed settlement disposition of these 

matters, MSHA states that they have been settled to the mutual 

satisfaction of the parties, including Mr. Hennessee. With 

regard to the discrimination cases, CENT 86-151-DM and 

CENT 87-16-DM, MSHA states that they were resolved by agreement 

of the parties whereby Mr. Hennessee received a payment of $21,000 

(less withholdings) in full payment of all claims arising from 

his discharge and his agreement to foresake his claim for reinstatement. In agreeing to the settlement of Mr. Hennessee's 

discrimination claims, MSHA agrees to waive the civil penalty 

assessment requested in the complaint. 

As further consideration for the settlement of 

Mr. Hennessee's discrimination claims, MSHA agrees to waive its 

proposed civil penalty assessment of $500 for Citation 

No. 2661516 (CENT 87-43-M), and to accept a civil penalty payment of $1,000 by the respondent in compromise of section 104(b) 

Order No. 2661518, a daily assessment of $1,000 for which a 

total assessment of $2,000 was proposed (CENT 87-44-M). 

MSHA states that the settlement disposition of the civil 

penalty proceedings is primarily based on the fact that they 

are derivative of and inextricably bound to the discrimination 

proceeding.. MSHA points qut that while Citation No. 2661516 was 

issued to enforce compliance with the ordered reinstatement of 

Mr. Hennessee, he has relinquished any right to reinstatement for 

value received. With regard to Order No. 2661518, MSHA states 

that it was issued in further enforcement of Mr. Hennessee's 

ordered reinstatement. However, as a result of the issuance of 

the order, the respondent entered into negotiations resolving 

all claims of Mr. Hennessee. 

791 
MSHA submits that the purpose of the Mine Act's requirement of assessment of civil penalties have been satisfied by 

the respondent's prompt settlement of the discrimination claims 

and by MSHA's agreement to compromise the proposed assessment 

and accept payment of $1,000. 

Conclusion 

After careful review and consideration of the settlement, 

including the terms and conditions agreed to and executed by 

the parties, I conclude and find that it reflects a reasonable 

resolution of the complaint and that it is in the public 

interest. Since it seems clear to me that the parties, including Mr. Hennessee, have mutually agreed to settle their dispute, 

I see no reason why it should not be approved. 

ORDER 

In view of the foregoing, MSHA's motion IS GRANTEDv and 

the settlement IS APPROVED. If it has not already done sov the 

respondent IS ORDERED to fully comply forthwith with the terms 

of the settlement agreement, and upon such compliance, the 

discrimination proceedings are dismissed. 

Respondent IS FURTHER ORDERED to remit forthwith to MSHA 

the sum of $1,000, in full satisfaction of MSHA's initial proposed civil penalty assessments, and the payment thereof shall 

be deemed to be dispositive of the captioned civil penalty 

matters. Upon receipt of payment by MSHA, those proceedings 

are dismissed. In view of the settlement, the captioned contests ARE DISMISSED. 

Distribution: 

Frederick Moncrief, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Bobbie J. Gannaway, Esq., Office of the Solicitor, U.S. 

Department of Labor, 525 Griffin Street, Suite 501, Dallas, TX 

75202 (Certified Mail) 

David M. Thomas, Esq., Fulbright & Jaworski, 1301 McKinney 

Street, Houston, TX 77010 {Certified Mail) 

/fb 

792 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 151987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

PYRO MINING COMPANY, 

Respondent 

Docket No. KENT 86-6 

A.C. No. 15-13881-03572 

Docket No. KENT 86-40 

A.C. No. 15-13881-03576 

Pyro No. 9 Slope 

Docket No. KENT 86-68 

A.C. No. 15-14492-03518 

Palco Mine 

DECISIONS APPROVING SETTLEMENTS 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concern civil penalty proposals filed by 

the petitioner against the respondent pursuant to section llO(a) 

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

§ 820{a), seeking civil penalty assessments for eight alleged 

violations of certain mandatory safety standards found in Part 75, 

Title 30, Code of Federal Regulations. The respondent filed 

timely answers, and the cases were scheduled for hearings in 

Evansville, Indiana, on March 31, 1987. However, the hearings 

were cancelled after the parties advised me of their proposed 

settlements. They have now filed a joint motion pursuant to 

29 C.F.R. § 2700.30, seeking approval of the proposed settlements. The violations, initial assessments, and the proposed 

settlement amounts are as follows: 

793 
Docket No. KENT 86-6 

Citation/ 

Order No. Date 

2508753 05/07/85 

2508757 05/09/85 

Docket No. KENT 86-40 

Citation/ 

Order No. Date 

2513115 08/22/85 

2513126 08/22/85 

2513127 08/22/85 

2513116 08/28/85 

2513117 08/28/85 

Docket No. KENT 86-68 

Citation No. Date 

2837603 10/22/85 

30 C.F.R. 

Section 

75.511 

75.509 

30 C.F.R. 

Section 

50.12 

75.313 

75.503 

75.307-1 

75.301 

30 C.F.R. 

Section 

75.200 

Discussion 

Assessment 

$ 5,000 

$ 5,000 

Assessment 

------

$ 500 

$ 1,000 

$ 1,000 

$ 1,000 

$ 2,000 

Settlement 

$ 5,000 

$ 5,000 

Settlement 

$ 500 

$ 1,000 

$ 1,000 

$ 500 

$ 2,000 

Assessment Settlement 

$ 800 $ 400 

The petitioner's initial proposed civil penalty assessments 

for the violations amounted to $16,300. The proposed settlements require the respondent to pay civil penalties in the 

amount of $15,000. In support of the proposed settlement dispositions, the parties have submitted information pertaining to 

the six statutory civil penalty criteria found in section llO(i) 

of the Act. In addition, they have submitted a full disclosure 

as to the facts and circumstances surrounding the issuance of the 

violations, including copies of MSHA's reports of investigation. 

Conclusion 

After careful review and consideration of the pleadings, 

arguments, and submissions in support of the joint motion to 

approve the proposed settlements, I conclude and find that the 

proposed settlement dispositions are reasonable and in the 

public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30, 

the motion IS GRANTED, and the settlements ARE Al?PROVED. 

794 
ORDER 

The respondent IS ORDERED to pay civil penalty assessments 

in the settlement amounts shown above in satisfaction of the 

violations in question, and payment is to be made to MSHA within 

thirty (30) days of the date of these decisions and order. Upon 

receipt of payment, these proceedings are dismissed. 

Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Mr. Bruce Hill, Pyro Mining Company, Post Office Box 267, 

Sturgis, KY 42459 (Certified Mail) 

/fb 

795 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 22 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA) , 

Petitioner 

v. 

PYRO MINING COMPANYv 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 86-40 

A.C. No. 15-13881-03576 

Pyro Noo 9 Slope 

ORDER 'CORRECTING DECISION 

Before: Judge Koutras 

On April 15, 1987, I issued a decision approving a settlement in this case. Page 2 of the decision reflects that the 

parties agreed to settle Order No. 2513117, August 28, 1985, 

30 C.F.R. § 75.301, for the full amount of MSHA's $2,000 proposed 

civil penalty assessment. However, in a subsequent telephone 

conference held on April 20, 1987, counsel for the parties 

informed me that the decision is in error in that the parties 

agreed to settle the alleged violation for $1,600. 

After review of the official Commission file in this matter, 

including the settlement motion filed by the parties, I find 

that the parties are correct, and that my decision with respect 

to the settlement approval for the violation in question is in 

error. Accordingly, IT IS ORDERED that my decision of April 15, 

1987, be corrected by striking the figure $2,000 under the 

column labeled "Settlement" on page 2, and inserting the correct 

figure of $1,600 as the approved settlement amount for Order 

No. 2513117. 

~~1:/-;;:~ G~~ '!)/. rtoitras . 

Administrative Law Judge 

796 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 15 l987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EUGENE C. MCPHERSON, 

Respondent 

Docket No. LAKE 86-101-M 

A.C. No. 33-00646-05503-A 

Somerset Lime & Stone 

DECISION :APPROVING S·ETTLEMENT 

Before~ Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding under section llO(c) of 

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

§ 820(c), brought by the petitioner against the respondent 

Eugene c. McPherson, mine manager at the Somerset Lime and 

Stone Mine, operated by Somerset Lime and Stone, Inc., near 

Somerset in Perry County, Ohio. Respondent is charged as an 

aqent of the corporate mine operator with knowingly authorizing, 

ordering, or carrying out said operator's violation of mandatory 

safety standard JO C.F.R. § 56.9003 cited in a section 107(a) -

104(a) Order No. 2513572 issued to the corporate mine operator 

on May 13, 1985. The order states as follows: "The brakes 

were inoperative on the Hough No. 90 serial number 1037. This 

front end loader is used in the stone storage yard to load 

customer trucks." 

The petitioner states that pursuant to section llO(a) of 

the Act, the mine operator was assessed a civil penalty of $500 

for its violation cited in the order, and that it became a final 

order of the Commission on September 17, 1985, under MSHA 

Assessment Office Case No. 33-00646-05502. 

In this proceeding, a civil penalty of $250 was proposed 

by the petitioner against respondent McPherson for his alleged 

violation under section llO(c) of the Act. Respondent now 

797 
advises that he no longer wishes to contest this violation and 

has tendered to the petitioner a money order in the amount of 

$100 in full settlement of this proceeding. 

This case was scheduled for hearing in Zanesville, Ohio, 

on May 7, 1987. However, the petitioner has now filed a motion 

pursuant to 29 C.F.R. § 2700.30, seeking approval of the proposed settlement. 

Discussion 

The petitioner submits that the alleged violation was 

serious and that the respondent was grossly negligent in 

authorizing the cited end loader to be operated with inadequate 

brakes. However, in mitigation, the petitioner states that the 

respondent advises that he is now 73 years old, has a heart 

problem, is unemployed, and is living off of social securityo 

Under these special circumstances, and in full consideration of 

the civil penalty criteria under section llO(i} of the Act, the 

petitioner submits that the settlement of $100 reasonable and 

in the public interest. 

Conclusion 

After careful review and consideration of the pleadings, 

arguments, and submissions in support of the motion to approve 

the proposed settlement of this case, I conclude and find that 

the proposed settlement disposition is reasonable and in the 

public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30, 

the motion IS GRANTED, and the settlement IS APPROVED. 

ORDER 

The respondent IS ORDERED to pay a civil penalty in the 

amount of $100 in full satisfaction of the alleged violation in 

question. Since it appears that the petitioner is in receipt 

of said payment, this matter IS DISMISSED • 

Distribution: 

. /. /;; L/ ~·· 

/ )d~~ 0 ;Cz!'ii-·td-:::,,,~ - ;Georga/'A. Koutras 

Administrative Law Judge 

J. Philip Smith, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

{Certified Mail) 

Mr. Eugene C. McPherson, 131 East Highland Drive, Zanesville, 

OH 43701 {Certified Mail) 

/fb 

798 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 161987 

LARRY D. SCROGGINS, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

PEABODY COAL COMPANY, 

Respondent 

Docket No. LAKE 87-28-D 

VINC CD 87-02 

ORDER OF DISMISSAL 

For good cause shown, it is ORDERED that complainantis 

motion to withdraw his complaint be, and hereby is, GRANTED 

and the case DISMISSED. 

aurer 

strative Law Judge 

Distribution: 

Larry D. Scroggins, 1136 Highlands Drive, Naples, FL 33940 

(Certified Mail) 

Michael O. McKown, Esq., Peabody Coal Co., P.O. Box 1990, 

Henderson, KY 42420 (Certified Mail) 

yh 

799 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 22 1987 

RUSHTON MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)u 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)u 

Petitioner 

v. 

RUSHTON MINING COMPANY, 

Respondent . . 

CONTEST PROCEEDING 

Docket No. PENN 86-100-R 

Order No. 26929101 2/7/86 

Rushton Mine 

CIVIL PENALTY PROCEEDING 

Docket Noa PENN 86-167 

AoCo NOo 36-00856-03560 

Rushton Mine 

DECISION 

Appearances: Edward H. Fitch, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia 

for the Secretary of Labor (Secretary); 

Joseph T. Kosek, Jr., Esq., Ebensburg, 

Pennsylvania, for Rushton Mining Company (Rushton). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Rushton is contesting an order of withdrawal issued 

February 7, 1986, under section 104Cd)(2) of the Federal Mine 

Safety and Health Act (the Act) charging a violation of Rushton's 

approved roof control plan. In the civil penalty proceeding, the 

Secretary seeks a penalty for the violation charged in the order& 

Because both proceedings involve the same order and the violation 

charged in the order, they were consolidated for the purposes of 

hearing and decision. Pursuant to notice, the case was heard in 

state College, Pennsylvania, on November 20, 1986. 

Donald J. Klemick testified on behalf of the Secretary. 

Raymond G. Roeder, William Phillip Southard, Lemuel Hollen, Jr., 

Donald Lee Baker, and Andrew John Dunlap testified on behalf of 

800 
Rushton. Both parties have filed posthearing briefs. I have 

considered the entire record and the contentions of the parties, 

in making the following decision. 

FINDINGS OF FACT 

PRELIMINARY FINDINGS 

Rushton is the owner and operator of an underground 

bituminous coal mine in Centre County, Pennsylvania, known as the 

Rushton Mine. Rushton is a "moderate-to-a-large size operatoro 11 

In the two years prior to the violation we are concerned with 

here, the subject mine had 293 paid violationsu 19 of which were 

violations of the roof control plano This history is not such 

that penalties otherwise appropriate should be increased because 

of it. The violation involved here was abated in good faitho 

THE l04(d) ORDER 

On February 7u 1986v Federal Mine Inspector Donald Klemick 

arrived at the subject mine at about 7~45 a.mou to perform a 

regular ("AAA") inspection$ When he arrived ·at the mineq he was 

informed by Rushton officials that an unintentional roof fall had 

occurred at about 5:10 a.m. in the H-Butt section. Klemick 

notified his supervisor by telephone and was instructed to 

conduct a noninjury accident ("AFC") investigation. Inspector 

Klemick briefly talked on the surface to some members of the crew 

including the operator of the continuous miner which had been 

struck by the fall. He then proceeded underground to the H-Butt 

section to continue the investigation. He determined that the 

pillar between entries oneand two had been entirely mined through 

and one lift had been taken from the pillar between entries two 

and three when the roof fall occurred, and partially covered the 

continuous miner. Breaker posts were not set in the crosscut 

between entries two and three. Inspector Klemick determined that 

this constituted an unwarrantable failure violation of the 

approved roof control plan and issued a withdrawal order at 

10:20 a.m. under section 104(d)(2) of the Act. 

ROOF CONTROL PLAN 

Drawing No. 8 of the Plan shows the sequence of pillaring 

when bolting is required. 11 B" option on the Drawing was being 

followed by Rushton here. Following this option, two pillars can 

be mined by taking Cut "A" from one, "B" from the second, "C" 

from the first and "D" from the second. The pillars are to be 

mined from separate entries and not from the crosscut, since 

breaker posts are required in the crosscut between the two 

entries. 

801 
Safety Precaution 37 of the Plan requires that a minimum of 

two rows of breaker posts be installed on not more than 4 foot 

centers across each opening leading to pillared areas, "and such 

posts shall be installed before production from the split to be 

protected is started. Such posts shall be installed between the 

lift being started and the expected breakline ••• " Safety 

precaution 46 of the Plan provides that the width of a roadway 

leading from the solid pillars to a final stumpshall not exceed 

14 feet. At least two rows of posts must be set on each side of 

the roadway, and only one open roadway leading to a final pushout 

stump is permitted. 

PRIOR INSPECTIONS 

The method of pillar mining cited here (mining two pillars 

from a single roadway) had been followed by Rushton for more than 

one and a half years. Rushton had never been cited by MSHA 

previously for this procedure. 

The entire mine with the exception of the W-4 section had 

been regularly inspected by MSHA since the previous section 

104(d) order with no similar violations being"citedo There were 

seven days in November and December 1985, when MSHA inspectors 

were in the W-4 section. These inspections were apparently 

conducted by specialists and not as part of a regular inspection. 

ISSUES 

1. Did Rushton violate its approved roof control plan by 

mining two pillars from a single roadway? 

2. If so, would the alternative procedure result in a 

diminution of safety to the miners? 

3. If a violation is established, was it prope,rly cited in 

an order issued under section 104(d)? 

a. Was it issued as a result of an investigation 

rather than an inspection? 

b. Is the Secretary precluded from asserting its 

position on this issue by collateral estoppel? 

c. Does the evidence show an intervening clean 

inspection? 

4. If a violation is established, was it caused by 

Rushton's unwarrantable failure to comply? 

802 
5. If a violation is established, was it significant and 

substantial? 

6. If a violation is established, what is the appropriate 

penalty? 

CONCLUSIONS OF LAW 

VIOLATION 

Rushton concedes that it was not complying with the 

provisions of the roof control plan set out in Option "B" of 

Drawing No. 8, but argues that the double row of posts in the 

drawing was not intended to define "where the timbers were going 

to be, but the point at which they would end.'' CTr. 102.) 

Whatever Rushtonvs intention 1 it seems clear to me that the 

drawing contemplates mining the two pillars from separate entries 

in alternate cuts, and not from the crosscut. If the breaker 

posts were installed in accordance with the drawing it would not 

be possible to mine the two pillars from the crosscut. Neither 

safety precaution No. 37 nor safety precaution No. 46 is 

inconsistent with this interpretation of Drawing No. 8. On the 

contrary, safety precaution 37 requires two rows of breaker posts 

"across each opening leading to pillared areas, and such posts 

shall be installed before production from the split to be 

protected is started." I would interpret this to prohibit mining 

two pillars from a single roadway which would require the 

continuous miner to pass an opening in a pillar. I conclude that 

the mining method followed by Rushton and cited here was 

violative of the approved roof control plan. 

DIMINUTION OF SAFETY DEFENSE 

Rushton argues that compliance with the Inspector's 

interpretation of the roof control plan would result in a 

diminution of safety for the miners involved. Both the section 

foreman and the miner operator testified that it would be less 

safe to approach the pillar from the entry than it was from the 

crosscut. The miner operator stated that his vision was better 

approaching from the crosscut. Rushton did not, however, rebut 

the Inspector's testimony that the miner approaching from the 

crosscut would be passing an opening in the second pillar, where 

the roof is weakened, to take the final cut in the first pillar" 

In the inspector's opinion, this practice poses a serioius hazard 

to the miner operator. I accept the inspector's judgment on this 

question, and conclude that this hazard outweighs any hazard 

occasioned by approaching each pillar from the entry. I conclude 

that Respondent has failed to establish a diminution of safety 

defense. 

803 
INVESTIGATION/INSPECTION 

COLLATERAL ESTOPPEL-ISSUE PRECLUSION 

Rushton asserts that the section 104{d){2) order was 

improperly issued because it resulted from an investigation 

rather than an inspection. It further asserts that this issue 

has been previously litigated by the parties and determined by a 

Commission administrative law judge in Greenwich Collieries v" 

Secretary, 8 FMSHRC 1105. In Greenwich, Judge Maurer granted a 

partial summary judgment to the operator on the ground that the 

contested 104(d)(l) orders were issued following an accident 

investigation, and did not result from an inspection. The case 

is presently before the Commission on interlocutory appeal by the 

Secretary. Although counsel has stated that Rushton and 

Greenwich are operating entities of the Pennsylvania Mines 

Corporation, there is little or no evidence in the record from 

which I could determine if they are identical parties for the 

purpose of collateral estoppel. More importantly the facts in 

the two cases are significantly different: In GreenwichQ the 

contested orders were issued on March 29u 1985v following an 

investigation of a mine explosion which occurred on February 16 0 

1984. The underground portion of the investigation began on 

February 25, 1984, and was concluded on April 5, 1984. Sworn 

statements were taken from March 27, 1984, until April 27, 1984. 

The final investigation report was issued September 6, 1985. In 

the present case the contested order was issued on the day the 

alleged violation occurred following the inspector's visit to the 

area where the violation .occurred. As my analysis will show 

hereafter, these factual differences may be decisive. Therefore, 

whether or not Greenwich and Rushton are identical parties, 

doctrine of issue preclusion does not apply here. 

INVESTIGATION 

Rushton argues that the issuance of a section 104(d)(2) 

order charging an unwarrantable failure violation is improper 

when it results from an investigation rather than an inspection. 

Seven decisions or orders of Commission judges so held. Four of 

the cases are pending on appeal before the review Commission. 

The other cases were apparently settled. 

THE MINE ACT 

Section 104(a) of the Mine Act provides in part: 

If, upon inspection or investigation, the Secretary ••• 

believes that an operator • • • has violated this Act, or 

any mandatory ••• standard, ••• he shall, with 

804 
reasonable promptness, issue a citation to the operator. 

[Emphasis added] 

Section 104(b) provides for the issuance of a withdrawal 

order "if, upon any follow-up inspection," an authorized 

representative of the Secretary finds that the operator failed to 

abate a citation issued under section 104(a). 

Section 104(d)(l) of the Mine Act provides in part: 

If v upon any inspection of a ••• mine, an authorized 

representative of the Secretary finds that there has 

been a violation •.• , and if he also finds that o o o 

such violation is of such nature as could significantly 

and substantially contribute to the cause and effect of 

a o o o mine safety or health hazard, and if he finds 

such violation to be caused by an unwarrantable failure 

••• to comply ••• , he shall include such finding in 

any citation given to the operator •••• If, during 

the same inspection or any subsequent inspection of 

such mine within 90 days 0 0 oq an authorized 

representative 0 • 0 finds another viol~tion • a • and 

finds such violation to be also caused by an 

unwarrantable failure ••• to comply ••• , he shall 

forthwith issue an order • " [Emphasis added] 

Section 104(d)(2) provides in part: 

If a withdrawal order ••• has been issued pursuant to 

paragraph Cl), a withdrawal order shall promptly be 

issued by an authorized representative • • • who finds 

upon any subsequent inspection the existence • • • of 

violations similar to those that resulted in the 

issuance of a withdrawal order under paragraph (l} 

until such time as an inspection • • • discloses no 

similar violations. [Emphasis added] 

Section 104(e) involving a pattern of violations refers to 

inspection. Section 104(g)(l) providing for orders withdrawing 

miners who have not received the requisite safety training who 

are discovered "upon any inspection or investigation pursuant to 

section 103 of this Act." Section 103 requires the Secretary to 

make frequent inspections and investigations of mines, to 

investigate accidents, to inspect at the request of 

representatives of miners or of miners. 

Section 107Ca) provides that "[iJf, upon any inspection or 

investigation ••• an authorized representative ••• finds 

• an imminent danger • • • [he] shall • • • issue an order [of 

withdrawal] • • • • 11 

805 
THE COAL ACT 

Section 104(a) of the Coal Act provides for the issuance of 

a withdrawal order "if, upon any inspection of a coal mine," an 

imminent danger is found. 

Section 104(b) of the Coal Act corresponds to .Section 104Ca) 

of the Mine Act, but it provides for issuance of notices of 

violation (rather than citations) "if, upon any inspection of a 

coal mine," a violation is found. Section 104(c)(l) of the Coal 

Act corresponds to section 104Cd)Cl) of the Mine Act and is 

virtually identical to it. Similarly, section 104(c)(2) of the 

Coal Act is virtually identical to section 104(d)(2) of the Mine 

Act. The Secretary cites two cases under the coal act for the 

proposition that unwarrantable failure notices and orders were 

upheld in cases where the inspector did not observe the violationo 

Rushton Mining Co., 6 IBMA 329 (1976) and Roscoe Page v. Valley 

Camp Coal Co., 6 IBMA 1 (1976). However, the Rushton case was a 

penalty case and Valley Camp case a compensation proceeding. In 

neither case was the order itself directly challenged by the mine 

operatoro 

Neither the Mine Act nor the Coal Act defines 0

' inspection1

u 

or "investigation." Nor can I determine any basis in the 

language of either Act for concluding that they were intended to 

mean essentially the same thing or that a variance in meaning was 

intended. 

The Coal Act uses the term investigation (and the terms 

"inspections and investigations") in section 103. Investigation 

seems to be used with reference to obtaining information relating 

to health and safety conditions, and determining the causes of 

accidents and illnesses in mines. Section 104 which provides for 

issuance of notices of violation (citations under the Mine Act) 

and closure orders for imminent danger and unwarrantable failure 

to comply uses only the term inspection. However, it is clear 

that under the Coal Act, notices and orders could be issued 

without the inspector actually observing the cited condition or 

conduct. Sewell Coal Company, 2 IBMA 80 (1975); Rushton Mining 

Company, 6 IBMA 329 (1976); Peabody Coal Company, 1 FMSHRC 1785 

( 19 79). 

The 1977 Act uses the terms "inspection or investigation" in 

referring to citations (section 104(a)) and imminent danger 

withdrawal orders Cl07(a)). It uses only the term "inspection" 

in referring to 104(b) closure orders for failure to abate a 

citation, and in referring to 104(d) citations and orders. Judge 

Steffey in Westmoreland Coal Company, discussed hereafter, 

contends that the Mine Act inserted the term investigation in 

806 
104(a} and 107{a}, because such citations and orders could be 

issued based upon an inspector's belief that a violation 

occurred; it did not insert the term in 104(d) which required 

citations and orders to be based on findings. 

However, the legislative history of the Mine Act indicates 

that Congress did not intend to change the unwarrantable failure 

provisions of the Coal Act: after referring to certain decisions 

of the Board of Mine Operations Appeals, the Senate Committee 

Report in discussing unwarrantable failure closure orders statesg 

These decisions have considerably restored the 

unwarrantable failure closure order as an effective and 

viable enforcement sanction, and it is for that reason 

that s. 717 retains this sanction in essentially the 

same form " " o 

s. Rep. No. 95-181, 95th Cong., 1st Sess., 32 (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 620 (1978)0 

The 11 findings 11 required in a 104{d) citation or order 

(unwarrantable failure1 significant and substantial) by their 

nature seem not susceptible to inspector observation. In most 

cases they must be based upon circumstances, prior history, 

knowledge of the operator's management personnel, etc. For 

example, an the ispector ordinarily cannot determine whether a 

violation was caused by willful intent or a serious lack of 

reasonable care merely by observing the violation itself. 

It may be helpful to briefly review the administrative law 

judge decisions which concluded that it was improper for MSHA to 

issue a section 104{d) order on the basis of an investigation. 

The first of these decisions was issued by Judge Steffey in 

Westmoreland Coal Company, Docket No. WEVA 82-340-R, et. al., 

Order Granting in Part Motion for Summary Decision {May 4, 1983). 

The case before Judge Steffey involved thirteen section 104{d)(2) 

orders issued July 15, 1982, based on an investigation conducted 

in December 1980, which followed a mine explosion which occurred 

November 7, 1980. Judge Steffey concluded on the basis of his 

analysis of the legislative history of the 1969 Act that an 

inspection was thought to be capable of being conducted in a 

single day, and an investigation could take weeks or months. He 

thought it significant that the 1977 Mine Act permitted a 

citation or an imminent danger closure order to be issued "upon 

inspection or investigation," whereas the Coal Act requirement 

that unwarrantable failure orders be issued "upon any inspection" 

was continued in the Mine Act. Judge Steffey stated that his 

review of the legislative history convinced him "that Congress 

807 
did not intend for unwarrantable failure provisions of section 

104(d) to be based on lengthy investigations" or upon "a belief" 

that a violation occurred. The orders before him were based not 

"upon an inspection but upon sworn statements taken during an 

accident investigation made 19 months prior to the time the 

orders were issued." Judge Steffey's order vacating the 

withdrawal orders was based on the facts that they resulted from 

subsequent investigations and not from an inspection and that 

they were not issued "promptly" as required by section 104(d)(2)o 

A similar issue was considered by Judge Lasher in Emery 

Mining Company v. Secretary, 7 FMSHRC 1908 (1985). There the 

contested order was issued April 17, 1985, five days after the 

alleged violation occurred, and was based on statements made by 

miners to the inspector. The violative condition was not 

observed by the inspector. Judge Lasher agreed with 

Judge Steffey and concluded that "the Act does not permit a 

section 104Cd)(2) order to be based on an investigation •.• but 

••• the order must be based on and it must have been a product 

of an inspection of the site." Southwestern Portland Cement 

Company, et •. al. v. Secretary, 7 FMSHRC 2283 (1985) involved 

citations and orders issued on April 3r 1985;· under Section 

104(d) for alleged violations occurring on January 10, 1985. The 

citations and orders resulted from an investigation which 

followed employee complaints on February 7, 1985. Judge Morris 

held that the Act does not permit a section 104Cd) order to be 

based on an investigation. "Where an inspector does not inspect 

the site but only learns of the alleged violation from the 

statements of miners a section 104(d) order may not be issued." 

In Nacco Mining Company v. Secretary, et. al., 8 FMSHRC 59 

(1986), Chief Judge Merlin, following the decisions above 

referred to, held that a section 104(d)(l) citation was 

improperly issued following an investigation of a section 

l03Cg)(l) complaint. The citation was dated June 5, 1985, and 

alleged a violation occurring May 30, 1985, consisting of a miner 

operator going inby permanent roof supports. Emerald Mines 

Corporation v. S.ecretary, 8 FMSHRC 324 (1986), also involved a 

section 104(d)(l) citation which was issued following a section 

103Cg)(l) investigation. The alleged violation occurred on 

July 29, 1985; the section 103(g) complaint was received on 

July 30, 1986. The investigation began July 31, and continued 

through August 1. The citation was written on August 8, 1985, as 

a section 104Ca> citation and modified on August 23, 1985, to a 

section 104(d)(l) citation. Judge Melick held that these facts 

established that the section 104(d)(l) citation was not based 

upon an inspection of the mine but upon an investigation through 

interviews and examination of records. He therefore held it 

improper, following the other administrative law judge decisions. 

Finally, Judge Maurer in Greenwich Collieries v. Secretary, 8 

FMSHRC 1105, held invalid section 104(d)(l) orders issued on 

808 
March 29, 1985, following an investigation of a mine explosion 

which occurred on February 16, 1984. 

All of the above cases involve orders and citations issued 

days, weeks, or months after the alleged violations occurred. 

The orders and citations were based (at least in major part) on 

interviews of miners conducted by the inspector and not upon the 

inspector's observing the site of the violation. In the case 

before me, the Inspector saw evidence of the practice which he 

believed was violative of the roof control plan. Joint Exhibit 1 

shows what he saw: the miner is approaching the pillar between 

No. 1 and No. 2 entries from the crosscut in front of the pillar 

between No. 2 and No. 3 entries from which a cut had been takeno 

Breaker posts had not been set in the crosscut. The fact that 

the inspector was directed, after he arrived at the mine, to 

conduct an "investigation" of the roof fall seems irrelevant to 

me. Although he obviously did not witness the violation when it 

occurred, he saw physical evidence of the violation which was 

cited. Therefore, whether the inspector was in the mine 

conducting an investigation or an inspectio~; he found the 

violation "upon [an] inspection" of the mineo This case is 

distinguishable from each of the above cases -·cited. Whether a 

104(d) citation or order can be issued when evidence of the 

violation is not observed by the inspector is not a question 

presented here. 

I conclude that it was not improper under the facts of this 

case, to issue a section 104(d)(l) order on the basis that it 

resulted from an investigation rather than an inspection. 

INTERVENING CLEAN INSPECTION 

The Secretary must establish that a "clean inspection" has 

not occurred between the underlying section 104Cd)(l) order and 

the contested section 104(d)(2) order. Kitt Energy Corporation, 

6 FMSHRC 1596 (1984), aff'd sub nom. UMWA v. FMSHRC, 768 F.2d 

1477 (1985). The evidence in this case shows that all areas of 

the mine received a clean regular inspection except the W-4 

section. However, the evidence further shows that inspectors 

were in the W-4 section, an inactive section, on seven occasions 

conducting technical inspections. Whether they inspected it "for 

all hazards during the time period in question," UMWA v. Kitt 

Energy, supra, at p. 1480, is not clear from the record. Since 

the burden is on the Secretary, I conclude he has not established 

that there was no inter~ening clean inspection. 

UNWARRANTABLE FAILURE 

Although I have concluded that the contested order was not 

improper because it followed an investigation of an unintentional 

809 
roof fall, I still must determine whether the evidence 

establishes that the violation (whether properly charged in an 

order or a citation) was caused by Rushton's unwarrantable 

failure to comply with the mandatory standard. The Commission 

has held that an unwarrantable failure to comply may be 

established by a showing that the violation resulted from 

indifference, willful intent, or a serious lack of reasonable 

care. United States Steel Corporation, 6 FMSHRC 1423 Cl984). 

Rushton's witnesses (including the section foreman and 

members of the crew involved) testified that in their opinion the 

cited practice was not violative of the roof control plan, and 

was, in fact, safer than the alternative. There was also some 

general testimony that other MSHA inspectors had observed this 

practice in the past without citing it. The practice of taking 

two pillars from a single roadway, however, was only followed 

when mining the first two pillars in a row. Other testimony 

indicated that it was done between 25 and 40 percent of the time. 

I cannot conclude from this testimony that other MSHA inspectors 

approved or condoned the practice. I am of- the opinion that the 

practice was a clear violation of Drawing Noo 8 of the approved 

roof control plan. Rushton should have been·aware of that. If 

Rushton felt, as it apparently did and does, that some other 

method was safer or otherwise preferable, it should have sought 

to modify the plan. It did not seek to do so. I conclude that 

the violation resulted from a serious lack of reasonable care, 

and was therefore properly charged as an unwarrantable failure 

violation. 

SIGNIFICANT AND SUBSTANTIAL 

The cited practice required the continuous miner to pass an 

open or mined area in the pillar between entries 2 and 3 to take 

the final cut in the pillar between entries 1 and 2. This 

exposes the miner operator to a weakened roof area. Whether the 

violation contributed to the roof fall which occurred here or not 

(the evidence is unclear), the violation contributed to a hazard 

(weakened roof, potential fall). There was a reasonable 

likelihood that the hazard contributed to would result in a 

serious injury. See Cement Division, National Gypsum Co., 3 

FMSHRC 822 (1981). Therefore, the violation was significant and 

substantial. The fact that an injury did not occur here is 

hardly evidence that the violative practice did not contribute to 

a hazard likely to result in injury. 

PENALTY 

The violation was serious. It resulted from Rushton's 

negligence. I have previously found that Rushton is a 

moderate-to-large operator, and has a favorable history of prior 

810 
violations. The violation here was abated timely and in good 

faith. Based on the criteria in section llOCi> of the Act, I 

conclude that an appropriate penalty for the violation is $750. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Order No. 2692910 is MODIFIED to a citation under 

section 104(d)(l) of the Act charging a significant and 

substantial violation of 30 C.F.R. § 75.200 caused by Rushton°s 

unwarrantable failure to comply. As modified, the citation is 

AFFIRMED. The contest is thus GRANTED IN PART and DENIED IN 

PARTo 

2. Rushton shall within 30 days of the date of this 

decision pay the sum of $750 as a civil penalty for the violation 

found herein. 

3o Upon payment of the civil penaltyv these proceedings are 

DISMISSED. -

Distribution: 

;

((l,.£1?l£:; _k,1:1:1/' d't1 ei 

James A. Broderick 

Administrative Law Judge 

Joseph T. Kosek, Jr., Esq., P.O. Box 367, Ebensburg, PA 15931 

(Certified Mail) 

Edward H. Fitch, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

slk 

811 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

APR 22 1987 5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MEARS ENTERPRISES, INC., 

Respondent 

Before: Judge Fauver 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 87-11 

A.C. No. 36-02628-03529 

Bear Run #1 

On March 27, 1987, because of Respondent's failure to 

comply with a prehearing order, a show cause order was issued 

allowing Respondent until April 9u 1987u to- explain, in writingg 

why it should not be deemed to have waived its right to a 

hearing and the Secretaryvs proposed penalti~s should not 

become the final order of the Commissiono 

Respondent has failed to file a response to the show 

cause order, and is hereby deemed to be in default and to 

have waived its right to a hearing. The proposed civil 

penalties shall therefore be made the final order of the 

Commission. 

WHEREFORE IT1 IS ORDERED that Respondent shall pay the 

Secretary's proposed civil penalties in the amount of $3,500.00 

within 39 days of this decision. 

&J~~vvi- wi11iam Fauver 

Administrative Law Judge 

Distribution: 

Joseph T. Crawford, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 

Market Street, Philadelphia, PA 19104 (Certified Mail} 

Kerry L, Mears, President, Mears Enterprises, Inc., P.O. 

Box 157, Clymer, PA 15728 (Certified Mail) 

kg 

812 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

. 1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 22, 1987 

JIM WALTER RESOURCES, INC., 

Contestant 

CONTEST PROCEEDING 

Docket No. SE 87-35-R 

v 0 Citation No. 2811378; 12/10/86 

SECRETARY OF LABOR, No. 7 ~ine 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DECISION 

Appearances: R. Stanley Morrow~ Esq., and Harold D. Rice~ 

Esq.~ Birmingham~ Alabama for Contestant; 

William Lawson, Esq. 9 Office of the Solicitors 

U. S. Department of Labor 9 Birmingham 9 Alabama? 

for Respondent. 

Before: Judge Merlin 

This case is a notice of contest filed by Jim Walter 

Resources, Inc., seeking review of a citation issued under section l04(a) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq., for a violation of 30 C.F.R. § 75.503. 

Citation No. 2811378, dated December 10, 1986, sets forth 

the condition, or practice in question, as follows: 

"The #49 ram car located on the No. 8 

section (008-0} was not maintained in a 

permissible condition in that the battery 

compartment, which contains 120 cells, had 

one cell "jumped out" or "bypassed" decreasing the nominal voltage of the 

batteries by 2 volts." 

30 C.F.R. § 75.503, which restates section 305(a)(3) of the 

Act, 30 U.S.C. § 865(a)(3), provides as follows: 

"The operator of each coal mine shall 

maintain in permissible condition all 

electric face equipment required by 

§§ 75.500, 75.501, 75.504 to be permissible which is taken into or used inby the last 

open crosscut of any such mine." 

813 
"Permissibility" is defined in 30 C.F.R. § 75.2(i) as 

follows: 

"Permissible" as applied to electric face 

equipment means all electrically operated 

equipment taken into or used inby the last 

open crosscut of an entry or a room of any 

coal mine the electrical parts of which, 

including, but not limited to, associated 

electrical equipment, components, and 

accessories, are designed, constructed, and 

installed, in accordance with the specifi- cations of the Secretary, to assure that such 

equipment will not cause a mine explosion or 

mine fire, and the other features of which 

are designed and constructed, in accordance 

with the specifications of the Secretary, to 

prevent, to the greatest extent possible, other accidents in the use of such equipment; 

and the regulations of the Secretary or the 

Director of the Bureau of Mines in effect on 

March 30, 1970, relating to the requirements for investigation, testing, approval, certification, and acceptance of such equipment as 

permissible shall continue in effect until 

modified or superseded by the Secretary, 

except that the Secretary shall provide pro- cedures, including where feasible, testing, approval, certification, and acceptance in 

the field by an authorized representative of 

the Secretary, to facilitate compliance by an 

operator with the requirements of § 75.500 

within the periods prescribed therein." 

The maintenance requirements for electronic face equipment 

are found at 30 C.F.R. § 75.506-l(a) and provide, in pertinent 

part: 

"* * *electronic face equipment which 

meets the requirements for permissibility set 

forth in§ 75.506 will be considered to be in 

permissible condition only if it is 

maintained so as to meet the requirements for 

permissibility set forth in the Bureau of 

Mines schedule under which such electric face 

equipment was initially approved, or, if the 

equipment has been modified, it is maintained 

so as to meet the requirements of the 

schedule under which such modification was 

approved 11 (emphasis added). 
30 C.F.R. § 18.15 provides the procedures in which an 

operator must follow in order to modify any feature of approved 

or certified equipment. That section states: 

"If an applicant desires to change any feature of approved equipment or a certified 

component, he shall first obtain MSHA's concurrence pursuant to the following procedure." 

The parties agreed to the following stipulations: (1) the 

operator is the owner and the 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) a true and correct copy of 

the subject citation was properly served upon the operator; 

(6) a copy of the subject citation at issue in this proceeding is authentic and may be admitted into evidence for purposes of 

establishing its issuance~ but not for the purpose of establishing the truthfulness or relevancy of any statements asserted 

therein; (7) the operator admits that one cell on the battery of 

the ram car referred to in the subject citation was "jumped out" 

or "bypassed" (Tr. 5-6). 

The instant matter is a notice of contest, but in order to 

avoid duplicative litigation the parties agreed to the following 

additional stipulations which would be relevant to a potential penalty case: (8) the operator's size is medium; (9) imposition 

of a penalty will not affect the operator 1 s ability to continue 

in the business; (10) the alleged violation was abated in good faith; (11) the operator's history of prior violations is average for its size; (12) injury was unlikely (Tr. 7). 

A letter dated February 27, 1987 to the Solicitor from 

Carol M. Boring, Chief, Electrical Power Systems Branch of the 

Mine Safety and Health Administration states, as follows: 

"This is in reply to Mr. George D. Palmer•s 

letter dated Feburary 13, 1987 and our 

telecon of February 26, 1987. 11 

"I am Chief of the Electrical Power Systems Branch, Division of Electrical Safety. This 

branch has the responsibility of approving 

electric motor driven equipment for use in 

gassy mines, under Part 18 of Title 30 Code 

of Federal Regulations. I have reviewed the 

records for Approval No. 26-2275-10. This 

approval was issued for a Jeffrey Mining 

Machinery Division, Type 404 Battery-Powered 

RAMCAR. The RAMCAR is approved with 120 

815. 
cells g1v1ng a total machine voltage of 240 

volts." (Government Exhibit 2). 

The facts of this case are no.tin dispute. The cited ram 

car is a piece of electrical face equipment which transports coal 

back and forth from the face to the feeder (Tr. 12). It was in 

service when the inspector cited it (Tr. 14). The ram car was 

originally approved as permissible by MSHA with 120 cells and a 

voltage of 240 (Tr. 16, 39-40, 57, 124; Government Exhibit 2)~ 

One cell on the ram car's battery had been bypassed or jumped out 

(Tr. 13-14, 16; Stipulation 7). The cell had been bypassed with 

a welded electrical connection (Tr. 54~ 110, 132; Operator Exhi= 

bit 6). The effect of bypassing was to reduce the number of 

cells from 120 to 119 and decrease voltage from 240 to 238 

(Tr. 24, 36, 62, 124). Bypassing one cell does not create a 

hazard and poses no immediate threat of injury (Tr. 64 9 95; 

Stipulation 12). However, when multiple cells are bypassed, the 

temperature of the battery increases and at some point, heat 

could cause other cells to short out and create arcing or 

sparking (Tr. 67, 72, 74, 114-117). 

I conclude a violation existed. The terms on which the ram 

car was initially approved as permissible are explicit: 120 cells 

and 240 volts. Bypassing is a deviation from the approved wiring diagram that cannot be allowed because there is no provision for 

it. As suggested at the hearing, it may be that through a field 

change modification submitted to MSHA, the operator can obtain 

permission to bypass a cell, but that inquiry is beyond the scope of these proceedings (Tr. 17). In Mesa v. Amoco Steel Corpora- tion, (Docket No. HOPE 76X487-P) dated May 9, 1977 (unpublished) Adm1nistrative Law Judge Broderick concluded: 

"* * * bridging cells in a battery-powered 

ram car used as face equipment substantially alters the characteristics of the equipment and therefore destroys its permissibility. I 

conclude that bridging cells in the battery 

compartment is a violation of 30 C.F.R. 

§ 75.503. 11 

I agree with Judge Broderick and follow his decision. 

The operator's argument that the battery can be separated from the ram car for purposes of permissibility, cannot be 

accepted. As all witnesses agreed, the battery is an integral 

part of the ram car (Tr. 16-17, 76, 78, 124). Further, the 

ope r at or. 1 s assert i on th at the re q u i rem en t of 2 4 0 v o 1 ts can be 

disregarded because voltage decreases to 204 during th~ shift, 

also must be rejected. If the ram car begins the shift with less 

than 240 volts, it will decrease below 204 during the shift 

{Tr. 92-93). I accept the electrical inspector's testimony that 

during the shift the voltage should not go below 204 (Tr. 90-91). 

816 
Admittedly, bypassing one cell is not serious. But gravity is not the test of whether a violation exists. Rather, it is one 

of the six criteria to be evaluated in determining the amount of 

civil penalty to be assessed. Care must be taken not to confuse 

the various concepts encountered when interpreting the Act. 

Indeed, acceptance of the operator's position would take enforcement of the Act down an uncertain road where a violation would 

originate at some imperceptible and undefined point. Thus, if 

bypassing one cell is allowed, what of two, six, ten~ or twenty? Conceptually, and practically, such an approach cannot work. 

The post-hearing briefs of the parties have been reviewed. 

To the extent they are inconsistent with this decision~ they are 

rejected. 

In light of the foregoing~ it is ORDERED that the citation 

be AFFIRMED and that the operator's notice of contest be 

DISMISSED. 

\~ \ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

R. Stanley Morrow, Esq., Harold D. Rice, Esq., Jim Walter 

Resources, Inc., Post Office Box C-79, Birmingham, AL 35283 

(Certified Mail) 

William Lawson, Esq., Office of the Solicitor, U. S. Department of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL 

35203 (Certified Mail) 

Michael Clements, President, UMWA, Local 7918, Route 3, Box 118, 

Oora, AL 35405 (Certified Mail) 

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

Washington, DC 20005 (Certified Mail) 

Lawrence Beeman, Director, Office of Assessments, U. S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

I g 1 

817 
FEDERAL MINIE SAFETY AND HEALTH REVIEW ~OMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 2204! 

APR 221987 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

. . Docket No. VA 86-36 

A. C. No. 44-04856-03502 A6R 

Buchanan No. 1 Mine 

WESTERN A VELLA CON'rRACTORS u g 

INC., 

Respondent 

ORDER OF DEFAULT 

on June 26, 1986, the Secretary of Labor~filed a Petition to 

Assess Civil Penalties for alleged violations of the Federal Mine 

Safety and Health Act of 1977. Respondent filed its Answer on 

August 25, 1986. On October 14, 1986, I entered an Order 

directing the Parties to discuss settlement and stipulate as to 

matters not in dispute. In a telephone conservation, on 

February 26, 1987, between counsel for both Parties and myself, 

Counsel for Respondent advised that due to financial considerations Respondent could neither enter into a settlement or further 

defend this matter. 

On April 16, 1987, Petitioner filed a Motion for a Default 

Judgment. In this Motion, Respondent has consented to a default 

order assessing a civil penalty of $15,770. 

Accordingly, it is ORDERED that Respondent is in default. 

It is further ORDERED that the civil penalties of $15,770 

proposed in the Secretary's Petition, be imposed as the final 

order of the Commission. It is therefore ORDERED that the 

Respondent shall pay such penalties in the amount of $15,770 

within 30 days of the date of this Order. 

A~s~ Administrative Law Judge 

(703) 756-6210 

818 
Distribution: 

Page H. Jackson, Esq., Office of the Solicitor, u. s. Department 

of Labor, 4015 Wilson Boulevard, Room 1237A, Arlington, VA 22203 

(Certified Mail) 

Mr. David Rosenberg, Western Avella Contractors, Inc., P. O. 

Box 481, Washington, PA 15301 (Certified Mail) 

dcp 

S19 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 APR 22 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSH~), 

Petitioner/Respondent 

v. 

. . 

Q 

0 

. . 

. . 

. . 

: 

. . 

. . 

. . 

. . 

. . 

820 

CIVIL PENALTY PROCEEDINGS 

CONTEST PROCEEDINGS 

Docket No. WEST 86-217 

A.C. No. 42-00121-03604 

Docket No. WEST 86-197-R 

Order 2835167; 5/28/86 

Docket No. WEST 86-218 

A.C. No. 42-00121-03605 

Docket No. WEST 86-239 

A.C. No. 42-00121-03609 

Docket Noo WEST 86-123-R 

Order 2835108~ 4/8/86 

Docket No. WEST 86-136-R 

Order 28354171 4/2/86 

Docket No. WEST 86-152-R 

Order 28351331 4/8/86 

Docket No. WEST 86-169-R 

Order 2835132; 4/9/86 

Docket No. WEST 86-240 

A.C. No. 42-00121-03610 

Docket No. WEST 86-159-R 

Order 28345791 4/16/86 

Docket No. WEST 86-241 

A.C. No. 42-00121-03611 

Docket No. WEST 86-160-R 

Order 28346101 4/16/86 

Deer Creek Mine 
EMERY MINING COMP.ANY, 

Respondent/Contestant 

: Docket No. WEST 86-236 

: A.C. No. 42-00988-03546 . . Docket No. WEST 86-89-R 

Citation 2834441; 2/5/86 

UTAH POWER AND LIGHT COMPANY, : 

Mining Division, 

Respondent/Contestant 

. 

. 

Docket No. WEST 86-237 

A.C. No. 42-00988-03547 

Docket No. WEST 86-87-R 

Citation 2834444; 2/5/86 

Deseret Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Lasher 

The parties have reached an overall resolution of the above 

16 dockets which involve a total of 14 Citations and Orders. The 

settlement calls for the vacation of two withdrawal orders in 

Docket WEST 86-240, the payment of total penalties in the sum of 

$3,024.00 (MSHA's initial administrative assessments totalled 

$4,221.00), the modification of five withdrawal orders from 

issuance under Section 104(d)(l) to issuance under Section 

104(a), and the withdrawal by Respondent of all nine of its 

notices of contest in the nine contest dockets related to the 

pertinent penalty proceedings. 

A summary of the settlement reached appears below: 

Docket No. Citation/Order 

WEST 86-217 2835167 

WEST 86-218 2834501 

WEST 86-236 2834441 

2834499 

WEST 86-237 2834444 

WEST 86-239 2835417 

2835108 

2835132 

2835133 

WEST 86-240 2835140 

(Partial settlement> 

2834563 

2834575 

WEST 86-241 

2834579 

2834610 

No. 

821 

Initial Agreed 

Assessment Settlement 

$500 $300 

modify to 104(a) 

192 50 

600 600 

400 200 

modify to 104Ca) 

79 79 

700 700 

400 400 

150 75 

modify to 104(a) 

300 20 

modify to l04(a) 

Vacated 

vacated 

Pending review by Commission 

in Docket WEST 86-126-R 

400 400 

500 200 

modify to 104(a) 

$4,221 $3,024 
The motion for approval of the settlement points out that 

the settlement was achieved after counsel for both parties had 

fully reviewed the merits of the other party's anticipated evidence and fully and frankly analyzed the potential outcome of the 

litigation issues had the matter proceeded to hearing. It also 

appears that Respondent/Contestant a "moderate to large" mine 

operator, has an average history of compliance and proceeded in 

good faith to abate the subject violations upon notification 

thereof. 

Upon evaluation of this settlement, information contained in 

the motion for approval and the various case files, it is 

concluded that the amicable agreement reached effectuates the 

purposes of the Mine Safety Act and should be approvedo 

ORDER 

Respondent/Contestant, if it has not previously done so., 

shall pay the Secretary of Labor the sum of $3,024.00, as and for 

the civil penalties hereinabove specified, on or before 30 days 

from the date of this decision. 

In Docket No. WEST 86-240Q Orders Nos. 2835140 and 2834563 0 

are vacated. 2::_; 

Orders Nos. 2834610, 2835167, 2835132, 2834499, and 2835133 

are modified to change their issuance from under Section 

104(d)(l) of the Act to issuance as Citations under Section 

104 Ca) of the Act and are otherwise affirmed in all re.spects including their designation as significant and substantial violations. 

Contest dockets Nos. WEST 86-197-R, 89-R, 87-R, 136-R, 

123-R, 169-R, 152-R, 159-R, and 160-R, relating to the penalty 

dockets which are the subject hereof, have been withdrawn by 

Respondent/Contestant, and such withdrawals are approved as part 

of the settlement and these nine proceedings are dismissed. 

~£a~,9z. Michael A. Lasher, Jr. 

Administrative Law Judge 

1/ A separate "Decision Approving Partial Settlement" has been 

issued with respect to Docket WEST 86-240 since one of the four 

enforcement papers therein (Citation No. 2834575> remains viable 

and is presently before the Commission on review. The related 

contest docket, WEST 86-159-R, has, however, been withdrawn by 

Respondent/Contestant and such withdrawal is being approved 

herein. 

822 
Distribution: 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department 

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

Mail) 

John T. Scott, III, Esq., Crowell & Moring, 1001 Pennsylvania, 

NW, Washington, D.C. 20004 (Certified Mail) 

Mr. Frank Fitzek, Representative, Deer Creek Mine, P.O~ Box 310u 

Huntington, UT 84528 (Certified Mail) 

/bls 

823 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 2 2 \987 

333 w. COLFAX AVENUE, SUITE 400 APR 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

UTAH POWER & LIGHT COMPANY, 

(EMERY MINING) , 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 86-240 

A.C. No. 42-00121-03610 

Deer Creek Mine 

DECISION APPROVING PARTIAL SETTLEMENT 

Before: Judge Lasher 

The parties, as part of an overall settlement involving 16 

dockets, have reached a partial settlement of the four enforcement papers (three withdrawal orders and one Citation) involved 

herein. As part of the motion for settlement approval dated 

April 1, 1987, the Secretary has vacated Orders Nos. 2835140 and 

2834563, and the Respondent has agreed to the full amount of 

MSHA's initial assessment of $400.00 for Order No. 2834579. The 

remaining enforcement paper, Citation No. 28345751is in the 

process of litigation and is being reviewed in a separate contest 

matter before the Commission, Docket No. WEST 86-126-R. 

I have approved the above settlement in this docket as part 

of the 16-docket resolution urged by the parties which is being 

simultaneously approved by me. Such approval is here affirmed. 

Counsel for both parties are requested to advise me, with 

appropriate recommendations as to disposition, of remaining 

Citation No. 2834575, as soon as possible following the Commission's determination in Docket No. WEST 86-126-M. 

Distribution: 

~Mi./ d"· ~def f:t. 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department 

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

Mail) 

John T. Scott, III, Esq., Crowell & Moring, 1001 Pennsylvania 

Avenue, NW, Washington, D.C. 20004 (Certified Mail) 

Mr. Frank Fitzek, Representative, Deer Creek Mine, P.O. Box 310, 

Huntington, VA 84528 CCertif ied Mail) 

/bls 824 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

v. 

STREET & WHITED COAL CO., 

INC. I 

Respondent 

APR 271987 

CIVIL PENALTY PROCEEDING 

Docket No. VA 86-49 

A.C. No. 44-00749-03526 

No. 8 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On April 23, 1987, the Secretary of Labor filed a 

motion for approval of a settlement reached by the parties 

in this case. The violations were originally assessed at 

$10,300 and the parties propose to settle for $6300. 

Four violations are cited in this docket, all growing 

out of a fatal roof fall on February 19, 1986. With respect 

to three of the violations - for altering the accident scene 

before the inspector arrived ($200) ; for failure to notify 

MSHA immediately after the accident occurred ($100); for 

failure to give a new miner the required 40 hours training 

($2000) - the settlement agreement proposes that the operator 

pay the amount originally assessed. With respect to the fourth 

violation, failure to follow the approved roof control plan, 

the settlement proposes payment of $4000, rather than the $8000 

originally assessed. There were no eye witnesses to the 

accident and there is some doubt as to whether the miner was 

installing temporary roof supports when the fall occurred, 

which would have been permissible under the roof control 

plan, rather than installing permanent supports. Respondent 

is a small operator, had a total of 81 violations in the 

24 months prior to the violations cited here including 6 violations 

of 30 C.F.R. § 75.200. 

I have considered the motion in the light of the criteria 

in section llO(i} of the Act and conclude that it should be 

approved. 

825 
Accordingly, the settlement is APPROVED AND Respondent 

is ORDERED TO PAY the sum of $6300 within 30 days of the 

date of this order. 

Distribution: 

fhv'~~~ . ,f-/(J~-v ck, t,, t{-:,~ •' 

ames A. Broderick 

Administrative Law Judge 

Mark R. Malecki, Esq., U.S. Department of Labor, Office of 

the Solicitor, 4015 Wilson Blvd., Arlingtonu VA 22203 

(Certified Mail) 

Michael McGlothlin, Esq., McGlothlin & Wife, P.O. Drawer 810, 

Grundy, VA 24614 (Certified Mail) 

slk 

826 
' ' . FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 28, 1987 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TRIPLE D COAL COMPANY, 

Respondent 

. . 

. . 

0 

0 

Docket No. 

A. Ca No. 

~ No. 1 Mine 

ORDER OF DEFAULT 

Before: Judge Weisberger 

WEVA 86-432 

46-06816-03508 

Petitioner on August 8, 1986 11 filed its.: Petition of 

Assessment of Civil Penalty proposing a penalty of $306 and an 

Answer was filed by Respondent on February 18, 1987. 

On February 25, 1987, I issued a Prehearing Order directing 

the parties on or before March 10, 1987, to confer for the purpose of discussing settlement, and if settlement was not agreed 

upon by March 17, 1987, to serve each other and me lists of witnesses who may testify, exhibits which may be introduced, and 

matters which can be stipulating at the hearing. The Order 

further stated that failure to comply will subject the defaulting 

party to a show cause order and possible default decision. 

On March 27, 1987, Petitioner filed a statement with me indicating that it had not received any response, from Respondent, to 

its letter and telephone request asking Respondent's representative, Jack L. Kinder, to contact Petitioner. Prior to April 2, 

1987, I had not received, from Respondent, any response to my 

Prehearing Order of February 25, 1987. 

On April 2, 1987, I issued a Show Cause Order ordering 

Respondent as follows: " ••• to, within 10 days, confer with 

Petitioner for the purpose of discussing settlement, and if 

settlement is not reached within 20 days to serve Petitioner and 

me with all items referred .to in paragraph 2 of my Prehearing 

Order or show good reason for your failure to comply with this 

Order." Respondent was advised that if it did not comply with 

the Show Cause Order it will be placed in default. 

827 
On April 8, 1987, a letter was received by me from Respondent 

in which Respondent's President, Jack L. Kinder, indicated, in 

essence, that Respondent had "shut down" on September 17, 1985. 

Mr. Kinder also described, in general, his financial plight. However, the terms of the Prehearing Order were not-complied with. 

Therefore, it is ORDERED that Respondent is in DEFAULT. It 

is further ORDERED that the penalties proposed in the Assessment 

Order, attached as Exhibit A to the petitioner, in the total 

amount of $306 are imposed as the final order of the Commissiono 

It is further ORDERED that Respondent shall pay such penalties in 

the of amount of $306 within 30 days of he date of this ordero 

l Attachment 

Distribution: 

Avr 

Administrative 

Weisberger .~ Law Judge 

Patricia L. Larkin, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Room 1237A, Arlington, VA 

22203 (Certified Mail) 

Mr. Jack L. Kinder, President, Triple D Coal Company of 

West Virginia, Inc., Box 4, Nellis, WV 25142 (Certified Mail} 

dcp 

828 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 291987 

JOHN ERVIN PAUGH, 

Complainant 

g DISCRIMINATION PROCEEDING 

v. Docket No. YORK 86-9-D 

MSHA Case MORG CD 86-14 

METTIKI COAL CORPORATION~ 

Respondent 

0 

0 

C-Mine 

Appearances: 

Before: 

DECISION 

w. Bryan Hall, Esq. 0 Cumberland 0 Marylandu for 

the Complainantt 

Thomas P. Gies and Susan E. Chetlin, Esqso 9 

Crowell & Moring, washingtorr, D.C., for the 

Respondent. 

Judge Koutras 

Statement of the case 

This proceeding concerns a discrimination complaint filed 

by the complainant John Ervin Paugh against the respondent 

pursuant to section 105(c) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et seq. Mr. Paugh filed 

his initial complaint with MSHA on May 5, 1986. Following an 

investigation of his complaint, MSHA determined that a violation of section 105(c) had not occurred, and notified 

Mr. Paugh of this finding by letter of June 27, 1986. 

Mr. Paugh then filed a timely complaint with the Commission 

pro ~, but subsequently retained counsel to represent him. 

Mr. Paugh alleges that the respondent harassed him 

because of his concern for safety and because of his insistence on following safe work procedures, particularly with 

respect to the amount of air over his roof bolting machine 

and the spacing of roof bolts. Mr. Paugh contends that his 

discharge on March 10, 1986, was in retaliation for his 

safety concerns and complaints. 

The respondent filed a timely answer to the complaint, 

and as an affirmative defense asserts that Mr. Paugh was 

discharged for fighting underground with another miner. A 

829 
hearing was held in Cumberland, Maryland, and the parties 

have filed briefs and proposed findings and conclusions. I 

have considered these arguments in the course of my adjudication of this matter. 

Issue 

The critical issue in this case is whether Mro Paughijs 

discharge by the respondent was prompted in any way by his 

engaging in protected activity, or whether it was the result 

of fighting in violation of company policy as claimed by the 

respondent. Additional issues raised by the parties are identified and disposed of in the course of this decision" 

Applicable Statutory and Regulatory Provisions 

l. The Federal Mine Safety and Health Act of 1977v 

30 u.s.c. § 301 et seq. 

2o Sections 105(c)(l)v (2) and (3) of the Feder Mine 

Safety and Health Act of 1977u 30 U.S.Co § 815(c)(l) 0 (2) and 

( 3) • 

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

Complainant's Testimony and Evidence 

Ronald w. Smith, confirmed that he worked as a temporary 

roof bolter with Mr. Paugh and Mr. Beckman on foreman Randy 

Johnson's section until October, 1985, when he was laid off. 

He considered Mr. Paugh to be a good and fast roof bolter who 

was safety conscious and insisted on "doing things by the 

book" (Tr. 29, 52). Mr. Smith stated that Mr. Paugh insisted 

on maintaining the ventilation curtains to provide air over 

his roof-bolting machine, that he was "real strict on air" 

and complained to Mr. Johnson about the lack of air "at least 

once a day" (Tr. 29-32). 

Mr. Smith confirmed that the scoop and feeder operators 

were responsible for maintaining the ventilation curtains to 

insure enough air on the section, and that air for the bolter 

was provided by a fan and tubing which had to be moved as the 

bolting cycle advanced. He estimated that the moving of the 

fan resulted in approximately 20 to 25 minutes down time for 

the bolter (Tr. 34). 

Mr. Smith confirmed that he attended safety classes 

every Monday morning, and received instructions in roof and 

rib control, ventilation, and methane detection procedures 

(Tr. 39). When methane was detected, Mr. Johnson would 

830 
instruct someone to tighten up the curtain or wash down the 

methane detectors on the mining machines (Tr. 39). Mr. Smith 

stated that he once complained to Mr. Johnson about "smoke 

from a diesel scoop," and that in 1982, he operated a scoop 

in cuts where the roof had not been bolted, sometimes on his 

own, and sometimes at the direction of mine superintendent 

Paul Tenney (Tr. 44-47). Mr. Smith also stated that 

Mr. Johnson instructed him to clean up some coal spillage or 

debris in an unbolted roof area, and that this was a "common 

practice to save time" (Tr. 48-51). 

On cross-examination, Mr. Smith confirmed that when he 

had occasion to go under unsupported roof with his scoop, it 

was equipped with an overhead canopy which shielded him from 

any falls, and that the roof bolters were equipped with temporary roof support systems CTRS), which is considered to be 

equivalent to a supported top (Tr. 54). Mr. Smith further 

confirmed that on those occasions when Mr. Johnson asked him 

to work under unsupported roof, he refused, and Mro Johnson 

would do the work himself (Tr. 59)o 

Mr. Smith conceded that he was aware of his right not to 

work in an area where there may be an imminent danger, and 

that he was aware of the respondent's "open door policy" to 

speak with mine management if he were not satisfied with his 

foreman's response to his safety concerns (Tr. 65). Mr. Smith 

confirmed that he stopped operating the smoking diesel scoop 

until it was repaired. However, when he complained to Mr. 

Johnson about the smoke, and he too "grouched" about it, but 

did not have the scoop repaired until 2-months passed and 

another scoop was brought in to the section (Tr. 69). He confirmed that the smoking scoop conditions prevailed "somewhere 

in 1984" for about 2 months, but after a new one was brought 

in, Mr. Johnson's section "was the cleanest and best section 

in the mine" (Tr. 72). Mr. Smith confirmed that he had no 

gripe against Mr. Johnson, and had no complaints about his 

safety procedures (Tr. 74). He also confirmed that Mr. Paugh 

was never disciplined because of his frequent complaints about 

the air (Tr. 75). 

In response to further questions, Mr. Smith stated that 

Mr. Johnson was "quick tempered," that they sometimes argued 

over safety matters, and one argument over a cable splice 

resulted in Mr. Johnson's suspension for 2 weeks after 

Mr. Smith and another miner complained to management (Tr. 77). 

They also argued about the air, but Mr. Smith conceded that 

this was not entirely Mr. Johnson's fault because "the headings and things like that wasn't right" (Tr. 77). Mr. Smith 

explained that since Mr. Johnson was the section boss, he was 

831 
the recipient of the complaints, and that he sometimes took 

care of the problems (Tr. 78). However, he could not recall 

any instances when Mr. Johnson totally ignored or did absolutely nothing about Mr. Paugh's safety complaints (Tr. 84}. 

Mr. Smith stated that Mr. Paugh and Mr. Johnson did not 

get along and "grouched" at each other (Tr. 85). In 

Mr. Smith's opinion, Mr. Paugh was right 11 90 percent" of the 

time with regard to his safety complaints to Mr. Johnson, and 

he recalled an incident in 1984, 2-years before Mr. Paughvs 

discharge, when Mr. Paugh bolted for a shift without an operative TRS, and then refused to continue bolting after arguing 

with Mr. Johnson (Tr. 88). On another occasion when 

Mr. Johnson and Mr. Smith would knock down curtains with 

their machines, Mr. Paugh would put them back upff and he and 

Mr. Johnson would argue over this (Tr. 89-91). 

John Prinkey, rib bolter, confirmed that he has worked 

with Mr. Paugh on Mr. Johnsonvs section, but was not working 

on March 5, 1986, because he was off with· a back injury (Tro 

96). He worked with Mr. Paugh and Mr. Beckman on the roof 

bolter, and Mr. Paugh would shut the bolter:~. down and refuse 

to bolt while the ventilation fan was being advanced and 

there was no air over the bolter. When Mr. Paugh advised 

Mr. Johnson that he would not bolt without air, Mr. Johnson 

responded "well, you know, I can't force you" (Tr. 98}. 

Mr. Prinkey stated that Mr. Beckman spent time "prying 

and picking" down ribs which he believed were unsafe, and 

that this slowed the bolting crew down to the point where 

Mr. Prinkey complained to Mr. Johnson and to superintendent 

Steve Polee. Mr. Paugh and Mr. Beckman also argued about the 

situation, and Mr. Paugh told Mr. Johnson that Mr. Beckman 

was "goofing off" (Tr. 100}. Mr. Prinkey and Mr. Paugh complained because they did not like to work overtime, and if 

they did not work fast enough to prepare the area for the 

next shift, they would have to stay to finish the bolting. 

Mr. Prinkey considered Mr. Paugh to be a good roof 

bolter, and he knew of no instances where Mr. Paugh would put 

in extra roof bolts just to slow down (Tr. 101). Mr. Prinkey 

stated that Mr. Johnson never instructed his crew to bolt 

without air, but there were times when the fan would be 

moved, without notifying the crew, and this would result in 

an interruption to the air CTr. 102}. 

Mr. Prinkey stated that after Mr. Paugh's discharge, 

Mr. Johnson stated that he "despised" Mr. Paugh (Tr. 103). 

Mr. Prinkey confirmed that Mr. Paugh tried to follow all 

832 
safety rules, but conceded that "a lot of times, he probably 

did things wrong. I do things wrong" (Tr. 104). 

On cross-examination, Mr. Prinkey explained the duties 

of his roof bolting crew. He conceded that at times 

Mr. Beckman was slowed down by water or when prying down a 

rib and numerous times he taunted Mr. Beckman and made fun of 

him for being slow, and they argued a lot over it (Tr. 106). 

Mr. Prinkey stated that no one in management ever forced 

Mr. Paugh to work when there was no air over the bolter CTro 

106). 

In response to further questions, Mr. Prinkey confirmed 

that Mr. Paugh's reluctance to work with no air over the 

bolter occurred during the interval when the fan was shut off 

and advanced, and that Mr. Johnson was upset because Mro Paugh 

would not bolt without air (Tr. 110). However, Mr. Johnson 

never insisted that Mr. Paugh continue to bolt with no air, 

but generally griped about Mr. Paugh's unwillingness to do so 

(Tr. 110). 

Mr. Prinkey stated that Mr. Beckman liked to work over~ 

time, and it was his opinion that most of t·he time Mr. Beckman 

would "pick and pry" at the ribs deliberately to slow down the 

crew so he could work overtime. This resulted in arguments 

between Mr. Paugh, Mr. Prinkey, and Mr. Beckman (Tr. 111-112). 

Jimmie K. Wolfe, confirmed that he had at one time worked 

with Mr. Paugh on Mr. Johnson's section as a bolter, and was 

aware of "discussions" between Mr. Paugh and Mr. Johnson over 

the lack of air over the bolter while the ventilation fan was 

being advanced. However, Mr. Wolfe was not aware that 

Mr. Johnson ever ordered Mr. Paugh to continue bolting without 

air (Tr. 116). 

Mr. Wolfe stated that sometime in 1984 or 1985 Mr. Paugh 

and Mr. Johnson were involved in a dispute over a bolter 

which needed repairs, and Mr. Johnson lost his temper and he 

and Mr. Paugh exchanged heated words and foul language CTr. 

118). As a result of that encounter, Mr. Paugh advised 

Mr. Johnson that he would insist that he have air over his 

bolter, and that the relationship between the two changed and 

"they was sort of pretty much on edge with each other" (Tr. 

120). 

On cross-examination, Mr. Wolfe conceded that he was not 

assigned with Mr. Paugh on Mr. Johnson's section when the 

March, 1986, suspension and discharge of Mr. Paugh occurred, 

and since he was not on the section since the spring or summer 

833 
of 1985, he had no opportunity to observe their relationship 

during the period in question (Tr. 122). 

Mr. Wolfe stated that while riding home from the mine 

with Mr. Johnson after Mr. Paugh's discharge he stated to 

Mr. Johnson that "You will never convince me that you people 

did not take advantage of this to get rid of a guy that has 

caused you a hassle because of safety," and that Mr. Johnson 

responded, "Well, I will have to admit that it is a lot 

easier since he's gone" (Tr. 130). Mr. Wolfe stated that 

when he worked as a bolter, he continued to bolt while the 

fan was being moved, and did so because of "pressure from 

supervisors." Mr. Wolfe was of the opinion that anyone who 

inhibited production by complaining about safety was considered a "bawl baby," "complainer" or "troublemaker" (Tr. 131}. 

Mr. Wolfe stated that on those occasions when he was 

requested to continue to bolt with no air while the fan was 

being advanced, and refused, he was assigned to help move the 

fan. He also confirmed that when he complained to his section foreman about safety, his concerns "were taken care of 

more or less after the horse got out of tha barn" (Tr. 134). 

As an example, he cited an instance when complaints were made 

about the remote control devices on a continuous-mining 

machine, and although mine management changed some parts in 

an attempt to find out why the device was malfunctioning, the 

miner was not taken out of service until after the miner operator Donnie Bray was injured when the malfunctioning device 

resulted in his being pinned against the rib and injured (Tr. 

135-137). 

Mr. Wolfe stated that he has been reassigned from one 

section to another, and found this unusual because most 

transfers involve the whole crew, and not just one individual. 

He conceded that management has the right to make such 

reassignments, and while he concluded that his transfer came 

about because he was "a complainer, concerned about safety," 

he did not complain because his reassignments placed him in a 

better working environment (Tr. 139). 

Mr. Wolfe confirmed that he has been "a rank and file" 

miner since June 1979, but that he served as a foreman on the 

midnight construction shift for approximately 7-months prior 

to that time, and was taken off that job because management 

did not believe he was getting the job done. He denied that 

he holds any grudges against the respondent because of this, 

or because of the prior miner lay-offs, and confirmed that 

the company treats him well. However, when asked whether he 

"has an axe to grind" with the company, he responded "I 

834 
ground it a long time ago" (Tr. 141). When asked whether he 

held his removal as a foreman against the company, he 

responded "I did for a while, but it was the best thing that 

ever happened to me" {Tr. 142). Mr. Wolfe also confirmed 

that even though he has been safety conscious and has filed 

safety complaints over the past 7 years, he has not been 

disciplined and still has a job (Tr. 146). 

Donald w. Bray, continuous-miner operator, confirmed 

that he worked on Mr. Johnson's section with Mr. Paugh and 

Mr. Beckman. Mr. Bray confirmed that he was injured during 

the summer of 1985 when he was pinned against ·a rib when the 

miner remote control device malfunctioned. He also confirmed 

that he had experienced problems with tramming the machine 

and the remote control device prior to the incident, reported 

it to the head mechanic Tom Scott, and that Mr. Scott "did 

the best he could" in troubleshooting the problems and in his 

attempts to repair the devices. He considers Mr. Scott to be 

a good mechanic, and did not believe that he ignored his 

complaints, and that he attempted to find the problem and 

make the necessary repairs (Tr. 156). 

Mr. Bray confirmed that the problems with the machine 

occurred over an extended period of time, but they "would 

come and go, 11 and he believed the problems were being 

addressed, and that Mr. Scott was making an effort to find 

the problem. Once the accident occurred, the machine was 

immediately removed from service, dismantled, and thoroughly 

checked out (Tr. 164). Mr. Scott subsequently advised him 

that a short had been found in the machine boom wiring (Tr. 

159). 

Mr. Bray stated that he had no complaints about 

Mr. Johnson as a foreman, and considered him to be "fairly 

conscious safety wise. 11 He confirmed that Mr. Johnson has 

never ordered or asked him to do anything that was unsafe, 

and stated 11 I don't think he would do that" (Tr. 157). He 

further stated that "sometimes maybe I've done stuff on my 

own that might not have been unsafe" but he never really told 

me, you know, to really put myself in danger or something 

like that" (Tr. 157). 

Complainant's counsel proffered the testimony of Blaine 

Fike, and stated that if called to testify, Mr. Fike would-~ 

testify that he was working on Mr. Johnson's section on 

March 5, 1986, and would confirm that Mr. Paugh would stop 

the bolter when there was no air while the fan was stopped 

and being moved, and that Mr. Johnson was suspended because 

of the faulty cable repair incident. Counsel also proffered 

835 
the testimony of Terry Lucas, who was likewise working on 

Mr. Johnson's section on March 5, 1986. Mr. Lucas would 

testify that Mr. Paugh "made complaints about or said he 

would not work without air" CTr. 165). 

Respondent's Testimony and Evidence 

Terry w. Lucas, testified that in 1980 he was working as 

a laborer on the same shift with Mr. Paugh and Mr. Harry 

Beckman. Mr. Lucas stated that while in the process of moving 

a cable, he and Mr. Paugh got into a dispute which resulted in 

a fight between them. He stated that Mr. Paugh hit him, and 

that he held Mr. Paugh down on the ground. Mr. Lucas stated 

that he "told John to behave, calm down ••• and after that 17 

everything was all right." Mr. Lucas confirmed that he and 

Mr. Paugh were rolling around on the ground, and that 

Mr. Beckman had to separate them. The incident was never 

reported to the foreman, and Mr. Lucas never discussed it with 

him. Mr. Lucas further confirmed that he was aware of the 

company rule on fighting, and that it is an offense for which 

one may be fired {Tr. 178-179). Since that timeu he has had 

no further disagreements with Mr. Paughu and has since worked 

with him many times (Tr. 186). 

Mr. Lucas confirmed that he was present during the shift 

when the incident of March 5, 1986, between Mr. Paugh and 

Mr. Beckman occurred, but that he did not personally observe 

what occurred. He found out about it when he learned that 

foreman Randy Johnson had taken them out of the mine. He 

asked Mr. Johnson what had happened, and Mr. Johnson replied 

"It's went too far this time. I've got to take them outside." 

When Mr. Lucas tried to talk Mr. Johnson out of taking them 

outside, Mr. Johnson replied "No, I've got to do my job. 

I've got to take them outside" (Tr. 187). 

Mr. Lucas stated that after Mr. Johnson took Mr. Paugh 

and Mr. Beckman outside, he asked roof bolter Earl Sisler 

about the incident, and that Mr. Sisler told him that while 

he did not observe Mr. Paugh "go across the bolter, 11 he heard 

"the ruckus," looked up alongside the bolter, and observed 

that Mr. Beckman had Mr. Paugh up against the rib "slugging 

him" (Tr. 187). Mr. Lucas reiterated that he did not personally observe the incident, and simply stated what Mr. Sisler 

told him about the incident {Tr. 187-189). 

Complainant John·Paugh was called as an adverse witness 

by the respondent. Mr. Paugh confirmed that general mine 

foreman Steve Polee telephoned him on March 10, 1986, and 

informed him that he was fired for fighting. Mr. Paugh also 

836 
confirmed that he was aware of the company rule prohibiting 

fighting, and that if he engaged in fighting, it would be a 

reason for discharging him (Tr. 191). 

Mr. Paugh confirmed that he does not like to work overtime, and that he began work on a new section of the mine on 

the Monday before his discharge. He also confirmed that he 

lives 32 miles from the mine, and prior to this time he had 

been car pooling "off and on," and that Mr. Polee informed 

him that in view of the fact that he might have to stay and 

work overtime if his roof bolting crew did not keep within 

two and one-half cuts ahead of the continuous'miner, that he 

was to drive his own car to work (Tr. 192). Mr. Paugh stated 

that Mro Polce's instructions was nothing new to him because 

he drove himself to work many times, and that he understood 

Mr. Polee to mean that he should not have to depend on a car 

pool if he had to work overtime (Tr. 193). 

Mr. Paugh denied that he ever made any statements to 

Mr. Sisler about having to buy extra gasoline because of the 

necessity of driving his own car to workv but admitted that 

he told Mr. Sisler that "I wasn 1 t crazy abeut working overtime" (Tr. 195). Mr. Paugh also denied telling Mr. Sisler 

that if he were required to work overtime he would make sure 

that he got more overtime (Tr. 195). 

Mr. Paugh confirmed that he received a 40-hour safety 

training course when he was first hired, and that he participated in periodic safety meetings held every Monday morning 

before work (Tr. 195). He also confirmed that he was aware 

of his rights under the Act, and understood that he was not 

required to work under any unsafe conditions, and that there 

were several occasions when he turned off his roof-bolting 

machine as necessary, and did not work when he believed there 

was insufficient ventilation. On these occasions, while he 

did not continue to bolt, he performed other work. 

Mr. Paugh stated that he refused to continue bolting a 

dozen times during the 2 or 3-years prior to his discharge, 

and that he worked on the bolting machine about 90 percent of 

the time during this period. His refusal to continue bolting 

was limited to those occasions when he did not believe that 

the ventilation over his bolting machine was adequate. 

Although he believed that the lack of ventilation was "always 

serious," he confirmed that with the exception of the dozen 

occurrences when he refused to operate the bolter, the ventilation was not such a serious problem as to cause him to 

discontinue bolting {Tr. 198). 

837 
Mr. Paugh confirmed that he operated a roof bolter for 

6 years, and that he was aware of the respondent's "open door" 

policy, and that if he had any problem with his foreman, he 

could talk to someone else in management (Tr. 198). He confirmed that as part of his safety training, he was told that 

the company wanted him to always be careful and look out for 

safety, and that as an underground miner, the company was 

concerned about his safety (Tr. 199). 

Mr. Paugh confirmed that he was an experienced roof 

bolter, and he stated that under good conditions he was able 

to complete five cuts of coal a day during his bolting cycleQ 

installing approximately four to six rows of bolts in each 

cut, with four bolts in each row, and that this is usually 

considered to be a good day's work (Tr. 199-200)0 

Mr. Paugh stated that he has complained about the lack 

of ventilation over his bolter, and has discussed the matter 

with general mine foreman Polee several times, and with superintendent Tenney a couple of times. He stated that over a 

period of 18 months, he discussed this with Mr. Polee three 

or four times in his off ice, and six or sev.en times under~ 

ground (Tr. 202). On one occasion after speaking with 

Mr. Polee, Mr. Polee informed him that there were problems 

with the air, and said "If you can get it, get it, and if you 

can't, you can't." Mr. Paugh stated that he then "got the 

best air I could, ••• and later on, the air was down, and I 

complained to him again" (Tr. 201). Mr. Polee also told him 

that "we was having trouble getting enough air on the section" 

and that "it was hard to get enough air to the face. But it 

could be done" CTr. 202). 

Mr. Paugh stated that Mr. Polee told him that he wanted 

him to continue bolting even if he (Paugh) believed there was 

inadequate ventilation. Mr. Paugh stated that this occurred 

underground approximately a month before he was discharged. 

Mr. Paugh explained that on one occasion when the fan was 

down, he shut the bolter off, and proceeded to determine why 

the fan was down. Mr. Polee was there and advised him to 

keep bolting and that there was "plenty of air." Mr. Paugh 

stated that "I told him there couldn't be enough air there if 

the fan wasn't running." Mr. Polee took out his anemometer, 

and held it up, and Mr. Paugh stated that "it just barely 

turned." Mr. Polee then said "Yeah, there's plenty of air, 

get to bolting." However, the fan came back on, and Mr. Paugh 

started bolting again-(Tr. 204). · 

Mr. Paugh stated that on occasions when the ventilation 

curtain was down in the roadways where the buggies and ram 

838 
cars operated, air was cut off from the face or the bolter, 

and Mr. Polee expected him to continue to bolt. Mr. Polee 

stated to him "Bolt, or you're going to be taken off the 

bolter or find another job," and Mr. Paugh informed Mr. Polee 

that he would not bolt without air. Mr. Paugh explained 

further that he and Mr. Polee would continue the argument, 

but that he did not bolt without air, and eventually 

Mr. Polee "would get around to getting the air" {Tr. 205). 

Mr. Paugh stated that on another occasion in 1984 or 

1985, after complaining to Mr. Polee, he was taken off 

Mr. Johnson's section for 7 months "to keep me and Randy 

Johnson apart" (Tr. 207). Mr. Paugh stated that when he 

complained to Mr. Johnson about the ventilation 0 "he would 

get in an uproar about it" {Tr. 208). 

Mr. Paugh conceded that he had never been disciplined 

prior to his discharge, and he confirmed that he worked for 

Mr. Johnson for 3 to 4 years "off and on," and their relationship was not good for 2 years. Mr. Paugh-stated that while 

Mr. Johnson never disciplined him during this timeu he made 

him "do extra things, 11 and because of his c.omplaints u tried 

to limit his lunch hours to 10 to 15 minutes, rather than the 

usual half-hour. Mr. Paugh conceded that lunch hours may be 

shorter if work was required, and he also conceded that the 

"extra work" entailed other work assignments by Mr. Johnson 

when the roof bolter was down CTr. 210). Mr. Paugh also 

conceded that other crew members were sometimes given other 

things to do. He also stated that Mr. Johnson would assign 

him to stack tubing, advance curtain, rock dust, and shovel 

the feeder while the bolter was down, while the other two 

crew members "were standing there watching the mechanic fix 

it." He asserted that this happened 8 to 12 times during the 

last year. He also conceded that at times when he and 

Mr. Prinkey were ahead of Mr. Beckman in their work, they 

would sit and drink coffee waiting for him to catch up, if 

there was nothing else to do (Tr. 212). 

With regard to the altercation with Mr. Lucas in 1980, 

Mr. Paugh denied that he threw a punch at Mr. Lucas, but that 

"we wrestled." Mr. Paugh described the incident as "horseplay," and stated that he had forgotten the incident and 

could supply no details (Tr. 215). Mr. Paugh conceded that 

he failed to include in his complaint to MSHA that he was 

fired for fighting, and he did so "because I didn't think it 

would have anything to do with it 11 (Tr. 222). He conceded 

that Mr. Polee told him that he was being fired for fighting 

underground, but supplied him with no details. Mr. Paugh 

also stated that when Mr. Johnson took him out of the mine on 

839 
March 5, he gave him no explanation or reason for doing so 

other than "he was just tired of the things that's being going 

on. He took us outside to discuss it" (Tr. 224). After 

Mr. Polee called him to inform.him of his discharge, Mr. Paugh 

called Mr. Gearhart and advised him that he put his hand on 

Mr. Beckman's shoulder (Tr. 226). Mr. Paugh conceded that he 

said nothing to Mr. Gearhart about being fired for making any 

safety complaints CTr. 228). 

Mr. Paugh denied that Mr. Beckman had him against the 

rib 11 pounding 11 on him, and the only explanation he could give 

with regard to Mr. Sisler' s testimony in this ·regard was that 

Mr. Beckman "knocked me against the rib when he went out past 

me" (Tr. 225). Mr. Paugh explained that he went around to 

Mr. Beckman's side of the bolter, and placed his hand on 

Mr. Beckman's shoulder to talk to him about the spacing of 

the roof bolts, and that Mr. Beckman "tore out past me and 

knocked me up against the rib" (Tr. 225). 

Mr. Paugh further explained his encounter with 

Mr. Beckman as follows (Tr. 234-236)g 

Q. In fact, you were in a hurry to go over 

and talk to Mr. Beckman~ weren't you? Because 

right after Randy had left -- it was right 

after Randy had told you to go back to work1 

wasn't it? 

A. Yes. 

Q. And it was right after you said to 

Mr. Beckman, "I'm going to get you, you son of 

a bitch 11 1 wasn't it? 

A. I don't recall. 

Q. What do you recall saying, Mr. Paugh, at 

that point? 

A. I think I called Harry a cry baby at that 

point. 

Q. And you don't think you called him a cry 

baby, son of a bitch? 

A. I don't remember. 

Q. You might have1 right? 

840 
A. That's possible. 

Q. All right. Now, then, Mr. Sisler was at 

the back of the machine; was he not? 

A. Yes, he was. 

Q. And isn't it a fact that you walked right 

by Mr. Sisler on your way to get to Harry 

Beckman? 

A. Yes. 

Q. And isn't it a fact that, as you walked by 

Mr. Sisler, you said something likeu "Harry is 

a cry baby?" "Harry is crazy?" 

A. Yes1 probably did. 

Mr. Paugh confirmed that immediately· prior to his 

encounter with Mr. Beckman, he and Mr. Johnson discussed the 

spacing of the roof bolts, and that he told Mro Johnson "You 

cover your ass1 I'll cover mine" (Tr. 255). Mr. Paugh confirmed that he and Mr. Johnson were angry, and that 

Mr. Johnson told him to put the bolts in "skin to skin," and 

to "Put as many as you want up, as long as you are safe" CTr. 

246-247). Mr. Paugh denied that he was upset with Mr. Beckman 

about "ratting on him" to Mr. Johnson, but admitted that he 

stated to Mr. Johnson "what's the problem? Is this cry baby 

complaining about me" (Tr. 237). Mr. Paugh denied that he 

pushed Mr. Beckman, and stated that he touched him hard enough 

so that he knew someone was behind him, and that he did so to 

get his attention over the noise of the machine (Tr. 244). 

Mr. Paugh stated further that he went over to Mr. Beckman's 

side of the machine simply to have "a business conversation" 

with him, and he confirmed that in a prior statement to MSHA 

he stated that he wanted to discuss the spacing of the bolts 

with Mr. Beckman (Tr. 250). 

Mr. Paugh stated that after the incident with 

Mr. Beckman, Mr. Johnson and Mr. Beckman returned to the area 

where he had resumed working, and that Mr. Johnson asked him 

"what's going on." Mr. Johnson also asked Mr. Beckman 

whether he had told him the truth, and Mr. Paugh denied that 

Mr. Johnson asked him whether he had hit Mr. Beckman, but 

admitted that it was possible he told Mr. Johnson that he 

placed his hand on Mr. Beckman (Tr. 252-253). 

841 
Mr. Paugh denied that he and Mr. Prinkey had ever 

taunted or made fun of Mr. Beckman in the past, and denied 

that they ever threw grease over the machine at him while 

having coffee while Mr. Beckman was working (Tr. 256-257). 

Mr. Paugh confirmed that the day before he was suspended, his 

bolting crew had to stay and work overtime because they were 

not caught up with the continuous-mining machine (Tr. 257). 

Mr. Paugh testified as to his efforts to obtain employment since his discharge, and he also testified as to the 

incident concerning the broken down roof bolter" He denied 

that Mr. Johnson had asked him to tell the mechanic to fix 

the machine, and stated that Mr. Johnson asked him to tell 

Mr. Wolfe to tell the mechanic to fix it (Tr. 259-265)0 

On cross-examination, Mr. Paugh conceded that manage- . ment' s "open door policy" was a good one, but "sometimes it 

never worked." He stated that "I've seen guys go out to 

higher authorities before and complain, and come back to the 

mine site, and they would get transferred off of the section 

or put on dead work" CTr. 266-267). He explained the roof 

bolting sequence he was following on March-.Sv 1986u confirmed 

that he argued with Mr. Beckman over the roof bolting pattern 

on that day, and stated that he went around the machine to 

speak with Mr. Beckman about it (Tr. 269). 

In response to further questions, Mr. Paugh confirmed 

that he and Mr. Johnson had been at odds with each other "off 

and on" from 1984 until he was discharged, and that their 

arguments concerned the lack of air over the bolter and short 

dinner breaks, and that his complaints to Mr. Polee about 

Mr. Johnson resulted in Mr. Pelee's transferring him to 

another section (Tr. 270, 272). Mr. Paugh denied any prior 

altercations with Mr. Johnson, except for disagreements and 

misunderstandings, and it was his impression that 

Mr. Johnson's work assignments were deliberately made to 

punish his bolting crew, and this is why Mr. Polee took him 

off the crew the first time {Tr. 274). Mr. Paugh confirmed 

that he and Mr. Johnson had exchanged strong words more than 

once, and when asked whether or not Mr. Johnson ever invited 

him to hit him, Mr. Paugh responded. "He could have. He's a 

pretty good instigator" (Tr. 274). Mr. Paugh denied that he 

"despised" Mr. Johnson, but he believes that Mr. Johnson "had 

a big part to do" with his discharge because he complained to 

the mine foreman and superintendent about him several times 

(Tr. 277). 

Harry L. Beckman, roof bolter, confirmed that on 

Wednesday, March 5, 1986, he was working on a crew with 

842 
Mr. Paugh and Mr. Earl Sisler, and that Mr. Johnson was their 

foreman. He recalled a meeting held on Monday, March 3, when 

work in the new section began, and confirmed that mine 

foreman Polee told the crew that they would have to drive 

their own cars to work and would have to stay and work overtime if they were more than 2-1/2 cuts behind the continuous 

miner. Mr. Beckman stated that Mr. Paugh later commented to 

him that he wanted more than an hour of overtime (Tr. 280). 

Mr. Beckman confirmed that he had worked with Mr. Paugh 

since October, 1985, up to the time of his discharge, and he 

confirmed that Mr. Paugh drilled faster than he did and that 

he had trouble keeping up with him at times (Tr. 282-283)" 

Mr. Beckman stated that on one occasion when he was behind~ 

Mr. Paugh and Mro Prinkey threw grease at him while he was 

working, but they stopped after it hit him in the face and he 

warned them that he would leave the mine if the grease hit 

him in the eye (Tr. 283). 

Mr. Beckman confirmed that Mr. Paugh·was a fast worker 

"when he wanted to be," and he explained the roof bolting 

procedures and Mr. Paugh's work CTr. 285-281). Mr. Beckman 

stated that during the week in question, Mr. Paugh was "holding him up" and was "standing around and talking" rather than 

installing test holes. Mr. Beckman stated that Mr. Paugh 

told him that since he had to drive to work himself, "he 

wanted to fool around and get the overtime." Mr. Beckman 

complained to Mr. Polee and told him what Mr. Paugh had said, 

and Mr. Polee advised him that "he would keep an eye on us" 

(Tr. 288). Mr. Beckman stated that the crew had to stay and 

work an hour overtime on Tuesday, March 4, and that he told 

Mr. Johnson about it on Wednesday, March 5. He testified 

further as to the subsequent sequence of events (Tro 292-295): 

And then, Randy came up and I says -- he 

said we was getting behind. I said, "Yeah, I 

know. John's over there fooling around. 11 I 

said, 11Now he's putting three (3) pins in 

where he only needs two (2)." And I said, 

"He's going to end up making us have to stay 

again today." 

So, then, Randy went over and talked to 

him or something, and he shut the bolter off 

and said he would measure them, and then John -- when he went Up there, John said, "What's 

the problem? Who's holding me up; who's 

holding me up now?" And started hollering. 

843 
And he says, "Is he the problem over there, 

that cry baby, son of a bitch?" 

Q. Who was he referring to when he said that? 

A. To me. 

Q. All right. 

A. And Randy said -- after he measured it and 

stuff, Randy said, "You guys do whatever you 

think is safe. I don't care how many bolts 

you put in to make it safe, but get back to 

work. 11 And he said, "You guys think you can 

work together?" 

* * * * 

A. Well, then, Randy left, and I started the 

bolter up, and then I went back to the controls, and John said something about -- it 

sounded to me like, over the noise -- ·;like u 

"I'll get you, you son of a bitch, 11 or something like that. 

Q. Did you say anything back to him? 

A. No. I just went, "Yeah," or something 

like that (indicating). I just started 

letting the TRS down and started tramming the 

bolter up, and then John came over and 

pushed --

Q. Let me stop you there. When he said, "I'm 

going to get you, you son of a bitch," where 

was he? Was he over on his side of the 

machine? 

A. Yeah. He was up at his. He was just 

starting. 

Q. I think your testimony was that you 

started to move the TRS. 

A. Yes. 

Q. Then, what happened after that? 

844 
A. Well, I w~s getting ready -- I was 

starting to tram the bolter, and the next 

thing I knew, he said "You cry baby, son of a 

bitch, 11 and hit me in the back and pushed me 

into the bolter and knocked my hat off. And I 

turned around, and I pushed him back like this 

(indicating), and the ribs ain't that wide 

(indicating), and I turned around real quick, 

and he started to lift his arms, and I grabbed 

his arms, because I thought he might be trying 

to hit me or something. 

I just grabbed his arms and moved him 

aside, and I said "Get out." I said, "Get out 

of here, 11 or something, and moved him to the 

side, and I went and got Randy Johnsona 

Q. Okay. Did Mr. Paugh say anything to you 

as you were leaving to get Mr. Johnson? 

Ao No. I just took off o 

Q. When did your hard hat fall off? 

A. When he pushed me into the bolter. 

Q. What part of your body hit the bolter? 

A. It would have been my chest. 

Mr. Beckman stated that he found Mr. Johnson within 

5 minutes, and "I told him that John pushed me into the 

bolter, come over there and pushed me into the bolter; 

knocked my hat off." Mr. Johnson then proceeded with him to 

the bolter, shut it off, and told him and Mr. Paugh "I'm 

taking you outside. I can't put up with this stuff underground11 (Tr. 296). Mr. Beckman stated that later, while-he 

and Mr. Paugh were in the shower room, Mr. Paugh said to him 

"You had better tell no lies, or they will fire us both" (Tr. 

297). Mr. Johnson later informed them that he had called 

Mr. Polee and informed them that they were both suspended 

pending an investigation and that he would escort them off 

the property (Tr. 297). Mr. Beckman confirmed that he and 

Mr. Paugh left the mine in their vehicles, and that 

Mr. Johnson followed them both off the mine property in his 

own vehicle (Tr. 298); 

Mr. Beckman confirmed that after he was suspended, he 

was directed to appear at the mine on Friday, March 7, and he 

845 
met that day with management representatives Mr. Gearhart, 

Mr. Polee, Mr. Tenney, and Mr. Bill Pritt. Mr. Beckman 

stated that after telling them what had occurred, he was told 

to go back to work that same day, and he did (Tr. 299). 

Mr. Beckman confirmed that Mr. Paugh was in a fight with 

Mr. Terry Lucas in 1980, and he explained that while moving a 

belt, they exchanged words and Mr. Paugh jumped on Mr. Lucas 

and threw him to the ground, and they wrestled around until 

someone broke it up and told them to "straighten up or youvre 

going to get fired." Nothing further was said about the 

incident, and it was not reported to the foreman because they 

would have been fired CTr. 300). 

Mr. Beckman confirmed that he has never been harassed by 

Mro Johnson, that Mr. Paugh has never complained to him about 

being harassed by Mr. Johnson, and he could not recall 

Mr. Paugh raising any safety complaints during any of the 

Monday safety meetings CTr. 301). 

On cross-examination, Mr. Beckman confirmed that 

Mro Sisler was filling in for Mr. Prinkey on the crew during 

the week in question, and he explained the work procedures 

and confirmed that for the 3 days during the week in question, Mr. Paugh seemed to be working slower than him (Tr. 

301-306). He also explained the procedure for "spotting" and 

checking the bolting pattern, and confirmed that he wasn't 

too happy with the manner in which Mr. Paugh was helping him 

on the day in question (Tr. 308, 309-312). 

Mr. Beckman confirmed that he complained a lot to 

Mr. Johnson and Mr. Polee about Mr. Paugh (Tr. 314). 

Mr. Beckman confirmed that he told Mr. Johnson that Mr. Paugh 

had pushed him against the bolter, but that he could have 

said that a "big hit on the back pushed me in" (Tr. 316). He 

also confirmed that he told the management team at the Friday 

meeting that Mr. Paugh "either hit me or pushed me in the 

back or something and knocked me into the bolter" (Tr. 318). 

Mr. Beckman confirmed that Mr. Paugh did not "strike him" and 

that they did not exchange blows. When asked whether they 

were in "a fight," he responded "No. I turned around and 

grabbed his hands because I didn't know if he was going to or 

not. I just grabbed his hands to try and protect myself" 

(Tr. 323). 

Mr. Beckman stated that after he was suspended, 

Mr. Prinkey and other miners told him that he too would end 

up being fired, and that they harassed him because "I went 

and told on him for pushing me into the bolter." He stated 

846 
further that the other miners "thought I ought to try to 

handle it underground and just left it go, • • • and a lot of 

them was ••• angry about it, and they gave me a rough time 

over it" (Tr. 320-321). As a result of this, he spoke with 

Mr. Gearhart a week or so later about it, and Mr. Gearhart 

stated to his (Beckman's) wife that "they can tell us who to 

hire, but they can't tell us who to fire," and that 

Mr. Beckman then told Mr. Prinkey about Mr. Gearhart's 

comment (Tr. 322). 

Earl R. Sisler, confirmed that on March 5, 1986, he was 

working as a rib bolter installing rib boards ·on the same 

crew with Mr. Paugh and Mr. Beckman. Mr. Sisler confirmed 

that Mr. Polee advised the crew at the start of work on the 

new section that they would have to drive their own cars to 

work if they had to work overtime. Mr0 Sisler said that 

Mr. Paugh stated to him on Monday or Tuesday evening of the 

week in question that "if he had to drive the car by himself, 

that he would work the overtime to get gas money" (Tr. 

329-330). Mr. Sisler confirmed that the crew had to work 

overtime on Tuesday, March 4, because "things slowed down u 00 

but he did not complain to Mr. Johnson (Tr 9;. 332) o He confirmed that a few times, Mr. Beckman had his bolting work 

done, and the crew had to wait for Mr. Paugh to finish his 

bolting (Tr. 331). Mr. Sisler confirmed that Mr. Beckman 

complained to Mr. Johnson abo'ut Mr. Paugh' s bolting, and he 

observed the three of them in a conversation on the day in 

question, but he could not hear what was said. After 

Mr. Johnson left the area, Mr. Paugh came around to 

Mr. Beckman's side of the machine, past Mr. Sisler at a pace 

"more than normal," and commented to him that "Harry's a damn 

cry baby" (Tr. 335). Mr. Sisler further explained (Tr. 

335-336): 

JUDGE KOUTRAS: But when Mr. Paugh came around 

the back of the machine and made the comment 

to you about Harry being a cry baby, what was 

his demeanor? I mean, was he angry1 was he 

mad? was he running towards Mr. --

THE WITNESS: He was upset. 

JUDGE KOUTRAS: He was upset. What made you 

believe he was upset? 

THE WITNESS: Well, just prior to that, when 

they were up at the front of the bolter, the 

talking -- like I say, you could look up there 

847 
and see 

boss. 

like John was talking back to the 

Mr. Sisler stated that he saw no punches thrown, and 

that he could only see Mr. Paugh and Mr. Beckman from the 

waist up over the machine, and that there was approximately 

3 feet between the machine and the rib. Mr. Sisler confirmed 

that he did not see Mr. Paugh push Mr. Beckman, and when 

asked to account for Mr. Beckman's hat flying off, Mr. Sisler 

responded "he had to be pushed into the controls or Harry 

flinched." Mr. Sisler did not see Mr. Beckman go against the 

machine, and stated "all I saw was his hat came off v and then 

Harry turned and tried to secure John's arms," and he saw 

that Mr. Beckman had Mr. Paugh by the wrists against the rib 

(Tr. 337-341). 

Mr. Sisler believed that Mr. Paugh had no reason to go 

to Mr. Beckman's side of the machine, and that if he wished 

to speak with him over the noise, he could have shut the 

machine off, or talked across the machine (Tro 343)" 

Mr. Sisler confirmed that he made no attempt to stop 

Mr. Paugh as he proceeded by himu because he didn 1 t want to 

get involved, and he stated that "there was· an indication 

• that something was going to happen" (Tr. 344). 

Mr. Johnson returned with Mr. Beckman within 3 or 4 minutes, 

and took them both out of the section (Tr. 345). 

Mr. Sisler confirmed that he had worked for Mr. Johnson 

about 3 months, and had no safety complaints about him. He 

never previously observed Mr. Johnson harass Mr. Paugh, nor 

had he observed them arguing or exchanging words (Tr. 346). 

Mr. Sisler confirmed that he was interviewed by Mr. Gearhart, 

Mr. Polee, and Mr. Pritt about the incident in question, and 

told them his version of the event as testified to during the 

instant hearing (Tr. 349). 

On cross-examination, Mr. Sisler explained the work 

performed during the period in question, and confirmed that 

the crew worked an hour overtime on Tuesday because they were 

behind and within one row of bolts of finishing the cut. He 

also explained the measuring of the cuts, and the bolting 

sequence which was followed (Tr. 353-359). 

Mr. Sisler confirmed that while he initiated no discussion with Mr. Terry Lucas over the fighting incident because 

he did not believe it-was any of his business, Mr. Lucas 

"might have mentioned it." When Mr. Lucas asked him whether 

any punches had been thrown, Mr. Sisler said 11 1 just said 

yeah, because I didn't, you know, want to get involved." 

848 
Mr. Sisler confirmed that he did not actually see Mr. Beckman 

punching Mr. Paugh (Tr. 361). When asked why Mr. Lucas would 

testify that he did make such a statement, Mr. Sisler said 

"He probably really thought I meant it1 • • • There was 

nothing to it. It was just more or less a joke, you know. I 

didn't want to get involved in it. I didn't want to say 

nothing in the respect that it would get anybody else in 

trouble" (Tr. 363). 

When asked what he meant by the term "flinched u '~ 

Mr. Sisler explained as follows (Tr. 364)~ 

A. Well, if you get your back to someone and 

somebody comes up on you that you donvt know 

is about Cindicatinglu it would scare you, you 

know& Itvs out of the blueu you know~ you're 

not ready for it. 

Q. Are you saying you saw Mr. Beckman move 

and his hat fly of, and then you saw-him turn 

around? 

A. True. 

Q. And then, you saw him get Mr. Paugh's 

arms? 

A. True. 

Section Foreman Carl Randall Johnson confirmed that he 

was suspended 2 or 3 years ago without pay for a week for 

making a temporary splice on a shuttle car cable, and for 

allowing men to roof bolt without a TRS system on the bolter 

(Tr. 6). Mr. Johnson confirmed that he was the section 

foreman on March 5, 1986, and that Mr. Paugh and Mr. Beckman 

were the roof bolters, and Mr. Sisler was the rib bolter. 

The crew was advised by mine foreman Steve Polee on Monday, 

March 3, that they would have to drive their own cars to work 

if they were behind more than 2-1/2 cuts in their work and 

had to stay and work overtime (Tr. 9). Mr. Johnson confirmed 

that the crew worked 1 hour overtime on Tuesday, March 2, 

because it got behind (Tr. 10). Mr. Beckman told him that 

overtime resulted from Mr. Paugh's "dragging his feet," and 

Mr. Johnson took this to mean that Mr. Paugh was slowing up 

in putting in roof bolts CTr. 12). 

Mr. Johnson stated that on Wednesday, March 5, Mr. Polee 

told him that Mr. Beckman had complained to him about 

Mr. Paugh's "foot dragging," and instructed him to "keep an 

849 
eye on the bolters." Mr. Johnson went underground to tell 

Mr. Paugh that he was going to move the fan, and while he was 

there Mr. Beckman informed him that Mr. Paugh was putting in 

too many bolts and "dragging his feet." Mr. Johnson observed 

that Mr. Paugh was installing bolts in a three-bolt pattern, 

rather than the normal two-bolt pattern and asked him about 

it. Mr. Paugh responded to Mr. Johnson "You cover your ass, 

and I will cover mine." Mr. Johnson then told Mr. Paugh "if 

you need to put them in skin to skin, put them in skin to 

skin.n Mr. Paugh told Mr. Johnson that the place he was bolting was too wide and needed an extra bolt, and Mr. Johnson 

took measurements and found that it was 1 foot wider than the 

customary 16 foot width. Mr. Johnson sensed there was friction between Mr. Paugh and Mr. Beckmanq and left to move the 

fan (Tr. 14-18). Mr. Paugh accused Mr. Johnson of holding up 

the crew and stated "It ain't none of us" (Tr. 14-18, 21). 

Mr. Johnson stated that while he was moving the fan~ 

Mr. Beckman appeared and said "John hit mevou and he 19was 

emotionally shook up" and was "near to cryingvu (Tr. 19). 

Mr. Johnson took Mr. Beckman back to the bolter and asked 

Mr. Paugh whether he had hit Mr. Beckman and whether he had 

been on his side of the bolter. Mr. Paugh admitted that he 

went around the bolter to speak with Mr. Beckman, but denied 

that he had hit him, and gave no further explanation. Based 

on Mr. Beckman's account of the incident, Mr. Johnson concluded that he and Mr. Paugh had been fighting (Tr. 21). 

Mr. Johnson took them out of the mine and telephoned foreman 

Polee and informed him that they had been fighting underground. Mr. Polee instructed Mr. Johnson to inform them that 

they were both suspended, and to escort them off the mine, 

and that a company representative would contact them. 

Mr. Johnson informed Mr. Paugh and Mr. Beckman that they were 

suspended and he escorted them off the property in their 

vehicles (Tr. 22-26). 

Mr. Johnson confirmed that he was interviewed about the 

fighting incident by mine management officials Gearhart, 

Pritt, and Tenney on Friday, March 7, 1986, and that he told 

them that Mr. Beckman and Mr. Paugh had been fighting underground. Mr. Paugh and Mr. Beckman were not present during 

the interview, and Mr. Johnson did not discuss whether or not 

they should be discharged (Tr. 28). Mr. Johnson did not know 

who made the discharge decision, but speculated that it was 

Mr. Polee or the other officials (Tr. 41). 

Mr. Johnson confirmed that Mr. Paugh was a good worker, 

and that he did his work on his own without being told. 

Mr. Johnson denied that he ever harassed Mr. Paugh or asked 

850 
him or any other crew members to return to work before their 

normal 30-minute lunch break ended. Mr. Johnson also denied 

assigning Mr. Paugh anymore work than anyone else was 

required to perform (Tr. 29). 

Mr. Johnson confirmed that Mr. Paugh was concerned about 

maintaining the ventilation over his roof bolter, but denied 

that Mr. Paugh had ever made any safety complaints or that he 

had ever disciplined him for raising the ventilation issue 

(Tr. 33}. Mr. Johnson stated that on one occasion Mr. Paugh 

became angry and threatened to hit him, and 11 I told him, if 

he wanted to hit me, to go ahead and hit me" (Tr. 34). 

Mr. Johnson could not recall any details of the incident. 

Mr. Johnson stated that on another occasion, he was angry 

with Mr. Paugh because of his failure to advise him that his 

bolter needed repairing before going to lunch (Tr. 30-31). 

Mr. Johnson stated that while it was possible that he 

made a statement to Mr. Wolfe that his job was easier since 

Mr. Paugh 1 s departure, he could not recall making the statement. Mr. Johnson stated further that during the conversation with Mr. Wolfe, Mr. Wolfe made the staLement that the 

issue concerning Mr. Paugh's discharge "was not over yet,~ 

and that "If you are going to get the company, you've got to 

get them on a safety violation. This is the way you've got 

to get th~m" CTr. 35). 

Mr. Johnson denied that he has ever ordered anyone to 

work under unsupported roof. He confirmed that he has 

observed men doing this but has called them back. If any 

place needed to be scooped out under unsupported roof, he 

would do the job himself rather than have someone else do it 

(Tr. 40}. 

On cross-examination, Mr. Johnson confirmed that his 

prior suspension occurred in approximately March, 1984, and 

he did not know who had reported him to management. He also 

confirmed that the incident concerning Mr. Paugh's failure to 

notify him that his bolter needed repairs, and Mr. Paugh's 

threats to hit him occurred prior to his suspension. With 

regards to Mr. Paugh's prior threat, Mr. Johnson confirmed 

that he could tell by Mr. Paugh's demeanor that he was angry, 

and that his threat was only verbal. Mr. Johnson stated that 

he is larger in statute {5 foot 9 and weighs 260) than 

Mr. Paugh and could take care of himself, but denied that he 

was afraid of Mr. Paugh or would strike back if Mr. Paugh 

attempted to strike him (Tr. 41-48). 

851 
Mr. Johnson confirmed that during the time Mr. Paugh 

worked on his section he was transferred off several times 

during pillaring work when the bolters were assigned to other 

sections where bolting was required to be done. Mr. Johnson 

denied that Mr. Paugh was ever transferred off his section by 

Mr. Polee because he and Mr. Paugh could not get along (Tr. 

48-49). Mr. Johnson denied that he had ever ordered Mr. Paugh 

to rock dust, shovel the feeder, or hang ventilation curtain 

before his lunch break was over (Tr. 49-52)0 

Mr. Johnson stated that he was not aware of any complaints made about him to Mr. Polee by Mr. Paugh. Howeveru 

he was aware of an incident when the bolter was down, and 

Mr. Polee discussed it with Mr. Paugh and Mr. Beckman (Tro 

53-54). Mr. Johnson stated that Mro Beckman and Mr. Sisler 

complained to him on Tuesday, March 4 6 about Mr. Paughus 

"foot dragging," and that Mr. Beckman complained to Mr. Polee 

about it (Tr. 58-61). 

Mr. Johnson stated that when Mr. Beckman told him that 

Mr. Paugh had hit him, he did not state that Mr. Paugh had 

pushed him into the boltero Mr. Johnson conceded that at 

that time he knew that there was a company policy against 

fighting, and that it was an offense for which one could be 

discharged. However, he denied that the incident in question 

presented him with "a golden opportunity" to get Mr. Paugh 

fired (Tr. 75). Mr. Johnson could not recall whether he told 

the management disciplinary committee that Mr. Paugh denied 

hitting Mr. Beckman. He did tell them that Mr. Beckman 

stated that Mr. Paugh had hit him, and that Mr. Paugh claimed 

he laid his hand on his shoulder (Tr. 87). 

In response to further questions, Mr. Johnson stated 

that Mr. Paugh "was a quiet person," but he has seen him 

upset. He denied that he and Mr. Paugh were constantly 

bickering or arguing over the lack of air over the bolter. 

He denied that Mr. Paugh complained about this, but admitted 

that he knew it was "a sore spot" with him because he had 

trouble with Mr. Paugh because he would not help move the fan. 

The fan weighed 600 pounds, and it was everyone's job to 

maintain the ventilation. However, there were times when 

Mr. Paugh was bolting and was not aware that the fan was down 

or being moved, and in such instances Mr. Johnson did not 

expect Mr. Paugh to continue bolting, but did expect him to 

help move the fan and restore the ventilation. Mr. Johnson 

stated that Mr. Paugh·would know when its time to move the 

fan "when I let him know" (Tr. 99). 

852 
Mr. Johnson denied that he harassed Mr. Paugh, or that 

he assigned him other work when he was through bolting as a 

means of harassing him (Tr. 100). Mr. Johnson confirmed that 

on occasion when Mr. Paugh's bolting crew was caught up with 

its work, he would assign all of the crew to rock dust or 

whatever needed to be done, and he treated all of them 

equally (Tr. 106). Mr. Paugh did what was asked of him, and 

did not complain (Tr. 101). 

Mr. Johnson confirmed that when Mr. Beckman told him 

that he had been hit by Mr. Paugh, he did not ask him where 

he was hit, and while he saw no physical evidence or bruises 17 

Mr. Beckman was "emotionally upset" (Tr. 103)$ 

Mr. Johnson stated that during the 2 or 3 years that 

Mr. Paugh worked for him, they "got along fairly well, 11 and 

he considered Mr. Paugh to be "a better than decent worker 

who never said much" (Tr. 104). If Mr. Paugh complained 

about not being advised that the fan was being moved, or the 

lack of air over the fan~ he complained to the "hourly men 10 

and not to him (Tro 105)0 Mro Johnson had no knowledge of 

any complaints by Mr. Paugh to any MSHA inspectors (Tr. 105)0 

General Mine Foreman Steven B. Polee confirmed that on 

March 5, 1986, Mr. Johnson was Mr. Paugh's section foreman. 

Mr. Polee also confirmed that as mine foreman, his duties 

included taking care of personnel problems, and that 

Mr. Johnson and the other section foremen reported to him and 

reported any problems with their men to him CTr. 107-110). 

Mr. Polee confirmed that he met with the roof bolters 

and section foremen when the new K-8 section was begun during 

the week of March 3, 1986, and advised them that they had to 

arrange their own individual transportation to work because 

of the work requirements on the section (Tr. 110-111). 

Mr. Polee confirmed Mr. Johnson's shift worked 1 hour overtime on Tuesday, March 4, and that on Wednesday, March 5, 

Mr. Beckman told him that Mr. Paugh was intentionally "dragging his feet" and slowing down the roof bolting so that he 

would be "getting overtime for riding by himself." Mr. Polee 

stated that he then called Mr. Johnson to his office and 

instructed him to keep an eye on the bolting crew, and if 

there was a problem to try and straighten it out (Tr. 112). 

Mr. Polee stated that he received a telephone call at 

his home on March 5, after arriving from work, and Mr. Johnson 

informed him that he had a problem with Mr. Paugh and 

Mr. Beckman in that they were fighting underground. Since 

fighting underground is against company policy for safety 

853 
reasons, Mr. Polee instructed Mr. Johnson to suspend Mr. Paugh 

and Mr. Beckman until further notice and to escort them off 

the property CTr. 113). The next day, Mr. Polee informed 

personnel manager Gearhart and mine superintendent Pritt about 

what had happened, and Mr. Polee went underground to the area 

which had been mined the evening before, and measured the 

widths of the places and found them to be 17 feet wide with 

good top. Mr. Polee confirmed that he told Mr. Pritt and 

Mr. Tenney that Mr. Paugh and Mr. Beckman were fighting under= 

ground, and a meeting was arranged for Friday, March 7!/ "to 

get to the root of the problem" (Tr. 115)0 

Mr. Polee stated that he and Mr. Gearhart, Mro Prittf/ 

and Mr. Tenney met on Friday, and interviewed Mr. Johnsonv 

Mr. Paugh, Mr. Beckman, and Mr. Sisler individually and out 

of each other's presence. The decision to discharge 

Mr. Paugh for fighting underground was a collective decision 

made on Friday by all of the management officials who did the 

interviewing, and Mr. Polee informed Mr. Paugh of the dee 

sion the following Monday, March lOu 1986-(Tro 116-118)0 

Mr. Polee stated that he could not recall what was said 

during the interviews because Mr. Gearhart was taking notes, 

and he (Polee) made no notes. Mr. Polee could not recall 

what Mr. Paugh said in his defense, and that "the one that 

sticks out in my mind the most was Earl Sisler." Mr. Polee 

stated that Mr. Sisler's version of the incident was as 

follows (Tr. 116-117): 

A. He told me about John Paugh leaving the 

right-hand side of his bolting machine and 

coming around the back of the bolter, and he 

said he was tired of the cry baby, bastard, or 

something, referring to Harry Beckman, and 

went on Harry Beckman's side of the bolter. 

And Earl said whenever he looked up, that 

Harry's hat was knocked off, and he seen Harry 

turn around and, like, stop John Paugh from 

further attacking him, or whatever. And he 

seen Harry leave the roof bolting machine and 

go get Randy Johnson. 

Mr. Polee stated that the only other reported fight at 

the mine which he was aware of concerned an argument which 

resulted in one miner·swinging his dinner bucket at another 

miner, but the matter was resolved without further action 

after the miner who swung the bucket resigned his job (Tre 

118). Mr. Polee confirmed that in the event of a fight, only 

854 
the aggressor would be fired, even if its the first offense, 

and the punishment for fighting is dismissal rather than a 

warning or a suspension CTr. 120). 

Mr. Polee stated that Mr. Paugh was a good worker "when 

he didn't want to drag his feet for certain reasons or take 

his time when it wasn't needed to be taken. 11 He denied that 

Mr. Paugh had ever made complaints to him, or that he discussed the matter of lack of air over his bolter numerous 

times. On one occasion when he was underground and found 

that the bolter was shutdown, he asked Mr. Paugh about itv 

and Mr. Paugh informed him that the fan was down. When 

Mr. Polee proceeded to test the air with his anemometeru 

Mr. Paugh remarked "What are you getting all huffy abouto uo 

However, the fan came on again, and that ended the matter 

(Tr. 121-122). 

Mr. Polee confirmed that Mr. Paugh has been transferred 

from and back to Mr. Johnson's section, and that it is a 

normal practice to reassign bolters to other crews" Mro Polee 

denied that he ever transferred Mr. Paugh because he could not 

get along with Mr. Johnson (Tr. 123, 125)., ·; 

Mr. Polee stated that he has worked with Mr. Johnson for 

8 years, visits his section every day if possible, and he 

considers him to be one of his best foreman in terms of 

safety, production, and cleanup of his section (Tr. 126). 

Mr. Polee has no knowledge of Mr. Johnson ever harassing 

Mr. Paugh, and confirmed that Mr. Paugh never discussed 

Mr. Johnson with him (Tr. 127). 

On cross-examination, Mr. Polee confirmed that he was 

aware of Mr. Johnson's prior suspension, had no knowledge 

that he ever scooped under unsupported roof, and notwithstanding his prior suspension for a safety infraction, he still 

considers Mr. Johnson "one of my best foremen all around for 

his performance of what he does" (Tr. 128). 

Mr. Polee confirmed that he was aware of the two prior 

incidents concerning Mr. Johnson and Mr. Paugh with regard to 

the bolter which needed repairs and Mr. Paugh's reported 

threat to hit Mr. Johnson. Mr. Polee also confirmed that he 

was aware of the prior discussions between Mr. Paugh and 

Mr. Johnson concerning Mr. Paugh's insistence for air over 

his bolter, and while he could not state whether they had 

more than one discussion, Mr. Polee stated "I remember the 

talk that there was a problem there 11 (Tr. 129). Mr. Polee 

855 
also confirmed that he had heard that Mr. Paugh made a statement during the week of March 3, that if he had to work overtime, he would make sure he got enough to pay for his gas, 

because of having to drive by himself to work (Tr. 131). 

Mr. Polee confirmed that the collective decision to discharge Mr. Paugh was made ~fter an open discussion by those 

in attendance at the meeting, and the collective conclusion 

was "that it was in the handbooks that for fighting underground it's a discharge" (Tr. 136). Mr. Polee stated that at 

the time of the decision, he was aware of the different versions of the incident, including the assertion that Mr. Paugh 

hit Mr. Beckman, that Mr. Paugh had pushed Mr. Beckman into 

the bolter, and Mr. Paugh's denial that he hit MrQ Beckmanu 

and simply went around the bolter to talk to him and placed 

his hand on Mr. Beck.man's shoulder. He also recalled 

Mr. Beckman's statement that Mr. Paugh pushed him into the 

bolting machine while he was tramming it and that it knocked 

his hard hat off, and Mro Sisler's statement that MrQ Beckmanvs 

hat was knocked off, and that he more or iess turned around to 

protect himself by grabbing Mro Paugh's arms. MrQ Polee stated 

that he saw no difference "if youvre hit from the back or 

pushed from the back (Tr. 137-139), and that "If he was the 

aggressor, come around behind the man and pushed him in the 

back into a bolting machine, as far as I am concerned, that's 

it" (Tr. 150). 

Mr. Polee stated that Mr. Beckman was not discharged 

because it was concluded that he was not the aggressor, and 

he denied that Mr. Beck.man's complaint that Mr. Paugh was 

"dragging his feet" influenced his decisio.n in this regard 

(Tr. 142). Mr. Polee admitted that he was aware that 

Mr. Paugh had in the past drilled more test holes than were 

necessary or installed additional support into good top that 

was unnecessary, and that he confirmed this during his visits 

to the section. He conceded that it is the roof bolter's 

responsibility to make sure the roof where he is wo~king is 

safe and that he installs enough bolts to make it safe (Tr. 

144). He also confirmed that Mr. Johnson "probably" told him 

that Mr. Paugh may have gotten behind in his work at times, 

and Mr. Polee has observed that Mr. Paugh would at times get 

behind the other bolter, and at other times, he would be ahead 

of the other bolter. However, Mr. Polee could not recall 

discussing this with Mr. Paugh (Tr. 154). 

Mr. Polee confirmed that at the time the decision was 

made to discharge Mr. Paugh, he was unaware of any prior fight 

between Mr. Paugh and Mr. Lucas, and he learned of that incident during the week of the instant hearing (Tr. 146). 

856 
Mr. Polee also confirmed that Mr. Paugh's prior "encounters" 

with Mr. Johnson never came up during the meeting of March 7, 

but that he was aware of them (Tr. 147-148). 

Personnel Director Thomas Gearhart confirmed that the 

respondent's investigation of the incident which resulted in 

Mr. Paugh's discharge was accomplished through interviews on 

Friday, March 7, 1986, conducted by a "management team" consisting of himself, Mr. Polee, Mr. Pritt, and Mr. Tenney. 

The team interviewed Mr. Johnson, Mr. Beckman, Mr. Sisleru 

and Mr. Paugh separately in order to determine the facts, and 

while the question of the spacing of the roof bolts was discussed, Mr. Gearhart confirmed that he was only concerned 

about the fighting incident (Tr. 20-23;167-168)0 

Mr. Gearhart stated that Mr. Paugh's version of the incident was that he simply walked around the bolter, past 

Mr. Sisler, laid his hand on Mr. Beckman's shoulder and asked 

him "Why are you mad?" Mr. Beckman's version was that while 

at the controls of the bolter which he was tramming /1 81 ! was 

either pushed or hit from the back. I don't know~ It was 

behind me. And the next thing I knew, I was into the bolterv 

and I turned around and grabbed John Paugh's hands to 

restrain him. I grabbed his arms, went by him, and got the 

foreman" (Tr. 169). 

Mr. Gearhart stated that Mr. Johnson stated that prior 

to the incident Mr. Beckman had complained to him "about John 

dragging his feet and the bolt spacing, the test holes," and 

that Mr. Johnson spoke with them and told them they would 

have to get along and to get back to work. Mr. Johnson then 

left the area, and Mr. Beckman came to find him and informed 

Mr. Johnson that Mr. Paugh had hit him. Mr. Johnson returned 

to the bolter with Mr. Beckman, and Mr. Paugh admitted that 

he had been on Mr. Beckman's side of the bolter, but denied 

hitting him (Tr. 170-171). Mr. Gearhart stated that after 

the interviews were completed, the decision was made to discharge Mr. Paugh, and he stated as follows <Tr. 171): 

A. Okay. Then, we, in turn, decided if, in 

fact there was a fight, based on the information that we had gathered from the people that 

we interviewed. And we established the fact 

that, yes, there was a fight; John Paugh was 

the aggressor; and Harry Beckman had handled 

it the way he should, to go get the foreman 

and didn't return any blows -- went to get the 

foreman, reported it. 

857 
Mr. Gearhart confirmed that Mr. Polee called Mr. Paugh 

on March 10, 1986, and informed him of the decision to discharge him. Mr. Gearhart also confirmed that Mr. Paugh 

called him after he was informed of his discharge, and said 

that he had simply laid his hand on Mr. Beckman's shoulder, 

and that he told him this again when he came to the mine to 

pick up his belongings. Mr. Gearhart stated that he informed 

Mr. Paugh that the matter had already been investigated and 

that he did not wish to rehash or discuss it further CTro 

172). Mr. Paugh made no mention of any complaints (Tro 173)0 

Mr. Gearhart confirmed that Mr. Johnson had been suspended for a safety violation, but that Mro Paugh was not on 

his roof bolting crew when this occurredu and raised no concerns about Mr. Johnson (Tr. 181). 

On cross-examination, Mr. Gearhart denied that Mr. Paugh 

was discharged for making safety complaints (Tr. 188). He 

confirmed that during the investigation of the fighting inci= 

dent in questionu he believed Mr. Beckman to be more credible 

than Mr. Paugh, and believed that Mr. Paugh lied when he said 

he went around the bolter simply to speak w1th Mr. Beckman 

(Tr. 191). He considered Mr. Beckman•s statement that he did 

not know whether he was pushed or hit from behind by 

Mr. Paugh, and that he "was either hit or pushed" into the 

bolter (Tr. 194). 

Mr. Gearhart confirmed that he was contacted by a state 

unemployment representative concerning the reason for 

Mr. Paugh's discharge, but denied that the representative 

made any statement to him that the incident as he described 

it did not sound like a fight. Mr. Gearhart stated that he 

told the representative that he did not intend to appear with 

witnesses at any unemployment benefits determination proceeding CTr. ·195). He earlier testified that he could not recall 

the exact words he used in describing the fight, nor could he 

recall stating to the representative that Mr. Paugh "had 

pushed another worker" or that he "had put his hand on 

another worker" (Tr. 24-25). 

Mr. Gearhart confirmed that at the time the decision was 

made to discharge Mr. Paugh, the management team was not 

aware of the prior fight between Mr. Paugh and Mr. Lucas, and 

that this information was provided by Mr. Beckman after 

Mr. Paugh's discharge (Tr. 197-198). Mr. Gearhart also confirmed that Mr. Paugh ·never mentioned anything to management 

about any ventilation problems during his interview, and that 

he was not aware of any complaints made by Mr. Paugh, or any 

problems between Mr. Paugh and Mr. Johnson (Tr. 198, 200). 

858 
Mr. Gearhart stated that the only statement made by Mr. Paugh 

during the interview was that he went around the bolter to 

talk to Mr. Beckman and laid his hand on his shoulder, and 

Mr. Gearhart did not believe him (Tr. 202-203). Mr. Gearhart 

confirmed that the management team discussed Mr. Paugh's 

version of the incident, and did not believe him. The team 

believed Mr. Sisler and Mr. Beckman, and considering all of 

the circumstances, including the fact that Mr. Paugh was 

angry, called Mr. Beckman "cry baby, son of a bitch, or 

bastard, or whatever expletive," and Mr. Beckman 1 s hat flying 

off, the team concluded that a fight had taken place (Tro 204-206>~ 

John Paugh was recalled by the Court, and he confirmed 

that he was not working on Mro Johnsonvs section at the time 

he was suspended for a safety infractionu but that 

Mr. Johnson's suspension was common knowledge at the mine 

(Tr. 213). Mr. Paugh confirmed that he never complained to 

Mr. Gearhart about any problems with Mr. Johnson, but that he 

did inform Mr. Polee that he could not get along with 

Mr. Johnson because he expected him to bolt when the 

curtain or fan were down~ On that occasion, Mro Polee took 

him off Mr. Johnson's section for awhile, and then put him 

back after a layoff, and this was the only time that he was 

reassigned for complaining about Mr. Johnson (Tr. 214). 

With regard to Mr. Johnson assigning him other work to 

do, Mr. Paugh stated as follows (Tr. 216-218): 

Q. Well, let me ask you this. Now, if you 

complained to him or if you would tell him 

that you were not going to do any more bolting 

and you shut your bolter down until they move 

the fan -- let's assume it took a half hour to 

move the fan. Okay? And while your bolter is 

down and while they are moving the fan up, he 

tells you to go over and do something else. 

"Keep occupied until we get the air back." Do 

you see anything wrong with that? 

A. No, not a thing wrong with that. 

Q. Is that the way it happened? 

A. No. I usually helped with moving the fan 

when he didn't tell me to do something else. 

Q. Well, can you give me an example of when 

you complained to him that you didn't want to 

859 
work, for example, in something that you 

thought was unsafe and he put you someplace 

else? Give me a for-instance. 

A. Well, just the one thing, you know, when 

we was on line curtain. They would take the 

curtain down across the heading so the buggies 

could run that way. They would take the 

bolter's air away. 

Q. That took your air away from where you 

bolted? 

A. That's right. 

Q. Then, what would happen? 

A. He would say, "Well, if you don't want to 

bolt," he says, "go do this and do that." And 

I said 8 "Okay." 

Q. Okayo So, that situation, you fel.t that 

you were exposed to some unsafe conditions~ in 

other words, not enough air on the bolting 

section? Is that right? 

A. Yes. It's unsafe. 

Q. In other words, if the ventilation curtain 

is down to accommodate the buggy operators, 

that is going to affect the air where you are 

working on bolting; is that correct? 

A. Yes. 

Q. And you would tell him that? 

A. Yes. 

Q. And he would say, "Okay. You don't have 

to work there~ I'm going to put you doing something else." Is that correct? 

A. That's what he would do, yes. 

Q. Now, is it possible that he assigned you 

to do this other work because he didn't want 

you working there in that dusty atmosphere 

where there wasn't enough air and because you 

860 
didn't want to, or he assigned you to do something else because he was punishing you for 

complaining? 

A. Yes, I would use harassment, not 

punishment. 

Q. You say it's harassment? 

A. Yes. 

Mr. Paugh conceded that other times when the ventilation 

curtain was down and his bolting machine was off during lunch 

break, Mr. Johnson would tell him "Go eat something" (Tro 218)0 

Mr. Paugh stated that over a period of 2 or 2-1/2 yearsv 

Mr. Johnson cut his lunch break short on three or four occasions and assigned him to "unnecessary things" such as rock 

dusting and shoveling the feeder (Tr. 220). When asked 

whether he believed that Mr. Johnson was "deliberately doing 

this to make it tough on you," Mr. Paugh responded "somewhat, 

yes." When asked whether Mr. Johnson would treat other miners 

the same way, Mr. Paugh responded "Just if ·.they would give him 

a hard time on the same thing" (Tr. 220). He testified 

further as follows (Tr. 220-221): 

Q. Could you relate these three (3) or four 

(4) instances to a hard time that you had 

given Randy Johnson? In other words, was 

there a hard time directly connected to him 

cutting your lunch break short to do what you 

have described as unnecessary work? 

A. Yes. A lot of times when the bolter was 

down or there wouldn't be air to it, he 

would --

Q. If the bolter is down and this is your 

regular shift, you would expect to do other 

work; is that right? 

A. That's true. 

Q. I'm talking about lunch break, your lunch 

break being cut short. 

A. I've seen him before walk past the curtain 

that was down and come up and get me off the 

tool car at lunch time to go put the curtain 

back up. 

861 
Q. All right. Any other incidents where he 

got you off your lunch break to do something? 

A. A lot of times, if he was wanting the 

section rock dusted quick, yes, he would. 

Q. You say, "A lot of times." You earlier 

said three or four (4) occasions this happenedo 

A. Well, yeah. At lunch time, it would be a 

couple of times. 

Complainant's Arguments 

During oral arguments on the record at the hearing in 

opposition to the respondent's motion to dismiss the complaint 

(which was denied), and in support of his argument that a 

prima facie case of discrimination has been establishedg 

Mr. Paugh's counsel asserted that while there is no evidence 

that Mr. Paugh consistently insisted on doing his job safely 

during the entire 6 years of his employment.with the respondent, he has established this fact for at least the 2 years 

immediately preceding his suspension and subsequent discharge 

on March 10, 1986 (Tr. 172-173). Counsel argued further that 

during this 2-year period, there were "bad feelings" and 

hostility between Mr. Paugh and his foreman Randy Johnson, 

probably rooted in the incident concerning a roof bolter which 

had not been repaired and the failure to promptly report this 

to Mr. Johnson. Counsel argued further that during this time 

Mr. Paugh had insisted on complying with safety regulations, 

particularly with respect to the amount of available air ventilation over his roof-bolting machine, and that there were many 

"discussions and arguments" between Mr. Paugh and Mr. Johnson 

over this issue (Tr. 170). 

Counsel conceded that apart from the arguments with his 

foreman over the lack of air for the roof-bolting machine, 

there is no evidence of any harassment against Mr. Paugh. 

However, given the hostility by Mr. Johnson as evidenced by 

the "shouting matches" which resulted from Mr. Paugh's insistence that he have adequate ventilation, and coupled with the 

fact that Mr. Johnson "despised" Mr. Paugh, and stated to 

Mr. Wolfe that "things go a lot easier" after Mr. Paugh's 

discharge, counsel concluded that he has established a prima 

facie case of a discriminatory discharge (Tr. 175). 

In his posthearing brief, counsel asserts that 

Mr. Paugh's protected activity was his compliance with safety 

862 
regulations1 namely, his refusal to continue bolting when 

there was insufficient air over his bolter, his insistence on 

installing a sufficient number of roof bolts to secure the 

roof in his work area, and his refusal to work under unsupported roof. Counsel maintains that all of these safety concerns were communication by Mr. Paugh to his foreman Randy 

Johnson. 

Counsel concludes that considering all of the evidence 

in this case, it is clear that the respondent seized upon the 

appearance of an altercation between Mr. Paugh and Mr. Beckman 

on March 5, 1986, as an excuse for discharging Mr. Paugh. In 

support of this suggested pretexual discharge, counsel relies 

on a statement filed by Personnel Director Gearhart with the 

MSHA investigator who investigated Mr. Paugh's complaint, in 

which Mr. Gearhart makes reference to "a credible allegation" 

by Mr. Beckman that Mr. Paugh "had also started a fight with 

another employee four or five years ago" (exhibit C-4~ the 

Lucas incident)o Since that prior incident was not known to 

the management team when it made its decision to discharge 

Mr. Paugh, counsel concludes that the respondent made it 

appear that Mr. Paugh had a history of fighting, and that it 

did so to support its pretexual decision to discharge Mr. Paugh 

for purportedly fighting underground with Mr. Beckman. 

Counsel maintains that the preponderance of the evidence 

in this case proves that Mr. Paugh had engaged in protected 

activity, and that his discharge was motivated by that 

activity. Counsel further concludes that the evidence does 

not demonstrate that the respondent would have taken any 

adverse action against Mr. Paugh in any event for his unprotected activities alone. 

Respondent's Arguments 

The respondent argues that Mr. Paugh has failed to establish a prima facie case of discrimination because he did not 

engage in protected activity and, in any event, could not 

link that protected activity to any improper motive by the 

respondent. Respondent suggests that Mr. Paugh's entire case 

rests on nothing more than "fantastical allegations" of 

harassment, insufficient to sustain his ultimate burden of 

proof. Moreover, even if Mr. Paugh's testimony were credited 

such that he were able to prove a prima facie case of discrimination, respondent argues that it could successfully defend 

against such a prima facie case because substantial evidence 

in the record shows that Mr. Paugh was fired for one reason 

863 
wholly unrelated to any protected activity -- fighting underground in contravention of company rules. Respondent concludes that firing an employee for a severe infraction of the 

company rules does not amount to illegal discrimination under 

the Act. 

Respondent asserts that despite the vague allegations in 

his complaint, the record shows that Mr. Paugh did not make 

any protected safety complaintso With regard to Mro Paugh's 

alleged ongoing complaints of insufficient ventilation at the 

working face, respondent maintains that the record demonstrates that he failed to make these complaints to the respondent 1 s personnel, and never mentioned any safety related 

issues to personnel director Gearhart. And, despite 

Mr. Paugh's allegations that he constantly complained about 

safety, he never made safety complaints at the weekly safety 

meetings. Respondent, therefore, concludes that uncommunicated safety complaints do not constitute activity protected 

under the Act. 

Respondent maintains that Mro Paughus March 5, 1986v 

comment to foreman Randy Johnson about spacing between the 

roof bolts did not constitute a protected safety complaint in 

that Mr. Paugh made the comment solely to "justify" the dilatory escapade in which he engaged, not to ensure a safe roof, 

but rather to ensure that he would be asked to work overtime 

for which he would be handsomely compensated. Respondent 

concludes that the Act was not meant to protect such pretextual and malicious conduct. 

With regard to Mr. Paugh's asserted work refusal for 

safety reasons, respondent asserts that the Act only protects 

miners who refuse to work under conditions which they reasonably believe in good faith to be unsafe or unhealthful. 

Although recognizing that a miner may engage in affirmative 

self-help and refuse to work, respondent maintains that this 

may only be justified where the refusal is based on a reasonable, good faith belief that such affirmative action is 

necessary. 

Respondent maintains that Mr. Paugh's action in first 

shutting off the bolter and subsequently protesting to mine 

foreman Polee that ventilation had subsided constitutes the 

kind of unreasonable affirmative self-help against which the 

Act was not meant to protect. Respondent asserts that 

Mr. Paugh's belief incthe existence of a hazard -- lack of 

ventilation -- was not reasonable. Even though the fan shut 

down for a short time, Mr. Polee measured the air current 

over the bolter as well over the minimum requirement of 

864 
3,000 cfm. The mere fact that the fan did not operate for 

several minutes did not render Mr. Paugh's belief a reasonable 

one, because the required air current of 3,000 cfm could still 

have been maintained even though the fan on the section was 

not working. 

Respondent asserts that Mr. Paugh's self-help in shutting 

off the bolter was an unreasonable and excessive approach to 

the hazard he perceived because it prevented the other roof 

bolter and the rib bolter from performing their work even 

though the area was well-ventilatede Respondent believes that 

Mr. Paugh would have behaved reasonably if he had alerted the 

foreman to the ventilation problem he perceived and asked to 

be reassigned to other duties without preventing others from 

proceeding with their work. Under circumstances where mere 

communication and subsequent reassignment would have solved 

the perceived problem, respondent concludes that Mr. Paugh 1 s 

defiant self-help was completely unwarranted. 

Respondent maintains that Mr. Paugh has failed to establish by any credible evidence that he was harassed by the 

respondent because he made numerous safety·.complaints and that 

his testimony in this regard is fraught with inconsistencies, 

contradicts the testimony of other credible witnesses, and 

should not be credited. Respondent maintains that no one 

connected with the respondent was aware of any safety complaints, and section foreman Johnson and personnel director 

Gearhart testified that Mr. Paugh never approached them with 

complaints of any kind. Conceding that Mr. Paugh did discuss 

one perceived ventilation problem with mine foreman Polee when 

Mr. Paugh shut down his bolter, respondent asserts that 

Mr. Paugh's testimony of numerous ventilation complaints to 

Mr. Polee in his office during the 18-months prior to his 

discharge was contradicted by Mr. Polee who testified that he 

never even had an office, and that he was not in his current 

capacity for 18-months prior to Mr. Paugh's discharge. 

Respondent denies that Mr. Johnson harassed Mr. Paugh by 

cutting his lunch hours, or that Mr. Paugh was transferred to 

alleviate any friction between them. Respondent believes that 

if Mr. Paugh were truly harassed, he would have complained to 

Mr. Gearhart, or at least brought it to management's attention 

during its investigation of the fighting incident. Since 

Mr. Johnson played no role in the discharge decision, and was 

in no position to retaliate, respondent cannot reconcile 

Mr. Paugh's silence with regard to his claims of harassment. 

Respondent maintains that the only reason for Mr. Paugh's 

discharge was his fighting underground on mine property in 

865 
violation of company rules, and that management's investigation revealed that Mr. Paugh had been the aggressor. Respondent points out that fighting is an offense for which 

discharge is an appropriate penalty, and that Mr. Paugh was 

fully aware of this fact. Respondent takes the position that 

there is no evidence of any discriminatory motive on its 

part, but acknowledges that indirect circumstantial evidence 

such as knowledge of the protected activity, hostility toward 

the miner because of the protected activity, coincidence in 

time between the protected activity and the adverse actionu 

and disparate treatment of the complaining miner can be used 

to establish discriminatory intent. 

As to the first factor noted above, respondent argues 

that it had no knowledge of Mr. Paugh 1 s asserted protected 

activities. Despite Mr. Paugh 1 s contentions that he routinely 

complained about safety matters, respondent asserts that its 

witnesses categorically denied that Mr. Paugh ever approached 

them directly with safety complaintso 

With regard to the one .instance where Mr. Paugh shut 

down the bolter and discussed the ventilation with Mr. Polee,, 

respondent points out that even assuming that the shutting 

down of the bolter was protected activity, Mr. Polee was the 

only member of management's investigation team aware of this 

incident, and that at the time the decision was made to 

discharge Mr. Paugh the incident was not discussed and played 

no part in the discharge decision. Respondent suggests that 

the only arguable "safety complaint" of which management was 

aware, was Mr. Paugh's "self serving" statement on March 5, 

that the top needed additional bolts, even though everyone 

else believed that the top was sound. 

Respondent views Mr. Paugh's allegations of management 

hostility towards him because of his safety concerns or 

protected activities as "incredible." Respondent argues that 

Mr. Johnson flatly denied any harassment of Mr. Paugh, and 

that other management and hourly personnel saw no evidence of 

any such harassment. Respondent concedes that Mr. Paugh was 

asked to perform other tasks while he was not bolting, but 

maintains that he was treated no differently than any other 

roof bolter. As for any transfers of Mr. Paugh to ease the 

alleged hostility between him and his foreman, respondent 

relies on the testimony of Mr. Polee and Mr. Gearhart that 

company policy dictates against such reassignments for 

personal disputes. 

Respondent argues that even if Mr. Paugh did make safety 

complaints, management dealt with them in a responsible 

866 
manner. Mr. Paugh's "complaint" about the spacing of the 

bolts on March 5, was answered by Mr. Johnson telling him to 

do what he thought was safe. Mr. Polce's response to 

Mr. Paugh's shutting off the bolter and questioning the ventilation with Mr. Polee, was immediately addressed by Mr. Polee 

when he investigated the problem by testing the air. With 

regard to Mr. Paugh's prior encounters with Mr. Johnson when 

he threatened Mr. Johnson, and Mr. Johnson took him to task 

for not promptly reporting the condition of a roof bolter 

which needed repair, respondent points out that Mr. Johnson 

handled these situations responsiblye Finally, respondent 

points out that Mr. Paugh admitted that prior to his dis= 

charge, he was never disciplined by the respondent or by 

Mr. Johnson during the time that he worked for him. 

Respondent concedes that the 11 coincidence of time 11 factor 

is satisfied in this case only with regard to the roof spacing 

incident on March 5, 1986, which occurred 5-days prior to 

Mr. Paugh's discharge. Respondent suggests that there is no 

coincidence in time, however, between Mr •. Paugh's discharge 

and his other alleged safety complaintso 

Finally, respondent argues that there ls no evidence of 

any disparate treatment in the manner in which it handled 

Mr. Paugh's fight with Mr. Beckman. To the contrary, respondent maintains that in making its determination in Mr. Paugh 1 s 

case, it followed the same procedure it had previously used to 

investigate the only other reported case of fighting. In that 

instance, respondent points out that the individual believed 

to be the aggressor was suspended pending the outcome of a 

management investigation, and after a determination was made 

that no fight had occurred, the individual was reinstated. 

With regard to Mr. Paugh's purported prior fight with 

Mr. Lucas, respondent points out that since that incident was 

not reported to management, no investigative or disciplinary 

action was taken. 

Summarizing the aforementioned four indicia of discriminatory intent, respondent takes the position that there is 

little, if any, indirect evidence that it discharged Mr. Paugh 

for engaging in protected activity, and that in view of the 

lack of any nexus between Mr. Paugh's claimed protected activity and the adverse action of discharge, respondent concludes 

that his claim must fail, McClain v. Westmont Coal Coo, 

3 FMSHRC 2603 (November 1981) CALJ Melick). 

Respondent argues that even if Mr. Paugh's discharge 

were motivated in part by any protected activity on his part, 

867 
his unprotected activity was the preeminent cause of his discharge, and the fact uppermost in the minds of management was 

that Mr. Paugh instigated a fight underground. Upon reaching 

this conclusion after investigation, respondent maintains 

that management ref erred to the company handbook which stated 

that fighting underground is a dischargeable offense, and 

that it was on that basis alone that respondent discharged 

Mr. Paugh. Respondent concludes that since such a ."proffered 

business justification is not plainly incredible or implausible, [therefore,] a finding of pretext is inappropriate." 

Chacon, supra, 3 FMSHRC at 2516, and that, terminating a 

miner who subjects others to needless risk of serious injury 

as a result of fighting underground represents a sound 

business practice, not a pretext for discriminationo Seeg 

~-~.,McClain, supra., 3 FMSHRC at 26060 ~-

Respondent asserts further that regardless of Mro Paughus 

protected activity, it would have discharged him anyway for 

violating company rules against fighting, and that such disciplinary actions have been affirmed in instances where it was 

established that a mine operator had "personnel rules or 

practices forbidding the conduct in questionoun Bradley Vo 

Belva Coal Co.u suprav at 4 FMSHRC 982, 993 (1983); Hollis Vo 

Consolidation Coal Company, 6 FMSHRC 21 (January 1981); Dickey 

v. United States Steel Mining Co., 3 FMSHRC 519 (March 1983). 

Findings and Conclusions 

In order to establish a prima facie case of discrimination under section 105(c) of the Mine Act, a complaining miner 

bears the burden of production and proof to establish Cl) that 

he engaged in protected activity and (2) that the adverse 

action complained of was motivated in any part by that activity. Secretary on behalf of Pasula v. Consolidation Coal 

Company, 2 FMSHRC 2768 (1980), rev'd on other grounds sub. 

nom. Consolidation Coal Company v. Marshall, 663 F.2d 1211 C3d 

Cir. 1981); Secretary on behalf of Robinette v. United Castle 

Coal Company, 3 FMSHRC 803 (1981); Secretary on behalf of 

Jenkins v. Hecla-Day Mines Corporation, 6 FMSHRC 1842 Cl984); 

Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 

2508, 2510-2511 (November 1981), rev'd on other grounds sub. 

nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 CD.C. Cir. 

1983). The operator may rebut the prima facie case by showing 

either that no protected activity occurred or that the adverse 

action was in no way motivated by protected activity. If an 

operator cannot rebut-the prima facie case in this manner it 

may nevertheless affirmatively defend by proving that (1) it 

was also motivated by the miner's unprotected activities 

alone. The operator bears the burden of proof with regard to 

868 
the affirmative defense. Haro v. Magma Copper Company, 

4 FMSHRC 1935 (1982). The ultimate burden of persuasion does 

not shift from the complainant. Robinette, supra. See also 

Baich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); and Donovan v. 

Stafford Construction Company, No. 83-1566 D.C. Cir. 

(April 20, 1984) (specifically-approving the Commission's 

Pasula-Robinette test). See also NLRB v. Transportation 

Management Corporation, ~-U.S. ~-' 76 L.ed.2d 667 (1983), 

where the Supreme Court approved the NLRB's virtually identical analysis for discrimination cases arising under the 

National Labor Relations Act. 

Direct evidence of actual discriminatory motive is rareo 

Short of such evidence, illegal motive may be established if 

the facts support a reasonable inference of discriminatory 

intent" Secretary on behalf of Chacon Vo Phelps Dodge Corpou 

3 FMSHRC 2508, 2510-11 (November 198l)u revud on other grounds 

sub !!2!!l• Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 

1983); Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 

(June 1984). As the Eight Circuit analogously stated with 

regard to discrimination cases arising under the National Labor 

Relations Act in NLRB Vo Melrose Processing COou 351 F.2d 693u 

698 (8th Cir. 1965)g 

It would indeed be the unusual case in 

which the link between the discharge and the 

[protected] activity could be supplied exclusively by direct evidence. Intent is subjective and in many cases the discrimination can 

be proven only by the use of circumstantial 

evidence. Furthermore, in analyzing the evidence, circumstantial or direct, the [NLRB] is 

free to draw any reasonable inferences. 

Circumstantial indicia of discriminatory intent by a 

mine operator against a complaining miner include the following: knowledge by the operator of the miner's protected 

activitiesi hostility towards the miner because of his protected activity; coincidence in time between the protected 

activity and the adverse action complained of; and disparate 

treatment of the complaining miner by the operator. 

In Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 (June 

1982), the Commission stated as follows: 

As we emphasized in Pasula, and recently 

re-emphasized in Chacon, the operator must 

prove that it would have disciplined the miner 

anyway for the unprotected activity alone. 

869 
Ordinarily, an operator can attempt to demonstrate this by showing, for example, past 

discipline consistent with that meted out to 

the alleged discriminate, the miner's unsatisfactory past work record, prior warnings to 

the miner, or personnel rules or practices 

forbidding the conduct in question. Our function is not to pass on the wisdom or fairness 

of such asserted business justifications, but 

rather only to determine whether they are credible and, if so, whether they would have motivated the particular operator as claimed. 

(Emphasis added)o 

Mr. Paugh's Protected Activity 

It is clear that Mr. Paugh had an absolute right to make 

safety complaints about mine conditions which he believed 

presented a hazard to his health or well-being, and that under 

the Act, these complaints are protected activities which may 

not be the motivation by mine management for any adverse personnel action against him; Secretary of Labor ex relo Pasula 

Vo Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), revud 

on other grounds sub ~· Consolidation Coal Co. v. Marshall, 

663 F.2d 1211 C3d Cir. 1981), and Secretary of Labor ex rel. 

Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981). 

Safety complaints to mine management or to a section foreman 

constitutes protected activity, Baker v. Interior Board of 

Mine Operations Appeals, 595 F.2d 746 CD.C. Cir. 1978); 

Chacon, supra. However, the miner's safety complaints must be 

made with reasonable promptness and in good faith, and be 

communicated to mine management, MSHA ex rel. Michael J. 

Dunmire and James Estle v. Northern Coal Company, 4 FMSHRC 126 

(February 1982); Miller v. FMSHRC, 687 F.2d 194, 195-96 

C7th Cir. 1982); Sammons v. Mine Services Co., 6 FMSHRC 1391 

(June 1984). 

The fact that a mine operator addresses a miner's safety 

concerns or complaints, and which are later determined not 

constitute violations, or the fact that the complaining miner 

filed no safety complaints with any governmental enforcement 

agencies, does not remove the Act's protection from any preceding complaints, Sammons v. Mine Services Company, supra, 

at 6 FMSHRC 1396-97. 

In this case, there is no evidence that Mr. Paugh has 

ever made any verbal or written safety complaints to any MSHA 

or state mine inspectors. Respondent's assertions that 

Mr. Paugh has not established that he made safety complaints 

870 
to mine management are not well taken, and they are rejected. 

While it may be true that Mr. Paugh may not have articulated 

any safety complaints to his foreman Randy Johnson in any 

formalized way, it seems clear to me that his concern over the 

lack of adequate ventilation when the fan was being moved 

resulted in Mr. Paugh's refusal to continue bolting until the 

air was restored, and that this was communicated to 

Mr. Johnson. Notwithstanding Mr. Johnson's denials that 

Mr. Paugh ever complained to him, Mr. Johnson admitted that 

Mr. Paugh was concerned about the lack of adequate air coursing over his bolting machine while the fan was being moved, 

and knew that this subject "was a sore spot" with Mr. Paugh. 

Mr. Smith, Mr. Prinkey, and Mr. Wolfe all corroborated 

the fact that Mr. Paugh was concerned about the lack of air 

over his bolting machine, communicated his concern to 

Mr. Johnson, and refused to continue bolting until the air 

was restored. Mr. Smith testified that Mr. Paugh complained 

often to Mr. Johnson about this matter, and Mr. Prinkey testified that Mro Johnson became upset over Mr. Paugh's reluctance 

to bolt with no air over his bolter. Although mine foreman 

Polee denied any frequent complaints by Mr~. Paugh with regard 

to the lack of air over his bolter, he did admit to one 

encounter with Mr. Paugh when he found that Mr. Paugh had shut 

down his bolter because of what he believed to be a lack of 

adequate ventilation, and this incident resulted in a discussion between the two of them over this issue. Although the 

matter may have been quickly resolved after Mr. Polee tested 

the air and the fan came back on immediately, the fact is that 

Mr. Paugh made it known to Mr. Polee at that time that he 

would not continue bolting while the fan was down and there 

was inadequate air over his bolter. 

In view of the foregoing, I find Mr. Paugh's testimony 

concerning his encounters and discussions with his section 

foreman Johnson and mine foreman Polee over the lack of adequate ventilation over his roof bolter when the fan was down 

and being moved to be credible. I conclude that these discussions constituted "safety complaints 11 communicated verbally 

to mine management, and were therefore protected activity. I 

also conclude and find that Mr. Paugh's insistence on having 

adequate air over his bolting machine was communicated to 

both Mr. Johnson and Mr. Polee, and also constituted protected 

activity. 

Although Mr. Paugh's original complaint asserts that he 

made safety complaints about the spacing of the roof bolts, I 

find no credible evidence or testimony to support this conclusion. The only credible testimony of record in this regard 

871 
is the discussion which took place between Mr. Johnson and 

Mr. Paugh on March 5, 1986, shortly before the incident 

involving Mr. Beckman. Mr. Paugh believed that the width of 

the entry required him to install more bolts, and Mr. Johnson 

questioned this contention when Mr. Beckman accused Mr. Paugh 

of deliberately installing more bolts so that he could earn 

overtime. Mr. Johnson measured the width of the entry, and 

while he may not have been happy, he did agree that it may 

have been a foot too wide, and instructed Mr. Paugh to do 

what he had to do to make the place safe. In this particular 

instance, while it may have provoked, Mr. Johnson, I do not 

believe that this incident escalated to the level of a nsafety 

complaint" by Mr. Paugh. 

With regard to Mr. Paugh 9 s assertions made during the 

course of the hearing that he often complained to Mro Johnson 

about the ventilation curtains being down while the equipment 

moved through the area where he was working, the record establishes that Mr. Johnson addressed these complaints. Mr. Paugh 

admitted that in each instance Mr. Johnson responded by assigning him to do. other work until such time as the air was 

restored and specifically told him that he~need not continue 

to bolt (Tr. 216-218). 

It is well settled that the refusal by a miner to perform 

work is protected under section 105(c)(l) of the Act if. it 

results from a good faith belief that the work involves safety 

hazards, and if the belief is a reasonable one. Secretary of 

Labor/Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2 BNA 

MSHC 1001 (1980), rev'd on other grounds, sub nom. 

Consolidation Coal co. v. Marshall, 663 F.2d 1211 (3d Cir. 

1981); Secretary of Labor/Robinette v. United Castle Coal Co., 

3 FMSHRC 803, 2 BNA MSHC 1213 (1981); Bradley v. Belva Coal 

Co., 4 FMSHRC 982 (1982). Secretary of Labor v. Metric 

Constructors, Inc., 6 FMSHRC 226 (February 1984), aff'd sub ~., Brock v. Metric Constructors, Inc., 3 MSHC 1865 

(11th Cir. 1985). The reason for the refusal to work must be 

communicated to the mine operator. Secretary of Labor/Dunmire 

and Estle v. Northern Coal Co., 4 FMSHRC 126 (1982). 

In this case, the evidence establishes that Mr. Paugh 

refused to continue to operate his roof-bolting machine when 

he believed that the ventilation air over the bolter was inadequate because of the fan being shutdown and moved. Further, 

Mr. Paugh has also established through his own unrebutted 

credible testimony that he also discontinued bolting when the 

ventilation curtains were down because of the movement of 

equipment through his work area. Assuming that Mr. Paugh's 

work refusals in these instances were reasonable, it seems 

872 
clear to me that they constituted protected activity under the 

Act. 

With regard to Mr. Paugh's refusal to continue bolting 

while the fan was down and being moved, respondent argues 

that Mr. Paugh acted unreasonably by discontinuing bolting, 

and that his shutting down of his bolter was unwarranted. On 

the facts of this case, I disagree. It seems clear to me 

that the purpose of the ventilation fan was to provide an 

uninterrupted flow of air to the work area when Mr. Paugh was 

bolting. Mr. Johnson conceded that there were times when 

Mr. Paugh was not aware of the fact that the fan was down 

while it was being moved. Absent any evidence to the contrary, I believe one can reasonably conclude that during the 

time the fan was down while it was being advancedu the air 

coursing over Mr. Paugh's bolting machine was interruptedu 

thus affecting both the quantity and quality of air passing 

over the bolter. Under the circumstances, there is a strong 

inference that in those instances where Mr. Paugh complained 

to Mr. Johnson about the lack of adequate-ventilation over 

his bolter, Mr. Paugh's working environment was inadequately 

ventilated, and the respondent has produce~ no credible evidence to the contrary. Accordingly, I find that Mro Paughus 

refusal to continue bolting while the fan was down was 

reasonable, and constitutes protected activity. 

Respondent's Alleged Hostility and Harassment of Mr. Paugh 

During the course of the hearing in this case, 

Mr. Paugh's counsel asserted that with the exception of 

Mr. Paugh's .discussions with Mr. Johnson concerning the issue 

of inadequate air ventilation over the roof-bolting machine, 

there is no evidence of any harassment of Mr. Paugh on the 

part of the respondent. Further, Mr. Paugh has conceded that 

at no time prior to his suspension and discharge was he ever 

disciplined by mine management because of his asserted safety 

complaints or other reasons. 

Mr. Paugh initially testified that during a time span of 

2 to 3-years prior to his discharge while working under 

Mr. Johnson's supervision, he complained to Mr. Johnson about 

the lack of adequate air over his bolting machine at least 

12 times. As a result of these complaints, Mr. Paugh contended that Mr. Johnson "would get in an uproar about it, 11 

and would assign him "extra things" to do,~.~., rock dusting, 

shoveling at the feeder, stacking ventilation tubing, and 

advancing the ventilation curtain, while other members of the 

bolting crew were not assigned such work. Mr. Paugh also contended that Mr. Johnson tried to curtail his normal lqnch 

873 
break to 10 to 15 minutes as a means of harassing him, and 

that the extra work assignments were made to punish the roof 

bolting crew. In addition, Mr. Paugh contended that on at 

least one occasion, Mr. Polee transferred him off Mr. Johnson's 

section because of his "conflict" with Mr. Johnson. 

When recalled later in the hearing, Mr. Paugh conceded 

that he never complained to Mr. Gearhart about his allegations 

of harassment by Mr. Johnson and that never told Mr. Gearhart 

about his "conflicts" with Mr. Johnson. While it is true that Mr~ Paugh spoke with Mr. Gearhart after his discharge when he 

returned to the mine to pick up his personal belongings, and 

may have attempted to explain the matter further, and 

Mr. Gearhart would not listen, there is no evidence that 

Mr. Paugh communicated his allegations of harassment to 

Mr. Gearhart, or to Mr. Pritt or Mr. Tenney during management's investigation of the fighting incident. 

With regard to his prior transfer from Mr. Johnson's 

supervision, Mr. Paugh testified that it came about as a 

result of his disputes with Mr. Johnson over the lack of air 

over the roof-bolting machine, and Mr. Paug.h did not indicate 

that he complained to Mr. Polee that Mr. Johnson assigned him 

extra work or curtailed his lunch hours as a means of harassment or punishment. 

When specifically questioned about his contention that 

Mr. Johnson curtailed his lunch break "a lot of times," and 

his implication that this occurred at least 12 times over the 

course of 2 to 3 years, Mr. Paugh conceded that it occurred 3 

or 4 times. When pressed further, he stated that "it would 

be a couple of times." When asked whether he believed 

Mr. Johnson assigned him extra work to deliberately "make it 

tough on him," Mr. Paugh responded "somewhat." When asked 

whether he considered the extra work assignments as "punishment" for his complaints, Mr. Paugh responded "I would use 

harassment, not punishment." The only specific instances 

cited by Mr. Paugh in terms of curtailment of his lunch break 

were "a couple of times" when he was asked to re-hang a ventilation curtain and to rock dust. 

I take note of the fact that in his initial complaint, 

as well as the statements made to MSHA's special investigator 

during the investigation of his complaint, while Mr. Paugh 

alluded to some extra work assignments, he did not allege 

that his lunch hours were curtailed. Ronald Smith, a friendly 

witness, testified that he was not aware that Mr. Paugh was 

ever disciplined for complaining to Mr. Johnson about the lack 

of air over his bolter, and he made no mention of any acts of 

874 
alleged harassment of Mr. Paugh. Another friendly witness, 

Jimmie Wolfe, who testified that Mr. Paugh and Mr. Johnson 

were constantly at odds with each other over the issue of 

inadequate air over the bolting machine, made no mention of 

any acts of harassment on the part of Mr. Johnson. As a 

matter of fact, Mr. Wolfe confirmed that while he himself made 

many safety complaints to management, he was never subjected 

to any disciplinary action because of this. Further, the 

testimony of Mr. Sisler, Mr. Beckman, and Mr. Prinkey, all of 

whom served on Mr. Paugh's bolting crew under Mr. Johnson's 

supervision, is devoid of any indication of any harassment or 

extra work assignments by Mr. Johnson as a means of punishing 

the crew. 

I find Mr. Paugh's contentions that his lunch hours were 

curtailed by Mr. Johnson to harass or punish him for his complaints to be equivocal and contradictory, and lacking in 

credibility. Mr. Paugh conceded that his regular lunch breaks 

may have been shortened at times because of normal work 

requirements, and that the "extra work" assignments were made 

during those periods when the roof bolter was downo Further 0 

there is no evidence that Mr. Paugh was eve.r taken off the 

roof bolter and assigned other job tasks except for those occasions when the bolter was down for maintenance or because of 

Mr. Paugh's refusal to operate it while the fan was being 

advanced and the air was interrupted. 

Although roof bolter and scoop operator Ronald Smith 

contended that Mr. Johnson expected him to work and clean up 

debris under unsupported roof, he conceded that when he 

refused, Mr. Johnson did the work himself, and Mr. Smith 

admitted that he sometimes worked under unsupported roof on 

his own. Further, Mr. Smith confirmed that after a new scoop 

was brought into the section in 1984 to cure a "diesel smoke" 

problem with an older machine, Mr. Johnson's section was the 

cleanest and best section in the mine. Mr. Smith also confirmed that he had no "safety gripes" against Mr. Johnson, 

and was not aware that Mr. Paugh was ever disciplined because 

of his safety complaints about the lack of air over his bolter 

(Tr. 72, 74-75). Mr. Smith also conceded that the lack of air 

was not entirely Mr. Johnson's fault, and he could recall no 

instances when Mr. Johnson totally ignored Mr. Paugh's 

complaints (Tr. 77, 84>. 

Rib bolter John Prinkey, who worked on Mr. Paugh's bolting crew, confirmed that while there were times when the crew 

was not aware of the fact that the fan was being moved, 

thereby interrupting the ventilation, Mr. Johnson never 

instructed the crew to continue bolting without air (Tr. 102). 

875 
Roof bolter Jimmie Wolfe, who at one time had worked with 

Mr. Paugh on foreman Johnson's crew, testified that he was not 

aware that Mr. Johnson ever ordered Mr. Paugh to continue bolting without air (Tr. 116). Further, Mr. Wolfe, who at one 

time had been a foreman himself, confirmed that during his 

7 years of employment with the respondent, he made safety complaints, but was never disciplined because of this and still 

has his job (Tr. 146). 

Continuous-miner operator Donald Bray, who was injured 

when pinned against a rib in an accident caused by a defective 

remote control device on his machine, confirmed that 

Mr. Johnson never asked him to do any task which was unsafe or 

which would place him in danger, and in referring to 

Mr. Johnson stated "I don 1 t think he would do thatn (Tr. 157)0 

During his cross-examination of Mr. Johnson, Mr. Paugh's 

counsel stated as follows (Tr. 106-107)~ 

BY MR. HALL~ 

Q. Mr. Johnson, everybody I have talked to in 

this case says that above ground you're one of 

the nicest and finest guys they have ever met. 

A. How's that again? I didn't hear you. 

Q. I said everybody I have talked to in this 

case says that above ground you're one of the 

nicest and finest people they have ever met, 

including John. And they also say that you 

run the best section; you've got the cleanest 

section underground. But when you go underground, you change. Is there a lot of pressure 

on you for production? 

A. I won't say there's a lot of pressure. 

There is pressure. You know that is your job; 

that is one of your responsibilities, is the 

production. So, I'm sure that there is a lot 

of pressure. 

Mr. Paugh conceded that other members of his crew were 

sometimes assigned other job tasks, and he confirmed that when 

his bolter or the ventilation were down, Mr. Johnson would 

invite him "to go eat something." He also confirmed that when 

he or Mr. Prinkey were caught up with their work and had nothing else to do, they would sit and drink coffee while waiting 

876 
for Mr. Beckman to catch up with them. Mr. Paugh also conceded that he would expect to do other work while his bolter 

or _fan were down, and did not consider it wrong to be assigned 

other work. He also conceded that in those instances when the 

ventilation curtains and fan were down, thereby reducing the 

available air over the bolting machine, Mr. Johnson agreed 

that he did not have to remain in the affected areas and would 

assign him other work to do until such time as the air was 

restored. Rib and roof bolters Prinkey and Wolfe testified 

that Mr. Johnson never instructed the bolting crew to continue 

bolting without air. 

After careful consideration of all of the credible testi= 

many and evidence presented in this case on the issue of the 

curtailment of Mr. Paugh's lunch hours as a means of harassment, I cannot conclude that this was in fact the caseo I 

cannot conclude that Mr. Paugh was singled out by Mr. Johnson 

for extra work assignments or "special treatment" as a means 

of punishment or harassment for his safety complaints. I 

conclude and find that Mr. Johnson's work.assignments with 

respect to Mr. Paugh constituted a reasonable exercise of 

Mr. Johnson's supervisory authority and discretion to assign 

other work while Mr. Paugh' s bolting machin'e was idle, and 

that these work assignments were not discriminatory or made 

to punish or harass Mr. Paugh for any safety complaints. 

In his initial complaint, Mr. Paugh alleged that his 

discharge resulted from a "conflict of interest" and "conflicts" with Mr. Johnson, and that certain unidentified "other 

persons," acting in concert with Mr. Johnson, retaliated 

against him because of his safety concerns and his insistence 

on following safety regulations. 

There is no evidence in this case that Mr. Johnson was 

involved in the management decision to discharge Mr. Paugh, 

or that he had any input into that decision. Although 

Mr. Johnson suspended Mr. Paugh, he did so at the direction 

of Mr.· Polee pending an investigation of Mr. Paugh's encounter 

with Mr. Beckman. In addition, the evidence establishes that 

Mr. Paugh had no connection with management's prior disciplinary action and suspension of Mr. Johnson for a safety violation, and there is no basis for concluding that Mr. Johnson 

harbored any ill will toward Mr. Paugh because of his 

suspension. 

Two members of the management team that made the collective decision to discharge Mr. Paugh (Pritt and Tenney), did 

not testify in this case, and there is no evidence that they 

harbored any resentment or hostility toward Mr. Paugh. 

877 
Personnel Director Gearhart, who has known Mr. Paugh since he 

first hired him, testified that at the time the decision was 

made to discharge Mr. Paugh, he was not aware of any prior 

safety complaints by Mr. Paugh, and was not aware of any differences between Mr. Paugh and Mr. Johnson. This testimony 

stands unrebutted, and there is no evidence that Mr. Gearhart 

harbored any hostility or ill will toward Mr. Paugh. 

With regard to Mr. Polee, the fourth member of the management team that made the decision to discharge Mr. Paugh, 

the record suggests that Mr. Paugh and Mr. Polee have had 

their differences with respect to the lack of adequate air 

ventilation over the roof-bolting machine while the fan was 

down. I take note of the fact that Mr. Paugh's initial complaint does not allege that Mr. Polee harassed him or was 

hostile toward him. However, during the hearingv Mr. Paugh 

testified to several encounters he had with Mro Polee with 

respect to the lack of adequate ventilation over the bolting 

machine while the fan was down, and Mr. Paugh contended that 

Mr. Polee insisted that he continue bolting without air, and 

that on one occasion, Mr. Polee told him that if he refused 

to continue bolting he would either be take.n off the bolter 

or he could find another job. In addition, Mr. Paugh contended that on least one occasion Mr. Polee transferred him 

off Mr. Johnson's section in order to keep them apart and 

because of their personal differences. 

Mr. Polee denied that he had numerous conversations with 

Mr. Paugh about the lack of adequate air over the bolting 

machine, or that Mr. Paugh complained to him about this. 

Mr. Polee also denied that Mr. Paugh was transferred from 

Mr. Johnson's section because of their differences, and maintained that the transfer of bolters was a "normal practice" 

dictated by regular work requirements. Mr. Polee admitted to 

one incident where Mr. Paugh shutdown the bolting machine 

because he believed the air was inadequate. Although the 

record suggests that this encounter may not have been cordial, 

the matter was resolved when Mr. Polee measured the air and 

the fan came back on and Mr. Paugh resumed bolting. 

Mr. Polee conceded that at the time of the decision to 

discharge Mr. Paugh, he was aware of prior problems and conflicts between Mr. Johnson and Mr. Paugh, and knew of their 

prior encounters over the failure by Mr. Paugh to advise 

Mr. Johnson that his roof bolter needed repair, and 

Mr. Paugh' s purported·· threat to hit Mr. Johnson. Mr. Polee 

was also aware of Mr. Paugh's reluctance to continue bolting 

with insufficient air, and that this issue was a "problem" 

between Mr. Johnson and Mr. Paugh. 

878 
Although Mr. Polee stated that he considered Mr. Paugh 

to be a good worker, he qualified his assessmen~ of his work 

when he stated that this was true only when Mr. Paugh did not 

"drag his feet" or "take his time when it wasn't needed to be 

taken." Mr. Polee confirmed that there were times when he 

personally observed that Mr. Paugh would drill unnecessary 

test holes and install more bolts than were necessary, that 

Mr. Beckman had complained to him about this, and that 

Mro Johnson "probably" told him that Mr. Paugh at times got 

behind in his work. Mr. Polee also admitted that he had 

heard about Mr. Paugh's purported statement that if he had to 

work overtime he would make sure that he got enough to pay 

for gas. As a matter of fact, Mr. Polee admitted that as a 

result of Mr. Beckman's complaints that Mr. Paugh was slowing 

his work down on purpose to earn overtime, he instructed 

Mr. Johnson to "keep an eye 11 on the bolting crew on March 5 11 

in order to address any problems that may arise in this 

regard. 

It would appear from all of the evidence in this case 

that Mr. Polee was the only member of the Il@nagement team that 

made the decision to discharge Mr. Paugh who was aware of 

Mr. Paugh's prior encounters with Mr. Johnson, and the fact 

that Mr. Paugh may have been a "problem employee" in terms of 

his safety concerns. Based on this prior knowledge, one may 

speculate as to whether it influenced Mr. Pelee's input into 

the decision to discharge Mr. Paugh. Assuming that it did, I 

find no evidence of any harassment of Mr. Paugh by Mr. Polee 

because of any past conduct or actions by Mr. Paugh. Mr. Paugh 

could not establish any instances or acts of harassment on the 

part of Mr. Polee. I conclude that Mr. Paugh's testimony that 

Mr. Polee threatened to take him off the bolter and suggested 

that he find another job if he did not wish to continue bolting 

with inadequate air is less than credible and self serving. 

There is no evidence that Mr. Polee ever carried out these 

purported threats, and Mr. Paugh admitted that notwithstanding 

his differences with Mr. Polee over the lack of adequate air 

over his bolter, Mr. Polee would eventually see to it that the 

air was restored. Further, in each instance when Mr. Paugh saw 

fit to discontinue bolting when the fan was down, he was always 

assigned other work to do, and there is no evidence that he 

ever continued to bolt against his will or was forced to do 

so when he believed the air was inadequate. This fact was 

corroborated by the testimony of members of his own bolting 

crew and others who were aware of Mr. Paugh's reluctance to 

continue bolting with insufficient air. 

879 
Although I conclude that Mr. Paugh's assertion that he 

was at one time transferred off Mr. Johnson's section because 

of friction between the two of them has a ring of truth about 

it, and find Mr. Polce's denials to be less than candid, I 

nonetheless cannot conclude that such a transfer constituted 

harassment. In my view, if Mr. Polee wanted to harass or 

punish Mr. Paugh for his reluctance to continue bolting with 

inadequate air, Mr. Polee would have kept Mr. Paugh under 

Mr. Johnson's supervision or permanently transferred him to 

less desirable work. 

With regard to any hostility on the part of management 

towards Mr. Paugh, I find no credible evidence to support any 

conclusion that Mr. Gearhart, Mr. Pritt, Mr. Tenney, or 

Mr. Polee were hostile towards Mr. Paugh, and there is no 

evidence that Mr. Paugh's prior encounters with Mr" Polee and 

Mr. Johnson were considered or discussed by management at the 

time the decision was made to discharge him. In my view, the 

only evidence of any hostility against Mr. Paugh by management 

focuses on Mr. Johnson. 

Notwithstanding Mr. Johnsonus assertions that he and 

Mr. Johnson "got along fairly well" together, I conclude and 

find that the record supports a reasonable inference that 

there was open hostility between Mr. Johnson and Mr. Paugh at 

least during the last 2 or 3 years that Mr. Paugh worked under 

Mr. Johnson's supervision. As for Mr. Johnson, he admitted 

that at one time he invited Mr. Paugh to hit him after 

Mr. Paugh purportedly threatened to do so. On another occasion, Mr. Johnson admitted that he became angry at Mr. Paugh 

when he failed to advise him that his bolter needed repair. 

On yet another occasion on March 5, 1986, when Mr. Johnson 

confronted Mr. Paugh after he shutdown his bolter, an angry 

exchange occurred between the two of them, and I believe that 

Mr. Johnson's statement to Mr. Paugh to install the roof bolts 

"skin to skin" if he so desired was the result of Mr. Johnson's 

anger and frustration over what he obviously believed was a 

deliberate work slowdown by Mr. Paugh. This particular 

exchange was witnessed by Mr. Sisler who testified that it 

appeared that Mr. Paugh "was talking back" to Mr. Johnson. In 

addition, members of Mr. Paugh's bolting crew and others who 

have worked with him and Mr. Johnson corroborated the fact that 

Mr. Paugh and Mr. Johnson often argued about Mr. Paugh's 

reluctance to bolt with inadequate air. 

With regard to M~. Paugh, although Mr. Johnson described 

him as a "quiet" individual, the record supports an equally 

strong inference that he too had a temper and was hostile 

towards Mr. Johnson. In his initial complaint, Mr. Paugh 

880 
attributed his discharge to his "conflicts" and "conflict of 

interest" with Mr. Johnson. Mr. Paugh admitted that "he had 

been at odds with Mr. Johnson" since 1984. He admitted that 

when Mr. Johnson confronted him about shutting down the bolter 

on March 5, he told Mr. Johnson "you cover your ass, I'll 

cover mine." When asked whether Mr. Johnson had ever invited 

him to hit him, Mr. Paugh stated "He could have have. He's a 

good instigator." Mr. Paugh also admitted to referring to 

Mr. Beckman as "a cry baby," and that it was possible that he 

referred to him as "a cry baby son of a bitch." Mr. Polee 

testified that during his discussion with Mr. Paugh when his 

bolter was shut off, Mr. Paugh remarked to him 11what are you 

getting all huffy about." Mr. Lucas testified to a prior 

fight he had with Mr. Paugh, and that although Mr. Paugh 

described the incident as "horseplay," he admitted that they 

"wrestled.• Taken as a whole, all of these prior incidents 

and encounters lead me to conclude that Mr. Paugh had a temper 

equally as volatile as Mr. Johnson, and that a serious personality conflict existed between the two of them. 

Although I have concluded that a state of hostility 

existed between Mr. Paugh and Mr. Johnson prior to Mr. Paugh~s 

discharge, as stated earlier, there is no evidence that 

Mr. Johnson participated in the management dec.ision to discharge Mr. Paugh. While it is true that Mr. Johnson initially 

informed Mr. Polee that Mr. Beckman had told him that Mr. Paugh 

hit him, and repeated Mr. Beckman's allegation when he was subsequently interviewed by the management team during its investigation of the incident, but may not have informed them of 

Mr. Paugh's denials, I cannot conclude that Mr. Johnson exercised any prejudicial influence on the management team during 

its deliberations. In short, I find no evidence to establish 

any nexus between Mr. Johnson's hostility towards Mr. Paugh and 

his subsequent discharge. 

Mr. Polee and Mr. Gearhart confirmed that the collective 

decision to discharge Mr. Paugh for fighting was made after 

consideration of all of the information provided by the principals, as well as the witnesses to the altercation, and that 

all versions of the incident were considered, including 

Mr. Paugh's. I find Mr. Pelee's testimony that Mr. Paugh's 

prior encounters with Mr. Johnson were not discussed by management when it made the decision to discharge Mr. Paugh to 

be credible. Mr. Gearhart's unrebutted credible testimony 

reflects that at the time the decision was made to discharge 

Mr. Paugh, management·was unaware of Mr. Paugh's prior fight 

with Mr. Lucas, and Mr. Gearhart had no knowledge of any 

safety complaints by Mr. Paugh or his prior encounters with 

Mr. Johnson. Under the circumstances, I find no credible 

881 
basis for concluding that Mr. Johnson's hostility had any 

impact on the decision to discharge Mr. Paugh, and find no 

evidence to establish any nexus between Mr. Johnson's hostility and Mr. Paugh's discharge. 

Respondent's Motivation for Discharging Mr. Paugh 

The crux of Mr. Paugh's case is his claim that respondent's mine management seized upon the appearance of a fight 

between him and Mr. Beckman on March 5, 1986, as an excuse 

for discharging him because of his protected activities in 

insisting on compliance with the ventilation and roof support 

requirements of the law, his complaints in this regard, and 

his reluctance or refusal to continue roof bolting when he 

believed that the air over his bolter was inadequateo In 

short, Mr. Paugh views managementvs conclusion that he 

engaged in a fight with Mr. Beckman as a pretexual excuse to 

get rid of him because of his safety concerns. 

In support of his pretexual discharge argument~ Mrc Paugh 

relies on a statement by personnel director Gearhart to MSHA~s 

special investigator during the post-discharge investigation 

of Mr. Paugh's complaint in which Mr. Gearhart states that 

Mr. Paugh "had also started a fight with another employee four 

or five years ago," (Exhibit C-4; Exhibit 5-1). Conceding 

that neither Mr. Gearhart or the management team which made 

the decision to discharge him were aware of this prior incident at the time the decision was made to discharge him, 

Mr. Paugh nonetheless argues that Mr. Gearhart made the statement to make it appear that Mr. Paugh had a history of fighting, thereby lending credibility to management's discharge 

decision. Further, during the course of the hearing, 

Mr. Paugh's counsel took issue with Mr. Gearhart's further 

statement to MSHA that "Both Earl Sisler and Harry Beckman 

have proved in Mettiki's experience, to be among the most credible members of it's hourly work force." Counsel suggested 

that this statement by Mr. Gearhart was a self-serving 

after-the-fact declaration to support management's belief that 

Mr. Sisler's and Mr. Beckman's version of the altercation 

which took place between Mr. Paugh and Mr. Beckman was true; 

while Mr. Paugh's version was a lie. 

It seems absolutely clear to me from the evidence in 

this case that at the time management made the decision to 

discharge Mr. Paugh, none of the participants in that decision had any knowledge of Mr. Paugh's prior purported fight 

with Mr. Lucas. Under the circumstances, I find no basis for 

concluding that Mr. Gearhart's post-discharge statement to 

MSHA prejudiced Mr. Paugh or adversely impacted in any way on 

882 
management's decision to discharge him. It would appear that 

Mr. Gearhart's statement was solicited by the special investigator during his fact-finding investigation. While it may be 

true that Mr. Gearhart's statement concerning Mr. Paugh's 

· involvement in a prior fight may have in some way impacted on 

MSHA's determination not to pursue his case further, I find 

no basis for concluding that management relied on that prior 

incident to support its discharge decision. Mr. Paugh's complaint before this Commission and me has been adjudicated de 

novo, without regard as to what may have motivated MSHA no~ 

to initially pursue Mr. Paugh's complaint furthero 

Since the merits of Mr. Paugh's complaint is before me 

de novo, the respondent is free to introduce relevant and 

material evidence of Mro Paugh's alleged propensity for fighting in further support of any conclusion that a fight more 

than likely took place on March 5, 1986. The respondent has 

done this through the testimony of Mr. Lucas, and as the trier 

of fact, I am free to assess Mr. Lucas' credibility 8 and to 

make my own independent judgment on this issueo The same can 

be said of the testimony of Mr. Sisler and Mr" Beckmano Having viewed them during their testimony at t.he hearing u I am 

free to assess their credibility independent of Mr. Gearhart 0 s 

views as to their credibility and veracity. However, management was free to assess the credibility of Mr. Beckman and 

Mr. Sisler during its investigation of the March 5, 1986, 

fight in question, and as confirmed by Mr. Gearhart, management chose to believe Mr. Beckman's and Mr. Sisler's version 

of that incident, and rejebted Mr. Paugh's version that he 

simply placed his hand on Mr. Beckman's shoulder while 

attempting to get his attention in order to engage him in a 

conversation. 

The pivotal issue in this case is whether or not the 

respondent has established through a preponderance of the 

credible evidence and testimony that at the time management 

made the decision to discharge Mr. Paugh, it had reasonable 

grounds to believe that Mr. Paugh and Mr. Beckman engaged in 

a fight on March 5, 1986, and if so, whether or not its conclusion that Mr. Paugh was the aggressor, thus warranting his 

discharge for violating a company rule against fighting, is 

likewise reasonably supportable by a preponderance of the 

credible testimony and evidence. 

Respondent's Employee Handbook Exhibit C-4, 9-2), at 

page 26, states that "No horseplay, fighting or other unsafe 

physical acts will be tolerated on Company property." Page 18 

of the handbook, which explains in part major employee 

offenses that may result in a potential discharge of an 

883 
employee specifically provides for discharge for "Violating 

safety rules or special hazard procedures, fighting or other 

acts which may have a serious affect on safety or continuity 

of the operation" (emphasis added). 

The record establishes that the decision to discharge 

Mr. Paugh was made by management after an investigation of 

the fighting incident. The investigation consisted of interviews conducted by four members of an ad hoc management team 

consisting of mine foreman Polee, personnel director Gearhartu 

general mine superintendent Billy Pritt, and mine superintendent Paul Tenney. The team conducted interviews on Fridayv 

March 7, 1986, and they interviewed Mro Paugh, Mro Johnsonv 

Mr. Beckman, and Mr. Sisler, separately and out of each 

otherws presence. Mr. Polee and Mr. Gearhart 8 were the only 

members of the management team who testified in this caseo 

They confirmed that the decision to discharge Mr. Paugh was a 

collective decision made by the team. On the basis of the 

information developed during the interviews, the team concluded that Mro Paugh and Mr. Beckman got. into a fight on 

March 5, 1986, and that Mr. Paugh precipitated the fight and 

was the aggressor. Since fighting is cont~ary to company 

policy and is an offense which may result in the discharge of 

the offending employee, the decision was made to discharge 

Mr. Paugh for violating this policy, and Mr. Polee informed 

Mr. Paugh of the decision on Monday, March 10, 1986. 

Mr. Beckman testified that as he started to tram his 

bolting machine, Mr. Paugh approached him from behind, called 

him "a cry baby son of a bitch," and either hit or pushed him 

from behind into the moving machine. Mr. Beckman further 

testified that when he was pushed into the machine, his hat 

flew off his head, and his chest hit the machine. Although 

Mr. Beckman confirmed that no blows were exchanged, and 

responded "No" when asked whether he and Mr. Paugh engaged in 

a "fight," he confirmed that he defended himself by grabbing 

Mr. Paugh's arms as he started to lift them, and that he did 

so because he believed that Mr. Paugh would try to hit him. 

Mr. Sisler, who was eye witness to the encounter between 

Mr. Paugh and Mr. Beckman, testified that as Mr. Paugh passed 

by him on his way to where Mr. Beckman was working at more 

than a normal pace, Mr. Paugh appeared to be upset and stated 

to Mr. Sisler as he passed him that Mr. Beckman was "a damn 

cry baby." Mr. Sisler testified that from his vantage point, 

his view was partially blocked by the machine, and he could 

only see Mr. Paugh and Mr. Beckman from the waist up. Although 

he observed no punches being exchanged, and did not actually 

see Mr. Paugh push Mr. Beckman, he did see Mr. Beckman's hat 

884 
fly off his head, and he concluded that Mr. Beckman had either 

been pushed into the machine by Mr. Paugh or that he 

"flinched," as if being caught by surprise by Mr. Paugh. After 

Mr. Beckman's hat flew off, Mr. Sisler saw Mr. Beckman grab 

Mr. Paugh by the wrists and hold him against the rib. 

Mr. Lucas, who was present during the shift when the 

encounter between Mr. Paugh and Mr. Beckman took place, was 

not interviewed by the management team. Mr. Lucas confirmed 

that while he did not observe the incident, after learning 

that Mr. Johnson had taken Mr. Beckman and Mr. Paugh out of 

the mine, he asked Mr. Johnson for an explanation, and 

Mr. Johnson informed him that "It's went too far this time, vu 

and that he had taken them out of the mine because he was 

doing his job. 

Mr. Lucas testified that after Mr. Johnson took Mr. Paugh 

and Mr. Beckman out of the mine, he asked Mr. Sisler about the 

incident, and Mr. Sisler told him that he observed that 

Mr. Beckman had Mr. Paugh against the rib. "slugging him. 11 

When asked to explain Mr. Lucasg statementff Mr. Sisler stated 

that in reply to a question by Mr. Lucas a~ to whether any 

punches had been thrown, he replied in the affirmative, but 

did so more or less as a joke because Mr. Lucas initiated the 

conversation, and Mr. Sisler did not believe it was any of his ,, business. Mr. Sisler further explained that he meant nothing 

"hy the remark and did not wish to see anyone get into any 

trG:J,J.ble. He reiterated that he saw no punches thrown between 

Mr. Paugh and Mr. Beckman. 

Mr. Beckman and Mr. Sisler confirmed that when they were 

interviewed by the management team during its investigation 

of the incident in question, the information they gave with 

respect to what happened during the encounter between 

Mr. Paugh and Mr. Beckman was consistent with their testimony 

in this case. Having viewed them on the stand during their 

testimony in this case, I find Mr. Beckman and Mr. Sisler to 

be credible witnesses. 

Mr. Polee testified that while he took no notes during 

the management interviews conducted as part or-the investigation of the fighting incident, he specifically recalled 

Mr. sisler's statements that Mr. Paugh had referred to 

Mr. Beckman as a "cry baby, bastard, or something" and that 

he saw Mr. Beckman's hat fly off and observed Mr. Beckman 

turn around to protect himself by grabbing Mr. Paugh's arms. 

Mr. Polee also recalled Mr. Beckman's statements that 

Mr. Paugh had pushed him into the bolting machine while he 

was tramming it and that his hat was knocked off. Mr. Polee 

S85 
testified that it made no difference to him whether Mr. Paugh 

"hit" Mr. Beckman from the back or "pushed" him from the back. 

As far as he was concerned, if Mr. Paugh was the aggressor 

and came around behind Mr. Beckman and pushed him into the 

machine "that's it" (Tr. 150). Mr. Polee confirmed that all 

versions of the incident including Mr. Paugh's, were considered by management during its investigation, and it was concluded that Mr. Beckman was not the aggressor. 

Mr. Gearhart confirmed that management considered all 

versions of the incident, including Mr. Paugh 1 s, but accepted 

Mr. Beckman's and Mr. Sisler's version of the event. 

Mr. Gearhart testified that considering all of the circumstances, including the fact that Mr. Beckmanvs hat flew off" 

that he was either hit or pushed into the bolter 0 the fact 

that Mr. Paugh was angry and cursed Mr. Beckman, and the fact 

that Mr. Beckman grabbed Mr. Paugh to restrain him, management concluded that a fight had taken place between Mr. Paugh 

and Mr. Beckman, and that Mr. Paugh was the aggressore It 

was also concluded that Mr. Beckman had acted properly by not 

returning any blows and by seeking out his foreman to report 

the matter. Mr. Gearhart further confirmed. that he personally found Mr. Beckman's version of the incident to be more 

credible than Mr. Paugh's, and he believed that Mr. Paugh 

lied when he stated during his interview that he went around 

to Mr. Beckman's side of the bolting machine simply to speak 

with him, and that he merely placed his hand on Mr. Beckman's 

shoulder. 

In his posthearing brief filed on Mr. Paugh's behalf v 

counsel asserts that the respondent seized upon the appearance of a fight between Mr. Paugh and Mr. Beckman to support 

the discharge of Mr. Paugh. This suggests that either a 

fight did not take place, or that the respondent has made it 

appear that an otherwise innocuous disagreement between 

Mr. Beckman and Mr. Paugh was a fight in order to conceal its 

true motive in discharging Mr. Paugh because of his protected 

safety activities. In this regard, during the course of the 

hearing, Mr. Paugh's counsel made reference to a finding by 

the State of Maryland Department of Unemployment Insurance in 

connection with Mr. Paugh's unemployment benefits claim that 

the information provided by the respondent during the course 

of the processing of Mr. Paugh's claim was insufficient to 

substantiate the alleged fight. That "finding" is stated on 

a Notice of Benefit Determination form dated March 20, 1986 

(Exhibit C-4, 8-1). 

Mr. Gearhart conceded that he was contacted by a state 

unemployment agency representative, and confirmed that the 

886 
respondent declined to appear at any state proceeding challenging Mr. Paugh's unemployment claim. Mr. Gearhart 

confirmed that he spoke with the representative over the 

telephone, but denied that the representative expressed any 

opinion that the incident, as described by Mr. Gearhart over 

the telephone, "did not sound like a fight." Since the representative did not testify in this case, Mr. Gearhart's testimony stands unrebutted. With regard to the state unemployment 

compensation "finding," aside from the fact that it is not 

binding on me, I find no evidentiary support for the conclusion reached by the state representative and have given no 

weight. Further, I find no basis for drawing any adverse 

inferences against the respondent simply because it declined 

to participate in the unemployment proceeding. 

The evidence in this case establishes that immediate 

prior to the confrontation between Mr. Paugh and Mr. Beckmanr 

Mr. Paugh and his section foreman Johnson engaged in a heated 

discussion over the spacing of the roof bolts, and Mr. Paugh 

was angry at Mr. Beckman for complaining to Mr. Johnson abou 

his work. During his conversation with Mr. Johnsonv Mr" Paugh 

referred to Mr. Beckman as "a damn cry baby. 0 As soon as 

Mr. Johnson departed, Mr. Paugh lost no time in getting· to 

Mr. Beckman, and Mr. Paugh admitted that he "was in a hurry'" 

to get to Mr. Beckman. Although Mr. Paugh could not recall 

stating to Mr. Beckman "I'm going to get you, you son of a 

bitch," Mr. Paugh admitted that it was possible that he did 

make the statement, and that it was also possible that he 

referred to Mr. Beckman as "a cry baby" or "crazy." Mr. Paugh 

further admitted that in his earlier discussion with 

Mr. Johnson and in reference to Mr. Beckman, he stated to 

Mr. Johnson "what's the problem? Is this cry baby complaining 

about me?" Taking all of this into consideration, I conclude 

and find that Mr. Paugh was angry with Mr. Beckman, and that 

when he went over to Mr. Beckman's side of the bolting machine 

he acted as the aggressor, and did so with the specific intent 

to confront Mr. Beckman about his complaints to Mr. Johnson. 

I do not believe Mr. Paugh's assertion that he went around to 

Mr. Beckman's side of the bolter simply to engage him in a 

conversation over the spacing of the roof bolts or the pos 

tioning of the roof-bolting machine. 

As stated earlier, the issue regarding the encounter 

between Mr. Paugh and Mr. Beckman, is whether or not the management team which concluded that a fight had taken place had 

a reasonable basis for- making that conclusion. I take note 

of the fact that during the course of the hearing, Mr. Paugh's 

counsel observed and seemingly agreed with the testimony that 

Mr. Paugh went around to Mr. Beckman's side of the bolter; 

887 
that "something happened between Mr. Paugh and Mr. Beckman:" 

that "there was a scuffle:" and that "some sort of altercation 

took place" CTr. 71). Counsel's observations are consistent 

with the testimony of Mr. Beckman and Mr. Sisler, which I find 

credible, and inconsistent with Mr. Paugh's assertion that he 

merely laid his hand on Mr. Beckman's shoulder to get his 

attention, which I find less than credible. 

The respondent's employee handbook does not define the 

term "fight" or "fighting." However, Webster 1 s New Collegiate 

Dictionary defines the noun "fight" in part as "a hostile 

encounter," "a verbal disagreement," "argument." Black 1 s Law 

Dictionary, 1968 Edition, defines the term "fight" in part as 

follows: "An encounter, with blows or other personal violence, between two persons • • • • The term does not necessarily imply that both parties should give and take blows. It 

is sufficient that they voluntarily put their bodies in position with that intent." 

I take note of the fact that the respondentus safety rules 

and employee rules of conduct prohibits fighting or other 

unsafe physical acts or other acts which may have a serious 

affect on safety. The parties do not dispute the fact that 

fighting in an underground mine, particularly around moving 

machinery and equipment, could reasonably be expected to result 

in serious consequences to miners who engage in such conduct. 

In my view, the fact that the participants do not draw blood or 

strike or exchange blows with each other is irrelevant. I conclude that any encounters of the kind which has been described 

in this case, in which one party acts as the aggressor with the 

intent to inflict harm on the other party by either intentionally or unintentionally pushing him into a piece of moving 

equipment, or aggressively accosts him by placing his hands on 

him in such a manner as to cause him to fall against a piece of 

moving equipment, or exposes him to that potential hazard, constitutes an act of fighting, as well as an unsafe physical act 

affecting the safety of the miner who is on the receiving end 

of such an act and who did not act as the aggressor or otherwise initiate the encounter. 

In view of the foregoing findings and conclusions, and 

after careful consideration of all of the evidence adduced in 

this case, I conclude and find that the respondent's decision 

to discharge Mr. Paugh, as articulated by the management team 

that made that decision on the basis of the information developed during the course of its investigation, was based solely 

on management's reasonable and plausible belief that Mr. Paugh 

had acted as the aggressor and had engaged Mr. Beckman in a 

fight. I find no credible basis for concluding that at the 

888 
time management made the decision to discharge Mr. Paugh, it 

was otherwise predisposed to discharge Mr. Paugh because of 

his safety concerns, or because of any protected safety activities on his part. To the contrary, I conclude that the respondent has established a believable and plausible legitimate 

reason and cause to support the discharge, that it was justified in taking the disciplinary action as a reasonable exercise of its legitimate interests in disciplining its own work 

force, and that in doing so it was not motivated by Mr. Paugh's 

protected safety activities. 

CONCLUSION AND ORDER 

In view of the foregoing findings and conclusions, and 

after careful consideration of all of the credible evidence 

and testimony adduced in this case, I conclude and find that 

the complainant has failed to establish a prima facie case of 

discrimination on the part of the respondent. Accordingly, 

the complaint IS DISMISSED, and the complainant's claims for 

relief ARE DENIED. 

The respondent's counterclaim for cost·s and attorneys 

fees incurred in its defense of Mr. Paugh's complaint on the 

ground that Mr. Paugh intentionally and willfully omitted from 

his original complaint the fact that he had been discharged by 

the respondent IS DENIED. 

krfu~ Administrative Law Judge 

Distribution: 

W. Bryan Hall, Esq., 201 Fayette Street, Cumberland, MD 21502 

(Certified Mail) 

Thomas P. Gies, Esq., Susan E. Chetlin, Esq., Crowell & 

Moring, 1001 Pennsylvania Avenue, N.W., Washington, DC 

20004-2505 (Certified Mail) 

/f b 

889 

tr U.S. GOVERNMENT PRINTING OFFICE: 1987-l 8 l - 2 2 4 I 6 S 0 0 4 
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