APRIL 1992 

COMMISSION DECISIONS 

04-21-92 Klamath Pacific Corporation 

ADMINISTRATIVE LAW JUDGE DECISIONS 

04-02-92 

04-03-92 

04-03-92 

04-06-92 

04-06-92 

04-13-92 

04-15-92 

04-15-92 

04-15-92 

04-17-92 

04-23-92 

04-23-92 

04-24-92 

04-27..:..92 

04-27-92 

04-28-92 

04-28-92 

04-28-92 

04-29-92 

Peabody Coal Company 

Helen Mining Company 

Ronny Boxwell v. National Cement 

Twentymile Coal Company 

Tom K. Sperry v. Ames Construction, Inc. 

Local 2122, UMWA v. U.S. Steel Mining Co. 

Southern Ohio Coal Company 

Jeffery A. Pate v. White Oak Mining Co. 

Pyramid Mining, Inc. 

Old Ben Coal Company 

Wallace Brothers 

Consolidation Coal Company 

Grefco, Incorporated 

Walker Stone Company, Inc. 

Mettiki Coal Corporation_ 

Charles T. Smith v. KEM Coal Company 

Austin Powder Company 

Consolidation Coal Company 

Consolidation Coal Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

04-07-92 

04-30-92 

Contests of Respirable Dust Samples 

Sec. Labor on behalf of Jerry Lee Dotson v. 

Lad Mining Inc., et al. 

WEST 91-515-M Pg. 535 

LAKE 91-691 Pg. 537 

PENN 92-73 Pg. 540 

SE 90-112-DM Pg. 541 

WEST 91-449 Pg. 549 

WEST 91-473-DM Pg. 555 

SE 91-26-C Pg. 563 

WEVA 88-144-R Pg. 564 

SE 91-104-D . 566 

KENT 92-136 Pg. 572 

LAKE 91-416 Pg. 578 

WEST 92-372-M Pg. 586 

WEVA 91-301 Pg. 590 

CENT 91-176-M Pg. 601 

CENT 91-130-M Pg. 603 

YORK 89-10-R Pg. 608 

KENT 90-30-D Pg. 609 

WEST 91-112-M Pg. 620 

WEVA 91-171-R Pg. 632 

WEVA 91-2034 Pg. 643 

Master No. 91-1 Pg.649 

SE 92-181-D Pg.655 

APRIL 

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

Secretary of Labor, MSHA v. Klamath Pacific Corporation, Docket No. 

WEST 91-515-M. (Judge Merlin, Settlement of February 21, 1992) 

Secretary of Labor, MSHA v. Peabody Coal Company, Docket No. 

KENT 91-1231. (Judge Melick, March 18, 1992) 

There were no cases filed in which review was denied. 

COl\Il\fiSSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

KLAMATH PACIFIC CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Aprii 21, 1992 

Docket No. WEST 91-515-M 

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

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

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

21, 1992, Commission Chief Administrative Law Judge Paul Merlin issued a 

Decision Approving Settlement, pursuant to a motion to approve settlement 

filed by the Secretary of Labor, with respect to eight citations issued to 

Klamath Pacific Corporation ("Klamath Pacific"). The Secretary stated in the 

motion, filed December 3, 1991, that Klamath Pacific agreed to the terms of 

the settlement. In accordance with the motion, the judge assessed a lump sum 

civil penalty of $956.80, a reduction in the penalties, $1,472.00, originally 

proposed by the Secretary. On December 16, 1991, the Commission received a 

letter from Klamath Pacific stating that it "contest[ed] all alleged 

violations." On March 11, 1992, Klamath Pacific filed a letter with Judge 

Merlin stating that three of the citations "should be dropped," because it did 

not violate the regulation cited in those citations. For the reasons 

discussed below, we reopen this proceeding, vacate the judge~s decision 

approving settlement, and remand this matter to the judge for further 

proceedings. 

The judge's jurisdiction in this proceeding terminated when his decision 

approving settlement was issued on February 21, 1992. 29 C.F.R. § 2700.65(c). 

The judge's decision became a final decision of the Commission 40 days after 

issuance. ·30 U.S.C. § 823(d)(l). The Commission did not act on Klamath 

Pacific's March 11, 1992, letter within the period provided in the Mine Act 

for considering requests for discretionary review due to processing error. 

Under these circumstances, we deem Klamath Pacific's March 11 letter to be a 

request for relief from a final Commission decision. 

535 
Relief·from a final judgment or order of the Commission is available to 

a party under Fed. R. Civ. P. 60(b)(l) & (6) on the basis of inadvertence, 

mistake, surprise, excusable neglect, or any other reason justifying relief. 

29 C.F.R. § 2700.l(b) (Federal Rules of Civil Procedure apply, "so far as 

practicable" and "as appropriate," in the absence of applicable Commission 

rules). See,~. Danny Johnson v, Lamar Mining Co., 10 FMSHRC 506, 508 

(April 1988). Klamath Pacific's letters suggest that the decision approving 

settlement may have been entered in error. Accordingly, we conclude that 

this matter should be reopened and remanded in order to afford Klamath Pacific 

the opportunity to present its position to the judge, who shall determine 

whether final relief from the decision approving settlement is warranted. 

For the foregoing reasons, we reopen this matter, vacate the judge's 

order approving settlement, and remand this matter to the judge for 

appropriate proceedings. Klamath Pacific is reminded to serve counsel for the 

Secretary with copies of its filings in this proceeding. 29 C.F.R. 

§ 2700.7(a). 

~~AL~ Ford B. Ford, Chairman 

~L 

Arlene Holen, Commissioner 

L. Clair Nelson, Commissioner 

536 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, Ioth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH,. VIRGINIA 22041 

APR 21992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. LAKE 91-691 

Petitioner A.C. No. 11-00585-03796 

v. 

No. 10 Mine 

PEABODY COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Christine M. Kassak, Esq., Office of the 

Solicitor, u.s.'bepartment of Labor, Chicago, 

Illinois, for the Petitioner; 

David R. Joest, Esq., Peabody Coal Company, 

Henderson, Kentucky,· for the Respondent. 

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 C.F.R. § 801 

et seq., the "Act," charging the Peabody Coal Company (Peabody) 

with one violation of the mandatory standard at 30 C.F.R. 

§ 70.lOO(a). The general issue before me is whether Peabody 

violated the cited standard and, if so, what is the appropriate 

civil penalty to be assessed. 

The citation at bar, No. 9941679 charges as follows: 

The results of five (5) respirable dust samples 

collected by the operator as shown by computer message 

Nao 001 dated April 15, 199lp indicates the average 

concentration of respirable dust in the working 

environment of the designated occupation and mechanized 

mining unit No. 003-0 (036) was 2.1 milligrams per 

cubic meter which exceeded the applicable limit of 

2.0 milligrams per cubic meter. 

The cited standard provides as follows: 

Each operator shall continuously maintain the 

average concentration of respirable dust in the mine 

atmosphere during each shift to which each miner in the 

537 
active workings of each mine is exposed at or below 

2.0 milligrams of respirable dust per cubic meter of 

air as measured with an approved sampling device and in 

terms of an equivalent concentration determined in 

accordance with § 70.206 (Approved sampling devices; 

equivalent concentrations). 

The Secretary's evidence is undisputed. Lewis Raymond, 

Chief of the Weighing Branch and supervisory physical scientist 

at the Pittsburgh Technical Support Center of the Federal Mine 

Safety and Health Administration (MSHA) testified concerning the 

quality control procedures followed by MSHA in handling 

respirable dust samples. According to Raymond under the MSHA 

respirable dust measurement program the operator is required to 

collect dust samples for high risk occupations. The operator or 

its agent also completes a data card and sends it along with the 

sealed respirable dust cassette and filter to MSHA for weighing 

and analysis. The cassettes are opened by MSHA lab personnel, 

the filter is removed, and the weight of the filter is recorded. 

The data is electronically tr,~nsmit.t:ed to the MSHA Information 

Systems Center in Denver, Colorado. When the average 

concentration of the five (51 samples exceeds 2.0 milligrams 

per cubic meter of air (mg/m ) a notice of non-compliance is 

generated. 

Thomas Tomb is Chief of the Dust Division at the MSHA Health 

and Safety Technology Laboratory in Pittsburgh. He has a 

Bachelor of Science degree in physics and a master's degree in 

Industrial Hygiene. According to Tomb, given a ~inding by the 

MSHA lab of an average concentration of 2.1 mg/m based on five 

samples, there is an 86 percent confidence level that the amoun! 

of respirable dust in the mine atmosphere is above the 2.0 mg/m 

level allowed by the regulations. 

As previously noted, Peabody does not challenge the 

admissibility of this evidence but maintains that such evidence, 

based upon an 86 percent confidence level that the actual 

respirab1e dust concentration exceeded the legal limit of 

2.0 mg/m p is insufficient to establish a violation of the cited 

standard. The ~ssue as framed by Peabody is whether a violation 

of the 2.0 mg/m standard ~an be proven by five samples with an 

average weight of 2.1 mg/m , when it is conceded that t~ere is 

only an 86 percent probability that an average 2.1 mg/m actually 

represents a violation of the standard. Respondent maintains 

that at the 86 percent confidence level, more than one out of 10 

results would falsely show a non-existent violation, and that 

this Commission should establish as a "matter of policy" that 

such proof is not sufficient. 

The only support for Respondent's position however are cases 

involving statistical epidemiological studies where courts have 

held as inadmissible those epidemiological studies having less 

538 
than a 95 percent confidence level. See Deluca v. Merrell-Dow 

Pharmaceuticals, Inc., 911 F.2d 941 (3d Cir. 1990) and Whelan v. 

Merrell-Dow Pharmaceuticals, Inc., 117 FRO 299 (D.D.C. 1987). In 

the case at bar however, there is no evidence indicating that an 

86 percent level of confidence applied to respirable dust 

sampling is not the generally accepted criterion for reliability 

in this field. Indeed the only expert testimony in this regard 

is to the contrary. Under the circumstances I find that the 

Secretary has proven by a preponderance of the evidence through 

credible expert testimony applying statistical analys~s 

establishing that from the average weight of 2.1 mg/m of the 

five respirable dust samples taken in this case it can be 

inferred that the samples exceeded the 2.0 mg/m3 standard. There 

is sufficient connection between the evidentiary facts at an 

86 percent confidence level and the ultimate fact sought by 

Secretary to be inferred. Secretary v. Garden Creek Pocahontas 

Co., 11 FMSHRC 2148 (1989); Secretary v. Mid Continent Resources, 

6 FMSHRC 1132 (1984). See also Curtis and Wilson, The Use of 

Statistics and Statisticians in the Litigation Process, 

20 Jurimetrics Journal 109 (Winter (1979). The violation is 

therefore proven as charged. ·· 

Considering the minute differences herein between a 

violative and nonviolative condition and considering all of the 

criteria under section llO(i) of the Act, I find that a civil 

penalty of $100 is appropriate. 

ORDER 

I 

Peabody .oal Company is 

of $100 w"thin 30 days of 

Citation No. 9941679 is affirmet. 

hereby directed to pay a civil ,f·enaJ Y 

the date of this decision. ~ 

I flF ' 

/Gary 

Adminis: 

Me: 

.w ~ Judge 

Distribution: 

Christine M. Kassak, Esq., Office of t~e Solicitor, U.S. 

Department of Labor, 230 South Dearborn Street, 8th Floor, 

Chicago, IL 60604 (Certified Mail) 

David R. Joest, Esq., Midwest Division Counsel, Peabody Coal 

Company, 1951 Barrett Court, P.O. Box 1990, Henderson, KY 

42420-1990 (Certified Mail) 

/fb 

539 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 31992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PENN 92-73 

A.C. No. 36-00926-03905 

v. 

Homer City Mine 

HELEN MINING COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION APPROVING SETTLEMENT 

Richard w. Rosenblitt, Esq., Office of the 

Solicitor, U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Petitioner; 

Ronald B. Johnson, Esq., Volk, Frankovitch, 

Anetakis, Recht, Robertson & Hellerstedt, 

Wheeling, West Virginia, for the Respondent. 

Judge Melick 

This case is before me upon a petition for assessment of 

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

Health Act of 1977 (the Act)" At hearing the parties filed a 

motion to approve a settlement agreement and to dismiss the caseo 

A reduction in penalty from $1,300 to $600 was proposed. I have 

considered the representations and documentation submitted in 

this case at hearing, 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 $600 within 

30 days of this order. 

(. ( 

\ 

Gary Melick 

Admfnistra~ive Law Judge 

') 

540 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

.2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 31992 

RONNY BOSWELL, DISCRIMINATION PROCEEDING 

Complainant 

v. 

NATIONAL CEMENT COMPANY, 

Respondent 

Docket No. SE 90-112-DM 

SE-MD-90-04 

Ragland Plant 

DECISION UPON REMAND 

Before: Judge Maurer 

On February 26, 1992, the Commission remanded this matter to 

me, affirmed in part, vacated in part, and with special instructions on how to proceed with the remand. 

Basically, on January 11, 1990, complainant was "disqualified" from his job as a utility laborer, a position which he had 

occupied for a sum total of approximately 10 years at 

respondent's cement plant in Ragland, Alabama. 

National Cement "disqualified" Boswell from his position as 

a utility laborer pursuant to a "Disciplinary Action Report" 

(Respondentns Ex. No. 1) dated January 11, 1990. This report 

indicated five grounds for Boswell us disqualification: (1) a 

kiln incident on August 8, 1989; (2) a clay shredder incident on 

October 1 and 2, 1989; (3) a radio incident on October 22, 1989; 

(4) a kiln incident on December 22, 1989; and (5) a bobcat and 

wheelbarrow incident on January 1, 1990. 

In my original decision, reported at 13 FMSHRC 207 (February 

1991) (ALJ), I found that the complainant had engaged in 

protected activity by refusing to perform work and asking for a 11 safety review111 related to the kiln incident of August 8, 1989, 

and the bobcat and wheelbarrow incident of January 1, 1990. 

1

/ Under the collective bargaining agreement at the plant, a 

miner has the right to call for a safety review if he believes 

that a situation is unsafe, and cannot be disciplined for 

refusing to perform an unsafe task. Under the safety review 

procedure, representatives of the union and company meet to 

review the situation. If the two sides cannot agree, they may 

request a review by the Department of Labor's Mine Safety and 

Health Administration. 

541 
Furthermore, I found that the disqualification from his position 

as a utility .laborer was motivated at least in major part by that 

protected activity. I therefore had concluded that Boswell was 

discriminated against in violation of section 105(c) of the Mine 

Act. That ultimate conclusion necessarily implicitly includ~d 

antecedent determinations that National Cement had not successfully rebutted the complainant's prima facie case nor had it met 

its burden of proof with regard to any affirmative defense. 

It is the wheelbarrow portion of the January 1, 1990 

incident that we are concerned with at this point on remand, as 

well as the respondent's putative affirmative defense that 

protected activity aside, it would have disciplined Boswell, in 

any event, for his unprotected activity alone. 

Initially, Boswell was instructed by his foreman, James 

Allen, to use a bobcat to remove three bobcat buckets full of 

3-inch diameter alloy steel mill grinding balls from the mill 

basement at the plant. A bobcat is a relatively small machine 

with a scoop bucket on the front that allows you to pick up 

material. It doesn't have a 'steering wheel, but rather is 

steered with foot and hand controls. It requires good 

coordination and some getting used .to in order to properly 

operate it. It is sort of a miniature bulldozer or front-end 

loader. 

In any event, Boswell drove the bobcat to the mill and then 

called Allen to say he was afraid to run it up and down the ramp. 

The mill basement, where the grinding balls were located is 

accessed by a 20-30 degree inclined ramp, 12 feet wide and 30-

40 feet long, which was strewn with loose clinkers (small marbles 

or rocks) at the time Boswell inspected it. Boswell did not 

believe he had been adequately trained to operate the bobcat in 

these conditions and did not feel he would be safe operating it 

up and down the inclined ramp. 

When Boswell balked at using the bobcat, he was then 

instructed by Allen to use a wheelbarrow instead. Complainant 

testified that Allen told him to take a wheelbarrow and go down 

into the mill basement, load these steel balls into it and push 

up the ramp. Boswell says you can 1 t even walk up and down 

that ramp without holding onto the side, much less while pushing 

a wheelbarrow. He says "nobody can. 11 That conclusion is 

seriously disputed by respondent. Mr. Allen, who claims to have 

done it himself at one time, was asked at Tr. 92~ 

Q. And do you deem it unsafe to put the balls in a 

wheelbarrow and take them up that ramp? 

A. Not if you only -- you know, you only put so many 

in there. Just what you can push up there. That's it. 

542 
When Boswell in turn claimed retrieving the balls from the 

mill basement was unsafe using the wheelbarrow, Allen attempted 

to change his mind and more or less cajole him into doing it. 

Allen testified that he told him he would get him some help. He 

told him to first sweep the inclined ramp free of clinkers in 

order to have better footing, and finally, he told him he could 

carry loads as little as ten pounds per trip. I find this last 

to be patently ridiculous since if that were the case, he could 

have just put a steel ball in each of his pants pockets and 

walked up the ramp, holding onto the side if he wished. The 

wheelbarrow would have been an unnecessary encumbrance. Itself 

would outweigh the 10 pounds of balls by a factor of 4 or 5 at 

the least. 

The Commission noted that the undersigned failed to address 

Allen's testimony in this regard in my original decision. I had 

presumed that the incredulity of this scenario was so obvious 

that no comment was necessary. We have to remember that Allen 

needed to get three full bobcat bucket loads of 3-inch diameter 

steel balls out of the mill basement. This is a lot of balls. 

It would have been of very little practical help to him to have 

Boswell carry them up out of there in a wheelbarrow or otherwise, 

two or three balls at a time. This alternative makes no sense, 

unless perhaps we view it as an attempt to embarrass or pressure 

Boswell into taking a chance with his personal safety in order to 

get the job done. What Allen really wanted Boswell to do was use 

the bobcat and get it over with. Accomplish the mission. Get 

the balls out of the basement. He finally got another miner 

named Echols to run the bobcat up and down the ramp. He took out 

the three bobcat bucket loads of balls that night. 

To be very clear about this, it is my considered opinion 

that nobody believesu least of all Allen and Boswell, that he was 

merely being asked to bring up ten pounds, ioe., two or three 

balls at a time in his wheelbarrow or pockets or however he could 

carry them. 

As an objective matter, I did not initially and do not now 

find that the wheelbarrow alternative Boswell was presented with, 

and by that I mean bringing up a substantial load of steel balls 

out of the basementv was unsafe. Perhaps it could have been done 

safelyv without incident or injuryo But I do find that Boswell 

thought it was unsafe and in accordance with established 

procedures at the cement plant, he could and did ask for a 90 safety review, 11 as was his right to do. This was not a simple 

matter of refusing to perform a task. Boswell called the union 

safety man at home and determined that he could come to the plant 

right away to settle the matter. But his supervisor, Allen, 

would not allow him the "safety review" he sought. Allen instead 

told him to "let it go" and reassigned him to get on a bulldozer 

and push rock. Boswell did as he was told and went to push rock. 

543 
Therefore, I do not view this strictly as a reasonable or 

unreasonable refusal to work. Rather, I view it as a reasonable 

exercise of Boswell's right to ask for a "safety review" of the 

task. Up to that point I believe he was well within the 

protection of the Mine Act. When the company foreman decided not 

to pursue the "safety review11 and simply reassigned him to 

another task, they could not thereafter be heard to complain that 

he had refused to work. 

After all, we don't know what would have happened if the 

company would have conducted the requested "safety review." 

Perhaps the union safety man would have seen it the company's way 

and advised Boswell to perform the requested task. In any event, 

it is apparently undisputed that Boswell's request for a "safety 

review" regarding the bobcat and wheelbarrow incident was 

protected activity. Protected activity that formed part of the 

basis for his subsequent "disqualification." The admittedly 

protected activity of seeking a "safety review" is inextricably 

tied up with the work refusal itself. In my opinion, it is 

impossible to separate the two. There would have been no request 

for a "safety review" absent a dispute about the alleged 

unsafeness of the requested task. 

The "safety review" is a right without a remedy if the 

company never in fact provides one when requested. Not only 

that, but if a worker asks for too many of them (in this case, 

two in five months), he could be subject to disciplinary action. 

Seemingly, that is the "lesson" to be learned by the worker 

caught in this type of dilemma. 

I am mindful that for our purposes, the miner must have a 

good faith, reasonable if only a subjective belief that the 

requested work is unsafe for him to perform. I am of the opinion 

that Boswell held such a belief and that the operator did nothing 

to address his concerns. Purportedlyu that is the function of a 

'" review1u at this plant. 

I am also mindful that such a "safety review" procedure 

could become a source of misuse and abuse by a worker, but there 

is no evidence of that in this case. 

Accordingly; I conclude that Boswell's belief that it was 

unsafe for him to push a loaded wheelbarrow up a 20 degree 

inclined ramp was at least subjectively reasonable and entitled 

him to preliminarily seek a 11 safety review" of the job which 

request was refused or ignored by the respondent. Therefore, I 

find that Boswell engaged in protected activity on January 1, 

1990, in connection with his refusal to use the wheelbarrow, and 

adverse action motivated in part by that protected activity 

occurred shortly thereafter. 

544 
If an operator cannot, as here, show either that no 

protected activity occurred or that the adverse action taken was 

in no part motivated by protected activity, it may nevertheless 

affirmatively defend by proving that it would have taken the 

adverse action in any event on the basis of the miner's 

unprotected activity alone. Secretary on behalf of Fasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), 

rev'd on other grounds, sub nom. Consolidation Coal Co. v. 

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

of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 

(April 1981). See also Eastern Assoc. Coal Corp. v. FMSHRC, 813 

F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford Construction 

Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Baich v. FMSHRC, 719 

F.2d 194, 195-96 (6th Cir. 1983) (specifically approving the 

Commission's Fasula-Robinette test). NLRB v. Transportation 

Management Corp., 462 U.S. 393, 397-413 (1983) (approving nearly 

identical test under National Labor Relations Act). 

Basically, I believed and still believe Boswell was 

"disqualified" for the reasons the respondent stated they 

disqualified him in their "Disciplinary Action Report" of 

January 11, 1990 (Respondent's Ex. No. 1). Most particularly, 

for calling the "safety review" in August 1989 and the last 

straw, again on January 1, 1990. Ten days after that he was 

reprimanded and disqualified as a utility laborer. Both of these 

incidents are clearly protected activity under the Mine Act. 

The other three instances cited in the Disciplinary Action 

Report were essentially nonissues, i.e., throw-ins. None of 

these incidents taken separately or together provides any 

credible unprotected justification for the adverse action taken 

against Boswell. See the earlier ALJ decision at 13 FMSHRC 207 

for my rationale concerning these incidents. 

As for Boswell us allegedly poor work history going back to 

1980, and his inability to get along with his foreman, Mr. Allen, 

forming the basis for a viable affirmative defense in this case, 

I am not persuaded. I think they are bound by their own 

Disciplinary Action Report, i.e., they took the action against 

Boswell for the reasons they say they did, on January 11, 1990. 

At the hearing, on September 5, 1990, I specifically asked 

Mr. Cedric Phillips, the personnel director for the respondent, 

if the allegations contained in that report were the only grounds 

the company relied on to disqualify Boswell from his utility 

laborer position. He replied: "Yes sir. Those are the ones 

that were used." (Tr. 161). He then went on to state that "Ronny 

[Boswell] and James [Allen] wasn't getting along together" and 

therefore, "Ronny needed to be removed from his job and from his 

shift." (Tr. 162). Thats it. That is the sum total of the 

evidence that anything other then the grounds stated in 

545 
Respondent's Exhibit No. 1 were used to disqualify Boswell. On 

the other hand, Boswell's unrebutted testimony was that he worked 

for James Allen for the last 8 years and had no more problems 

with supervision and supervisors than anyone else did. 

Lastly, I will turn to the seven earlier incidents 

concerning Boswell's work which were not even mentioned in the 

January 11, 1990 report, but which are included in the hearing 

record as respondent's exhibits. 

Respondent's Exhibit No. 5 dated May 27, 1980, Respondent's 

Exhibit No. 6 dated April 27, 1981, Respondent's Exhibit No. 7 

dated December 10, 1981, Respondent's Exhibit No. 8 dated 

December 14, 1981, and Respondent's Exhibit No. 9 dated April 16, 

1982, I deem too remote in time to have any bearing whatsoever on 

his 1990 "disqualification." 

There were two further incidents written up during 1988. 

one on May 24, 1988 (Respondent's Exhibit No. 10) is on a piece 

of scratchpad on which is written a Mr. Harvey Hyde's note that 

Boswel 1 had refused to fallow' -a. ·· supervisor 1 s orders concerning 

signing the change sheets for cement silos. There is no further 

elucidation in the record of what this is all about, nor is there 

any mention of it in connection with the 1990 "disqualification." 

Respondent's Exhibit No. 11 is also signed by one Harvey Hyde and 

appears to be more serious. It is on a "Disciplinary Action 

Report" form and again has to do with following procedures or 

failing to follow procedures about changing cement from one silo 

to another. Again, it has been dumped into the record cold and 

has no readily discernible connection with the adverse action the 

respondent took against Boswell on January 11, 1990. 

As noted by the Commission in Bradley v. Belva Coal Company, 

4 FMSHRC 982 (June 1982), it is not our function to pass on the 

wisdom or fairness of such purported justifications, but only to 

determine whether they are credible and whether they would have 

motivated the operator as claimed. Assuming all these earlier 

incidents happened, and taking them at face value within the four 

corners of the documents presented, I conclude that respondent 

has failed to prove that it would have disqualified Boswell over 

any of these incidents separately or together. The elapsed time 

alone between these incidents and the complained of adverse 

action casts substantial doubt on that claim. 

Accordinglyp considering the entire record of proceedings 

made in this case yet again and in particular the Commission's 

Decision and remand instructions to me of February 26, 1992, I 

conclude and find that: 

1. The wheelbarrow incident did constitute a protected work 

refusal; and 

546 
2. National Cement Company failed to prove that it would 

have disqualified Boswell in any event for his unprotected 

activities alone, and this is so whether these activities are 

considered separately, in any combination thereof or in toto. 

With regard to the adverse action in this case, complainant 

was unrepresented by counsel at the hearing and was unable in my 

opinion to sustain his burden of ,proving his entitlement to back 

pay. However, the Commission has concluded that Boswell suffered 

an adverse action in this respect as well. "[T]he evidence shows 

that Boswell earned more because he worked more, but that he 

nevertheless suffered a loss in his base pay rate." Slip Op. 

at 8. 

Therefore, in addition to the remedies previously ordered in 

my original decision of reinstatement to his former position and 

expungement of his personnel record, I am herein ordering back 

pay paid to the complainant in the amount of $1.08 per hour for 

every hour he has worked between the date of disqualification and 

the date of reinstatement to ,t.he position of utility laborer, 

plus interest. 

ORDER 

It is ORDERED that: 

1. The respondent shall pay to complainant Ronny Boswell 

back wages in the amount of $1.08 per hour for every hour he has 

worked from January 11, 1990 until the date of reinstatement to 

the utility laborer position, with interest thereon computed in 

accordance with the Commission's Decision in UMWA v. Clinchfield 

Coal Co.u 10 FMSHRC 1493 (1988)u aff'd, 895 F.2d 773 (D.C. Cir. 

1990)0 The parties shall confer within 15 days of the date of 

this decisionQ in an effort to stipulate the amount due 

complainant under this ordero If they are unable to so 

stipulate 1 complainant shall submit within 20 days of the date of 

this decision, its statement of the amount due. Respondent may 

respond within 10 days thereafter. 

2. The terms of my earlier Order dated February 7u 1991, 

are reiterated here. 

3. This decision upon remand will not become final until a 

subsequent order issued awarding back pay and declaring the 

decision to be final. 

Law Judge 

547 
Distribution: 

Harry L. Hopkins, Esq., Lange, Simpson, Robinson & Somerville, 

1700 First Alabama Bank Building, Birmingham, AL 35203 (Certified 

Mail} 

Mr. Larry G. Myers, United Paperworkers International Union, 

District Council No. 5, 229 Roebuck Plaza Drive, Suite 203, 

Birmingham, AL 35206 {Certified Mail) 

Mr. Ronny Boswell, P. o. Box 177, Wattsville, AL 35182 (Certified 

Mail) 

dcp 

548 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TWENTYMILE COAL COMPANY, 

Respondent 

Before: Judge Lasher 

DENVER, CO 80204 

APR C 

. . 

. . 

. . 

. . 

: 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 91-449 

A.C. No. 05-03836-03539 

: Foid el Cr eek . . 

DECISION 

In this proceeding the Secretary of Labor CMSHA) originally 

sought assessment of penalties for a total of five alleged violations pursuant to Section llO(a) of the Federal Mine Safety and 

Health Act of 1977, 30 u.sc. § 820Ca) (1977). Thereafter, on 

March 2, 1992, the parties filed a Motion to Approve Settlement 

of four of the five Citations involved in this docket and such is 

being approved in my Decision Approving Partial Settlement issued 

simultaneously herewith. The fifth and remaining Citation, No. 

9996580, is being sub.nitted on the basis of a written "Stipulation" submitted by the parties on March 2, 199 2, which I conclude 

is sufficient upon which to base this decision since the sole 

issue is (1) legal rather than factual and (2) is one on one 

which I have previously :ruled in this matter in denying Respondentu s motion for summary decision. 

The Stipulation in pertinent part provides: 

1 On October 10 0 1990 0 Citation No. 9996580 was issued 

pursuant to Section 104 (a) of the Federal Mine Safety and Health 

Act of 1977 ("the Actv•). 

2. The Citation alleged a violation of 30 C.F.R. § 70.lOOA 

as followsz 

Based on the results of five valid dust samples 

collected by the operator, the average concentration of respirable dust in the working environment of the designated occupation, Code 036 

in mechanized mining unit 006-0 was 2.1 milligrams which exceeded the applicable limit of 2.0 

milligrams. See attached computer printout dated 

549 
October Su 1990. Management will take correctiv€ actions to lower the respirable dust and 

then sample each production shift until five 

valid samples are taken and submitted to the 

Pittsburgh Respirable Dust Processing Laboratory. Approved respiratory eq:uipment shall be 

made available to all persons working in the 

area. 

3. The Citation alleged that the condition significantly 

and substantially contributed to the cause and effect of a mine 

safety or health hazard. 

4o The miners, who were the subject of the sampling on 

which the Citation was based, were not wearing respirators at the 

time the sampling was conducted. 

5. The average concentration of respirable dust on which 

the Citation was k:ased was 2 ol .. mg/m3" 

60 On September 4, 1991, '!Wentymile filed a Motion for 

Sununary Decision as to the issue of the appropriateness of the 

"Significant and Substantial" designation. 

7o On October 2v 199lu the Administrative Law Judge denied 

such motion. 

8. A hearing in this matter is scheduled for March 20, 

1992. 

9o The parties agree and stipulate that the only issue for 

hearing in this matter is whether a citation based upon an average respirable dust concentration of 2al mg/m3 may properly be 

designated as ~significant and Substantialallil Twentymile wishes 

't.o seek review of such issue by the Commission.. The parties believe that a hearing is not necessary on such issue, since the 

issue is a legal one based upon the Congressional findings contained in the legislative history of the Federal Mine Safety and 

Health Act and the regulatory historyo 

lOa To that end 0 the parties agree and stipulate that a violation of the cited standard existed and thatu if the citation is 

designated "Significant and Substantial., lJil the appropriate penalty 

is $276o00v the full proposed penaltyo 

11. The parties further agree and stipulate that the 

decision of the Administrative Law Judge on partial smunary 

decision regarding the issue of the designation of the citation 

as significant and substantial may be incorporated in the order 

of the Judge so that review may be sought at this time. 

550 
In paragraph 10 of the Stipulation, Respondent concedes the 

violation charged of 30 C.F.R. § 70.lOOO(a) which provides: 

(a) Each operator shall continuously maintain 

the average concentration of respirable dust in 

the mine atmosphere during each shift to which 

each miner in the active workings of each mine 

is exposed at or below 2. 0 milligrams of respirable dust per cubic meter of air as measured 

with an approved sampling device and in terms 

of an equivalent concentration determined in 

accordance with § 70.206 (approved sampling 

devices; equivalent concentrations). 

In my Order Denying Motion for partial summary decision 

dated October 2, 1991, referred to in paragraph 11 of the Stipulation and re-adopted here, r .. .found the position of the Secretary 

in opposition to the motion meritorious and adopted it, citing 

the decision of Commission Chief Administrative Law Judge Merlin 

in Consolidation Coal Company, 13 FMSHRC 1076 (July 1991) as dispositive of the issue" 1 

Judge Merlin 1 s opinion, relying on prior Commission and 

Federal Circuit Court precedents, is incisive on the question 

posed here and the holdings and rationale contained therein are, 

as suggested in my Order Denying Motion ref erred to paragraph 11 

of the Stipulation, incorporated here by reference. In particular v I note and quote from Judge Merlin's decision the section 

thereof entitled "Precedents,w to wit: 

In Consolidation Coal Company, 8 FMSHRC 890 

(June 1986), the Commission decided that a respirable dust concentration of 4.1 mg/m3 constituted a significant and substantial violation. 

In so holding, the Commission adopted principles 

which appropriately serve as a guide for resolution of the present mattero Similarly, the Court 

l As the parties have stipulated, the only issue here is 

whether a wcitation based upon an average respirable dust concentration of 2.1 mg/m3 may properly be designated as 1 Significant 

and Substantial 0 ow In the instant case and in the Consolidation 

case before Judge Merlinu the dust concentration~was the same--

2.1 mg/m3e 

551 
of-Appeals which affirmed the Commission in Consolidation Coal Company v. Federal Mine Safe~ 

and Health Review Commission, 824 F.2d 1071 (D.C. 

Cir. 1987), further elucidated the precepts which 

govern this inquiry. 

In Consolidation Coal Company, the Commission recognized the unambiguous legislative purpose to prevent disability from pneumoconiosis 

or any other occupation-related disease. The 

Commission stated that Congress intended the 2.0 

mg/m3 standard to be the maximum permissible exposure level in order to achieve its goal of 

preventing disabling respiratory disease. 

8 FMSHRC at 897. ·The respirable dust violation 

was then analyzed to determine whether it was 

significant and substantial in accordance with 

the four-step test enunciated by the Commission 

in National Gypsum G~., 3UFMSHRC 822 Cl981); and 

Mathies Coal Company, 6 FMSHRC 1 ( 1984). The 

respirable dust violation was admitted (first 

step) and the Commission held that any exposure 

above the 2 .0 mg/m3 level established a measure 

of danger to heal th (second step) • 8 FMSHRC at 

898. In finding a reasonble likelihood that the 

hazard would result in illness (third step), the 

Commission stated that although a single incident 

of overexposure would not in and of itself estab-

. lish a reasonable likelihood, the development of 

respiratory disease was due to cumulative overexposure with precise prediction of whether and 

when respiratory disease would develop being impossibleo 4 FMSHRC at 8980 Accordingly 11 the 

Commission held that if the Secretary proves an 

overexposure in violation of§ 70.lOOCa) a presumption arises that there has been established 

a reasonable likelihood that the heal th hazard 

will result illness" 8 FMSHRC at 8 9 9" Final11 the Commission found there was no serious dispute that the illness in question would be of a 

reasonably serious nature (fourth step). 8 FMSHRC 

at 8990 Because the four elements of the significant and substantial test would be satisfied in 

any case where there was a violation of § 70.100 

Ca) 11 the Commission held that when the Secretary 

finds a violation of § 70 .. lOO(a), a presumption 

that the violation is significant and substantial. 

is appropriate. The presumption may be rebutted 

by proof of non-exposure. 8 FMSHRC at 899. 

552 
_ Upon review, the Court of Appeals affirmed 

the Commission and upheld its adoption of the 

presumption that all respirable dust violations 

of § 70.lOO(a) are significant and substantial. 

The Court stated in pertinent part as follows: 

* * * The determination of the likelihood 

of harm from a violation of an exposurebased health standard necessarily rests 

on generalized medical evidence concerning the f ects of exposure to the harmful substance, rather than on evidence 

specific to a particular violation. 

* * * Once the Commission had determined 

on the basis of medical evidence that any 

violation of the respirable dust standard 

should be considered significant and subs tantial, it would be meaningless to required that the''sa.me findings be made in 

each individual case in which a violation 

occurs. * * * 

* * * * * 

The Commission's adoption of the presumption at issue here is consistent with 

the congressional intent in enacting the 

Mine Act, and specifically with Congress's 

use of the "Significant and Substantial" 

language. 

1824 Fo2d at 1084 11 10850 

current precedents sustain the validity of the presmnption 

that exposures above the 2. 0 mg/m3 limit set forth in Section 

§ 70.lOO(a} are significant and substantial. Accordinglyu in 

terms of the issue presentedu it is held that a citation blsed 

upon an average respirable dust concentration of 2.1 mg/m3 may 

operly be designated as ~significant and Substantial.• 2 

2 The presmnption being rebuttable it is further noted 

that there is no evidence to rebut the same, such as the wearing 

of protective equipment by employees otherwise exposed. See 

Stipulation, paragraph 4. 

553 
ORDER 

1. Citation No. 9996580, including the "Significant and 

Substantial" designation in Section lOc thereof, is AFFIRMED. 

2. Respondent SHALL within 40 days from the date hereof 

PAY the stipulated penalty 3 of $276 to the Secretary of 

Labor. 

Distribution: 

~/~j;<,,(- 4 ~:,£ /{c1 /; . Mi cha el A. Ia sher i Jr. 

Administrative Law Judge 

Susan J. Eckert, Esq., Office of the Solicitor, u.s. Department 

of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

Ro Henry Moore 0 Esq" u BUCHANAN INGERSOLL,, P,,Co il USX Tower,, 57th 

oor 600 Grant Street 0 ttsburgh 0 PA 15219 (Certified Mail) 

ek 

3 See Stipulation, paragraph 10. 

554 
FEDERAL MINE SA~ETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

APR 61992 

TOM K. SPERRY, DISCRIMINATION PROCEEDING 

Complainant 

v. 

AMES CONSTm.JCTION, INC., 

Respondent Q 

. 

Docket No. WEST 91-473-DM 

WE MD 91-12 

DECISION 

Appearances: Tom K. Sperry, pro se, Nephi, Utah, 

for Complainant; 

Lawrence R. Dingivan, Esq., Jill Dunyon-Hansen, Esq., 

Salt Lake City, Utah, 

for Respondent. 

Before: Judge Lasher 

This matter was initiated by Mr. Sperry's complaint filed 

with the Commission on July 8, 1991, pursuant to Section 105(c) 

(3) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 80lu et~ (1982) u (herein 1'the Act"L His initial Section 

105(c)(2) complaint wasv on June 13u 199lu found by the Federal 

Mine Safety and Health Administration (MSHA) to lack meritc 

Complainant then filed the instant action with the Commissionc 

Mro Sperry's complaint with MSHA alleged: 

I was promised in October of 1990 to be rehired 

around February of l 99L I talked to this Company several times through the winter of 90-91 

with no problems at that time. On February 4u 

1991,, I was told by Russ that I would not be 

rehired 17 that he had talked to Pete Smyle and 

Leon DeWitt and they had changed there [sic] 

mind about put ting me ba. ck to work this season,, 

I am sure that this action is because of a discrimination complaint I brought against them 

through your off ice. 

I have been in touch with my Labor Union in 

Reno. They said that if they put me ba.ck to 

work that they would find some way to get rid 

of me at a later date. The person at Reno is 

Chuck Billings Bus. Agent. 

555 
Contentions 

Complainant contends that after being laid off in a reduction in force on October 19, 1990 (Ex. C-2), he was not thereafter rehired by Respondent because of his protected activities 

in filing an MSHA complaint on September 26, 1990 (Ex. C-4) 1 and 

making other on-the-job safety complaints to his employer. Complainant also alleges that his layoff was discriminatory. 

CT. 20}. 

Respondent contends it laid off Complainant for lack of work 

and that it did not rehire him because he was an unsafe employee. 

Findings and Conclusions 

Based on the preponderance of the reliable and probative 

evidence introduced on the record at the hearing in this matter, 

the following findings of fact are made: 

Respondent at material times was a contractor for Newmont 

Gold Company. (Ex. C-4). Its work was seasonal - depending on 

when various of its contracts would be completed and new contracts would commenceo At times a reduction of force would be 

necessary and employees would be laid off. CT. 139, 149, 

161-162) 0 

Complainant (approximately 39 years old) commenced employment with Respondent at Newmont Mine No. 3 as an equipment operator (operating a No. 631 caterpillar scraper) in the fall of 1989. 

His immediate supervisor most of the time thereafter was foreman 

(now Superintendent) Lavene "Pete" Srnyleo (T,, 25v 107-108)" 

Complainant operated a lliwa ter wagon" for most of his employment 

beginning in approximately January 19900 (To 27)o 

During his employment, Complainant engaged in various activities protected under the Act" 

ao A discrimination complaint was filed under Section 

105(c) Mro Sperry on September 26u 1990 (see MSHA Final 

Reports Ex" C-4)o This complaint was voluntarily withdrawn on 

October 2v 1990 (EXo C-4). As general information, it is noted 

that MSHA us iliFinal Reportvv states with respect to this complaint~ 

l Complainant voluntarily withdrew this complaint on 

October 2, 1990.. (Attachment to Ex. C-4). 

556 
The incidents took place over an extended period of time beginning approximately in October of 1989. The complainant was engaged in 

protected activity. The complainant did communicate his belief of a protected activity to 

mine management. The specific discriminatory 

act that the complainant alleges mine managemwent has undertaken is a failure to recognize 

his concern over his evaluation of possible 

maintenance problems associated with brakes on 

scrapers and water trucks as well as e::juipment 

for dust control. 

* * * * * 

Ms.nagement and the complainant were instructed 

that MSHA would not be placed in a position to 

arbitrate controversy regarding labor disputes. 

Both parties were al-so instructed that any resolution of the complaint would have to be voluntary on the part of Mr. Sperry. 2 

b. Complainant advised a fellow anployee how to get 

in touch with the Nevada Mine Safety off ice in Reno, Nevada. Respondent's foreman, DeWitt, told Complainant he "was wrong" in 

doing this • ( T. 51-5 2 ) • 

c. Complainant made various complaints to his supervision, such as for inadequate brakes on equipment. CT. 52). 3 

It is not clear and was not established ~ Mr. Sperry 

that other alleged safety problems he observed were both ( 1) reported to managementg and (2) actually unsafe or (3) reasonably 

2 See also To 61-63u indicating Complainant 1 s reasons for 

withdrawing the complain tu such as his belief that 11 things were 

going to improve~ and his belief that Russell Harvey (Respondent 

Project Director) would satisfactorily address his problems. 

3 Complainant 1 s testimony concerning a conversation with 

a foreman named Mike Beck concerning inadequate brakes on a CAT 

compactor has been scrutinized and is found not to constitute a 

safety complaint. CT. 55-58). Mr. Sperry's testimony frequently 

was unclear, irrelevant, disjointed, rambling, and speculative in 

nature. On cross-examination, at times he was hesitant. (T.65, 

66, 67 I 68-70) • 

557 
perceived by him to be unsafe. [See T. 27-28 (cut curtains); 

31, 46-48 (dental appointment problem); 82-83]. 

d. Complainant himself apparently contacted the Nevada 

Mine Safety office (T. 27, 31). Whether Respondent was aware of 

these contacts l:1j Mr. Sperry was not established, however. 

(T. 31). 

It is clear that in filing the MSHA complaint and in advising a 

co-worker as to the whereabouts of Nevada's Mine Safety office, 

Complainant engaged in safety activities protected l:1j the Mine 

Act, and that these activities were known to Respondent's management. 

With respect to the layoff, the evidentiary presentation was 

limited. 'lbe record does clearly indicate that the employment 

expectations of Respondent's employees were not of a permanent 

nature since the work was seasonal. (T. 40, 139, 149, 161-162). 

Further, Respondent proved that 23. employees were laid· off for 

lack of work in a reduction in force between September 20, 1990, 

and November 21, 1990. This group of 23 included Complainant who 

was laid off on ~tober 19, 1990. (T. 92, 148-150, 152; Exs. 

R-2, R-6) • 

Complainant produced no probative or convincing evidence, 

that his layoff was discriminatorily motivated. 4 · 

I am unable to conclude from the evidence of record that 

Respondent was in any way motivated by Complainant's protected 

activities in laying him off as part of the reduction in force 

in October 1990. Thus, no basis is found to conclude that the 

'«discriminatory layoff 11 change of the Complainant has merit,, 

We blrn now to Complainantgs charge that Respondentvs refusal to rehire him was discriminatorye As Respondent contends in 

its brief, the provisions of the labor agreement (see T. 50, 

84-87u 91-92v 97-103, 105) between Complainant 1 s employer and his 

union do not govern the determination whether discrimination 

occurredo The rulesu reroediesu burdens of proof v and analytical 

formulae for determining such are set forth in the Mine Act and 

specific precedents established by the Federal Mine Safety and 

It appears from the record that Complainant• s primary--

indeed, ini tial--intent in filing the instant complaint was to 

allege discrimination in Respondent's refusal to rehire him after 

the layoff. 

558 
Health Review Commission and the federal courts. In order to 

establish a-prima facie case of mine safety discrimination under 

Section 105( c) of the Act, a complaining miner bears the burden 

of production and proof to establish (1) that he engaged in protected activity, and (2) that the adverse action complained of 

was motivated in any part by that activity. Secretary on behalf 

of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 

(October 1980), rev'd on other grounds sub nom. consolidation 

Coal Co. v. Marshall, 663 F.2d 1211 C3d Cir. 1981); and Secretary 

on behalf of Robinette v. United States Coal Co., 3 FMSHRC 803, 

817-818 (April 1981). '!he operator may rebut the prima facie 

case by showing either that no protected activity occurr or 

that the adverse action was in no part motivated by protected 

activity. If an operator /cannot rebut the prima facie case in 

this manner, it may nevertheless affirmatively defend by proving 

that Cl> it was also motivated by the miner's unprotected activities, and ( 2) it would have taken the adverse action in any event 

for the unprotected activities alone. The operator bears the 

burden of proof with regard to the affirmative defense. Haro v. 

Magma Copper Co., 4 FMSHRC 19.35, 1936-1938 {November 1982). The 

ultimate burden of persuasion does not shift from the complainant. Robinette, 3 FMSHRC at 818 n. 20. See also Baich v. 

FMSHRC, 719 F.2d 194, 195-196 (6th Cir. 1983)iJ)Onovan v. Stafford Const. Co., 732 F.2d 954, 958-959 CD.C. Cir. 1984) (specifically approving the Commission's Pasula-Robinette test); and 

Goff v. Youghiogheny & Ohio Coal Company, 8 FMSHRC 1860 {Dec. 

1986) 0 

In terms of the ra:iuired prima facie case in discrimination, 

Complainant clearly established the first elements thereof, i.e., 

that he had engaged in protected safety activities and the Respondent1s management was aware thereof prior to the time he was 

id f and subsa:iuently not rehiredo The first of the two 

issues posed is whether the adverse action taken by Respondent 

aga t Complainant was 0uin any part 11 motivated by Complainant 0 s 

protected activitieso '!he affirmative defense provided under the 

Commissionis discrimination formula raises the second issue: 

Even assuming arguendo that Respondent was in part motivated by 

Complainant 1 s protected activitiesv was it also motivated ~ his 

unprotected activities (unsafe job performance) and would itu in 

any eventv have not rehired him for this alone. 

Under the 1977 Mine Safety Act, discriminatory motivation is 

not to be presumed but must be proved. Simpson v. Kenta Energy, 

Inc.e and Jacksone 8 FMSHRC 1034, 1040 (1986) o 

In this connection, Respondent 9 s management witnesses convincingly testified that they were not motivated by Complainant's 

protected activities in laying him off and refusing to rehire him. 

5 
In contrast, the evidence introduced by Complainant failed to establish a motivational nexus between the allegedly discriminatory 

adverse actions taken against him and his mine safety activities 

was not convincing. 5 

Direct evidence of actual discriminatory motive is rare. 

Short of such evidence, illegal motivation may be established if 

the facts support a reasonable inference thereof. Secretary on 

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510, 2511 

(Nov. 1981), rev 1 d on other grounds sub nom. Donovan v. Phelps 

Dodge Corp., 709 F.2d CD.C. Cir. 1983); Sammons v. Mine Services 

Co., 6 FMSHRC 1391, 1398-1399 (June 1984). The weight of the 

evidence in this record is not probative that Respondent was 

illegally motivated in whole or in part, nor is there support for 

drawing an inference of such discriminatory intent. 

The record reveals that the decision not to rehire Complainant was effectively made by his foreman, Mr. Srnyle. He credibly 

attributed this decision to the fact that he did not consider 

Mr. Sperry to be a safe anpl'oyee.; (T. 116-117, 164, 171-172). 

Respondent made out a relatively strong case that Complainant did 

not perform his duties in a safe manner. Thus, Complainant 

Sperry was shown to have been involved in an incident--in the 

Spring of 1990 when he was under the supervision of his first 

foreman--where he pulled his water wagon out in front of a large 

truck. (T. 110-155). 6 He was being considered for discharge 

because of this incident when Foreman Smyle, who was short of 

help, said "Send him down to me, I can work with him. 11 (T. 112). 

Complainant thereafter, in June 1990, received a verbal warning 

from Mr. Smyle for overwatering a curve which resulted in a truck 

sliding off the road. CT. 113-114). Significantly, after this, 

Mro Smyle received complaints (To 114v 168) from other drivers 

that Sperry was overwa tering o He testified:: 

5 Based on observation of the demeanor of the witnesses 

and Complainantu the various reasons appearing elsewhere in ths 

decisionu and the relatively convincing testimony of Respondentis 

witnesses (Mro Smyleu in particularu was closely cross-examined>u 

the accounts of Complainant have been determined not to carry the 

same degree of reliability as those of Respondent's witnesses. 

6 According to Complainant, he also was "accused" of 

ngetting in the way of trucks 11 --in September 1990. CT. 51). 

560 
Shortly after that, yes, we had some more 

complaints, and I don't recall the date, but I 

know it was on a Monday morning safety meeting, 

I went into the bus and told him specifically 

that he had to watch this, that the drivers were 

complaining. And he told me specifically, "Why 

don't they tell me?" 

And I said, "That's not their job. That 

is my job. " ( T .114) • 7 

Respondent also presented evidence that Complainant turned 

in front of another truck driver, Jay Pace, after which Mr. Smyle 

told Complainant that he would have "to start paying more attention and be more careful or we're going to have a fatality." 

(T. 115-116) .. 

The preponderance of the reliable and probative evidence in 

this record indicates that Complainant was, as Respondent alleges, an unsafe employee in the performance of the duties he 

performed for Respondent and that this was its motivation in not 

rehiring him. 8 

In reaching the conclusion that Complainant failed to establish that his layoff and not being rehired were discriminatorily 

motivated, consideration also has been given to the fact that the 

instant record overall does not reflect a pattern on the part of 

Respondent's management personnel to engage in such conduct. A 

history of retaliatory reaction to the expression of safety complain ts was not persuasively shown. Complainant points out several instances of what he considered hostile words or action 

taken by management personnel toward himo Yet,, such were not 

demonstrated to be beyond normal workplace occurrences. '!here 

was no evidence of retaliation against other employees who had 

engaged in safety activities or who expressed safety complaints. 

See To 128-1290 

As the Commission pointed out in Bradley v. Belva Coal 

CompanyQ 4 FMSHRC 981Q 991 (June 1982) g "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." 

561 
ULTIMATE CONCLUSIONS 

Respondent's motivation in laying off Complainant was 

economic and in not rehiring him was because he was unsafe and 

the decision to take such actions was justified. These adverse 

actions were not wholly or in part discriminatorily motivated. 

Thus, Complainant has failed to establish a prima facie case of 

discrimination under Section 105(c) of the Mine Act. 

Even assuming arguendo, that if it were established by a 

preponderance of the reliable probative evidence, that Complainant's layoff and Respondent's refusal to rehire him were motivated in part by his protected activities, Respondent established 

by a clear preponderance of such evidence that it was also motivated by business reasons and Complainant's unprotected activities 

and that it would have taken the adverse actions in any event for 

such. 

'ORDER 

Complainant having failed to establish Mine Act discrimination on the part of Respondent, the Complaint herein is found to 

lack merit and this proceeding is DISMISSED. 

Distributiom 

/ 

'9~~~e d ~~<t2~-- Mi cha el A • Ia sh er, Jr • 

Administrative Law Judge 

Mr., Tom K. Sperry" 1350 West North Temple, Salt Lake City, UT 

84116 C Certified Mail) 

Mr Roger Lo McBrideu Director of Safetyv AMES CONSTRUCTIONu 

INCov 14420 County Road Sv Burnsville, MN 55337 (Certified Mail) 

Lawrence Ro Dingivanu Esq.u Jill Dunyon-Hansen, Esq., SUITTER, 

AXLAND 0 ARMSTRONG & HANSON 0 175 West South Temple, Suite 700u 

Salt Lake City 0 UT 84101-1480 (Certified Mail) 

ek 

562 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 131992 

LOCAL UNION 2122, DISTRICT 20, 

UNITED MINE WORKERS OF 

AMERICA, 

Complainants 

v. 

U. S. STEEL MINING COMPANY, 

INCORPORATED, 

Respondent 

COMPENSATION PROCEEDING 

Docket No. SE 91-26-C 

Oak Grove Mine 

ORDER OF DISMISSAL 

Before: Judge Weisberger 

The Stay Order issued on July 18, 1992, is hereby lifted. 

on March 31, 1992, Complainant's filed a Motion to Withdraw 

based on a stipulation of settlement filed January 31, 1992. 

Pursuant to 29 C.F.R. § 2700.11, this Motion is granted, based on 

the assertions set forth in the Motion. 

It is ORDERED that this case b 

Distribution: 

Mary Lu Jordan, Esq., United Mine Workers of America, 

900 15th Street, NW, Washington, DC 20005 (Certified Mail) 

Billy M. Tennant, Esq., Employee Relations, U. S. Steel Mining 

Company, Inc., USX Corporation, Suite 1580, 600 Grant Street, 

Pittsburgh, PA 15219 (Certified Mail) 

nb 

563 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 151992 

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 PROCEEDING 

Docket No. WEVA 88-144-R 

Order No. 2895540; 1/27/88 

Martinka No. 1 Mine 

Mine ID 46-03805 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 88-212 

A. C. No. 46-03805-03852 

Martinka No. 1 Mine 

DECISION UPON REMAND APPROVING SETTLEMENT 

ORDER OF DISMISSAL 

Before~ Judge Maurer 

The Secretary proposes to vacate Order No. 2895348 because 

the evidence available at the retrial of this case on remand 

would not support the fact of violation using the criterion 

announced by the Commission in Southern Ohio Coal Co.v 

14 FMSHRC 1 (January 1992). I accept the Secretaryvs 

representations in this regard and accordinglyu Order No. 2895348 

!S VACATED. 

The other matter previously included in the civil penalty 

proceeding was Order No. 2895540, which was modified to a 

section 104(a) citation and assessed a civil penalty of $500 by 

my Decision and Order of October 16, 1989, which can be found at 

11 FMSHRC 1992 (October 1989) (ALJ). counsel of record for 

respondent assures roe that this $500 has been long ago paid. 

564 
That being the case, the captioned contest proceeding 

moot and both of the above proceedings are now DISMISSED. 

Law Judge 

Distribution: 

David A. Laing, Esq., Porter, Wright, Morris & Arthur, 41 s. High 

street, Columbus, OH 43215-3406 (Certified Mail) 

Joseph T. Crawford, Esq., Office of the Solicitor, u. s. 

Department of Labor, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail} 

dcp 

565 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 151992 

JEFFERY A. PATE, 

Complainant ·. 

DISCRIMINATION PROCEEDING 

v. Docket No. SE 91-104-D 

WHITE OAK MINING COMPANY, 

Respondent 

BARB CD 90-36 

White Oak Mining 

DECISION 

Appearances: Mitch Damsky, Esq., Birmingham, Alabama, for the 

Complainant; 

David M. Smith, Esq., Maynard, Cooper, Frierson & 

Gale, P.c., Birmingham, Alabama, for the 

Respondent. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

This proceeding concerns a discrimination complaint filed by 

the complainant, Jeffery A. Pate, against the respondent, White 

Oak Mining Company (White Oak), pursuant to section 105(c) of the 

Federal Mine Safety and Health Act of 1977v 30 U.S.C. § 801 

seq. Mr. Pate filed his initial complaint with the Secretary 

of Laborv Mine Safety and Health Administration (MSHA). Following an investigation of his complaint, MSHA determined that a 

violation of section 105(c) had not occurred, and Mr. Pate then 

filed his complaint with the Commission. Pursuant to notice, a 

hearing was conducted in Birmingham, Alabama, on November 6, 

1991. Subsequently, respondent filed a posthearing brief on 

January 15 1992 1 which I have considered along with the entire 

record of proceedings in this case in making the following 

decisiono 

The complainant alleges that he was discharged or "constructively discharged 11 (quit) from his job with White Oak for 

refusing to perform a task which he believed to be unsafe and 

dangerous. The respondent ascribes other motives to 

complainant's refusal to work. 

The fundamental issue in this case is whether the 

complainant's work refusal amounted to protected activity under 

section 105(c) of the Mine Act. 

566 
DISCUSSION 

Pate began his "employment" at White Oak in March or April 

of 1990, and that "employment" ended on June 27, 1990. He was 

never an "employee" per se of White Oak, but rather was a 

subcontractor/laborer. He was paid a flat $10 per hour and 

neither social security nor withholding taxes were deducted from 

his pay. White Oak was also contractually not responsible for 

his insurance coverage or his personal injuries on the job. 

Basically he performed manual labor for a flat fee and was paid 

the gross amount by check every 2 weeks without deductions. 

He also received no benefits or training of any kind while 

employed there, including the safety training mandated by the 

Mine Act. 

Complainant was unhappy with just about everything at White 

Oak. He didn't like the fact that he was not considered a fulltime, regular employee. He was unhappy that the company didn't 

deduct taxes from his paycheck.as they would a regular employee. 

He had to pay his own insurance, social security, taxes, etc., 

out o'f his gross wages. Pate was most unhappy with the fact that 

one Jerry Hill was hired as a loader operator after him in time, 

but in Pate's words "they gave him the good jobs and stuck me 

with all of the bad jobs. 11 He was also upset with the fact that 

of the three loader operators, Hill included, he was assigned the 

loader that was the least modern, i.e., was not air-conditioned. 

What Mr. Pate really wanted out of White Oak was to be 

considered a regular, full-time loader operator ensconced in an 

air-conditioned cab. One thing he in particular did not want to 

be doing was shoveling the belt line around the stacker-blender 

tailpiece" This was hot, sweaty heavy labor" It was unpleasant 

work, as well as being dangerous work if the guard or guards were 

not in place around the stacker-blender" 

over the relatively short period of time which was Pate's 

tenure at White Oak he also had complained about dust while he 

was operating the loadero He leges they didn 1 t keep the area 

watered down. And in fact the company was cited on June 11, 

1990p for poor visibility because of the dust. With regard to 

this dust, Pate also claims he asked for a respirator to no 

ava Howeverr I find as a fact that the company routinely 

supplied or at least made available the paper dust masks that 

they kept a supply of in the office on site. Pate had on at 

least one occasion refused to use this type of mask, claiming 

that it "smothered11 him. The testimony was, however, that 

several other employees did use them and managed to keep 

breathing. 

567 
Most relevant to the ,instant case, he had previously complained (prior to June 27, 1990) to MSHA Inspector Early about 

lack of guarding around the stacker-blender belt line tailpiece 

where he on occasion had to shovel around the end of the belt 

line. He had already caught his shirt in the belt line once and 

he was afraid that with no guards and the belt line running while 

he was shoveling coal back on there, if he missed a step or lost 

his balance, he could fall in and possibly get rolled around back 

under the tailpiece. I believe it is generally conceded that it 

is not a recommended practice to work around this area of moving 

belt with the guards removed. However, Mr. Whitfield, the 

White Oak supervisor who ultimately fired Pate, opined that it 

wouldn't be dangerous. He is the lone dissenter in that respect. 

In any case, on the day Pate was fired, the brakes had gone 

out on the loader he was operating, so he parked it and Mr. Boyd, 

another White Oak supervisor, instructed him to go shovel around 

the stacker-blender tailpiece. After going there and observing 

the conditions, Pate refused to perform the work because it had 

no guards up and he had previously spoken to Inspector Early by 

telephone and was.told that if he thought the condition was 

dangerous, he didn't have to do it. He could refuse to do it. 

And so he did. Boyd then told him to go to the office. Once he 

got there he spoke with Messrs. Hollis and Whitfield. Pate told 

Whitfield that he didn't have to go down there and endanger his 

life shoveling around that unguarded belt line and that he wasn't 

going to do it. Whitfield told him that if he was refusing to do 

the job, he was in effect, fired. 

To be sure, there was more on Pate's mind than the unguarded 

tailpiece. For one thing, when he was assigned to shovel along 

the belt line, Jerry Hill was still operating one of the loaders, 

an air-conditioned one at that" Pate admits he was angry about 

that and I believe it formed part of the basis for his work 

refusalo But only parto 

The general principles governing analysis of discrimination 

cases under the Mine Act are well settled. In order to establish 

a prima facie case of discrimination under section 105(c) of the 

Actf a complaining miner bears the burden of production and proof 

in establishing that (1) he engaged in protected activity and (2) 

the adverse action complained of was motivated in any part by 

that protected activity. Secretary on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), 

rev 1 d on other grounds sub nom. Consolidation Coal Co. v. 

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

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

1981). The operator may rebut the prima facie case by showing 

either that no protected activity occurred or that the adverse 

action was in no part motivated by protected activity. If an 

operator cannot rebut the prima facie case in this manner, it 

nevertheless may defend affirmatively by proving that it also was 

568 
motivated by the miner's unprotected activity and would have 

taken the adverse action in any event for the unprotected 

activity alone. Fasula, supra; Robinette, supra. See also 

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

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

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

1983) (specifically approving the Commission's Fasula-Robinette 

test). • NLRB v. Transportation Management Corp., 462 U.S. 

393, 397-413 (1983) (approving nearly identical test under 

National Labor Relations Act). 

In the instant case, we have narrowed the scope of the 

inquiry to a much sharper focus than the general principles cited 

just above. It is undisputed herein that Pate refused to perform 

a specific work assignment on June 27, 1990, and as a direct 

result of that work refusal, he was fired. The ultimate issue 

presented for decision then is whether Pate's work refusal was 

protected under the Mine Act. See, ~, Secretary of Labor v. 

Metric Constructors, Inc., 6 FMSHRC 226, 229-30 (February 1984) 

aff'd sub nom. Brock v. Metric .. Constructors, Inc., 766 F.2d 469, 

472-73 (llthCir. 1985); Secretary on behalf of Dunmire & Estle 

v. Northern Coal co., 4 FMSHRC 126, 132-33 (February 1982). 

It is also well settled that the refusal by a miner to 

perform work is protected activity under section 105(c) of the 

Mine Act if it results from a good faith belief that the work 

involves safety hazards, and if that belief is a reasonable one. 

Pasula, supra, 2 FMSHRC at 2789-96; Robinette, supra, 3 FMSHRC at 

807-12; Bradley v. Belva Coal Co., 4 FMSHRC 982 (June 1982). See 

also, ~' Metric Constructors, supra. 

Further, where reasonably possible, the reason for the work 

refusal must be communicated to the operator. The miner must 

communicate his belief that a hazardous condition exists or at 

least attempt to do so. Simpson v. Kenta Energy, Inc., 8 FMSHRC 

1034, 1038-40 (July 1986); Dillard Smith v. Reco, Inc., 9 FMSHRC 

992 (June 1987); Conatser v. Red Flame Coal Co., 11 FMSHRC 12 

January 1989); Dunmire & Estle, supra, 4 FMSHRC at 133-35. See 

also, ~, Miller v. Consolidation Coal Co., 687 F.2d 194, 195-

97 (7th Ciro 1982) (approving the Dunmire & Estle communication 

requirement) " 

As the Commission emphasized in Simpson: "[T]he right to 

make safety complaints and to refuse work under the Mine Act is 

premised on the belief that communication of hazards and response 

to such hazards are the means by which the Act's purposes will be 

attained. 11 8 FMSHRC at 1039 (citations omitted). 

I find as a fact that the guard that was supposed to be 

around the stacker-blender tailpiece was not in place on June 27, 

1990. Pate is most emphatic, of course, that it was missing. 

But even Mr. Whitfield concedes the guards were not always in 

569 
place. Sometimes they are working on the tail pulley assembly or 

the belt llne and someone neglects to replace the guard(s) when 

they finish. Whitfield explained that usually there were guards 

around the stacker-blender. He testified that there was a screen 

at the tail pulley and handrails around the outer perimeter. But 

on June 27, 1990, when Pate was instructed to shovel around the 

stacker-blender, one guard was conceivably off of it at that time 

because repairs were being made or had just been made to the 

equipment. He estimated that if the guard or guards were down, 

that it would have taken probably 30 minutes to reinstall them. 

I also find that Pate had a good faith, reasonable belief 

that the work he had been ordered to do and subsequently refused 

to do, was hazardous. Mr. Saunders, an independent safety 

trainer hired by the operator to provide their workers with 

safety training, agrees. He opined that it would not be prudent 

to shovel along that area of belt line if the guards were not 

there. In fact, he stated he wouldn't do it. Furthermore, 

Inspector Early had told the company in Pate's presence to put 

the guards up on or about June 1, 1990. This formed part of the 

basis for Pate's belief that the unguarded tailpiece was 

dangerous. "[B]y him verbally telling them that they needed to 

put some guards around that, I figured it was dangerous." 

(Tr. 41). 

Finally, I am making a credibility choice in favor of Pate 

and finding that when he refused to work, he informed Whitfield 

that he was refusing because there were no guards on the belt 

line and that is why he was refusing, at least in the main. I am 

mindful that he had other, unrelated grievances with the company. 

I am also mindful that Whitfield testified that Pate made no 

complaint about guards prior to being fired. But on the day in 

question; June 27 7 1990, there was a third person present at that 

conversationo Mro Hollis was there and he was also present in 

the courtroom and even testified at the trial of this caseo He 

could conceivably have corroborated Whitfield's testimony. The 

inference I draw from the fact that he didn't is that he wouldn't 

or couldn't. 

Accordingly I conclude that the discharge of Pate by 

Whitfield on June 27, 1990, violated section 105 of the Mine Act. 

REMEDIES 

On August 30, 1990, the operator offered to reinstate Pate, 

provide him with the required mine safety training and pay him 

$1000 in back pay. Pate turned down that offer of reinstatement 

and since there is a duty on the part of the complainant to 

mitigate his damages, I find that the ending date for Pate's 

570 
entitlement to back pay is August 30, 1990. Of course, his 

entitlement to back pay between the period June 27 - August 30, 

1990, is also reduced by any amounts he actually earned in other 

employment during that time period. 

Therefore, I am herein ordering back pay paid to the complainant in the amount of $10 per hour for every hour he would 

have worked between June 27, 1990 and August 30, 1990, but for 

his violative discharge, reduced by any earnings he actually made 

during that period. Interest is also payable on that award, 

computed in accordance with the Commission's Decision in UMWA v. 

Clinchfield Coal Co., 10 FMSHRC 1493 (1988), aff'd, 895 F.2d 773 

(D.C. Cir. 1990). 

Reinstatement is no longer possible. White Oak terminated 

its operations on December 30, 1990, and has not employed anyone 

since that time and has no employees now. 

Pate is also entitled to reimbursement for reasonable 

attorney fees and costs associated with prosecuting his case. 

ORDER 

It is ORDERED that: 

1. The parties shall confer within 15 days of the date of 

this decision, in an effort to stipulate the amount due 

complainant under this order. If they are unable to so stipulate, complainant shall submit within 20 days of the date of this 

decision, its detailed, itemized statement of the amount due. 

Respondent may respond within 10 days thereafter. In the event 

that a contested issue of fact arises as to the proper type or 

quantum of damages due the complainant 1 a hearing on that issue 

or issues will be required 0 and will be held in the immediate 

futureo 

2. This decision is not final until a further order is 

issued with respect to complainant's relief. 

Distribution: 

411M~ ~aurer 

, srrative Law Judge 

Mitch Damsky, Esq., 3600 Clairmont Avenue, Birmingham, AL 35222 

(Certified Mail) 

David M. smith, Esq., Maynard, Cooper, Frierson & Gale, P.C., 

2400 AmSouth, Harbert Plaza, Birmingham, AL 35203-2602 {Certified 

Mail) 

dcp 

571 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

APR 151992 

PYRAMID MINING, INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 92-136 

A. C. No. 15-11620-03527 

Hall No. 2 Mine 

PARTIAL DECISION 

Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, 

U.S. Department-of.Labor, Nashville, Tennessee for 

Petitioner; 

Frank Stainback, Esq., Holbrook, Wible, Sullivan, 

& Mountjoy, P.S.C., Owensboro, Kentucky for 

Respondent. 

Before: Judge Weisberger 

This civil penalty proceeding was scheduled for hearing in 

Owensboro, Kentucky, on April 1, 1992. At the commencement of 

the hearing I was advised by counsel that they were in the 

process of negotiating a settlement. Subsequently the 

particulars of the settlement, and the motion to approve it were 

placed on the record. 

Citation Nos. 9897840, 3416900, and 3416892 

Counsel for the Secretary indicated that Citation Nos. 

9897840, 3416900 and 3416892 were to be vacated and asked that 

the petition for assessment of civil penalty for these citations 

be withdrawn. Pursuant to 29 C.F.R. § 2700.11 the Secretary's 

Motion is granted. 

Citation No. 3416891 

This Citation alleges a significant and substantial 

violation of 30 C.F.R. § 77.1104 in that combustible materials, 

hydraulic oil, and grease, were permitted to accumulate around 

the engine of a caterpillar. It was represented that at the time 

of the inspection, the equipment was not in actual use, and had 

been taken out of service, as a hose had blown prior to the 

inspection. It also was represented that the operator was in the 

process of cleaning the accumulation on the equipment. It was 

proposed to reduce the penalty from the proposed assessment $79 

to $20, and amend the citation to be not significant and 

substantial. I accepted the representations of the parties and 

572 
concluded that the settlement is appropriate under the criteria 

set forth in Section llO(i) of the Federal Mine Safety and Health 

Act of 1977. 

C~tation No. 3416984 

Citation No. 3416984 alleges a violation of 30 C.F.R. 

§77.404(a) in that no safety devices were provided to keep a 

dolly carriage from coming loose from the overhead rail. The 

citation further alleges that the operator's negligence was 

moderate. At the hearing, it was represented that the hoist in 

question was installed in accordance with the specification of 

the manufacturer. It was proposed to reduce the penalty of $79 

to $43, and to indicate that the operator was not negligent. I 

accepted the representations of counsel and concluded that the 

proposed settlement is appropriate under the terms of Section 

llO(i) of the Act. 

citation No. 3416898 

Respondent, on March 19, 1992, filed a motion to continue 

the hearing with respect to Citation No. 3416898. In a telephone 

conference call on March 26, 1992, with ·counsel for both parties, 

counsel for the Secretary indicated that she did not oppose this 

motion. Accordingly, and for the reasons set forth in the 

motion, the motion was granted. 

ORDER 

It is ORDERED that: (1) Citation Nos. 9897840, 3416900, and 

3416892 be DISMISSED; (2) Citation No. 3416891 be amended to 

indicate a violation that is not significant and substantial; 

(3) Citation No. 3416984 be amended to indicated that the 

operator was not negligent; (4) Respondent shall pay $63 within 

30 days of the date of this decision as a civil penalty; 

(5) further proceedings with regard to Citation 3416898 be 

stayed, pending the filing of a petition of assessment of civil 

penalty with regard to Citation No. 3416897. 

Distribution: 

fi? 0- ' ~isberger Administrative Law Judge 

Mary Sue Taylor, Esq., Office of the Solicitor, U. S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Frank Stainback, Esq., Holbrook, Wible, Sullivan & Mountjoy, PSC, 

100 St., Ann Building, P.O. Box 727, Owensboro, KY 42302-0727 

{Certified Mail) 

,nb 

573 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

UNITED MINE WORKERS OF 

AMERICA ON BEHALF OF 

LOCAL 5922, 

Complainants 

TOP KAT MINING, 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 15, 1992 

COMPENSATION PROCEEDING 

Docket No. WEVA 92-289-C 

No. 2 Mine 

INCORPORATED, and w p COAL : 

COMPANY, 

Respondents 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

This case is before me pursuant to section 111 of the 

Federal Mine Safety and Health Act of 1977. The parties have 

filed a joint motion to approve settlement of this matter which 

states in relevant part: 

lo In order to finally and fully resolve this 

matter, W P Coal Company agrees to pay, within 30 days of the signing of this Stipulation 

by counsel for the UMWA, the employees identified in Exhibit A attached hereto, or their 

heirs or assigns, the amounts of pay set out 

therein. 

2o W P Coal Company will process the payment of 

such amounts listed in Exhibit A and will 

notify the International Health and Safety 

Representative when the checks have been 

prepared. 

3o If any person believes that the names of a 

person employed at the No. 2 Mine on August 

22u 1992v has been incorrectly excluded from 

Exhibit Av such person shall notify counsel 

for the UMWA within 45 days of the signing of 

this Stipulation by Counsel for the UMWAo 

Such counsel shall immediately notify counsel 

for W P Coal Company and counsel for the 

parties will seek to resolve the merits of 

such claim. If such person was incorrectly 

excluded from the list in Exhibit A, he or 

she will be paid according to the appropriate 

formulas utilized in developing Exhibit A. 

During such 45 day period the parties may 

file supplemental stipulations if necessary, 

to supplement Exhibit A. 

574 
4. The UMWA shall withdraw its Complaint in this 

matter within 30 days of the end of the 45 

day period after execution of this Stipulation by its counsel, assuming agreement has 

been reached regarding any persons who may 

have notified UMWA counsel in accordance with 

Paragraph 3. 

5. Entry into this Stipulation does not constitute an admission by W P Coal Company for any 

purpose but is made solely to avoid further 

litigation in this matter. 

6. Payment, of the amounts set out in Exhibit A, 

to the persons listed therein, will be a full 

and complete accord and satisfaction of all 

claims by such persons against W P Coal Company arising under Section 111 of the Act. 

Payments of amounts to persons, pursuant to 

the provision of Paragraph 3, will be a full· 

and complete accord and satisfaction of all 

claims by such persons against W P Coal Company arising under Section 111 of the Act. 

All persons paid as set out in Exhibit A, or 

pursuant to agreement under Paragraph 3, 

release W P Coal Company, its successors and 

assigns, and its affiliated subsidiaries and 

parents, from any and all liability arising 

under Section 111 of the Act related to any 

orders issued on August 22, 1992, by MSHA, or 

compensation after such date related to the 

idling of the mine. 

7o Persons not listed in Exhibit A, but who were 

employed by Top Kat Mining Inc. at the No. 2 

Mine on August 22, 1992, and who fail to 

comply with the requirement to bring their 

claims to the attention of counsel for the 

UMWA within 45 days of the signing of the 

Stipulation by counsel for the UMWA, waive 

any and all claims against W P Coal Company 

arising under Section 111 of the Act as it 

relates to any order issued by MSHA on or 

about August 22, 199L 

8. The parties hereto agree that they will not 

issue any press release or otherwise in like 

manner attempt to publicize the matters contained herein and resolved hereby. 

575 
Based on the foregoing and noting that both parties have 

signed the -agreement, I conclude that the proffered settlement is 

appropriate under the provisions of the Mine Act. 

Accordingly, the motion for approval of settlement is 

GRANTED and it is ORDERED that this case be DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Attachment: Exhibit A 

Distribution: 

Mary Lu Jordan, Esq., UMWA, 900 15th Street, NW., Washington, DC 

20005 (Certified Mail) 

Mr. Robert D. King, President, Top Kat Mining, Inc., Box 52, 

Peach Creek, WV 25639 (Certified Mail) 

Joseph Mack III, Esq., Thorp, Reed & Armstrong, One Riverfront 

Center, Pittsburgh, PA 15222 (Certified Mail) 

Mr. Vernon Cornett, President, W P Coal Company, Box 570, Omar, 

WV 25638 (Certified Mail) 

·;gl 

576 
EXHIBIT A 

EMPLOYEE HOURS OWED HOURLY RATE TOTAL DUE 

L. Blevins 8 16.9150 135.32 

T. Hodges 16 16.9150 270.64 

c. Blankenship 8 16.6150 132.92 

G. Conley 8 16.9150 135.32 

w. Lowe 8 16.6150 132.92 

D. Hall 8 16.6150 132.92 

J. Vinson 8 16.6150 132.92 

R. Santos 8 16.6150 132.92 

R. Acord 8 16.6150 132.92 

R. Sheppard 8 16.6150 132.92 

J. Ghee 8 16.6150 132.92 

R. James 8 16.6150 132.92 

v. Maynard 8 16.6150 132.92 

m 

.2.. Q Daniels 8 16.6150 132.92 

577 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 1 71992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

OLD BEN COAL COMPANY, 

Respondent 

DECISION 

Docket No. LAKE 91-416 

A. C. No. 11-00590-03831 

Mine No. 26 

Docket No. LAKE 91-720 

A.C. No. 11-00589-03790 

Mine No. 24 

Appearances: Miguel Carmona, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois for 

Petitioner; 

Gregory s. Keltner, Esq., Old Ben Coal Company, 

Fairview Heights, Illinois for Respondent. 

Before: Judge Weisberger 

These two consolidated civil penalty proceedings are before 

me based upon petitions filed by the Secretary (Petitioner) 

alleging violations of 30 C.F.R. § 316 and 400. Subsequent to 

notice, the cases were heard in st. Louis, Missouri, on 

January 28, 29 and 30, 1992. At the hearing, Robert Stamm, 

James D. Britton, George Dvorzank, Robert M. Montgomery, and Mark 

Eslinger, testified for Petitioner. Jeffrey Lane Bennett, 

Joseph w. Rizor Roger Griffith, Clarence H. Woodford, Robert 

Mcatee, David stritzel, and Donald William Mitchell, testified 

for the Operator (Respondent) . The parties filed post hearings 

briefs on March 26, 1992. 

I. Order No. 3538631 (Docket No. LAKE 91-416), 

and Citation No. 3220697 (Docket No. 

LAKE 91-720) . 

Findings of Fact and Discussion 

On November 2, 1990, Robert Stamm, an MSHA inspector, 

inspected Respondent's Mine No. 26, an underground coal mine. At 

the time of the inspection, a diesel-powered scoop was being 

operated on the 12th CM-2 (007-0) working section. There was 

loose coal in the articulation area, and under the torque 

578 
converter, diesel engine, and winch. The coal had a depth 

ranging from 2 to 4 inches. The loose coal under the engine and 

torque converter extended approximately 3 feet by 6 feet. In the 

area of the articulation, the extent of the coal accumulation was 

approximately 2 feet by 3 feet. Under the winch, the extent of 

the accumulation was approximately 2 1/2 feet by 3 feet. 

Stamm opined that the coal that had accumulated was 

combustible, inasmuch as it was being sold in order to be burned, 

and in addition, combustible hydraulic oil was mixed with the 

coal. He further an indicated that the combustible material was 

likely to propagate a fire. 

George Dorznak, the Chief of Mechanical Safety Division for 

MSHA, indicated that ignition could occur if the electric wires 

on the scoop would short. He indicated that this could easily 

occur if the wires should lie on a sharp corner of the machine. 

In this situation, over a period of time, the wires can rub 

against the corner causing it to tear and short. He also 

indicated that a collision or-a roof fall could cause the wires 

to short. He further explained that if the shaft of the 

articulation joint should break, it could cause a cut in the 

electric wires. Should the hydraulic lines be cut at the same 

time, a fire could result. Also, ignition could occur should one 

of the scoopqs shafts or bearings become overheated. 

Stamm issued a section 104(d) (2) order, citing an 

accumulation of coal in violation of 30 C.F.R. § 75.400. 

On May 10, 1991, James D. Britton, an MSHA inspector, 

inspected Respondent's underground No. 24 Mine, and observed a 

diesel eimco scoop being operated in proximity to the c shaft. 

Dry loose coal, coal covered with oil, and loose rock was present 

on several parts of the scoop. Oil, from a 11 film11 , 

81, 83) to up to 5 inches depth, was located in the 

operator 1 s compartment, under and around the engine, water tank, 

and drive compartment, and on hoses, conduits, and the frame of 

the transmission and engine. In addition, there was loose coal 

saturated with oil. Britton a citation alleging an 

accumulation of coal and o on the scoop car in violation of 

75.400 supra. 

Both citations present the identical issue i.e., whether 

30 C.F.R. § 75.400 supra has been v ated. Section 75.400 

supra, provides, as pertinent, that coal dust and other 

combustible materials shall be cleaned up and not be permitted to 

accumulate 11 ••• in active workings, or on electric equipment 

therein. 11 This language is ident 1 to that found in section 

304(a) of the Federal Mine Safety and Health Act of 1977 

(P.L. 95-164, "the 1977 Act"), and section 304(a) of its 

predecessor, the Federal Coal Mine Health and Safety Act of 1969 

579 
(P. L. 91-173, "the 1969 Act") . 1 Neither the 1969 Act, nor the 

1977 Act, nor the regulatory equivalent, (section 75.400 supra) 

contains any definition of the term "electric equipment". 

Further, the legislative history of the 1977 Act, and 1969 

Act does not shed any light on the Congressional intent as to the 

meaning to be accorded the term "electric equipment." Hence, 

reliance is placed on its common meaning. Webster's Third New 

International Dictionary, (1986 Edition) ("Webster's"), defines 

"electric" as "2a: operated by an electric motor 

[an- - - refrigerator] 2 • 

The diesel scoops in question are used to haul and load 

materials. Each scoop contains a set of 4 lights that are 

powered by an alternator. Conduits containing wires make an 

electric connection between the alternator and the scoop by way 

of a switch. It is Petitioner's position that, since the scoops 

have an electric component, they are to be considered electric 

equipment. For the reasons that follow I find this position to 

be without merit. 

Each scoop is operated by a diesel engine, and no 

electricity is involved in its operation. The scoop's alternator 

is used only to operate the scoop's lights, and this electric 

lighting system is not connected to, and operates independent of 

the operation of the scoop itself. Also, it is clear that the 

scoops perform their function of loading and hauling material 

independent of their electric component. Accordingly, considering the common meaning of the term electric equipment, I 

1In order for Petitioner to prevail, it must first be 

established that any accumulations herein were either in "active 

workings" or on 11 electric equipment". Neither the order nor the 

citation in issue alleged, as a basis for the violations cited, 

that there were any accumulations in 11 active workings". Nor does 

Petitioner urge that the violation herein be predicated upon 

accumulations located in active workings which are defined as 

ugoo .any place in a coal mine where miners are normally required 

to work or travel; 11 (30 C.F.R. § 75.2(g) (4)) Since the only 

accumulations cited were those found on the two scoop cars in 

question, the issue fer resolution whether these scoops are 

electric equipment within the purview of section 75.400. 

2Donald William Mitchell was called as an expert witness by 

Respondent in the hearing on Citation No. 35364831 (Docket No. 

LAKE 91-416, infra). He testified that, based on his experience 

in the mining industry, the term "electric equipment" is commonly 

defined as any piece of equipment powered by an electric source 

or cable. Due to his extensive experience, considerable weight 

was placed upon his testimony in this regard. 

580 
conclude that the scoops in question are not electric equipment. 

Hence, I find that Respondent did not violate Section 75.400 

as alleged. Accordingly, Order No. 3538631 and Citation 

No. 3220697 are to be dismissed. 

II. Citation No. 3536483 (Docket No. LAKE 91-416). 

Findings of Fact and Discussion 

A. 

On August 4, 1990, Robert N. Montgomery, an MSHA ventilation 

specialist inspected Respondent's mine No. 26. He indicated 

that seals3/ were being constructed with the use of concrete 

cement blocks 6 inches high, 8 inches wide, and 16 inches long. 

He said that the blocks were rolled in Block Bond, and then laid 

in 3 separate rows on top of a concrete footer that was 30 inches 

wide and 36 inches high. Montgomery stated that he was able to 

insert a .025 inch thick gage 2 1/2 to 3 inches between the 

horizontal joints of the seals, andthat the "opening" extended 

"several inches" horizontally 11 in a number of places" {-Tr. 36). 

He also indicated that there was no "visible" mortar between the 

joints {Tr.36}. 

According to Montgomery, mortar a cement product 

containing sand, or mixed with sand and water, and is used to 

provide a joint between blocks. In essence, he indicated that 

this the common definition of mortar in the mining industry. 

According to Montgomery, Block Bond is a sealant, and not 

interchangeable with mortar. 

Mark Eslinger, an MSHA supervisory mining engineer in charge 

of a group of ventilation special , accompanied Montgomery in 

his inspection. He indicated that he did not see mortar between 

the joints of the cement blocks. Eslinger testified that in the 

mining industry, mortar means a mixture of cement, sand, and 

water, which is sometimes pre-mixed, and that the "common way" to 

apply mortar is to trowel it (Tr. 101). · 

general, seals are constructed in a mine to seal off the 

gob or other areas that are no longer being ventilated. 

ly, seals are constructed to prevent the buildup of 

gases in an abandoned area from entering the rest of the mine. 

As such, as explained by Eslinger, seals should be structurally 

sound, and made of material that is non-combustible. Also, in 

order to prevent an explosion in the abandoned area from 

propagating into the working areas of the mine, the seals should 

be constructed of material that is able to withstand an 

explosion. 

581 
Montgomery issued a citation alleging a violation of 

30 C.F.R. § 75.316. His testimony indicates that it is his 

position that the Ventilation Plan ("the Plan") was not being 

complied with in the following particulars: (1) the plan 

requires the use of mortar in the joints of the cement blocks, 

but the blocks in question were "dry stacked" (Tr. 33) without 

mortar; and (2} the plan requires two parallel rows of cement 

blocks separated by 8 inches with the gap filled with mandoseal, 

whereas Respondent was constructing three parallel rows of blocks 

8 inches wide; and (3) the use of 8 inch blocks is required by 

the plan whereas Respondent used blocks that were 6 inches in 

height. Further, Montgomery testified that when he returned to 

the mine on January 11, 1991, subsequent to the date set for 

abatement, substantially no work had been performed to correct 

the cited condition, and he therefore issued a section 104(b) 

order. 

David Stritzel, Respondent's Director of Health and Safety, 

indicated that it was his decision to construct the seals at 

issue, in order to seal a go~-~rea of approximately 15,000 to 

16,000 feet by 10,000 feet, to prevent the gob gases or water in 

the gob area from entering the rest of the mine. He indicated 

that, in his experience, mortar is defined as an adhesive. 

Essentially the same definition was provided by Robert Macatee, 

Respondent's manager of safety, who indicated that the common 

understanding of the term mortar is a substance that bonds 

surfaces of block together. Stritzel, in essence, indicated that 

it was his decision to use B-bond (Block Bond) as it was safer 

than other materials with regard to chemical burns, and he had 

previously used it in constructing block stoppings. 

Joe Rizor, who was in charge of the construction of the 

seals sue testified that hitches were cut out of the ribs, 

top and bottom of the entries in which the seals were 

constructed in order to tie in the seal to the strata. He 

testified that he had instructed the mine superintendent, and 

notified all the miners working on the seals, that the cement 

blocks were to be immersed in a B-Bond (Block Bond) mixture and 

then stacked. He stated that the bag that contained the B-Bond 

indicated that it consisted of portland cement, fiberglass, and 

an aggregate. According to Rizor, on the date of the initial 

inspection he observed an area of B-Bond material, approximately 

4 to 5 inches high, in a corner of the outby side of seal number 

34 A. He further opined that inasmuch as the concrete blocks 

have smooth surfaces, if they were dry stacked without any 

bonding material it would not have been possible to insert a 

gauge between the blocks. Hence, he concluded that the fact that 

it was possible to insert a gauge indicates that there was 

material in the joints. He also stated that gaps in the joints 

between the blocks do not establish a lack of mortar, as such 

gaps are common. 

582 
B. Mortar in the Joints 

Based on the testimony of Rizor, whom I found to be a 

credible witness, I find that the miners who constructed the 

seals were instructed to dip or immerse the cement blocks in the 

block bond mixture, and then stack them. Also, due to the fact 

that Rizor was present in the area of the construction of the 

seals eight hours a day throughout the period of their 

construction, I accord considerable weight to his testimony that 

the blocks were dipped in the mixture. Donald Williams, a mining 

engineer, testified that if a cement block is dipped in Block 

Bond mixture, an eighth to a quarter of an inch of the mixture, 

would remain, and partially cover the bottom of the surface of 

the block. He also indicated that although it is desirable, it 

is not critical to have coating of the entire surface of the 

block. This testimony was neither impeached nor rebutted. I 

thus accord it considerable weight, especially considering 

Mitchell's impressive work experience, publications and 

expertise. 

Petitioner did not impeach or rebut Rizor's testimony with 

regard to the presence on the date of the inspection of a mass of 

B-Bond material on the floor, which indicated that this material 

had been used to bond the blocks. In addition, I note Rizor's 

testimony that had B-Bond material not been used, it would not 

had been possible to have inserted a .025 gauge to a depth of 2 

1/2 inches, I find this testimony credible inasmuch as it has not 

been. impeached or rebutted. Indeed it was essentially 

corroborated by the testimony of Mitchell. Due to the latter's 

expertise, I accord considerable weight to his testimony. I thus 

conclude that the cement blocks had been dipped into the Block 

Bond mixture, and then stacked. 

Diagram No. MB-631(B) of the plan requires that 11 ••• all 

joints between blocks will be mortared. 10 In evaluating the 

evidence before me with regard to the common meaning of the term 11mortar 11 in the mining industry, I accord most weight to the 

testimony of Mitchell, due to the extent and breadth of his 

experience, and the fact that it based upon the definition 

found in the American Society of Testing Materials (ASTM) . He 

fied to that definition as follows: "The primary purpose of 

mortar in masonry is to bond masonry units into an assemblage 

which acts as an integral element, having desired functional 

performance characteristics. Mortar consists of a mixture of 

cementious material, aggregate, and water" (Tr. 224-225). 

According to the testimony of Mitchell, which was not rebutted or 

contradicted, Block Bond consists of portland cement, pulverized 

limestone, and alpha glass fibers and used in surface bonding 

Mitchell testified that B-Bond (Block Bond) is a surface bonding 

mortar mix that, when mixed with water, becomes a mortar. 

According to Mitchell, the fact that there was a gap between the 

concrete blocks and that it was possible to insert a gauge about 

583 
2 inches, indicates the presence of mortar between the joints, as 

the only way that the gap could have occurred, was if rough 

material or mortar had been placed between the blocks. This 

opinion has not. been rebutted or contradicted by Petitioner~ 

Based on the above, I conclude that there was B-Bond 

material in the joints between the concrete blocks, and that this 

material was mortar. 

c. The Middle row of Cement blocks as the 

equivalent of Mandoseal. 

It is Petitioner's position that the plan was not complied 

with inasmuch as Respondent did not fill the gap between the two 

eight inch thick walls of the seal with mandoseal, but instead 

constructed an 8 inch thick concrete block wall in that gap. The 

plan provides that the eight inch space between the walls is to 

be " •.. filled with mandoseal or eqiv .... 11 

Mitchell testified that 'mandoseal is a cementious material 

as it is comprised of portland cement, pulverized limestone, and 

vermiculite. He indicated that its compressive strength i.e., 

ability to withstand stresses, loads, and pressures, is between 

100 and 350 pounds per square inch (psi). In contrast, a cement 

block has a compressive strength between 2,500 and 3,500 psi, and 

the compressive strength of Block Bond is between 3,000 and 

3,500 psi. Accordingly, the middle wall in issue, comprised of 

cement blocks and mortared with Block Bond~ had a compressive 

strength approximately 10 times as much as the compressive 

strength that would have been in effect had that area been filled 

with mandoseal. Also, Mitchell testified that block bond has an 

impulse load§ i.e. the ability to withstand the sudden load of an 

explosion 10 to 30 times more than that of mandoseal. I accept 

the testimony of Mitchell with regard to the comparison of the 

concrete wall constructed by Respondent 1 and mandoseal 1 as it has 

not been either rebutted, contradicted, or impeached. I 

therefore conclude that the gap between the two outer block walls 

of the seals in question were filled with material more than the 

equivalent of mandoseal. Hence, the plan was not violated in 

th regard" 

D. Dimensions of the Cement Blocks 

Montgomery also asserted that the plan was violated inasmuch 

as Respondent used cement blocks that were 6 inches high 8 inches 

wide and 16 inches long. MB-631(B), relied on by Petitioner, 

does not stipulate the size of blocks to be used in constructing 

the seals. Specifically, the height of the blocks is not 

depicted. A side view of the seal wall in question depicts 

blocks 8 inches wide, which is the size utilized by Respondent 

herein. Similarly, the first line on MB-631(8) calls for 11 2, 8 11 

solid concrete block walls" which would appear to indicate the 

584 
depth of the wall, or width of the block, inasmuch as the 

accompanying sketch of the top view of the walls of the seal. 

Mitchell indicated that in 1979, the year in which MB-631(8) 

was revised, the term "8 inch solid block walls" "might" have 

meant blocks of a dimension of 8 inches high, 8 inches wide, and 

16 inches long (Tr. 254), but that he did not know what the 

practice was in the Mid-Wes·t. However, it was also his 

testimony that, utilizing a block 6 inches in height, 8 inches in 

width 16 inches long results in a "marked effect" on reducing 

back and finger injuries, because these blocks weigh 20 pounds 

less then those that are 8 inches high, 8 inches wide, and 16 

inches long (Tr. 252). He also said that utilizing blocks 6 

inches high instead of those 8 inches high does not reduce the 

strength of the structure "in any manner" (Tr. 252). Petitioner 

did not contradict, rebut or impeach this testimony. I thus 

conclude that the 8 inch wide, 16 inches long, 6 inches high 

blocks utilized by Respondent were not in violation of the plan. 

E. Concilii§ioh~ of Law 

Therefore for all of the above reasons, I conclude that the 

construction of the seals in question did not violate the terms 

of the plan, and as a consequence Respondent did not violate 

30 C.F.R. § 75.316 as charged. 4 Accordingly, Citation No. 

3536483 should be dismissed, and the Section l04{b) Order No. 

3536850 should also be dismissed. 

ORDER 

It is ORDERED that Docket Nos. LAKE 91-416 and LAKE 91-720 

be DISMISSEDo 

Distribution: 

Miguel Carmona, Esqo 1 Off of the Solicitor, U.S. Department of 

Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604 

(Certified Mail) 

Gregory S. Keltner, Esq., Old Ben Coal Company, 50 Jerome Lane, 

Fairview Heights, IL 62208 (Certified Mail) 

nb 

4 I have considered to the arguments of counsel as set forth 

in their briefs. To the extent that these arguments are not 

consistent with my decision, they are rejected. 

585 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 23, 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WALLACE BROTHERS, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-372-M 

A. C. No. 45-03085-05504 

Portable crusher 

ORDER OF DISMISSAL 

Before: Judge Merlin 

on March 23, 1992, the Commission received a communication 

dated March 17, 1992, from theoper&tor's counsel which was 

styled as a petition for review of a proposed assessment. 

The petition sets forth the following: 

1. On May 29, 1991, Wallace Brothers' portable crusher 

received Citation Nos. 3640554, 3640551 and 3640552. 

2. On June 7, 1991, counsel wrote the MSHA District 

Manager requesting a safety and health conference and asking that 

all communications regarding these citations be sent to this 

office. [A copy of the June 7 letter was enclosed with the 

petition.] 

3. MSHA did not provide the requested conference and 

counsel was never notified or sent copies of any communications 

regarding the citations. 

4. In January, 1992, counsel was given copies of the 

Proposed Assessments by a representative of Wallace Brothers. 

5. On February 3v l992p counsel wrote the civil Penalty 

Compliance Off ice requesting information and clarification about 

the citations and complaining that the requested conference had 

not been provided. [A copy of the February 3 letter was attached.] 

6. On February 13, 1992, the Director of Assessments 

advised counsel that the assessment was final because it was not 

contested within 30 days and that if he wanted to know why the 

request for a conference was not granted, he should write the 

District Manager. [A copy of the February 13 letter was attached.] 

For purposes of considering the petition at this stage the 

representations contained therein are accepted. 

586 
Section 105(a) of the Mine Act, 30 u.s.c. § 815(a), provides 

that an operator has 30 days after receipt of the proposed 

assessment to notify the Secretary that it wishes to contest the 

assessment. If a penalty is not contested within the allotted 

time, the proposed assessment is deemed to be a final order of 

the Commission not subject to review by any court or agency. 

This provision is repeated in section 2700.25 of the Commission's 

regulations, 29 C.F.R. § 2700.25 and section 100.7(b) and (c) of 

the Secretary of Labor's regulations, 30 C.F.R. § 100.7(b) and 

(c). Pursuant to section 105(d) of the Mine Act, 30 u.s.c. 

§ Bl5{d), the Commission provides a hearing if the operator has 

notified the Secretary within the 30 days that it wishes to 

contest the proposed assessment. 

According to the February 13 letter of the Director of 

Assessments, the proposed assessments in this case were received 

by the operator on October 29, 1991. 1 The operator took no 

action during the following 30 days. Indeed, it does not appear 

that the operator or its attorney has ever requested a hearing by 

sending back the return mailing card (commonly called the "blue 

card") which is provided by MSHA to operators along with the 

proposed assessment. Not until after the operator gave counsel 

the notice of delinquent civil penalty did counsel inquire about 

these citations in his letter of February 3, 1992. 

The Act mandates that a penalty not contested within the 

allotted period the proposed assessment shall be deemed a final 

order of the Commission not subject to review by any court or 

agency. Energy Fuels Mining Company, 12 FMSHRC 1484 (July 1990). 

Northern Aggregates Inc., 2 FMSHRC 1062 (May 1980). Cf. J. P. 

Burroughs and Sons. Inc., 3 FMSHRC 854 (April 1981); Old Ben Coal 

Company, 7 FMSHRC 205 (February 1985); Local Union 2333, District 

29, UMWA Vo Ranger Fuel Corporation, 10 FMSHRC 612, 618 (May 

1988)' Peabody Coal Company, 11 FMSHRC 2068, 2092 1 2093 (October 

1989) 0 

In this connection it must also be noted that a long line of 

cases going back to the Interior Board of Mine Operation Appeals 

has held that cases contesting the issuance of a citation must be 

brought within the statutory prescribed 30 days or be dismissedo 

Freeman Coal Mining Corporation, l MSHC 1001 (1970); Consolidation Coal Co. 1 1 MSHC 1029 (1972)' Island Creek Coal Co. v. Mine 

Workers, 1 MSHC 2143 (1979), aff'd by the Commission, 1 FMSHRC 

989 (August 1979)' Amax Chemical Corp., 4 FMSHRC 1161 (June 

1982); Rivco Dredging Corp., 10 FMSHRC 889 (July 1988); See Also, 

Peabody Coal Coo, supra; and Big Horn Calcium, 12 FMSHRC 463 

(March 1990). Accordingly, the time requirements for contesting 

the issuance of a citation and for contesting the penalty assessment which appear together in section 105(a), must be viewed as 

The letter also shows that Citation No. 3640554 was not 

included in that assessment package. Therefore, this citation is 

not a part of this case. 

587 
jurisdictional. It is well settled that jurisdiction cannot be 

waived and can be raised by the court sua sponte at any stage of 

the proceedings. Insurance Corporation of Ireland, LTD, et al. 

v. Compagnie des Bauxites, 456 U.S. 694, 701-702 (1982); Athens 

Community Hospital, Inc. v. Schweiker, 686 F.2d 989 (D.C. Cir. 

1982). 

Counsel did not contact MSHA until almost eight months after 

he had requested a conference. Under 30 C.F.R. § 100.6(c) of the 

Secretary's regulations the decision whether or not to grant a 

conference is within the sole discretion of MSHA. The jurisdiction of the Commission is defined and limited by the Act. An 

administrative agency cannot exceed the jurisdictional authority 

granted to it by Congress. As the Commission has pointed out, 

several provisions of the Act grant subject matter jurisdiction 

by establishing specific enforcement and contest proceedings and 

other forms of actions over which the Commission presides. 

Kaiser Coal Company, 10 FMSHRC 1165, 1169 (September 1988). The 

Commission has been given no jurisdiction over MSHA's internal 

practices and procedures. Cf-:.·Mid-Continent Resources, 11 FMSHRC 

1015 (June 1989). Under circumstances far more compelling than 

those presented here, I have held that the Act and regulations 

afford no basis to excuse tardiness because the operator mistakenly believed it could pursue avenues of relief with MSHA before 

coming to this separate and independent Commission to challenge a 

citation. Prestige Coal Company, 13 FMSHRC 93 (January 1991). 

Finally, operator's counsel alleges a denial of due process 

because communications regarding the subject citations were not 

sent to him as his June 7, 1991 letter to the District Manager 

requested. Counsel contends that his request complied with 30 

CoFoR. § 41.30 which provides that operators may request service 

to another appropriate address. also 30 C.F.R. § 41.20. 

Counsel however, overlooks 30 C.F.Ro § 100.S(b) which requires 

that if an operator chooses to have proposed assessments mailed 

to a different address the Off ice of Assessments must be notified 

in writing of the new address. Counsel failed to comply with 

100.B(b) because he only wrote the District Manager rather than 

the Office of Assessments. Section 100.8 was designed to prevent 

just such a situation as this. Counsel is chargeable with 

knowledge of all applicable regulations. 2 Under the circumstances, service was proper and there is no basis for any extension. 

2 It is noted that in his argument regarding the denial of 

a conference, counsel demonstrates his awareness of other sections 

of Part 100. 

588 
In light of the foregoing, I conclude that this case must 

dismissed due to the operator's failure to timely request a 

hearing. 

In light of the foregoing, it is ORDERED that this case be 

DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Bruce Simpson, Civil Penalty Compliance Office, MSHA U. S. 

Department of Labor, Room 924 4015 Wilson Boulevard, Arlington, 

VA 22203 (Certified Mail) 

James A. Nelson, Esq., 205 Cowlitz, P. o. Box 878, Toledo, WA 

98591 (Certified Mail) 

Douglas N. White, counsel, Trial Litigation, Office of the 

Solicitor, u. s. Department of Labor, Room 414, 4015 Wilson 

Boulevard, Arlington, VA 22203 

-

/gl 

589 

be 
1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

1 23, 1992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 91-301 

A. C. No. 46-01455-03823 

v. Osage No. 3 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent . . 

Appearances: 

Before: 

DECISION 

Charles Jackson, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington 

Virginia, for ~~titioner; 

Walter J. Scheller, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for 

Respondent. 

Judge Merlin 

This case is a petition for the assessment of a civil penalty ~iled by the Secretary of Labor against Consolidation Coal 

Company under section 110 of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 820. 1 

Order No. 3314237 was issued under section 104(d) (2) of the 

Actv 30 U.S.C. § 814(d) (2)u for an alleged violation of 30 C.F.R. 

§ 75.303 A hearing was held on March 9u 1992 and the parties 

have filed post hearing briefs. 

30 C.F.R. § 75.303, which restates section 303(d) (1) of the 

Act, 30 u.s.c. § 863(d) (1), provides in pertinent part: 

(a) Within 3 hours immediately preceding the 

beginning of any shift, and before any miner in such 

shift enters the active workings of a coal mine, certified persons designated by the operator of the mine 

shall examine such workings and any other underground 

The penalty petition originally contained four proposed 

assessments three of which involved excessive history of violations 

and one which did not. By order dated November 25, 1991, the three 

assessments involving excessive history were removed from this 

docket and placed in a newly created Docket No. WEVA 91-301-A which 

was stayed pending a decision by the Commission. The instant case 

involves Order No. 3314237 which was not assessed pursu~nt to the 

excessive history criteria. 

590 
area of the mine designated by the Secretary or his 

authorized representative. Each such examiner shall 

examine every working section in such workings and 

shall * * * * 

* * * * 

examine and test the roof, face, and rib conditions in 

such working section * * * * 

* * * * 

and examine for such other hazards and violations of 

the mandatory health or safety standards, as an authorized representative of the Secretary may from time to 

time require. 

* * * * 

Such mine examiner shall place his initials and the 

date and time at all places he examines. 

* * * * 

Upon completing his examination, such mine examiner 

shall report the results of his examination to a person, designated by the operator to receive such reports 

at a designated station on the surface of the mine, 

before other persons enter the underground areas of 

such mine to work in such shift. Each such mine examiner shall also record the results of his examination 

with ink or indelible pencil in a book approved by the 

Secretary kept for such purpose in an area on the surof the mine chosen by the operator to minimize the 

danger of destruction by fire or other hazard, and the 

record shall be open for inspection by interested 

persons. 

) No person (other than certified persons 

designated under this § 750303) shall enter any underground area, except during any shift, unless an examination of such area as prescribed in this § 75.303 has 

been made within 8 hours immediately preceding this 

entrance into such areao 

30 CoF.R. § 75.2(g) (4) which restates section 318(g) (4) of 

the Act, 30 u.s.c. § 878(g) (4), defines "active workings" as 

follows: 

Active workings means any place in a coal mine 

where miners are normally required to work or travel. 

591 
The supject Order No. 3314237, dated September 7, 1990, 

which is challenged herein, charged a violation for the following 

alleged condition or practice: 

Preshift examinatio~s ~r~ not being conducted 

along the travelway of 5 Butt tailgate entry. Citation 

3314222, dated 8-27-90, was issued due to a water build 

up in this travelway, and according to mine management 

and miners persons have been traveling into this entry 

to install waterlines and hoses since this date. Preshift examinations books do not indicate that there 

have been examinations. No dates or initials can be 

found throughout the area to prove that examinations 

have been made. Citation 3314230 dated 9-5-90 was 

issued along this travelway citing the hazards of slip, 

trip, fall hazards. Citation 3314236 dated 9-07-90 was 

issued for hazards related to the fall of roof at spad 

8770 along this travelway. 

Three workers and a·foreman were observed working along this travelway at approximately 1815 hours on 

09-07-90. When questioned the foreman stated that he 

had not made a preshift examination of the area. While 

questioning other miners it was determined that at 

least 7 workers have been exposed to the above mentioned hazards without benefit of a preshift examination. 

The inspector found that the violation was significant and 

substantial and that it resulted from an unwarrantable failure on 

the part of the operator. 

As appears aboveu the challenged order is premised upon 

previously issued Citations Nos. 3314222, 3314230, and 33142360 

Citation Noo 3314222 dated August 27u 1990 0 charged an S&S 

violation of 30 C.F.R. § 75.305 for the following condition: 

The weekly examination for hazardous conditions 

for the longwall tailgate 0 5 Butt section dated 8-21-90 

is inadequateo All along this entry, approximately 

5,000 feet long, there are slip, trip and fall hazards. 

Coal has sloughed into the walkway at several loca-

~ions. Stopping Noo 43, water has accumulated one to 

two feet deep for a distance approximately 100 feet 

inby and for a distance of approximately 300 feet 

outbyo The water is one to one and half feet deep 

across the entry. At spad 868 the water is one to two 

feet deep for a distance of one to two feet deep and at 

spad 8626 one to two feet deep for approximately 200 

feet. In the event of an emergency, rapid escape along 

this entry would be difficult. The inspection party 

took over 60 minutes to walk this entry. 

59 2 
Citation No. 3314230 dated September 5, 1990, charged an S&S 

violation of 30 C.F.R. § 75.305 for the following condition: 

Hazards exist in the 5 Butt longwall section 

tailgate entry that have no't been corrected immediate1 y. At marker number 42 + 80 there is a water hole rib 

to rib approximately 80 feet long and from 1 to 2 feet 

deep. The bottom is irregular with some mud and some 

coal sloughage. The bottom cannot be seen through the 

water and slip, trip, fall hazards exist. Weekly mine 

examiners travel this entry weekly. 

Finally, Citation No. 3314236 dated September 7, 1990, 

charged an S&S violation of 30 C.F.R. § 75.202(a) for the following condition: 

The roof at spad 8770 and the 5 Butt section 

tailgate entry is not controlled to protect persons 

from the hazards related to falls of the roof. Loose 

drummy top has fallen out on both sides of the crib 

provided exposing loose drummy roof. The boards provided with roof bolts have been bent from the weight of 

the roof. Persons are working out by this area and 

indications are that they travel under this roof enroute to work. 

Prior to going on the record, the parties agreed to the 

following stipulations (Tr. 3-4): 

(1) The operator is the owner and operator of the subject 

mine; 

{2) the operator and the mine are subject to the jurisdic-

~ion of the Federal Mine Safety and Health Act of 1977• 

(3) I have jurisdiction in this case; 

(4) the inspector who issued the subject order was a duly 

authorized representative of the Secretary~ 

(5) a true and correct copy of the subject order was 

properly served upon the operator; 

(6) a copy of the subject order is authentic and may be 

admitted into evidence for the purpose of establishing issuance 

but not for the purpose of establishing the truthfulness or 

relevancy of any of the statements asserted therein; 

(7) payment of any penalty will not affect the operator's 

ability to continue in business; 

(8) the operator demonstrated good faith abatement; 

59 3 
(9) the operator has an average history of prior violations 

for a mine -operator of its size; 

(10} a section 104(d) chain has been established and is not 

in issue; 

(11) Citation Nos. 3314222, 3314236 and 3314230 were not 

contested by the operator. They have been paid and are final 

with respect to all matters contained therein. 

The size of the operator was inadvertently overlooked at 

the hearing. In a post-hearing telephone conference call on 

April 13, 1992, counsel for both parties agreed the operator's 

size is large. 

At the hearing the inspector described the conditions which 

caused him to issue the three citations prior to the 104(d) (2) 

order which is the subject of this action. He testified that on 

August 27 he found several water holes in the tailgate entry as 

described in the citation of,.that date {Tr. 31-33). Although the 

tailgate entry was not a designated primary or alternate escapeway, the inspector said it was an escape route off the longwall 

face in the event of a fire somewhere along the face which made 

it impossible for miners to exit through the headgate (Tr. 34-

36). The water condition continued after August 27 (Tr. 36). On 

September 5, as set forth in the second citation, the inspector 

again found a violation due to a water hole, irregular bottom and 

coal sloughage in the entry (Tr. 36-37). The water condition 

changed at the various times and the area of water was smaller on 

the 5th than it had been on the 27th (Tr. 61-62). Finally, on 

September 7 the inspector issued a third citation which was for 

bad roof and inadequate roof support (Tr. 58-59). As appears in 

Stipulation Noo llv supra, these three citations were not contested and therefore, the conditions cited therein and the fact 

that they were significant and substantial are accepted as true 

for purposes of this case. 

The inspector testified that he issued the subject citation 

because he concluded that pre-shift examinations were not being 

made in the tailgate entry where persons had been working 

installing waterlines and pumping (Tr. 38). He cited the operator for the times persons were sent into the tailgate entry to 

pump water without the benefit of a pre-shift examination (Tr. 

65). The water conditions on the 7th when he issued the subject 

order were similar to what they had been on the 5th (Tr. 62). He 

believed the miners were subject to danger from both the bad roof 

and from slipping and falling because the pre-shift examination 

pursuant to which these hazards would have been observed and 

reported, was not performed (Tr. 60-61). 

594 
Section 75.303, quoted supra, requires t~at there be a preshift examination in "active workings" of a mine. Section. 

75.2(g) (4) also quoted above, defines "active workings" as any 

place in a coal mine where men are normally required to work or 

travel. The inspector took the position that the entire tailgate 

entry was "active workings" because extensive water in that entry 

which had existed for several days, created a substantial job for 

workers who went in there to install pumps and waterlines, pump 

water and move the compressor (Tr. 82-83). According to the 

inspector this work, which mine management knew needed to be 

done, had to be performed not just on an intermittent basis (Tr. 

83). On the day the inspector issued the order people were in 

the area working, pumping water or moving waterlines and pumps 

(Tr. 66). 

In the same vein is the testimony of a miner whose regular 

job at the time was pumper {Tr. 120-131). He stated he had been 

working in the area since the original violation for water was 

issued on August 27 (Tr. 124). He was on the afternoon shift and 

every day that he was present1·he worked in that area and had 

numerous conversations, almost on a daily basis, with the mine 

foreman about the water condition {Tr. 124-125, 127). He said 

there was an average of two to five people pumping water and 

moving pumps and lines (Tr. 125). He had never seen evidence of 

a pre-shift examination (Tr. 130). 

The mine foreman testified that he recalled putting men to 

work in the area to abate ,the water condition but did not remember specific shifts or assignments (Tr. 182). He stated men were 

not working on that problem every shift every day, but that men 

were there off and on at different times (Tr. 193). The only 

shift he could guess when they worked there regularly was the 

midnight ft (Tro 193). He could not say men were not down 

there on occasion during other shifts (Tr. 194). 

Based upon the foregoing, I find that the tailgate entry in 

this case constituted "active workings" of the mine. As the 

testimony of the inspector and the pumper makes clear, correction 

of a long-standing water problem required miners to normally work 

and travel in the area. In additionv although the operator 1 s 

mine foreman did not think men were in the area on every shift 

and although he differed with the pumper with respect to which 

shift was involved, his testimonyu like that of the others, 

demonstrates that miners were in the tailgate entry on a regular 

basis to eliminate the water. In order for miners to normally 

work or travel in an area they need not be there all the time. I 

agree with the inspector that a pre-shift examination was necessary to warn the miners before they entered the mine and went to 

the area where there were slipping, falling and tripping hazards 

created by the water (Tr. 65). In sum therefore, I decide that 

where there is an ongoing condition of several days duration 

which is known to the operator and which poses dangers to miners 

59 5 
who are normally working and travelling in the area in order to 

abate the condition, the area is "active workings" which must be 

pre-shifted pursuant to 30 C.F.R. § 75.303. 

This determination is consistent with the Commission's 

decision in Southern Ohio Coal Company, 12 FMSHRC 1498 (August 

1990). In that case it was held that an accumulation of loose 

coal existed in "active workings" when it was located at the 

intersection of the longwall face and the tailgate entry and 

extended 18 feet down the tailgate. The Commission noted that 

the tailgate entry was required to be examined weekly and that 

because the entry was a designated escapeway it was in fact, 

checked more often. Accepting evidence that miners did not 

normally work in the area, the Commission pointed out that the 

definition of "active workings" also applies to areas where 

miners were required to travel. In this connection the presence 

of a ventilation curtain maintained at the outby end of the 

accumulation was deemed relevant because men were normally 

required to travel in the area to move the curtain as the face 

advanced. The evidence in the instant case is even stronger than 

in Sou'thern Ohio in support of a finding that the tailgate entry 

was an "active workings". Here miners were not only required to 

engage in normal travel in the entry, but in addition it was 

necessary for them to work there on a continuous basis to abate 

the water condition. 

A different conclusion, however, obtains with respect to the 

roof condition concerning which the inspector also decided a preshift examination was required. Although this violation also 

occurred in the tailgate "active workings", the time frame 

applicable to it does not support the conclusion that a pre-shift 

examination should have been done. The roof condition was cited 

for the time just 30 minutes before the subject 104(d) (2) 

order was issued. The inspector testified that the roof condition he saw usually develops over a day or twou but he did not 

see it when he was in the area two days previously on September 5 

(Tr. 102, 118). The inspector admitted he did not know when the 

roof became bad or how long it existed before he saw it (Tr. 103-

104) It could have occurred in an hour or two and it was even 

possible occurred between the time the pre-shift would have 

been done and the time the inspector saw it (Tr. 117-118). 

Citing the operator for not performing a pre-shift with respect 

to the roof condition was therefore, not warranted and that part 

of the order concerning failure to pre-shift for the roof condition must be vacated. 

Turning again to the water condition, it next must be determined whether the required pre-shift was performed in the tailgate entry with respect to that condition. The mine foreman 

testified that he walked the tailgate toward the end of the shift 

during the time a pre-shift would be performed (Tr. 184). 

However, the purpose of his walk was not to pre-shift, but to see 

596 
what was needed to abate the water condition in a specific 

location (Tr. 185, 187-188). As set forth, supra, one of the 

requirements of § 75.303 is that upon completing his examination, 

the pre-shift examiner report out the results of his examination 

to a person on the surface desigpated.to receive such a report 

before the oncoming shift enters the mine. The foreman admitted 

he did not call out the results of his examination (Tr. 188). 

His entry in the pre-shift book was made about 5 or 5:30 p.m., 

after the next shift had begun and after the inspector had looked 

in the book and gone underground (Tr. 188-190). Therefore, the 

mine foreman's actions cannot be accepted as a pre-shift within 

the purview of § 75.303. 

Another requirement of § 75.303 is that the pre-shift 

examiner place his initials and the date and time at all places 

he examines. The foreman testified that he placed dates, times 

and initials at different locations along the tailgate entry, but 

he could not remember where (Tr. 195-196). I reject the foreman's account, because I find far more persuasive the statements 

of both the inspector and the ... miner representative that they 

looked for dates, times and initials, throughout the entry but 

found none (Tr. 64, 139). The inspector described how he looked 

on crib blocks, headers and other evident places (Tr. 55-56). He 

said that although he was accompanied by an operator escort and 

met the longwall foreman, no one showed him any dates, times or 

initials to prove the entry had been examined (Tr. 107). Most 

telling was the detailed account of the miner representative. 

He accompanied the inspector and related that he and the operator 

escort checked around one side of the crib while the inspector 

checked the other side. They also looked in between the cribs 

without finding any dates, times and initials for the day they 

were looking (Tr. 140p 145-146). I also accept the miner 

representativeus statement that it was standard practice for 

everyone to look for dates§ times and initials and that the 

operator escort was looking (Tr. 141). The operator 

escort&s allegation that he did not remember whether or not he 

looked is far direct and convincing than the recollections 

of the miner representative (Tr. 154). The operator escort knew 

the inspector was looking for datesu times and initials and he 

must have realized that in order to avoid a violation they would 

have to be found. Consequently, it makes sense that§ as the 

miner representative said, the operator escort looked for the 

datesu times and initials along with the others. In accordance 

with the great weight of the evidence 1 thereforeu I find that 

there were no dates, times and initials for the pre-shift on 

September 7 and that for this reason also the mine foreman's walk 

through the entry also failed to satisfy § 75.303. 

The onshift records indicated that the inby portion of the 

tailgate extending approximately 200 feet from the end of the 

597 
longwall face to the check curtain was regularly examined during 

the per~od when a pre-shift would have been performed (Op. Exh. 

No. 1, "B" to "H"; Op. Exh. No. 2; Tr. 159-160). Cf. Southern 

Ohio Coal Company, supra. The inspector acknowledged that 

examinations in this limited portion of the tailgate were made 

during the time a pre-shift would have been conducted (Tr. 210-

211). But here again, the requirements of§ 75.303 were not met 

because, as set forth above, there were no dates, times and 

initials entered anywhere in the entry. Also there was no 

calling out of the report to the surface in accordance with 

§ 75.303. 

Nor did the onshift activities of the section foreman 

satisfy the requirements of § 75.303. He described how he walked 

down the tailgate to the waterhole, made a couple of methane 

checks, and checked the top (Tr. 174). He then went back up the 

tailgate and the men started bringing the necessary supplies 

across the longwall face down the tailgate to the waterhole (Tr. 

175). The foreman himself admitted his activities did not 

constitute a pre-shift because in order to do a pre-shift he 

would have had to have been on the preceding day shift (Tr. 176-

177). Also, it is evident that the principal purpose of the 

section foreman's onshift was to determine what equipment and 

supplies were necessary to work on the water at the specific 

location rather than to warn 1 and protect the men in advance from 

hazards present along the tailgate. 

In light of the foregoing, I conclude that the operator 

violated 30 C.F.R. § 75.303 by failing to conduct a pre-shift in · accordance with the requirements of that mandatory standard with 

respect to the water conditions in the tailgate entry. Quinland 

Coals Inc., 9 FMSHRC 1614, 1619 (1987). 

The next issue is whether the violation was nsignif icant and 

substantialgi as that term has been defined by the Commission. 

Mathies Coal companyg 6 FMSHRC 1 (January 1984). As already 

noted, the findings in the prior citations that the water conditions presented a significant and substantial risk of slipping, 

falling and trippingv are final and conclusive" I conclude that 

the failure to findv record and report these conditions pursuant 

to a valid pre-shift examination also presented a reasonable 

likelihood of serious injuryo I again find relevant the inspector1s testimony that because there had been no pre-shift the 

miners were not warned of the slippingu falling and tripping 

hazards presented by the water (Tro 65). The continual presence 

of miners in the area to repair the situation and the changing 

nature of the water conditions from hour to hour created a 

reasonable likelihood of serious injury if the miners were not 

informed before they went underground of the perils that awaited 

them there. I further conclude that the activities of the mine 

foreman and the section foreman in the entry cannot serve to 

reduce gravity below the level of significant and substantial. 

598 
As described above, the intent and scope of those activities were 

limited and-in no way provided the level of protection afforded 

by a pre-shift under § 75.303. The inspector's finding of 

significant and substantial must be affirmed and the violation is 

found to be very serious. 

The final question is whether the violation resulted from 

unwarrantable failure on the part of the operator. The Commission has defined unwarrantable failure as conduct not justifiable 

and inexcusable and the result of more than inadvertence, thoughtlessness, or inattention. The term is construed to mean aggravated conduct constituting more than ordinary negligence. Emery 

Mining Corporation, 9 FMSHRC 1997, 2001 (December 1987). As set 

forth above, the water condition had existed for several days and 

was known to the operator during the entire period. Nevertheless, the operator persistently sent miners to work in the 

affected area without affording them the protection and security 

of pre-shift examinations. Because of the long duration of time 

involved and the repeated instances where the operator's failure 

to pre-shift knowingly exposed its ~en to danger, I find that the 

operator's cited delinquency on September 7 was aggravated within 

the meaning of Commission precedent and that, therefore, the 

operator was guilty of unwarrantable failure. 

The remaining criteria with respect to the amount of the 

civil penalty to be,assessed have been stipulated to by the 

parties. I find that a penalty of $1,250 is appropriate. 

The post-hearing briefs filed by the parties have been 

reviewed. To the extent the briefs are inconsistent with this 

decision, they are rejected. 

ORDERS 

ORDERED that Order Noo 3314237 be MODIFIED in that the 

finding of a violation be VACATED with respect to the failure to 

pre-shift for the roof condition and AFFIRMED for all the remaining aspects of the conditions cited. 

It further ORDERED that the findings of significant and 

substantial and unwarrantable failure be AFFIRMED. 

599 
It is further ORDERED that a penalty of $1,250 be ASSESSED 

and that th~ operator PAY $1,250 within 30 days of the date of 

this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Charles M. Jackson, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Walter J. Scheller III, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

/gl 

600 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

Vo 

GREFCO, INCORPORATED, 

Respondent 

DENVER, CO 80204 

APR 2 41992 

: 

. . 

. . 

. . 

. . 

. 

$ 

. . 

. • 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 91-176-M 

A.C. No. 29-01433-05523 

Grefco Plant and Quarry 

DECISION APPROVING SETTLEMENT 

Before: Judge Morris 

This is a civil penalty proceeding initiated ~ Petitioner 

against Respondent pursuant to the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et ~ The civil penalty sought 

here is for the violation of a mandatory regulation promulgated 

pursuant to the Act. 

Prior to a hearing, the parties filed a motion and agreed 

that the ~significant and substantial" allegations be strickeno 

The parties further sul::mitted information relating to the statutory criteria for assessing civil penalties as contained in 30 

LloSoCo § 820(i} o 

In addition, the parties agreed to settle Citation No. 

3448926u originally assessed for $192, for the smn of $200 

I have reviewed the settlement and I find it is reasonable 

and in the public interest. It should be approved. 

Accordinglyv I enter the following: 

ORDER 

1. The settlement is APPROVED. 

2. Citation No. 3448926 and the amended penalty are 

AFFIRMED. 

601 
3. Respondent is ORDERED TO PAY to the Secretary of 

Labor the sum of $20 within 40 days of the date of this decision. 

4. The hearing scheduled in Denver, Colorado, for May 22, 

1992, is CANCELED. 

Distributiom 

ad...._J 

~~fn~ Judge 

Jack Fo Ostranderu Esqcu Office of the Solicitoru U.So Department 

of Labor 0 525 Griffin Streetu Suite 50lv Dallasu TX 75202 

{Certified Mail} 

Mr o Michael Conleyu Associate Counsel, GENERAL REFRACTORIES COMPANY v 225 City Avenueu Bala Cynwyda 0 PA 19004 (Certified Mail) 

ek 

602 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSlON 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 271992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WALKER STONE COMPANY, INC., 

Respondent 

. . 

. . 

DECISION 

Docket No. CENT 91-130-M 

A. C. No. 14-00164-05511 

Kansas Falls Quarry & Miil 

Appearances: Robert J. Murphy, Esq., Office of the Solicitor, 

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

Petitioner; 

Mr. David s. Walker, President, Walker Stone 

Company, Inc., Chapman, Kansas, for Respondent. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

In this docket, the Secretary seeks a civil penalty of $112 

for a single alleged violation of the mandatory safety standards. 

Pursuant to notice 0 a hearing was held on the alleged violation 

in Topekaq Kansas 0 on November 26u 1991. No provision was made 

on the record for posthearing briefs and none were submitted. I 

have considered the entire record of proceedings in this case and 

the contentions of the parties, and I make the following 

decision. 

STIPULATIONS 

The parties have agreed to the following stipulations, which 

I accept~ 

1. Walker Stone Company, Inc., is engaged in the mining and 

selling of limestone in the United states, and its mining 

operations affect interstate commerce. 

2. Walker Stone Company, Inc. is the owner and operator of 

Kansas Falls Quarry and Mill, MSHA I.D. No. 14-00164. 

3. Walker Stone Company, Inc. is subject to the 

jurisdiction of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. §§ 801 seq. ("the Act"). 

60 3 
4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. The subject citation was properly served by a duly 

authorized representative of the Secretary upon an agent of 

Walker Stone Company, Inc. on the date and place stated therein, 

and may be admitted into evidence for the purpose of establishing 

its issuance, and not for the truthfulness or relevancy of any 

statements asserted therein. 

6. The exhibits to be offered by Walker Stone Company, Inc. 

and the Secretary are stipulated to be authentic but no 

stipulation is made as to their relevance or the truth of the 

matters asserted therein. 

7. The proposed penalty will not affect Walker Stone 

Company, Inc.'s ability to continue in business. 

8. The operator demonstrated good faith in abating the 

violation. 

9. Walker stone Company, Inc. is a small size mine operator 

with 67,187 hours worked in 1990. 

10. The certified copy of the MSHA Assessed Violations 

History accurately reflects the history of this mine for the 

2 years prior to the date of the citation. 

DISCUSSION 

Section 104(a) Citation No. 3629335 was issued to the 

operator on March 14q 1991, cites a violation of 30 C.F.R 

§ 56.11001 and the condition or practice states as follows: 

A safe means of access had not been provided for 

the crusher operator to access the head pulley drive 

assembly located at the top end of the inclined 

stacking conveyor that extended southwest from the 

primary crusher location. Access to this location is 

necessary to lubricate the head pulley assembly. 

Inspector Quartarof who issued the subject citation, was the 

Secretary's sole witness at the hearing. He testified that upon 

his arrival at the operator 1 s quarry on the morning of March 14, 

199lp he observed the primary crusher operator coming down the 

conveyor belt, walking on the belt line itself. This belt was 

approximately 24-30 inches wide and 100 feet long from the head 

pulley assembly to the place where the man would be able to get 

off it. It is inclined at 18 degrees. 

604 
MSHA's policy is that it is permissible to use the conveyor 

belt as an access to the head pulley assembly if there is a 

handrail along the side for the worker to hang on to while he is 

walking up and down it. In this particular instance, there were 

no handrails installed on either side of the belt line. The 

inspector opined that there was no protection whatsoever offered 

to the person walking on the belt that would prevent him from 

falling off the belt and sustaining a serious injury. 

The operator, by and through its President, Mr. Walker, 

admits the fact of the violation, and has since installed such a 

handrail to abate the violation. However, the operator contests 

the inspector's special finding of "significant and substantial" 

(S&S). 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

30 C.F.R. § 814(d) (1). A vio'lation is properly designated 

significant and substantial "if based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division, 

National Gypsum Co., 3 FMSHRC 825 {April 1981). 

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

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety 

standard< (2) a discrete safety hazard--that is 1 a 

measure of danger to saf ety--contributed to by the 

violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; and (4) 

a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129 (August 1985) the Commission stated further as follows: 

We have explained further that the third element of the 

Mathies formula 11 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 

605 
language of section 104(d) (1), it is the contribution 

of a violation to the cause and effect of a hazard that 

must be significant and substantial. U.S. Steel Mining 

company, Inc., 6 FMSHRC 1866, 1868 (August 1984); 

U.S. Steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75 

(July 1984). 

The inspector testified that if a person in the vicinity of 

the head pulley assembly were to fall from the belt line at that 

point, it would be approximately a 25 foot fall to the ground. 

The distance above the ground decreases from there sloping 

downward at 18 degrees until the point where a person could exit 

off the belt. Also, the inspector focused on the fact that wind 

conditions could adversely affect an individual walking up or 

down an inclined belt line. A gust could blow him off or at 

least cause him to lose his balance and fall off. Such an 

accident occurred at this quarry in 1990, when an employee 

standing on a stacker screen 8-10 feet high off the ground was 

blown off by a gust of wind. He was knocked unconscious for a 

short time, broke his collar -Bone and dislocated his shoulder. 

The same result is easily foreseeable in the facts of this 

case. The mere fact that it hasn't happened yet, does not mean 

that it would not have occurred had the violative condition 

remained unabated. I visited the mine site with the parties and 

observed the cited inclined stacking conveyor. I concur with the 

inspector that without a handrail installed, just as he saw it on 

March 14, 1991, it was reasonably likely that a worker could have 

lost his balance and fallen·. This could obviously have resulted 

in serious injuries. Witness what happened previously at this 

quarry in an 8-10 foot fall to the ground. I therefore conclude 

that the violation was significant and substantial. 

In light of the criteria in section llO(i) of the Mine Act, 

i conclude that $112, as originally proposed by the Secretary, is 

an appropriate penalty for the violation and will be assessed 

herein. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED THAT: 

1. Citation No. 3629335 IS AFFIRMED, including the special 

finding that the violation was significant and substantial. 

606 
2. The Walker Stone Company, Inc. pay a civil penalty of 

$112 within 30 days of the date of this decision for the 

violation found in Citation No. 3629335. 

aurer 

trative Law Judge 

Distribution: 

Robert J. Murphy, Esq., Office of the Solicitor, U. s. Department 

of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, co 80294 (Certified Mail) 

Mr. Davids. Walker, President, Walker Stone Company, Inc., 

Box 563, Chapman, KS 67431 (Certified Mail) 

dcp 

607 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

METTIKI COAL CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

· Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

METTIKI COAL CORPORATION, 

Respondent 

APR 2 71992 

CONTEST PROCEEDING 

Docket No. YORK 89-10-R 

Citation No. 3110188; 11/1/88 

Mettiki Mine 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 89-26 

A. C. No. 18-00621-03659 

Mettiki Mine 

ORDER OF DISMISSAL 

The Secretary's motion to dismiss, being unopposed by 

lVIettild is GRANTED, and these proceedings are DISMISSED. 

Distribution~ 

,,~ 

UJtf;';:: Fauver 

Administrative Law Judge 

Susan E. Chetlin 1 Esq., Mettiki Coal Corporation, 2525 

Harrodsburg Road, Suite 300, Lexington, KY 40504-3359 (Certified 

Mail) 

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

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

Anita Eve Wright, Esq., Office of the Solicitor, u. s. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

/fas 

608 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

CHARLES T. SMITH, 

Complainant 

v. 

KEM COAL COMPANY, 

Respondent 

Before: Judge Fauver 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 28 1992 

DISCRIMINATION PROCEEDING 

Docket No. KENT 90-30-D 

BARB CD 89-27 

DECISION ON REMAND 

The Commission has remanded this case "for further 

credibility findings and for analysis and explanation of the 

bases for [the judge's] ultimate conclusions regarding the nexus 

between Smith's protected activity and his discharge by Kem 

Coal." 

The Commission directs the judge "to resolve the factual 

issues we have raised and to determine anew, by applying the 

Fasula/Robinette test, whether Smith has established a prima 

facie case of discrimination" and if sou to "determine whether 

Kem Coal has rebutted that case, or has affirmatively defended 

against by demonstrating that it would have discharged Smith, 

in any event, for his unprotected activity alone. 11 

In particular, the Commission directs the judge to "set 

forth the evidentiary bases for the first three elements of 

Halcomb Rs distorted account 1 vo as found by the judge. 1 

1 The Commission describes the four elements of my finding 

that Halcomb gave a distorted account of the facts to Cox as 

follows~ 

vu ( 1) that, knowing Cox to be a practicing pastor, Halcomb 

told him that Smith had used a religious epithet; 

"(2) that Halcomb failed to tell him that smith 

immediately apologized; 

"(3) that Halcomb told Cox that Smith swore at him in 

front of the crew; and 

11 ( 4) that Halcomb failed to inform Cox that Smith had 

609 
The Commission states that there are "several possible 

explanations" for Cox's mistaken belief that others were present 

when Smith swore at Halcomb and, although it does "not secondguess the judge as to the most plausible explanation .•• , it is 

necessary for purposes of 'meaningful review' to know the reasons 

or bases for the judge's conclusion on this critical issue." The 

Commission also states that the there are "critical differences 

in the testimony of Smith and Cox" that should be resolved. 

The parties have filed proposed findings of fact, 

conclusions, and supporting briefs based on their understanding 

of the remand issues raised by Commission. 

It appears from the parties' submissions that they may be 

assuming that the Commission exercises de novo review of the 

factual findings ot an administrative law judge. It is therefore 

important to clarify, at the outset, the standard for agency 

review under this statute. 

As stated by the Court Of Appeals in Simpson v. FMSHRC, 842 

F.2d 453, 461 (D.C. Cir. 1988): 

The Mine Act denies the Commission (and on 

judicial review, this court) authority to 

overturn an AL.J's fact determinations ••. 

when those determinations are supported by 

substantial evidence. 

Thus, agency review of an administrative law judge's 

decision under the Federal Mine Safety and Health Act is not de 

novo. Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 533 (1991); 

Simpson v. FMSHRC, 842 F.2d 453, 461 (D.C. Cir~ 1988); Donovan Vo 

Phelps Dodge Corp.a 709 F.2d 86, 90-92 (D.C. Cir. 1983). A 

Commission judge~s factual findings are binding if supported by 

substantial evidence, and the Commission may not substitute a 

competing version of the facts, "even if the Commission's own 

view [also finds] support in the evidence. 11 709 F.2d at 92. 

Findings covered by this rule include not only past actions, but v~predictions about operator conduct 11 ( 842 F. 2d at 461) . 

Demeanor Evidence 

There are, of course, many things that a trial judge 

observes that do not appear on the printed record. The 

appearance of witnesses and their manner of testifying greatly 

aid the judge in determining the credibility of witnesses and the 

weight to be given to competing versions of the facts. 

Beyond the printed words of a transcript, the value of 

threatened to take his complaint to MSHA." 

610 
physical and behavioral clues should not be minimized. Printed 

words, unaccompanied by observation of the witnesses, can be very 

misleading. The truthfulness or deception of a witness may be 

indicated by well recognized physical and behavioral clues, as 

well as by changes in meaning due to phonetic emphasis, sarcasm, 

or other nuances. 

Such clues include changes and contradictory signs in facial 

expressions, the eyes, the voice, and body language which may be 

perceived by an observer at the subconscious as well as the 

conscious level. They also include "microexpressions"-: 

Some of the most reliable clues to emotion thus 

come from the so-called "microexpression. 11 This is a 

complete facial expression that correctly conveys the 

underlying emotion, but only for a fleeting instant. 

As soon as it appears it vanishes, replaced by some 

other expression more nearly in accord with the emotion 

the subject wishes to portray. Microexpressions, or 

fragments thereof, do not always occur when someone is 

trying to mask an emotion. But when they do, they are 

extremely reliable. 2 

As a general matter, it does not seem practical or desirable 

for trial judges to try to specify the observations and 

impressions of a witness' appearance or demeanor, or other 

physical and behavioral clues to truth or deception that 

influenced their factual findings. Such findings are based on 

observations at the subconscious {intuitive) as well as the 

conscious level, and involve many impressions that could never be 

fully articulated. However, since the Commission has pointed to 

my finding of Cox 1 s sensitivity to the words "God damn" as 

requiring more explanation, I discuss some of my observations of 

Cox under the first issue below" 

My findings and conclusions are included in the discussion 

of each issue. 

Cox's Mistaken Belief that Smith Used a Religious Epithet 

My impressions and observations of Cox as a witness, 

including his words, the inflection of his voice, changes in the 

speed of his speaking, his facial expressions, posture, and his 

general body language - - in short, the totality of his 

impressions on me during his examination as a witness - -

persuade me that this plant superintendent who was also an active 

ordained minister found particularly objectionable the words "God 

damn." I observed him carefully as he testified, and I 

2 Passions Within Reason, Robert H. Frank (W. W. Norton and 

Company, Inc. NY 1988), 125-126. 

611 
particularly noted his voice tone, facial expressions and body 

language as he used the initials "G.D." instead of repeating 

Halcom.h's actual words and explained his use of initials by 

saying, "I hope you'll respect me for that" (Tr. 71). I do not 

find in any sense that Cox viewed these words as just "garden 

variety" niiners' talk. Many aspects of his verbal and nonverbal behavior convinced me that Cox viewed those words as 

blasphemous, and thus particularly insulting and offensive. I 

find that the two and a half years' association between Cox and 

Halcomb was ample time for Halcomb to have come to know this 

aspect of Cox, and to believe, or reasonably expect, that Cox 

would consider a miner's use of the words "God damn" highly 

objectionable, especially in a public insult or rebuke of his 

foreman. 

I give full weight to Smith's testimony, as opposed to that 

of Halcomb and Cox, as to what was said between Smith and Halcomb 

and between smith and cox. There are no conflicts between the 

testimony of Cox and that of Smith that I resolve in favor of 

cox. 3 Indeed, when cox testified·that he thought Collins had 

said he heard Smith swear at Halcomb (Tr. 64), I find that cox 

was mistaken. The reliable evidence shows that Smith and Halcomb 

were alone when Smith swore at Halcomb, and that no one else 

heard them. 

I do not find that Smith "admitted" to Cox that he had used 

the words "God damn." If Cox thought that, I find this was a 

miscommunication or one-sided interpretation by Cox and was not 

so understood by Smith. I credit Smith's testimony that he had 

not used those words (Tr. 182) and that the first time he learned 

that the words "God damn" had been attributed to him was when he 

saw the company report of his discharge after he was fired. Tr. 

27-280 Cox's misunderstanding of Smith on this point does not 

detract from the significance of Halcom.bis false account. 

Halcomb added the words 18 God damnn to the remarks he attributed 

to Smith. This false addition was detrimental to Smith. Its 

effect on the discharge is discussed under "Nexus," below. 

Coxns Mistaken Belief that Others were Present 

When smith swore at Halcomb 

cox believed, based solely on Halcomb 1 s account, that smith 

had sworn at Halcomb, invoking God, in front of members of 

Halcomb 1 s crew. Cox did not derive this belief from anything 

said by Smith, because Cox had already decided, after talking to 

Halcomb and to Cox 1 s supervisor before he saw Smith, that if 

Halcomb's account of the incident were true, Cox "had no choice 

3 I reconcile the difference in their testimony as to whether 

Cox was told by Smith that Smith had apologized to Halcomb, under 

the "Apology" issue, below. 

612 
but to let him go" (Tr. 44) and the reason for that decision was 

that Smith had "called Henry [Halcomb] these names in front of 

Henry's people that he had to manage and ••• it placed him in a 

very bad position." Tr. 63. Cox testified that the only thing 

left to do -- after he talked to Halcomb and Cox's supervisor --

was to see if Smith denied Halcomb's account: "if he denied it, 

then we would have brought in the other guys and discussed the 

situation" (Tr. 45). This plainly shows that Cox believed, 

solely from Halcomb's account, that there were "other guys" 

present when Smith swore at Halcomb. Also, Cox told Smith that 

Smith's brother (who actually was nowhere in the area) heard 

Smith swear at Halcomb. Tr. 28. since Halcomb was the only 

witness Cox spoke to before he saw Smith, Cox had to have gotten 

this false account from Halcomb. Finally, Cox was asked these 

simple and direct questions: 

Q. 36 You went under the opinion that this argument that 

transpired between Tom and Henry, when the words 

were spoken, there were other people present at 

that time? 

A. Yes 

Q. 37 Is that what Henry told you? 

A. Later on, other people came to me and rehearsed to 

me the seriousness of the situation, yes. 

[Tr. 63-64.] 

considering the way in which this last answer was delivered, 

as well as the total impressions made by Cox as a witness, and 

the record as a whole, I find that the "yes" in his answer refers 

t.o Halcomb -- that is, Cox 1 s answer meant "Yes, Halcomb told me 

Smith had cursed him in front of others. uu Cox never contended 

otherwiseo Halcombus false account to Cox that others were 

present when Smith swore at Halcomb was detrimental to Smith. 

Halcomb•s Failure to Tell Cox that Smith stated He 

Would Report Halcomb's Unsafe Practices to MSHA 

In the safety dispute with Halcomb r. Smith told him he would 

take his complaint to MSHA: "I told Henry that this putting me in 

a(n] unsafe condition was going to stop, and he said it wasn't 

unsafe. Thatus when I told him that I was going to have to let 

the Mine Safety and Health Administration find out what he was 

doing.an Tr. 35. Halcomb angrily told Smith not to threaten him. 

In Halcomb's account to Cox, he omitted the fact that Smith 

said he would report Halcomb's unsafe practices to MSHA. 

Respondent contends that since Halcomb told Cox that Smith 

had raised a safety complaint, there was no discriminatory motive 

613 
in this omission. However, a foreman's personal liability for 

safety violations cannot be dismissed. Such penalties can be 

substantial, and MSHA has prosecuted many cases against foremen 

under § llO(c) of the Act. Halcomb's anger over Smith's 

statement that he would report him to MSHA was an animus factor 

that Cox did not know about in accepting Halcomb's account of the 

facts. Concealing this factor had the effect of concealing from 

cox an illegitimate motive for Halcomb's adverse actions, and of 

trying to minimize the weight of Smith's safety complaint, which 

was another illegitimate motivating factor. This omission 

contributed to·Halcomb's overall "laundering" of his account to 

Cox in order to achieve Smith's dismissal. 

Halcomb•s Failure to Tell cox that Smith Apologized 

Smith immediately apologized to Halcomb after swearing at 

him, but Halcomb responded, "It's already been said now" (Tr. 

29), and suspended Smith without pay with referral to Cox for 

further discipline. Halcomb's report to Cox omitted the 

important fact that Smith had·immediately apologized for his 

outburst. Smith testified that he told Cox that he had 

apologized to Halcomb (Tr. 36), but Cox did not recall hearing 

this (Tr. 63). The testimony of both Smith and Cox on this point 

is reconciled by the fact, which I find, that Smith made the 

statement to Cox that he had apologized but his statement did not 

register in Cox's attention or memory. Halcomb's omission of the 

apology was detrimental to Smith. 

The Nexus Between smith's Protected Activities 

and His suspension Without Pay and Discharge 

Under the Commission's Fasula/Robinette 4 test, a miner has 

the burden to prove that he was engaged in protected activity and 

the adverse action complained of was 01moti vated in any part 11 

by that activityo 

smith 9 s safety complaints to Halcomb before July 15, 1989, 

and on that date, including his statement that he would report 

Halcombus unsafe practices to MSHA, were all protected 

activities. 

I find that Halcomb was angered at Smith's safety 

complaints, and Smith's statement on July 15, 1989, that he would 

report Halcomb 1 s unsafe practices (endangering Smith's life) to 

MSHA. Halcomb angrily told Smith not to threaten him, before 

4 Secretary o.b.o. Pasula v. Consolidation Coal Co., FMSHRC 

2786, 2797-2800 (1980) rev'd on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); 

Secretary o.b.o. Robinette v. United Castle Coal Co., 3 FMSHRC 817-

18 (1981). 

614 
smith swo.re at him. Halcomb first tried to dodge the truth of 

the complaint with a "hearsay" device. When that failed, he 

flatly contradicted Smith's truthfulness. In effect, Halcomb was 

calling smith a liar; and Smith, knowing the truth of his 

complaint, took great offense and swore at Halcomb, although he 

immediately apologized. Halcomb refused to accept his apology. 

This series of events was immediately and intimately connected 

with Smith's safety complaint. 5 

Halcomb had a disposition to bully, taunt and abuse 

smith. 6 This showed a readiness to retaliate against Smith 

should Smith anger him or challenge his orders or actions on any 

basis. I find that Halcomb was angered by smith's safety 

complaints and his statement that he would take his safety 

complaint about Halcomb to MSHA, as well as by Smith's swearing 

at him. Because of his anger, Halcomb retaliated by suspending 

Smith without pay and referring the matter to Cox for further 

discipline. Halcomb's retaliation was motivated by Smith's 

protected activities as well as by Smith's swearing at Halcomb. 

5 Smith swore at Halcomb because Halcomb upset him by first 

confounding Smith with a "hearsay" device to evade his safety 

complaint and then flatly contradicting the truthfulness of the 

complaint. The heart of Smith's safety complaint was that Smith 

had told Halcomb, through the radio operator, of his dangerous 

situation (working under falling coal) but Halcomb ordered him, 

through the radio operator, to "go ahead and run it" (Tr. 187) . On 

July 15, 1989, Halcomb answered Smith's safety complaint by raising 

a "hearsay" technicality to evade the complaint - - contending that 

Halcomb's words conveyed through a radio operator were only 01 hearsayn and could not prove a safety complaint against him. 

Smith countered with the point that it was not "hearsay" because 

the radio operator had the job duty of transmitting orders from 

Halcomb to Smitho Halcomb seemed to be troubled by Smith 1 s removal 

of the "hearsay" claim, and decided to end the complaint by 

contradicting Smith's truthfulness al together, saying, "No, it 

didn't happen that way" (Tr. 24). This was the final straw for 

Smith, who blurted out, nyou 1 re a lying son of a bitch", and then 

immediately apologized (Tr o 24) . But for Smith 1 s protected 

activity of raising the safety complaint, and Halcomb 1 s conduct in 

dodging the complaint and then flatly contradicting smith's 

truthfulness ff it cannot be reasonably inf erred that the safety 

dispute would have reached the point of Smith swearing at Halcomb. 

6 Halcomb had a practice of bullying Smith and an abusive, 

retaliatory attitude toward Him. He taunted and belittled Smith on 

a frequent basis -- ordering him to make coffee, accusing him, a 

married man with children, of flirting with a married cashier at a 

grocery store and taking a young girl in his truck implying 

·improper motives, depriving him of lunch breaks, ignoring his 

safety complaints, and subjecting him to danger. 

615 
I find, from the totality of Halcomb's distortions of the 

incident he reported to Cox, that he discriminated against Smith, 

and this discrimination resulted in Smith's discharge. These 

distortions were: (1) that Smith used the words "God damn," (2) 

not telling Cox that Smith had immediately apologized, (3) that 

Smith swore at Halcomb in the presence of members of Halcomb's 

crew, and (4) not telling Cox that Smith stated he would report 

Halcomb's unsafe practices to MSHA. 

Wholly apart from Halcomb's giving a discriminatory, 

distorted account to Cox, I find that Halcomb discriminated 7 

against Smith by suspending him without pay and referring the 

matter to Cox for further discipline. These acts in themselves 

were retaliatory, motivated in part by Smith's protected 

activities, and they led to his discharge. By refusing to accept 

Smith's apology and suspending him without pay with referral to 

cox for further discipline, Halcomb acted from an animus toward 

Smith motivated both by Smith's protected activities and by 

smith's swearing at him. I do not accept Halcomb's testimony 

that he was not motivated in'-any part by Smith's protected 

activities. 

I find that a preponderance of the substantial, reliable, 

and probative evidence established a prima facie case of 

discrimination by Respondent against Smith, in violation of § 

105(c) of the Act, based on the following elements: (1) 

Motivated in part by Smith's protected activities, Halcomb 

discriminated against smith {A) by suspending him without pay and 

referring the matter to Cox for further discipline and {B) by 

giving a distorted account to Cox of what had occurred between 

Smith and Halcomb; (2) Halcomb's discriminatory acts led to 

Smith's discharge~ (3) since Halcomb was a supervisor, his 

discrimination is imputed to Respondent~ (4) wholly apart from 

element (1) (B), above, Halcomb (and therefore Respondent) 

discriminated against Smith by suspending him without pay and 

referring the matter to Cox for further discipline, because these 

acts were motivated by Smith's protected activities as well as by 

Smith's swearing at Halcomb, and they led to Smith's discharge. 

Respondent did not rebut Smith's prima facie case by any 

reliable evidence that there was no protected activity or that 

Halcomb's retaliatory actions were not motivated in any part by 

Smith's protected activities. 

7 "Discrimination" includes adverse action and any other 

conduct detrimental to the miner's employment relationship, if 

motivated in any part by protected activity. Hecla-Day Mine Corp., 

6 FMSHRC 1842 (1984). 

616 
Affirmative Defense 

Under the Pasula/Robinette test, if the operator fails to 

rebut a prima facie case, it may still affirmatively defend 

against the prima facie case by proving that it was also 

motivated by unprotected activity and would have taken the 

adverse action in any event for the unprotected activity alone. 

The Commission's test of an affirmative defense is adopted 

from an NLRB construction that the Supreme Court has found to be 

a permissible agency rule. NLRB v. Transportation Management 

Corp., 462 U.S. 393 (1983); NLRB v. J. Weingarten, Inc., 420 U.S. 

251 (1975). To establish the affirmative defense, the employer 

has the burden of proving "by a preponderance of the evidence" 

that "absent the improper motivation he would have acted in the 

same manner for wholly legitimate reasons." NLRB v. 

Transportation Management Corp., Inc., supra, 462 U.S. at 401. 

In approving assigning the burden of proof to the employer, 

the Supreme Court stated: 

The employer is a wrongdoer; he has acted out of a 

motive that is declared illegitimate by the statute. 

It is fair that he bear the risk that the influence of 

legal and illegal motives cannot be separated, because 

he knowingly created the risk and because the risk was 

created not by innocent activity but by his own 

wrongdoing. [462 U.S. at 403.J 

The affirmative defense adopted by the Commission, like the 

NLRB test, is not required by the anti-discrimination provision 

of the statute, but is a permissible agency rule. As the Supreme 

Court stated concerning the NLRB rule~ 

We also assume that the Board might have considered a 

showing by the employer that the adverse action would 

have occurred in any event as not obviating a violation 

adjudication but as going only to the permissible 

remedy o • o o The Board has instead chosen to 

recognize • o • what it designates as an affirmative 

defense that the employer has the burden of sustaining. 

We are unprepared to hold that this is an impermissible 

construction of the Act. '[T]he Board's construction 

here, while it may not be required by the Act, is at 

least permissible under it ... , 1 and in these 

circumstances its position is entitled to deference. 

[462 U.S. 402-403; citations omitted.] 

The affirmative defense in Mine Act cases must be applied 

with care, to ensure that it operates in harmony with the intent 

of the Congress. Application of the defense must not undermine 

either the miner's right to raise safety complaints freely, 

617 
without fear of reprisal, or the operator's right to discipline 

for legitimate reasons. 

In the case at hand, the swearing incident was immediately 

and intimately connected with Smith's safety complaint and the 

foreman's hostile reaction to it. Halcomb first tried to dodge 

the safety complaint with a "hearsay" device. When that failed, 

he flatly contradicted the truthfulness of Smith's complaint. In 

effect, he was calling Smith a liar. Smith became upset and 

swore at Halcomb, and then immediately apologized. Halcomb 

refused to accept the apology and retaliated because of mixed 

motives - - discrimination against Smith for his safety 

complaints and anger for Smith's act of swearing at him. 8 To 

establish an affirmative defense, Respondent had the burden of 

proving by a preponderance of the evidence that, "absent the 

improper motivation [it] would have acted in the same manner for 

wholly legitimate reasons. 11 NLRB v. Transportation Management 

Corp., Inc., supra, .462 U.S. at 401. However, cox's testimony 

shows that if Halcomb had told him the truth about what had 

occurred between Smith and Halcomb, Smith would not have been 

discharged. 9 This is the opposite of an affirmative defense. 

Also, based on the evidence it cannot be reasonably assumed that 

but for the safety complaint and Halcom.h's improper response to 

it, Smith would have sworn at Halcomb. That is, Smith's act of 

swearing cannot be reasonably isolated as an independent, 

legitimate motive for the adverse action. 10 Respondent's 

difficulty in trying to prove it would have fired Smith for a 

"wholly legitimate" reason is due to Halcom.h's (and thus 

Respondent's} own wrongdoing - - his discrimination and improper 

response to the safety complaint. As the Supreme Court stated, 11 it is fair that he bear the risk that the influence of legal and 

legal motives cannot be separated, because he knowingly created 

the risk and because the risk was created not by innocent 

act but by own wrongdoing" 00 462 U. s. at 403. On 

balance 9 I find that Respondent did not meet its burden of 

proving an affirmative defense. 

8 The incident is discussed in more detail in Fn. 5, above. 

9 Cox testified that if he had known that Complainant swore at 

Mr. Halcomb when they were alone -- 11 just between him and Henry / it 

could have probably been resolved, 01 that is, without discharging 

Complainant (Tr" 65) o 

10 This is not to say that misconduct by a miner in a safety 

dispute could not meet the test of an affirmative defense, e.g., if 

a miner strikes a foreman out of anger because of the foreman's 

improper response to his safety complaint. However, the 

affirmative defense places the burden on the employer to separate 

the legal from the illegal motive in a convincing way, by a 

preponderance of the evidence. 

618 
ORDER 

1. To avoid duplication, my Decisions and Orders of 

October 31, 1990, and January 31, 1991, in all parts not 

inconsistent with this Decision on Remand, are hereby 

incorporated by reference as if they were written in this Remand 

Decision. 

2. Respondent is ORDERED to comply with this Order which 

incorporates by reference the language of my prior Order to 

reinstate Complainant (October 31, 1990} and my Order for 

monetary relief (January 31, 1991). 

3. IT IS FURTHER ORDERED that the parties shall confer 

within 15 days of the date of this Decision, in an effort to 

stipulate the back pay, interest, attorney fee and other 

litigation costs that have accrued since the computation period 

in my Order of January 31, 1991. If they are unable to do so, 

Complainant shall submit, within 20 days of the date of this 

Decision, his statement of th~. amounts due. Respondent may 

respond within 10 days thereafter. 

4. This Decision will not become final until a subsequent 

order is issued awarding monetary relief and declaring this 

Decision to be final. 

Distribution~ 

~~ 

Y· , ~ ;;~&#'~ William Fauver 

Administrative Law Judge 

Michael s. Endicott, Esq. / L.E. 0 iuEd11 Spencer and Associatesv 83 

Main Street, P. 0. Box 1176D Paintsville, KY 42140 (Certified 

Mail) 

Timothy Joe Walkeru Esq. 0 Reece, Lang & Breeding, P.S.C., London 

Bank & Trust Building, 400 South Main Street, P. o. Drawer 5087, 

London, KY 40745-5087 (Certified Mail) 

/fas 

619 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

AUSTIN POWDER COMPANY, 

Respondent 

DENVER, CO 80204 

APR 2 81992 

. . 

. . 

. . 

. . 

. 

0 

: 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 91-112-M 

A.C. No. 04-03008-05501-E24 

Docket No. WEST 91-200-M 

A.C. No. 04-03008-05502-E24 

Oro Grande Mine 

Appearances: Catherine R. Iazuran, Esq., Office of the Solicitor 

U.S. Department of Labor, San Francisco, Cs.lifornia, 

for Peti tioneq 

Walter J. Davis, Director, Safety, Compliance and 

Transportation, Cleveland, Cilio, 

for Respondent. 

Before: Judge Morris 

The Secretary of Labor 0 on behalf of the Mine Safety and 

Health Administration ("MSHA") charges Respondent Austin Powder 

Company (~Austin~) with violating safety regulations pronru.lgated 

under the Federal Mine Safety and Health Actv 30 UoSeCo § 801 et ~ { wthe Act 9

v) o 

A hearing on the merits was held in Ontario, california, on 

January 22Q 19920 

Petitioner filed a post-trial briefo Respondent 9 s representative Mro Davis addressed the issues in his closing argunento 

THRESHOLD ISSUE 

The threshold issue is whether MSHA has jurisdication over 

Austino 

620 
SUMMARY OF THE EVIDENCE PERTAINING TO JURISDICTION 

It is appropriate to consider the various actors involved in 

these cases: 

VINNELL MINING COMPANY ("Vinnell") owns the mining rights 

at the Oro Grande Mine. Vinnell is subject to MSHA's jurisdiction 

but was not cited for the powder magazine violations. 

AUSTIN POWDER COMPANY ( 11Austin11 ) was cited for the magazine violations. 

SOUTHWESTERN EXPLOSIVES ("SWE") is a subsidiary of Austin. 

SPIRIT CONSTRUCTION AND BLASTING ("Spirit") by contract 

performs the blasting for Vinnell. 

EDMUNDO ARCHULETA, an MSHA inspector for over 1 7 years, 

inspected Austin between May 31, 1990, and June 6, 1991. Austin 

and SWE owned the magazines that were cited and located on 

Vinnell's Property. (Tr. 30, 31). 

Vinnell produces silica and aggregate. Its production 

enters interstate commerce. (Tr. 13, 14, 29; Ex. P-15). 

Mr. Bean, a salesman for Austin, opened the magazines for 

the inspector. (Tr ;·-2-0-,--2-lL~ During the inspection, Mr. Archuleta observed two Austin employees moving detonators out of a 

railroad car. (Tr. 30) • 

Davis Lucas was the general manager for either Austin or SWE. 

Chuck Bean and Avis Lucas were also Austin representatives. 

~Tr o 3 9) o 

Mr o Archuleta was informed by Mr o Lucas that Austin was moving magazines to various locations outside of Vinnell 0 s property0 

They were later returned to Vinnell's property. (Tr. 32). 

Inspector Archuleta agrees he did not see Austin or SWE 

involved in the production of minerals at the mine; nor did he 

see any written contracts for Austin or SWE to do any service 

work for VinnelL (Tr o 3 2) o 

Mro Lucas told Mro Archuleta to issue any citations for any 

violations by Spirit to Austin. {Tr. 38)" '!he inspector was 

able to enter Spirit magazines because Mr. Lucas had the keys. 

(Tr. 39)0 Citations were issued to SWE who, together with 

Spirit, had storage magazines on Vinnell mine property. 

C Tr • 4 4 , 4 5 ) • 

621 
RONALD AINGE, a person experienced in mining, has been 

an MSHA inspector for 14 years. {Tr. 49). 

On October 30, 1990, he was accompanied by the office administrator for SWE. {Tr. 50). Mr. Ainge discussed the map (Ex. 

P-14) and estimated the location of the various magazines in rela tion to the roadway. C-Tr. 4 6). 'Ihe inspector could not gain 

access to two magazines owned by Spirit. (Tr. 55). 

According to information received from Chuck Bean, manager 

for SWE, Austin owned all of the magazines. Austin and SWE are 

the same company. (Tr. 57, 58). 

Austin and Vinnell had entered into a lease agreernent whereby Austin could store its products on the mine site. (Tr. 62). 

Mr. Ainge understood that Spirit does the drilling and blasting. 

Austin sells its explosives to Spirit. (Tr. 64). 

During the inspection, Mr. Ainge saw Austin ernployees taking 

products out of the magazines,.for sale and the employees were 

off-loading the products for storage. (Tr. 58). The Austin employees were either at the railroad detonator magazine or at the 

railroad detonator bunker. (Tr. 58, 59; Ex. P-14). Mr. Ainge 

did not obtain the names of the Austin employees. (Tr. 59). 

WILLIAM W. WILSON, and MSHA supervisor, inspected the 

Oro Grande Mine once as an inspector and once again in response 

to Mr. Davis's concerns in 1990. (Tr. 65, 66). In June 1990, 

SWE told MSHA that Austin, not SWE, was to be identified as 

Independent Contractor No. E24. (Tr. 67). 

Chuck Deanu Davis Lucas, and Mr. McCray (manager for Vinnell) told Mro Wilson that Austin sold powder to Spirit as well 

as to VinnelL (Tro 68) o On June 15Q 1990 0 Chuck Bean told 

Mro Wilson that Austin sold eight loads of explosives during the 

first six months of 1990. (Tr. 69, 72). Austin had also assisted in the transportation from the explosives to the blasting site. 

(Tr o 7 2) o 

On June 11 0 Mro Davis~ Austinus corporate safety director(J 

raised the issue of MSHAns jurisdiction (Tro 70) o Mr. Davis produced a lease between Austin and Vinnell. (Tr. 71). He further 

confirmed that Austin had supplied eight loads of explosives to 

Vinnello 

On June 15,, 1990u after leaving Austinas office, Mr. Wilson 

went to the site and counted 11 magazines. (Tr. 73). In his 

opinion, since Austin owned the magazines, it could readily abate 

the violations and prevent their recurrence. (Tr. 81). 

622 
The Austin magazines were intermingled with the Vinnell 

mining activities. The son of the local manager for Austin was 

doing Vinnell's blasting with the company known as "Spirit." 

(Tr. 8 2) • 

To reach the detonator magazines, it was necessary to use 

the only road to the mine. After trucks are loaded, they leave 

the quarry, go past the magazines, and go to the plant. Any number of things could affect workers loading or unloading the explosives. (Tr. 83). If the magazines had been located where 

miners were not directly exposed, Mr. Wilson would have sided 

with Austin's position. (Tr. 83, 84). Mr. Wilson .believes 

Austin is a large national corporation with assets in Texas, 

Ohio, and California. (Tr. 85). 

Austin was moderately negligent and it should have known 

MSHA's rules. The violations were not reasonably likely to cause 

a serious accident. Austin abated the violations and their cooperation was excellent. (Tr. 86). 

A memorandum of understanding exists between MSHA and the 

Bureau of Alcohol, 'lbbacco, and Firearms (BATF). (Tr. 86; 

Ex. P-12). 

If MSHA and BATF regulations conflict, then MSHA inspectors 

are to enforce the regulations that provide for the greater 

safety of the miners. (Tr. 88). The differences between MSHA 

and BATF regulations were discussed. (Tr. 88-96). Exhibit R-4 

is an MSHA/OSHA Interagency agreement. (Tr. 105, 106). 

On June 11, 1990, Mr. Wilson asked Mr. Davis if Austin sold 

or assisted Vinnell with explosives in the last six months. 

Mro Davis replied that an average of eight sales loads were sold 

to Vinn to assist in its drillingo (Tr. 78)a Chuck Bean also 

said Austin assisted Spirit in transporting explosives fran the 

magazines to the blast site at the quarry.. (Tr. 99). 

Exhibit P-16 0 an MSHA form, contains Mr. Wilson's notes that 

Austin sold eight loads of explosives to Vinnell to assist their 

drillingo {Tr. 111) o 

AUSTIN EVIDENCE 

WALTER DAVIS, Director of Safety and Compliance for 

Austin, tesfified that the company entered the Southern California explosives market several years ago. At that time, Austin 

leased five acres of land from Vinnell Mining Company and took 

over some of Vinnell's existing powder magazines. 

623 
The written lease, for an annual consideration of $7000, was 

entered into on June 1, 1988, between Austin and Vinnell. The 

lease describes the five acres of land. Also leased by the 

agreement are a storage bunker, rail car, and portable magazines. 

In addition, office space on the Vinnell property and fixtures 

were leased by Austin. (Ex. R-2). 

On June 1, 1989, the lease agreement was amended. The 

amendment provided for rent of the leased premises in the amount 

of $5000 per year. The lease described the term at four years, 

until May 30, 1993. (Ex. R-3). Austin also applied for a license from the Bureau of Alcohol, Tobacco, and Firearms. The 

license approved the manufacture, distribution, and use of explosives. The magazines were inspected by BATF. (Tr. 114). 

Austin believes its powder magazines were not subject to 

MSHA enforcement. However, MSHA inspectors could enter Austin's 

leased property to enforce BATF regulations as contained in 

C.F.R. Part 27. (Tr. 115). Austin and its subsidiary SWE were 

were not involved in any operations-such as drilling, blasting, 

loading, etc., at the Oro Grande Mine. Austin simply put powder 

in the magazines and ra.noved it in the normal course of its 

business. (Tr. 117, 118) • 

Mr~ Davis reviewed his notes of the conference with 

Mr. Wilson and there was no conversation regarding billing of any 

product to Vinnell. If he made such a statement, it was in error. 

(Tr. 118) • Mr Davis, through his off ice computer and sales records, could not find the record of any billing from Austin to 

Vinnell from 1991 to the end of 1989. Austin performed no services for Vinnell and had no contracts with the mining company. 

(Tr o 118) o 

Austin agrees it supplies materials to Spirit and that is 

·their only :rela tionshi Po Austin is legal with ATF regulations. 

t Tr o 11 9 0 121) o 

Austin also consulted with the Tread Corporation, a manufacturer of magazineso In its letter to Austinp Tread Corporation 

concluded that their magazines complied with MSHA rules. (Tro 

12lu 2u Exo R-5). Austinu on a nationwide basisu has 800 

employeeso (Tr. 124ul25)o 

Austin°s home office is located in Cleveland, Chio, and its 

65 distribution facilitiesQ such as at Rio Grande, are located 

throughout the United States. (Tr. 125). 

There are mine storage magazines at the Oro Grande Mine. 

Any additional magazines there would be moved from customer to 

customer. (Tr. 126, 127). 

624 
If someone would buy explosives at the Oro Grande Mine, then 

Oro Grande would generate a delivery document called a "J-ticket. 

The J-ticket lists the customer's name and the products sold. 

DISCUSSION AND FURTHER FINDINGS 

The evidence involves three critical credibility conflicts. 

First, did Austin sell explosives and furnish services to Vinnell? 

If that occurred, Austin was a subcontractor subject to the Mine Act 

as in Otis Elevator Company, 11FMSHRC1896 (October 1989). 

I credit the evidence of Inspector Wilson that Austin sold 

explosives directly to Vinnell. Mr. Wilson's testimony and his 

conference worksheet (Ex. P-16) reflects the June 1990 telephone 

conferences. Among the questions noted on his worksheet were: 

"Has Austin Powder sold/assisted Vinnell in the last six months 

with powder, et a 1.? ihe answer was, "Yes - average eight sales 

(loads) to Vinnell to assist in.their. drilling." While hearsay 

has its limits, Mr. Wilson's testimony is also supported by the 

hearsay statement of Chuck Bean that Austin sold eight loads 

during the first six months of 1990. · (Tr. 69, 72). Austin also 

assisted in the transportation of the explosives to the blasting 

s i t e. (Tr • 7 2 ) o 

A further credibility issue concerns the authority of 

Davis Lucas to speak for Austin. '!he evidence shows Mr. Lucas 

instructed Mr. Archuleta to issue citations to Austin for any 

Spirit violations. (Tr. 38). '!he inspector was able to enter 

Spirit magazines because Mr. Lucas had the keys. (Tr. 39). 

Chuck Deang Davis Lucas" and Mr o McRay also told Mr o Wilson 

'Chat Austin sold powder to Spirit as well as to Vinnello (Tro 

i58L 

Chuck Dean and Inspector Archuleta told Mr. Wilson that 

Mro Lucas was the general manager of SWE. (Tre 149, 150). 

In additiong Danny Wallace wrote MSHA on September 26~ 1989 0 

changing Austin/SWEvs addresso 'lhis letter was prompted by a 

telephone call from Mro Lucaso (Tro 150; Exo P-lS)o Mr. Incas 

wanted certain reports to go to Cleveland, Ohio. MSHA could not 

comply with this request without a formal letter. (Tr. lSl)Q 

Austin asserts Mr" Lucas was only a consultant for the company and did not have any authority to speak for it. Contrary to 

Austin 1 s views, I find the above cited testimony to be very persuasive. In addition, nanny wallace's letter of September 26, 1989, 

625 
was also fowarded to W.Je Davis (Director of Safety), as well as 

to Mr. Lucas, and Mro Day. It was clearly Austin company business. 

Finally, Davis Lucas's letter to Austin's home office, dated 

January 18, 1988 (seeking to change the address on the ATF 

license) was Austin/SWE business. (Ex. P-17). The evidence 

indicates that Mr., Lucas had authority to act for Austin. 

The final credibility issue arises from the maps of the mine 

area • .MSHA's testimony is that MSHA's map is superior to Austin's 

map. The company takes a contrary view. The evidence indicates 

MSHA's map was drawn the night before the hearing~ Austin's map 

was submitted to BATFe Neither map is to scale. The maps generally show storage magazines in close proximity to the single road 

in the area as well as to the mining in the quarry. However, 

neither map delineates the Austin leasehold. Basically, the area 

maps do not assist the judge in making a determination of the 

issues. 

The record, as a whole, establishes that Austin was an independent contractor on the property. Austin• s activities in selling explosives and transporting such explosives for Vinnell at its 

mine renders Austin subject to the Act. 

EVIDENCE ON THE MERITS 

The citations were amply supported by the uncontradicted 

testimony of Inspectors Archuleta and Ainge. Austin offere:i no 

contrary evidence on the merits. The initial seven Citations 

allege Austin violated 30 C$F.,R., § 56.,6020(e)" 1 

Citation Noo 3648344 providesg 

l 

The trailer constrJcted of metal and used to 

store powderu License Plate No., KY T-22-147v 

and located South West of the Vinnell Oro 

Grande Plant was not electrically bonded or 

groundedo Explosives are stored in the 

Trailera (Ex. P-1) o 

Section 56a6020 Magazine Requirementso 

.Magazines shall be--

( e) Electronically bonded and grounded if constructed of metal; 

626 
Citation No. 3648346 provides: 

The explosive storage magazine constructed of 

metal No. 200 located s.w. of the Vinnell Oro 

Grande Plant was not electrically bonded or 

grounded. The Magazine had 2400 pounds of 

Emuline explosives. (Ex. P-2). 

Citation No. 3648347 provides: 

The Trailer Serial No. 3 INCAK used to store 

explosives and constructed of metal and loca ted s.w. of the Vinnell Oro Grande Plant was 

not electrically bonded or grounded. Explosi ves are stored in the trailer. (Ex. P-3). 

Citation No. 3648348 provides: 

The explosive storage magazine Noo 190 SWE, 

constructed of metal and located s.w. of the 

Vinnell Oro Grande Plant, was not electrically 

bonded or grounded. Explosives are stored in 

magazine. (Ex. P-4). 

Citation No. 3648347 provides: 

The detonator magazine No. 100 which is constructed out of metal was not electrically 

bonded or grounded. Detonators were stored in 

the magazine. {Ex. P-7>. 

Citation Woo 3648438 providesg 

The rail car detonator storage magazine constructed of metal was not electrically bond 

and grounded. Detonators were stored in 

e Rail r 0 (EX 0 P-8) 0 

Citation Noo 36484~0 provides~ 

The door on the Bunker Detonator storage magazine constructed of metal was not electrically 

bonded and grounded" Detonators were stored in 

the magazine" (EXo P-9} o 

627 
Citation No. 3647277 alleges a violation of 30 C.F.R. 

§ 56. 6020 2 and provides: 

The Cap Magazine Company nwnber 9129 was not 

vented near the ceiling area. The magazine 

did have vents near the floor. The only people 

who enter this area is [sic] Austin Powder Co. 

employs [sic] who are knowledgeable in storage 

and handling of explosives. (Ex. P-10). 

Citation No. 3648440 provides: 

The explosive Magazine No. 190 SWE was not properly ventilated. A new wood exterior had been 

installed of wood but vent holes had not been 

drilled. Explosives are stored in the magazine. 

(Ex. P-5) .. 

Citation No. 3647278 alleges Austin violated 30 C.F.R. 

§ 56.6020(i). 3 ' 

3 

There was [sic] two signs visible on the approach roadway to the storage magazine on the 

south side of the property, if someone was to 

shoot through either of these signs they could 

strike one of several magazines in this area. 

There is a full-time guard at the property and 

the chance of this happening is unlikely. 

CEx. P-11). 

Section 56~6020 J.¥.iagazine ~equirementse 

Magazines shall be--

(g) Provided with adequate and effectively 

screened openings near the oor and ceiling~ 

Section 

Magazines sha be--

(i) Posted with suitable danger signs so located 

that a bullet passing through the face of a sign 

will not strike the magazine; 

628 
Citation No. 3648350 alleges a violation of 30 C.F.R. 

§ 56.6005 4 and provides: 

The bunker detonator storage magazine was not 

cleared of dry vegetation for a distance of 

25 feet in all directions. Vegetation was observed on top of the magazine and in front of 

it. Detonators are being stored in this magazine. 

(Ex. P-6). 

On the uncontradicted evidence, the citations herein should 

be affirmed. 

MSHA VERSUS BATF REGULATIONS 

Austin argues that MSHA 'can enforce BATF regulations but not 

MSHA regulations on its leasehold property. I disagree. 'lhe interagency agreement provides that MSHA will enforce the stricter 

requirements whether it be MSHA or BATF regulations. 

On this issue I credit Mr. Wilson's testimony that the MSHA 

regulations are stricter that BATF. Facially, a comparison between the regulations supports Mr. Wilson's testimony. 

As noted in assessing civil penalties MSHA no longer requires the grounding of metal magazines. However, the writer is 

required to deal with the terms of the regulation in effect at 

the time of the violation" 

Grounding is obviously a more stringent requirement. 

4 Section 56060050 Areas around storage facilities" 

Areas surrounding magazines and facilities 

for storage of blasting agents shall be kept 

clear of rubbishu brush, dry grassq or trees 

Cother than live trees 10 or more feet tall>u 

for a distance not less than 25 feet in all 

directions, and other unnecessary combustible 

materials for a distance of not less than 50 

feet. 

629 
Austin also asserts that OSHA's regulations should prevail 

here. I disagree. This site is obviously a mine generally under 

MSHA's enforcement jurisdiction. 

I further reject the opinion of the Triad Corporation (Ex. 

R-5). It is ultimately an issue for the Commission whether an 

operator is in violation of a regulation. 

CIVIL PENALTIES 

Section llO(i) of the.Act mandates consideration of six 

criteria in assessing appropriate civil penalties. 

Austin is a large national company consisting of approximately 700 employees. (Tr. 85). 'lhe penalties set forth in the 

order of this decision are appropriate and should not affect 

Austin's ability to continue ~n business. 

While Austin has been previously cited, there was no specific detailed evidence of such prior history. Austin was negligent as the violative conditions were open and obvious. 

As noted, it is true that MSHA no longer r~uires that metal 

magazines be grounded. 'Ibis would indicate the gravity as to the 

ungrounded magazines was not as high as MSHA originally believed. 

Austin immediately abated the violative conditions and fully 

cooperated with MSHA. It is accordingly entitled to statutory 

good fai tho 

For the egoing reasonsq I enter the following~ 

ORDER 

j_ 0 tation Noo 364834~ is AFFIRMED and a civil penalty 

of $10 is ASSESSEDo 

2o Citation Noo 3648346 is AFFIRMED and a civil penalty 

$10 is ASSESSEDo 

3o Citation No .. 3648347 is AFFIRMED and a civil penalty 

of $10 is ASSESSED. 

48 Citation No. 3648348 is AFFIRMED and a civil penalty 

of $10 is ASSESSED. 

630 
5. Citation No. 3648437 is AFFIRMED and a civil penalty 

of $10 is ASSESSED. 

6. Ci ta ti on No. 3648438 is AFFIRMED and a civil penalty 

of $10 is ASSESSED. 

7. Citation No. 3648440 is AFFIRMED and a civil penalty 

of $10 is ASSESSED. 

8. Citation No. 3647277 is AFFIRMED and a civil penalty 

of $20 is ASSESSED. 

9. Citation No. 3648349 is AFFIRMED and a civil penalty 

of $20 is ASSESSED. 

10. Citation No. 3647278 is AFFIRMED and a civil penalty 

of $20 is ASSESSED. 

11. Citation No. 3648350 is AFFIRMED and a civil penalty 

of $20 is ASSESSED. 

ris 

ra tive Law Judge 

Distributiong 

catherine Ro Lazuranu Esqo 0 Office of the Solicitoru UoSo Department 

of Laboru 71 Stevenson Streetu Suite 1110 0 San Francisco, CA 

94105-2999 (Certified Mail) 

Mro 'Walter Jo Davis 0 Director of Safety and Compliance 6 AUSTIN 

POWDER COMPANYq 25800 Science Park Drive, Cleveland, OH 44122 

(Certified Mail} 

ek 

631 
FEDERAL MINE SAFETY ANO HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 28, 1992 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

SECRETARY OF LABOR, 

MINE SAFETY. AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

632 

CONTEST PROCEEDING 

Docket No. WEVA 91-171-R 

Order No. 3116965; 2/2/91 

Loveridge No. 22 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 91-1996 

A.C. No. 46-01433-03993 

Docket No. WEVA 92-232 

A.C. No. 46-01433-04005 

Loveridge No. 22 Mine 

Docket No. WEVA 91-1834 

A.C. No. 46-01452-03790 

Docket No. WEVA 91-1985 

A.C. No. 46-01452-03793 

Arkwright No. 1 Mine 

Docket No. WEVA 91-1924 

A.C. No. 46-01968-03928 

Docket No. WEVA 91-1967 

A.C. No. 46-01968-03925 

Docket No. WEVA 91-1969 

A.C. No. 46-01968-03927 

Docket No. WEVA 92-188 

A.C. No. 46-01968-03944 

Blacksville No. 2 Mine 

Docket No. WEVA 91-1841 

A.C. No. 46-01453-03966 
Appearances: 

Docket No. WEVA 91-2038 

A.C. No. 46-01453-03973 

Humphrey No. 7 Mine 

Docket No. WEVA 91-1913 

A.C. No. 46-01318-04010 

Robinson Run No. 95 Mine 

DECISION 

AND 

ORDER OF DISMISSAL 

Caryl Casden, Esq., U.S. Department of Labor, 

Office of the Solicitor, Arlington, Virginia, 

for Petitioner; 

Walter J. Schel.ler III, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for 

Respondent. 

Before: Judge Barbour 

The captioned proceeding concerns one notice of contest and 

eleven civil penalty petitions filed by the parties pursuant to 

Sections 105(d) and llO(a) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. §§ 815(d), 820(a). The proceedings were 

noticed for hearing in Morgantown, West Virginia. Prior to the 

March 3, 1992 hearing, the parties stated that they had agreed to 

settle all matters, except contest proceeding, Docket 

No" WEVA 91-171-Ru and its corresponding civil penalty 

proceeding 9 Docket Noc WEVA 92-2320 I advised the parties that I 

would hear the settlement motions on the record, at the close 

of the contested cases. I further advised them that rulings on 

the proposed settlements would be incorporated into a decision on 

the merits of the contested cases. 

Docket No. WEVA 91-171-R 

Docket No. WEVA 92-232 

The contested cases were heard as scheduled. Subsequent to 

the receipt by the parties of the transcript and to its review, 

counsel for the Secretary of Labor ("Secretary") informed me that 

she and counsel for Consolidation Coal Company ("Consol") had 

agreed to settle the contested matters·, and, pursuant to 

Commission Procedural Rule 30, 29 C.F.R. § 2700.30, counsel for 

633 
the Secretary moved me to approve the settlement. At issue in 

the contested proceedings is an alleged violation of 30 C.F.R. § 

75.1106-3(a) (3), a mandatory safety standard involving the 

storage of liquified and nonliquified compressed gas cylinders in 

underground coal mines. The standard states in relevant part: 

(a) Liquified and nonliquified compressed gas cylinders 

stored in an underground coal mine shall be: 

* * * (3) Protected against damage .•. from contact 

with .•• electrical equipment. 

on February 2, 1991, Federal Mine Safety and Health 

Administration ("MSHA") Inspector Homer W. Delovich issued an 

order pursuant to Section l04(d) (2) of the Mine Act, 30 U.S.C. § 

815(d) (2), alleging that two oxygen and two acetylene tanks were 

stored improperly at the corner of a track entry and a crosscut 

in active workings of Consol's Loveridge No. 22 Mine. According 

to the inspector, the crosscut was being used as a travelway by 

scoops bringing longwall shields from the longwall to the track 

loading point. The inspector believed the proximity of the tanks 

to the track and to the travelway subjected the tanks to damage 

from track equipment and, more importantly, from mobile equipment 

in the travelway. 

The inspector further found that the violation was a 

significant and substantial contribution to a mine safety hazard 

(a "S&S" violation), that due to the failure to properly store 

the tanks an injury resulting in lost workdays or restricted duty 

was reasonably likely for up to seven miners and that the 

violation was the result of unwarrantable failure and "high" 

negligence on the part of mine management, whose foremen had 

regularly traversed the area in which the violative conditions 

existed" The inspector therefore issued to Consol Order of 

Withdrawal Noo 31169650 Subsequentlyr Consol contested the 

validity of the withdrawal order, as well as the civil penalty of 

$1,100 proposed by the Secretary for the alleged violation of 30 

C.F.Ro § 75.1106-3(a)(3)o 

The Motion to Approve Settlement states that post-trial 

review of the testimony and documentary evidence convince the 

Secretary that while the fact of violation and the gravity of the 

violation have been established, the allegations of unwarrantable 

failure and "highn negligence alleged in the contested order and 

upon which the proposes civil penalty was, in part, based cannot 

be sustained. In essence, counsel for the Secretary asserts 

that, contrary to what the inspector believed, the evidence 

establishes that the intersection of the crosscut and the track 

entry had not been used repeatedly as a travelway because the 

particular mining process being undertaken--the moving of the 

longwall shields during recovery of the longwall--had only begun 

on the date the inspector issued the order, that the foremen in 

634 
charge of the work neither had used nor intended to use the 

subject intersection regularly, and that a scoop only once had 

passed close to the tanks. 

Accordingly, counsel states that MSHA has agreed to modify 

the Section 104(d) (2) order to the Section 104(a) citation, 

30 u.s.c. § 814(a), alleging an S&S violation due to moderate 

negligence on Consol's part and that Consol has agreed to pay a 

civil penalty of $700 for the violation. 

I believe the settlement motion is well advised. The 

testimony of the inspector and of Consol's witnesses was in 

direct conflict regarding the use of the subject area by scoops 

removing shields from the longwall, as well as whether foreman 

had or would regularly traverse the area. Without implying any 

criticism of the inspector, who was acting in a forthright and 

conscientious manner to protect miners from the undoubted hazards 

presented by the improperly stored cylinders, the Secretary did 

not establish, in my opinion, that the intersection had been or 

would be subject to repeated Yse by the scoops as they shuttled 

between the longwall and the track loading point and thus was an 

area requiring repeated supervisory visits. Given this fact, I 

agree with the Secretary that mine management officials did not 

exhibit aggravated conduct in allowing the cylinders to be stored 

in the subject area. 

II. 

At the close of the testimony with regard to Docket 

Nos. WEVA 91-171-R and WEVA 92-232, counsel for the Secretary 

moved me to approve settlements or to stay, in part, the 

following civil penalty proceedings (Tr. 298-312): 

Docket No. WEVA 91-1834 

Pro:gosed 

Date 30 C.F.R. Assessment Settlement 

3306395 3/7/91 75.601 $329 $329 

3105723 3/11/91 75.1105 $305 0 

3307585 3/11/91 75.520 $213 0 

Counsel for the Secretary stated that Consol has agreed to 

pay in full the proposed civil penalty for Section 104(a} 

Citation No. 330695. 

Regarding Section 104(a) Citation No. 33105723, counsel for 

the Secretary stated that the Secretary has agreed to vacate the 

citation because, on further investigation, the Secretary has 

found that there was no violation of the cited standard. 

Likewise 1 regarding Citation No. 3307585, counsel for the 

Secretary stated that upon further investigation it was 

determined that the equipment was in compliance with the standard 

and that there was no violation. 

635 
Docket No. WEVA 91-1985 

Proposed 

citation No. 30 C.F.R. Assessment Settlement 

3315732 6/14/91 77.404(a) $213 $20 

Regarding Section 104(a) Citation No. 3315732, counsel for 

the Secretary stated that subsequent to being assessed by MSHA, 

the citation was modified by the inspector to delete the "S&S" 

finding. As modified, the proposed penalty would have been $20, 

and Consol has agreed to pay a $20 penalty. 

Docket No. WEVA 91-1967 

Proposed 

Citation No. Date 30 C.F.R. Assessment Settlement 

3315473 3/11/91 75.515 $259 $259 

3315474 3/11/91 75.1405 $259 stayed 

Counsel for the Secretary stated that Consol has agreed to 

pay in full the proposed civil penalty for Section 104(a) 

Citation No. 3315473. 

Regarding Section 104(a) citation No. 315474, counsel for 

both parties requested this matter be stayed.pending the decision 

of Commission Administrative Law Judge Avram Weisberger in 

Consolidation Coal Company, Docket No. WEVA 91-1833. Judge 

Weisberger has scheduled that case for hearing on May 18, 1992. 

The parties stated that the case contains several citations 

alleging violations of 75.1405 and arising under factual 

circumstances similar to the subject violation. They expect 

Judge Weisberger 1 s decision to determine their resolution of the 

subject citationo I accept the partiesi representations and, as 

ordered belowf stay the proceeding. 

Docket No. WEVA 91-1969 

Proposed 

Citation No. Date 30 C.F.R. Assessment Settlement 

3315486 3/20/91 77.512 $259 $155 

3315487 3/20/91 77.505 $259 $155 

Section 104(a) citations Nos. 3315486 and 3315487, which 

respectively allege that t~e cover plate was missing from the 

electrical junction box of an overhead fan and that insulated 

wires were not in proper fittings in the metal junction box of an 

hot water heater, were both found by the inspector to be 

significant and substantial contributions to mine safety hazards. 

Counsel for the Secretary stated that MSHA has agreed to modify 

the citations to delete the S&S findings because the junction box 

to the overhead fan was 15 feet off the ground and unlikely to be 

636 
contacted by anyone and the junction box for the hot water heater 

was unlikely to be subject to any vibration causing wear or 

stress to the insulated wires. Consol has agreed to pay civil 

penalties of $155 for each violation. 

Docket No. WEVA 91-1924 

Pro2osed 

Citation No. Date 30 C.F.R. Assessment Settlement 

3306261 10/15/90 75.512 $2,000 $210 

3306262 10/15/90 75.511 $319 0 

3306264 10/10/90 75.518 $2,000 $350 

Regarding to Section 104(a) Citations Nos. 3306261 and 

3306264, counsel for the Secretary stated that both violations 

had been specially assessed because of MSHA's belief that both 

violations contributed to an electrical short circuit accident 

that occurred on October 12, 1990 and that burned a miner. 

Counsel further stated the Secretary cannot prove the violations 

actually contributed to the accident. 

Counsel for the Secretary stated that because the Secretary 

cannot establish the violation of Section 75.518 cited in Section 

104(a) citation No. 3306264 was reasonably likely to result in 

or contribute to a burn injury, MSHA has agreed to modify the 

citation to delete the "S&S" finding. 

Finally, counsel for the Secretary noted that Section 104(a) 

Citation No. 3306262 was dismissed by Judge Weisberger on 

December 20, 1990, when he sustained a contest of the citation on 

the ground that the conditions cited did not constitute a 

violation of Section 75.511. Consolidation Coal Co., 12 FMSHRC 

2643v 2650 (December 1990) (ALJ Weisberger). 

Docket No. WEVA 91-1841 

Citation No. Date 

3314463 3/11/91 

3307587 3/13/91 

3314473 3/13/91 

3307588 3/14/91 

30 C.F.R. 

75.302-4(a) 

75.1704 

75.520 

77.401(b) 

Pro2osed 

Assessment 

$192 

$275 

$20 

$20 

Settlement 

$192 

$155 

$20 

0 

Regarding Section 104(a) Citations Nos. 3314463 and 3314473 

the Secretary 1 s co~nsel stated that Consol has agreed to pay in 

full the proposed civil penalties. 

Section 104(a) Citation No. 3307587 alleges that a violation 

of 75.1704 constituted a significant and substantial contribution 

to a mine safety hazard in that a gasoline leak in the vicinity 

of an emergency hoist (which served as an escapeway for active 

working sections) was reasonable likely to result in an accident 

637 
causing lost or restricted workdays dates. Counsel for the 

Secretary stated that MSHA has agreed to modify the citation to 

delete the S&S finding because it has been determined that the 

gasoline leak was minuet, and Consol has agreed to pay a 

resulting civil penalty of $192. 

Section 104(a) Citation No. 3307588 alleges that a surface 

shop grinder was not labeled with its RPM value as required by 

Section 77.401(b). Counsel for the Secretary stated that MSHA 

has agreed to vacate the citation because the RPM values later 

were found on the machine. 

Docket No. WEVA 91-2038 

Proposed 

citation No. 30 C.F.R. Assessment Settlement 

3316601 7/1/91 75.203(a) $227 $50 

Section 104(a) Citation No. 3316601 alleges a significant 

and substantial violation of,75.203(a) in that miners were 

exposed to hazards caused by faculty pillar recovery methods on a 

longwall section. Counsel for the Secretary stated the Secretary 

has concluded that extra precautions required by the roof control 

plan (and, apparently, not considered by the inspector) made the 

pillar recovery methods being followed decidedly less hazardous 

than found by the inspector and that, as a consequence, MSHA has 

agreed to modify the citation to delete the S&S finding. In 

turn, Consol has agreed to pay a civil penalty of $50. 

Docket No. WEVA 91-1913 

Proposed 

Citation Nao Assessment Settlement 

3105284 1/17 /91 $241 $241 

Regarding Section 104(a) Citation Noo 3105284, Counsel for 

the Secretary stated that Consol has agreed to pay in full the 

proposed civil penaltyo 

Docket No" WEVA 91-188 

PrOQOSed 

Citation No" Date 30 CoFoRo Assessment Settlement 

3105195 3/20/91 77ol6Q5(d) $20 $0 

3105196 3/20/91 77.410 $259 $259 

3315493 3/26/91 77o404(a) $259 $155 

3315236 5/31/91 75.1405 $192 stayed 

Regarding Section 104(a) Citations Nos. 3105195 and 3105196, 

counsel for the Secretary stated that MSHA has vacated the first 

citation and Consol has agreed to pay in full the proposed 

assessment for the second. 

638 
Section l04(a) Citation No. 3315493 alleges that a broken 

left front windshield, with inside and outside rough edges, on a 

blade roller machine violated the cited standard and constituted 

a significant and substantial contribution to a mine safety 

hazard. Counsel for the Secretary stated that MSHA has agreed to 

modify the citation to delete the S&S finding because the breaks 

in the windshield were minor and did not obstruct or obscure the 

equipment operator's vision. Counsel also stated that Consol has 

agreed to pay a civil penalty of $155 or the violation. 

Regarding Section 104(a) Citation No. 3315236, as with 

Citation No. 3315474 in Docket No. WEVA 91-1967, the parties have 

requested the matter be stayed pending the decision of Judge 

Weisberger in Consolidation Coal Co., WEVA 91-1833. As ordered 

below, I grant the parties' request. 

Docket No. WEVA 91-1996 

Proposed 

Citation No. Date '-JO c.F.R. Assessment Settlement 

3116462 5/22/91 77.1605{a) $178 $126 

Regarding Section 104(a) Citation No. 3116462, counsel for 

the Secretary stated that the Secretary has concluded Consol's 

negligence in allowing the violation to exist was "low" rather 

than "moderate", as found by the inspector, and that Consol has 

agreed to pay a civil penalty of $126, the amount that would have 

been proposed had "low" negligence been used in calculating the 

assessment. 

Conclusion 

In view of the foregoing and after reviewing the pleadings 

and arguments in support of the proposed settlements and requests 

for stay1 as well as the relevant civil penalty criteria, I 

conclude that the settlements for which approval is sought are in 

the public interest and, therefore, they are APPROVED. In 

addition, I conclude that stays should be granted for the cases 

containing the two alleged violations of Section 75.1405 until 

Judge Weisberger issues a decision in Consolidation Coal Co., 

WEVA 91-1833, or until that matter is otherwise resolved, and 

they are STAYED. 

639 
III. 

ORDER 

Docket No. WEVA 91-171-R 

Docket No. WEVA 92-232 

Consol is ordered to pay a civil penalty of $700, and the 

Secretary is ordered to modify Section 104(d) (2) .Order No. 

3116965 to a section 104(a) citation. 

Docket No. WEVA 91-1834 

Consol is ordered to pay a civil penalty of $329 for 

Citation No. 3306395, and the Secretary is ordered to vacate 

Section 104(a) Citation Nos. 3105723 and 3307585, if she has not 

already done so. 

Docket No. WEVA 91-1985 

Consol is ordered to pay a civil penalty of $20 for Citation 

No. 3315732, and the Secretary is ordered to modify the citation 

to delete the inspector's S&S finding, if she has not already 

done· so. 

Docket No. WEVA 91-1967 

This matter is ordered stayed. Consol is ordered to pay a 

civil penalty of $259 for Citation No. 3315473. Consideration of 

citation No. 3315474 in this case is held in abeyance pending 

Judge Weisberger's decision in Consolidation Coal Co., 

WEVA 91-1833, or until the case is otherwise resolved, and the 

parties are requested to advise me on or before July 1, 1992, and 

the first of each succeding month, of the status of this 

citationo 

Docket No. WEVA 91-1969 

Consol is ordered to pay civil penalties of $155 each for ~ 

Citations Nose 3315486 and 3315487, and the Secretary is ordered 

to modify each citation to delete the inspector's finding S&S 

finding. 

Docket No. WEVA 91-1924 

Consol is ordered to pay civil penalties of $210 and $350 

for Citations No. 3306261 and 3306264, and the Secretary is 

ordered to modify citation No. 3306264 to delete the inspector's 

S&S finding. 

640 
Docket No. WEVA 91-1841 

Consol ordered to pay civil penalties in the amounts of 

$192 for Citation No. 3314463, $20 for Citation No. 3314473 and 

$155 for Citation No. 3307587, and the Secretary is ordered to 

modify Citation No. 3307587 to delete the inspector's S&S 

finding. Further, the Secretary is ordered to vacate Citation 

No. 3307588, if she has not already done so. 

Docket No. WEVA 91-2038 

Consol is ordered to pay $50 for Citation No. 3316601, and 

the Secretary is ordered to modify the citation to delete the 

inspector's S&S findings. 

Docket No. WEVA 91-1913 

Consol is order to pay $241 for Citation No. 3105284. 

Docket No. WEVA 92-188 

This matter is ordered stayed. Consol is ordered to pay 

$259 for Citation No. 3105196 and $155 for Citation No. 3315493. 

The Secretary is ordered to modify Citation No. 3315493 to delete 

the inspector's S&S finding and to vacate Citation No. 3105195, 

if she has not already done so. Consideration of Citation No. 

3315236 is held in abeyance pending Judge Weisberger's decision 

in Consolidation Coal Co., WEVA 91-1833, or until that case is 

otherwise resolved, and the parties are requested to advise me on 

or before July 1, 1992, and the first of each succeeding month of 

the status of this citation. 

Docket NOo WEVA 91-1996 

Consol is ordered to pay $126 for Citation Noo 31164620 

As ordered above 7 payment is to be made to MSHA within 

thirty (30) days of the date of this decision and order, and upon 

receipt of payment all captioned civil penalty proceedings are 

dismissed except Docket Noso WEVA 91-1967 and WEVA 92-188, which 

are stayed. In addition, in view of the settlement disposition 

of the companion civil penalty case, Docket No. WEVA 92-232, 

contest proceeding Docket No. WEVA 91-171-R is dismissed. 

~, - -;) / _/ ~}:'-.. vrd ~~ 6tJc,;rt__ 

David Barbour 

Administrative Law Judge 

641 
Distribution: 

Caryl Castlen, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Walter J. Scheller III, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

nb 

642 
1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 29, 1992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

: 

Docket No. WEVA 91-2034 

A. C. No. 46-01452-03795 

v. Arkwright No. 1 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

Appearances: 

Before~ 

DECISION 

Charles Jackson, Esq., Office of the Solicitor, U. s. Department of Labor, Arlington, 

Virginia, for Petitioner: 

Walter J. Scheller, Esq., Consolidation 

Coal Company, Pittsburgh, Pennsylvania, for 

Respondent. 

Judge Merlin 

This case is a petition for the assessment of a civil penalty filed by the Secretary of Labor against Consolidation Coal 

Company under section 110 of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 820. 

Order No. 3308056 was issued pursuant to section 104(d) (2) 

of the Act, 30 U.S.Co § 814(d) (2), for an alleged violation of 30 

C.F.R. § 750316. A hearing was held on March 10, 1992, the 

transcript was received and by April 20, 1992, the parties filed 

their post hearing briefs. 

30 C.F.R. § 75.316, which restates section 303(0) of the 

Act, 30 u.s.c. § 863(0), provides: 

A ventilation system and methane and dust control 

plan and revisions thereof suitable to the conditions 

and the mining system of the coal mine and approved by 

the Secretary shall be adopted by the operator and set 

out in printed form on or before June 28, 1970. The 

plan shall show the type and location of mechanical 

ventilation equipment installed and operated in the 

mine, such additional or improved equipment as the 

Secretary may require, the quantity and velocity of air 

reaching each working face, and such other information 

as the Secretary may require. Such plan shall be 

reviewed by the operator and the Secretary at least 

every 6 months. 

Order No. 3308056, dated October 18, 1990, and challenged 

643 
herein, charges a violation for the following alleged condition 

or practice: 

Measurements made with a magnehelic and pitot tube 

in the second tube outby the face of the left crosscut 

off No. 4 entry (2 Right Section) revealed that only 

4930 CFM of air was present at that location and a 

slider tube is used to keep within 10 feet of the 

deepest point of penetration, which results in even 

less air at the end of the tube. The approved ventilation methane and dust control plan requires that a 

minimum of 6000 CFM of air be provided at a working 

face. 16 tubes and 4 fittings were in place with 

numerous leaks. 

The inspector marked the citation significant and substantial and found that it was the result of unwarrantable failure on 

the part of the operator. 

Prior to going on the reeord, the parties agreed to the 

following stipulations (Tr. 3-4): 

(1) The operator is the owner and operator of the subject 

mine; 

(2) the operator and the mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977; 

(3) I have jurisdiction in this case; 

(4} the inspector who issued the subject order was a duly 

authorized representative of the Secretary; 

(5) a true and correct copy of the subject order was 

properly served upon the operator~ 

(6) a copy of the subject order is authentic and can be 

admitted into evidence for the purpose of establishing its 

issuance but not for the purpose of establishing the truthfulness 

or relevancy of any of the statements asserted therein; 

(7) payment of any penalty will not affect the operator 1 s 

ability to continue in business; 

(8) the operator demonstrated good faith abatement; 

(9) the operator has an average history of prior violations for a mine operator of its size; 

(10) the operator is large in size. 

The inspector testified that when he inspected the mine on 

644 
the morning of October 18, 1990, he measured only 4,930 CFM of 

air at the face (Tr. 26). He cited a violation of 30 C.F.R. 

§ 75.316 because the operator's ventilation plan required 6,000 

CFM (Exh. R-2). The inspector also found the violation was 

significant and substantial, and that it resulted from high 

negligence on the part of the operator (Gov't. Exh. No. 2). 

Equating high negligence with unwarrantable failure, the inspector issued an order under section 104{d) (2) of the Act. 

In a post-hearing 

admitted the existence 

cant and substantial. 

operator was guilty of 

letter dated April 7, 1992, the operator 

of the violation and that it was signifiThe only issue remaining is whether the 

unwarrantable failure. 

According to the inspector, the continuous mining machine 

which was in the No. 4 entry was cutting left into the crosscut 

going from the No. 4 to the No. 3 entry {Tr. 12; Exh. R-1). The 

mining machine was approximately 20 feet into the crosscut and 

the inspector believed the turn into the crosscut had been made 

late on the preceding midnight shift (Tr. 70-71). Tubing ran 

along the right hand side of the miner, high against the mine 

roof and over against the coal rib (Tr. 27). This tubing extended from the face outby down the No. 4 entry to the next crosscut 

where it turned right into the auxiliary exhaust fan (Tr. 13). 

The inby end of the tubing was approximately 10 feet from the 

face (Tr. 18-19). The purpose of the tubing and the fan was to 

pull dusty or gassy polluted air away from the face (Tr. 14-15). 

By carrying contaminated air away from the face, fresh air coming 

up the No. 4 entry was allowed to come into the working place and 

go across the continuous mining machine replacing the exhausted 

air (Tr. 21-22). 

On the morning in question, the inspector found that several 

tubes were damaged with smashed areas or holes in them (Tr. 19)o 

There were a dozen holes which had up to a maximum diameter of 

1 inch (Tr. 20, 61). Also the joints between the sections of 

tubing were not wrapped (Tr. 24). In the inspector's view, the 

damaged tubing decreased the air flow provided by the fan. The 

reduced air flow from the tubes was due half to the damaged areas 

(holes) and half to the joints (Tr. 61). 

The inspector believed the operator was guilty of unwarrantable failure because the midnight shift foreman had not tested 

for air and the day shift foreman was going to begin mining 

without the requisite 6,000 CFM of air (Tr. 45-46). He stated 

that the condition of the tubing and the decreased air flow was 

obvious (Tr. 45). He thought the continuous mining machine had 

made its left turn late on the midnight shift and possibly could 

have bumped the tubing at that time (Tr. 57, 69-70, 71). However, since the damage was located all along the tubing he found it 

unlikely that it all happened at the end of the midnight shift 

(Tr. 71). He did not know when or how the conditions occurred 

645 
during the midnight shift, but felt that the midnight shift had 

been in compliance for at least a portion of the time (Tr. 73-

7 4) • 

The section foreman for the day shift who was not the 

regular section foreman, admitted he had the power put on the 

machinery, but did not remember whether he attempted to check the 

air flow (Tr. 133-134). The mine foreman said inadequate air at 

the face could be felt when it hit the back of the neck and in 

this way the inspector could have determined that there was 

inadequate air when he came on.the section (Tr. 118, 119). In 

the mine foreman's opinion the person in charge on the section 

should have sought out the cause of the inadequate air (Tr. 122, 

123). 

It is clear from the foregoing that the acting day shift 

section foreman committed a serious error in failing to realize 

that the volume of air at the face was inadequate and to take 

appropriate action. However, every error of judgment or omission 

of duty does not constitute unwarrantable failure. The Commission has established a significant threshold for a finding of 

unwarrantability. It has held that unwarrantable failure is 

conduct that is not justifiable, is inexcusable and is the result 

of more than inadvertence, thoughtlessness, or inattention. The 

term is construed to mean aggravated conduct constituting more 

than ordinary negligence. Emery Mining Corporation, 9 FMSHRC 

1997 (Dec. 1987). 

In this case the facts do not support an unwarrantable 

finding. The section foreman on the day in question was not the 

regular section foreman but a fill-in (Tr. 113, 130). Although 

this circumstance does not excuse his failure to apprehend the 

situationu it indicates an absence of reckless disregard or 

willful intent or other such factors which could be considered 

suggestive of aggravated conduct. 

The length of time a violative condition exists before 

issuance of a citation or .order is relevant in determining 

whether there is unwarrantable failure. Emergy Mining Corporationu supra; Quinland Coals Inc.u 10 FMSHRC 705 (June 1988). 

Hereu by the inspector 1 s own estimate, the operator had fallen 

out of compliance with respect to the tubing sometime during the 

prior shifto This relatively short period does not support a 

finding of unwarrantability. We do not have here a situation 

where the operator conducted normal operations shift after shift 

despite inadequate air. 

In addition, facts which existed before the order was 

issued, but came to light only after it was abated, further 

demonstrate there was no unwarrantable failure. Upon arriving at 

the scene after the order had been issued, the mine foreman 

immediately ordered the loading machine operator and his partner 

646 
to take apart the auxiliary exhaust fan to find out what was 

causing the lack of air (Tr. 80, 111, 127). Because the fan was 

new and powerful the mine foreman believed the inadequate air was 

caused by more than just the damaged tubing (Tr. 80, 127, 128). 

When the fan was examined, a rock dust bag was found up against 

its screen and blower (Tr. 81, 112)~ The loading machine operator and the mine foreman expressed the opinion that instead of 

properly disposing of the bag, a miner who was rock dusting at 

the inby end of the tubing could have thrown the bag into.the 

tubing where it was sucked up against the fan (Tr. 82, 112). The 

bag greatly affected the operation of the fan and when it was 

removed the change in ventilation was significant and there was 

an enormous current of air at the face (Tr. 82, 88). Obviously, 

the rock dust bag was a contributing, if not the major, cause of 

the inadequate air which the inspector found. The force of the 

fan which was the most powerful one the loading machine operator 

had ever seen, was such that the operator had never had to wrap 

the holes in the tubing in order to establish sufficient air at 

the face {Tr. 80, 88). 

The existence of the rock dust bag casts no adverse reflection upon the inspector's finding of a violation. He found 

inadequate air and properly cited it. However, the operator is 

entitled to have the charge of unwarrantability evaluated in 

light of the entire situation as it actually existed. For 

purposes of determining the existence of unwarrantability it is 

relevant to note that neither the loading machine operator nor 

the mine foreman, nor anyone else for that matter, could say for 

sure how the bag got into the fan (Tr. 81, 112). There is no 

evidence that the bag had been against the fan for any appreciable period of time. Indeed, the great force of the fan when it 

was operating properly 1 militates against such a conclusion. 

In sum therefore 1 the evidence fails to establish that 

either the defective tubing or the misplaced rock dust bag had 

existed for a length of time sufficient to charge the operator 

with aggravated conduct. The operator committed only ordinary 

negligence. Accordingly, the finding of unwarrantability must be 

vacated and the 104(d) (2) order modified to a 104(a) citation. 

One final note. Running through this case is an undercurrent of dissatisfaction by MSHA with how the operator checks for 

adequate air velocity at the face. If the operator is violating 

a mandatory standard by how and when it checks such air velocity, 

MSHA should so charge the operator and if necessary, have the 

matter adjudicated before this Commission. If, on the other 

hand, the mandatory standards are not clear or do not require 

what MSHA wants, the standards should be amended through rulemaking. Otherwise MSHA should desist. What cannot be countenanced is an attempt by MSHA to raise the issue in an oblique 

manner by citing the operator under a different standard and 

charging it with unwarrantable failure. 

647 
As stated previously, the operator admitted that the violation was significant and substantial. The remaining criteria 

with respect to the amount of the civil penalty to be assessed 

have been stipulated to by the parties. Accordingly, I find that 

a penalty of $750 is appropriate. 

The post-hearing briefs filed by the parties have been 

reviewed. To the extent the briefs are inconsistent with this 

decision, they are rejected. 

ORDER 

It is ORDERED that the finding of unwarrantable failure for 

Order No. 3308056 be VACATED. 

It is further ORDERED that Order No. 3308056 be MODIFIED to 

a 104(a) citation. 

It is further ORDERED that a penalty of $750 be ASSESSED and 

that the OPERATOR PAY $750 within 30 days of the date of this 

decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Charles M. Jackson, Esq. Office of the Solicitor, u. S. Departmen:~: ::;::c Labor .c~Ol5 lson Boulevard, Room 516, Arlington? VA 

Cert: if Ma 

Walter J. Scheller 1 Esq., Consol Inc., Consol Plaza, 1800 Washington Road 1 Pittsburgh 1 PA 15241-1421 (Certified Mail) 

I 

648 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 71992 

IN RE: CONTESTS OF RESPIRABLE ) 

DUST SAMPLE ALTERATION ) 

CITATIONS ) 

) 

) 

SOUTHERN OHIO COAL COMPANY, } 

Contestant ) 

) 

v. ) 

) 

SECRETARY OF LABOR, ) 

MINE SAFETY AND HEALTH ) 

ADMINISTRATION (MSHA), ) 

Respondent ) 

) 

) 

WINDSOR COAL COMPANY, ) 

Contestant ) 

) 

v. ) 

) 

SECRETARY OF LABOR, ) 

MINE SAFETY AND HEALTH ) 

ADMINISTRATION (MSHA) , ) 

Respondent ) 

) 

) 

GREAT WESTERN COAL (Kentucky), ) 

INC., ) 

Contestant ) 

) 

v. ) 

) 

SECRETARY OF LABOR, ) 

MINE SAFETY AND HEALTH ) 

ADMINISTRATION (MSHA), ) 

Respondent ) 

) 

) 

GREAT WESTERN COAL, INC., ) 

Contestant ) 

) 

v. ) 

) 

SECRETARY OF LABOR, ) 

649 

Master Docket No. 91-1 

CONTEST PROCEEDINGS 

Docket Nos. LAKE 91-454-R 

through LAKE 91-472-R 

Docket Nos. WEVA 91-1244-R 

through WEVA 91-1258-R 

Docket Nos. WEVA .91-1259-R 

through WEVA 91-1260-R 

Docket Nos. KENT 91-867-R 

through KENT 91-871-R 

Docket Nos. KENT 91-859-R 

through KENT 91-863-R 
MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

HARLAN FUEL CO., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ENERGY FUELS COAL, INC., 

Respondent 

) 

) 

) 

) 

) 

) Docket Nos. KENT 91-864-R 

} through KENT 91-866-R 

) 

) 

)· 

) 

) 

) 

} 

) 

} 

} PENALTY PROCEEDING 

) 

) Docket Nos. WEST 91-475 and 

) WEST 91-476 

) 

) 

) 

} 

) 

ORDER GRANTING LEAVE TO FILE OUT OF TIME 

ORDER DENYING MOTION TO STRIKE AND DIRECTING 

SECRETARY TO RESPOND TO MOTION TO VACATE 

On March 3, 1992, Contestants Southern Ohio Coal Company and 

Windsor Coal Company (Contestants) filed a motion for an order 

vacating the 36 citations issued by the Secretary of Labor 

(Secretary) on April 4, 1991, to Contestants. Each citation 

alleged a violation of 30 C.F.R 70.209(b) because the respirable 

dust sample submitted by Contestants had been altered by removing 

a portion of the dust from the sample. The motion was 

accompanied by a memorandum in support of the motion and 30 

attached exhibits. On March 18, 1992, the Secretary filed a 

motion to strike Contestants' motion to vacate together with its 

supporting memorandum and the associated exhibits, on the ground 

that the motion to vacate "relies in significant part" on 

inappropriate documents and materials. 

On March 30, 1992, Contestants filed an opposition to the 

Secretary's motion to strike. On March 30, 1992, the Secretary 

filed a motion for leave to file out of time her previously filed 

motion to strike Contestants' motion to vacate citations. 

On March 25, 1992, Energy Fuels Coal, Inc. (Energy Fuels) 

filed a motion to vacate the nine citations issued to it on April 

650 
4, 1991. Energy Fuels incorporates by reference the memorandum 

in support of the motion to vacate citations filed by 

contestants. On March 31, 1992, the Secretary filed a motion to 

strike energy Fuels' motion to vacate. 

On April 1, 1992, Great Western Coal (Kentucky), Inc., Great 

Western coal, Inc., and Harlan Fuel Co., filed a motion to Join 

the Contestants' motion to vacate citations and memorandum in 

support of the motion. 

I 

The Secretary's motion to strike, considered as a response 

to the motion to vacate, was admittedly filed five days out of 

time. The reason advanced in her motion for leave to file out of 

time is that her counsel, because of the high volume of paper 

involved in this case, inadvertently failed to notice that the 

motion to vacate was served by hand delivery, and therefore she 

was not entitled to add five days to the time her response would 

be due under Commission Rules·8(b) and lO(b). The Secret-ary 

asserts that the issue raised in the motion to strike is of great 

importance, and that Contestants have not shown any prejudice 

because of the late filing. The reason advanced for the late 

filing is somewhat lame. I agree that the issue is very 

important, but so is the necessity for timeliness, as the 

Secretary has asserted more than once in these proceedings. 

Nevertheless, I will grant the Secretary's motion for leave to 

file out of time and I receive the motion to strike with its 

supporting memorandum for filing. 

II 

Contestants have moved to vacate the citations contested in 

these proceedings on the ground that they were not filed with 

reasonable promptness as required by § 104(a} of the Federal Mine 

Safety and Health Act of 1977 (Mine Act), 30 u.s.c. § 814(a). If 

the citations are vacated they, of course, cannot support a 

penalty petition, and the contest proceedings become moot. Thus, 

the motion is one for summary decision and, as the Secretary 

notes 7 potential dispositive of the entire master docket, 

No. 91-L 

Commission Rule 64(b) (modelled on Fed. R. Civ. P. 56) 

provides that a motion for summary decision may be granted only 

if the entire record "including the pleadings, depositions, 

answers to interrogatories, admissions, and affidavits" shows 

that there is no genuine issue as to any materia~ fact, and the 

movant is entitled to summary decision as a matter of law. 

The motion to vacate refers to and relies upon the dates the 

cited dust samples were taken (contained in the citations) ; the 

dates the cited samples were received by Robert Thaxton 

651 
(contained in the custody sheets supplied by the Secretary); the 

deposition testimony of Thaxton that he alone was authorized to 

determine that a filter with an abnormal white center was a 

violation; the deposition testimony of Thaxton that he began 

classifying filters as tampered-with in March, 1989 (Peabody 

filters), and in August, 1989 (other mine operator filters); and 

the deposition testimony of Thaxton, Edward Hugler and Robert 

Nesbit that MSHA delayed voiding the AWC samples and withheld the 

issuance of citations to avoid alerting the industry to the 

pending investigation, and at the request of the U.S. Attorney's 

office. Contestants assert that the delay prejudiced them in 

that failure to notify them after the August 19, 1989 samples 

that MSHA deemed them violations prevented them from taking 

potentially corrective action to avoid future AWCs; and that 

important and potentially exculpatory physical evidence, e.g., 

non-cited samples taken at the same time as the cited samples and 

cassette parts of the cited samples, was not preserved. The 

motion does not refer to exhibits to support these assertions, 

but Contestants' opposition to the Secretary's motion to strike 

refers to the Secretary's response to Contestants' 

interrogatories, Set II, where she admits that she no longer has 

and cannot produce the plastic cases in which the cited filters 

were enclosed, the plugs inserted in the orifices of the plastic 

cases, the tape sealing the plastic cases, ahd the foil backing 

of the filters. The motion also refers to the "Lee Report," an 

expert opinion study and report prepared by Contestants' experts, 

and argues that it shows that the Secretary's premise that AWCs 

can result from tampering and from no other cause "was flat 

wrong" and that had the foil backings and cassette assemblies 

been preserved, the Lee group could have demonstrated that AWCs 

resulted from a cassette manufacturing anomaly rather than 

tampering. The motion further states that potential witnesses 

have become unavailable and recollections have grown dim with the 

passage of time. It relies on an affidavit of the Safety and 

Health Director of Contestantsu parent company to show that three 

supervisors who oversaw the dust sample collection and eight 

sampled miners in the mines are no longer employed by 

Contestants, and that with respect to about half of the cited 

samples, Contestants are unable to identify the individual miner 

who was sampled. 

III 

The Secretary 1 s response to the motion to vacate, treated as 

a motion for summary decision, is a motion, under Commission Rule 

10 and presumably under Fed. R. Civ. P. 12(f), to strike 

Contestants' motion to vacate on the ground that it relies in 

part on references to materials that are not appropriate to 

consider for disposition of a motion for summary decision. 

Specifically, the Secretary states that Contestants' motion 

relies on the opinion testimony of Donald Tuchman of the U.S. 

Bureau of Mines and of Sharon Ainsworth of MSHA to show that the 

652 
citations were unreasonably delayed. It further asserts that the 

motion relies on the Lee Report, an expert opinion report, to 

show that Contestants were prejudiced by the delay. 

A motion for summary decision is improper, or at least may 

not be granted, if there is a genuine issue as to any material 

fact. Rule 64(b). Factual issues, factual disputes, or 

differences of opinion may not be resolved on such a motion. 

Contestants argue that the Tuchman and Ainsworth testimony is 

relied upon to show that the Secretary had adopted the position 

that AWCs constituted violations long before the citations were 

issued. They assert that the opinions of Tuchman and Ainsworth 

are irrelevant and are not relied upon. Contestants argue that 

the Lee Report was referenced, not to establish the validity of 

its conclusion that AWCs are not necessarily the result of 

tampering, but to show prejudice resulting from Contestants' 

inability to examine the plastic cases, plugs, tapes, and foil 

backings of the cited filters. 

Although the motion to vacate to some extent argues the 

merits of the citations, I do not find that it relies on opinion 

evidence for its contention that the entire record shows no 

genuine issue of material fact related to the question whether 

the citations were issued with reasonable promptness. Both 

parties have argued their positions on the merits of the motion 

for summary decision, that is, whether there is a genuine issue 

as to any material fact. The question before me at this time, 

however, is raised by the motion to strike: whether the motion 

for summary decision was properly framed and relies upon "the 

entire record, including depositions, answers to interrogatories, 

admissions, and affidavits, 11 in an attempt to show.that there is 

no genuine issue as to any material fact. Without indicating any 

conclusion as to the validity of the motion to vacate, I am 

persuaded that not defective as a motion. Therefore, it 

must be responded to. Any references in the motion or its 

supporting memorandum to other than factual matters supported by 

the record will be disregarded. 

IV 

The Secretary requests 30 days from the date of the issuance 

of an order on the motion, in which to file her statement in 

opposition 11 because of the complex· nature of this matter, as well 

as its great importance to the Secretary in her enforcement of 

the Mine Act in this and other cases. 11 Contestants object to 

giving her additional time, pointing out that the motion to 

vacate was filed and served almost a month hence, and giving the 

Secretary an additional 30 days means that she will have had 60 · 

days to oppose the motion. 

If the Secretary exaggerates the complex nature of this 

matter, it is without question a matter of great importance. For 

653 
that reason, in order that I may have full and fair argument, I 

will require the Secretary to respond to the motion to vacate 

within 20 days of the date of this order. Contestants shall have 

ten days thereafter to reply. 

ORDER 

Accordingly, IT IS ORDERED 

1. The Secretary's motion for leave to file her motion to 

strike out of time is GRANTED; 

2. The Secretary's motion to strike Contestants' motion to 

vacate is DENIED; 

3. The Secretary shall within 20 days of the date of this 

order file with me and serve upon Contestants a response to the 

motion to vacate. 

4. Contestants shall have 10 days from the dat~ the 

Secretary's response is filed and served to reply to it. 

Distribution: 

Douglas N. White, Esq., Jerald S. Feingold, Esq., Office of the 

Solicitor, U. s. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Certified Mail) 

Timothy M. Biddle, Esq., Thomas c. Means, Esq., J. Michael Klise, 

Esq., Crowell & Moring, 1001 Pennsylvania Avenue, N.W., 

Washington, D.C. 20004 (Certified Mail) 

David A. Laing, Esq., Porter, Wright, Morris & Arthur, 41 s. High 

Street, Columbus, OH 43215 (Certified Mail) 

Phillip D. Barber, Esq. 1 Welborn Dufford Brown & Tooley, P.C., 

1700 Broadway, Suite 1700 1 Denver, CO 80290-1701 (Certified 

Mail) 

Lynda L. Homerding, Esq., Williams & Connolly, 839 17th Street, 

N.W., Washington, D.C. 20006 (Certified Mail) 

All others Regular Mail 

/fas 

654 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 30, 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of 

JERRY LEE DOTSON, 

Complainant 

v. 

LAD MINING INC., LARRY FLYNN, 

AND RONALD CALHOUN, 

Respondent 

. 

. • 

DISCRIMINATING PROCEEDING 

Docket No. SE 92-181-D 

Mine No. 50 

ORDER 

on February 10, 1992 the Secretary of Labor ("Secretary") 

filed a complaint of discrimination on behalf of Jerry Lee Dotson. 

("Complainant") pursuant to Section 105(c) (2) of the Federal Mine 

Safety and Health Act of 1977 (The "Mine Act"), 30 u.s.c. § 

815(c) (2), alleging that Lad Mining Inc., Larry Flynn and Ronald 

Calhoun {"Respondents") had discharged unlawfully and refused to 

rehire Dotson. Respondents filed a timely answer, and initiated 

discoveryu serving the Complainant with interrogatories and 

requests for production of documents. The Secretary, acting on 

behalf of the Complainantv refused to divulge some of the 

information sought by the Respondents on the grounds of privilege 

The Respondent 1 s now seek to compel its disclosure. 

The pertinent interrogatories and responses involved in this 

dispute are as follows~ 

The Respondents have requested Complainant to identify all 

persons having knowledge of Complainant 1 s claims and the 

substance of their knowledge [Interrogatory 2]. Complainant has 

answered, in part 1 by naming himself and Alfred Meeks, a former 

contractor/operator of the mine, as having knowledge of orders to 

discharge Complainant for allegedly protected activity and by 

naming Alfred Meeks as having knowledge of Respondent Calhoun's 

control over the daily operations of the mine and of Calhoun's 

attitude toward compliance with health and safety laws, but 

Complainant has declined to produce the names of potential miner 

655 
witnesses pursuant to Commission Procedural Rule 59. 1 

The Respondents have requested that Complainant identify 

each witness and summarize the testimony of each witness 

[Interrogatories 3 & 4]. Complainant has responded that Dotson 

and Meeks can be expected to testify and that two days prior to 

the hearing, and in accordance with Commission rules, 

Complainant will produce the nam~s of miner witnesses. Further, 

Complainant has stated that he will testify to statements from 

other operators to the effect that Calhoun "blacklisted" him and 

statements that he will never work again as a coal miner in the 

area and that Meeks will testify regarding Calhoun's control of 

mine operations, his orders to fire Complainant and Complainant's 

work record, skills and reputation. 

The Respondents have requested that Complainant identify 

persons with knowledge of the facts and circumstances regarding 

the allegedly common practice of "rehiring" every previously 

employed miner when the operations of the mine change hands 

[Interrogatory 13). Complainant has responded that he will rely 

on statements from himself and other miner witnesses whose names 

he will not disclose "at this time." 

The Respondents have requested that Complainant identify all 

persons with knowledge of the Respondents' alleged refusal to 

rehire Complainant because of his asserted protected safety 

activity [Interrogatory 14]. Complainant has responded that he 

will rely on circumstantial evidence, as well as statements from 

mine witnesses, and that the names of the witnesses will not be 

disclosed "at this time." 

The Respondents have requested identification of all persons 

having knowledge of the facts and circumstances concerning 

Complainant 1 s application for employment with Larry Flynn and/or 

Lad Mining, Inco [Interrogatory 2l]o Complainant has identified 

Dotsonu Flynn and Calhoun, and miner witnesses whose names will 

not be disclosed "at this time." 

Following Complainant 1 s response to the interrogatories, the 

1

Rule 59 states~ 

A Judge shall not, until 2 days before a hearing, 

disclose or order a person to disclose to an operator 

or his agent the name of a miner who is expected by the 

Judge to testify or whom a party expects to summon or 

call as a witness. A Judge shall not, except in 

extraordinary circumstances, disclose or order a person 

to disclose to an operator or his agent the name of an 

informant who is a miner. 

29 C.F.R. § 2700.59 

656 
Respondents moved for an order compelling the Secretary to 

furnish the names of operators and/or miners who the Complainant 

will quote in his testimony but who the Secretary will not call 

as witnesses and to furnish a summary of the alleged statements 

of these operators and/or miners. Respondents state they 

recognize that the Secretary is not required to disclose the 

names and testimony summaries of miner witnesses expected to be 

called until two days prior to the hearing but argue they seek 

instead the names of operators and/or miners who will be quoted 

by the Complainant but who will not be called to testify. 

The Secretary, on behalf of Complainant, has responded that 

although Complainant will testify regarding conversations with 

coal mine operators and miners concerning his alleged 

"blacklisting" by Calhoun and its effect on his ability to work 

in the mining industry, the Secretary opposes disclosure of the 

names of such individuals based on the informer's privilege 

(Commission Rule 59) and that counsel for the Secretary has 

assured Complainant that the names of individuals who have spoken 

with him regarding his blackli~ting will not be disclosed 

pursuant to the privilege. The Secretary states that the 

informer's privilege clearly encompasses protection of the 

identities of individuals who provide information during the 

course of a governmental investigation regardless of whether or 

not the person is ultimately called to testify as a witness at 

trial, and that a ruling requiring the Secretary to disclosure 

the names of all individuals who provided information regarding 

Complainant's blacklisting will hinder MSHA's ability to conduct 

thorough investigations and obtain information regarding future 

Mine Act violations, as well as render meaningless MSHA's 

assurances of confidentiality. The Secretary also argues that 

Respondents have not made the showing necessary to overcome the 

informer 1 s privilegeo 

Under Commission Procedural Rule 55(c)v 29 C.F.R. 

§ 2700.55 (c)v and Rule 26(b) (1) of the Federal Rules of Civil 

Procedure, all relevant material not privileged is subject to 

discovery. The Commission and the Federal Courts have broadly 

construed the discovery rule to include relevant material, and 

converselyv have narrowly construed the claim of privilege. 

Hichman v. Taylor, 329 U.S. 495(1947); Secretary on behalf of 

Logan v. Bright Coal Co. Inc., 6 FMSHRC 2520 (1984). The burden 

is on the party claiming that relevant material is not subject to 

discovery because of privilege. 

The Respondents, recognizing that privilege exists with 

regard to individuals who will appear as witnesses, have, in 

effect, narrowed their request for information to the 

identification of those who will not testify but who will be 

quoted or paraphrased by Complainant in his testimony and to 

summaries of what Complainant will say they said as it relates to 

his complaint of discrimination. As set forth below, I will 

657 
grant the Motion to Compel to the extent that it relates to such 

operators and/or miners who have spoken or otherwise communicated 

with Complainant but not with an MSHA investigator or other 

government official or agent. 

The privilege to withhold from disclosure the identity and 

statements of persons who may have furnished information 

regarding violations or possible violations of the Mine Act is a 

qualified privilege that balances the public interest in 

protecting the free flow of information to MSHA's enforcement 

staff and the right of those who give information to be protected 

from possible retaliation against a respondent's need for the 

information to prepare his or her defense. Bright Coal Company, 

Inc., 6 FMSHRC at 2522-2523. See also: Wirtz v. Continental 

Finance & Loan Co. of West End, 326 F.2d 561 (5th Cir. 1964); 

Brennan v. Engineered Products, Inc., 506 F.2d 299 (8th Cir. 

1974). 

As noted by the Commission in Bright, 6 FMSHRC at 2524, the 

privilege, codified in Commission Rule 59, reflects .Congressional 

concern, set forth in the Mine Act and its legislative history, 

about the possibility of retaliation against miners who 

participate in the enforcement of the Act and the desire to 

protect the identity of those who contact the Secretary regarding 

violations of the Act. Responding to this concern, the 

commission, when interpreting the privilege, has sought to 

"maximize the lines of communication with the Secretary 

concerning violations of the Mine Act." 6 FMSHRC at 2524 

(emphasis added). However, claims of privilege are to be 

narrowly construed, and the Commission has been careful to 

provide its judges with a framework for application of the 

privilege. It has defined the term "informer" and instructed 

that application of the informer 1 s privilege should be based upon 

that definition" Brightp 6 FMSHRC at 2525. 

An °

1 informer 11 is 11 a person who has furnished information to 

a government official relating to or assisting in the ~ 

government's investigation of a possible violation of the Mine 

Actp 00 Bright, 6 FMSHRC at 2525 (emphasis added). Under the 

Commission 1 s procedural framework, a judge must first determine 

if the information sought is relevant and discoverable. 6 FMSHRC 

at 2523. Next, the judge must determine whether, based upon the 

definition of "informer", the information is privilege. 6 FMSHRC 

at 2525" 

Here, the Respondents seek to compel the Secretary to 

disclose the names of operators and/or miners who will be quoted 

or paraphrased by Complainant and to provide summaries of their 

statements regarding Complainant's claims, in particular, alleged 

blacklisting and alleged refusal of Respondents to rehire 

Complainant. This information bears directly on Complainant's 

658 
allegations of discrimination and is relevant and discoverable. 2 

The next step is to determine whether the information is 

privileged. Bright, 6 FMSHRC at 2525. This determination must 

first be based upon the definition of "informer". It is here 

that the Secretary's inclusive opposition to disclosure fails, 

because "informers," for the purpose of Rule 59, are those 

persons who have furnished information to a government official 

or agent relating to or assisting in the government's 

investigation of a possible violation of the Mine Act. Bright, 6 

FMSHRC at 2525. 

The Secretary, in her response to the Motion to Compel, is 

clear that she opposes production of the names and summaries of 

the testimony of operators and/or miners who have engaged in 

conversations with Complainant regarding his allegations of 

discrimination, but conversations with Complainant are not the 

same as furnishing information to an MSHA investigator or other 

government official so as to assist in the government's 

investigation of a possible Mi.ne Act violation. Complainant, 

although the subject and potential beneficiary of a government 

investigation and although a party who may be represented by the 

government, is not an official or agent charged with enforcing 

the law. Nor is it conceivable to me that the informer's 

privilege was ever meant to extend to conversations with those 

other than such officials or agents. If such were the case, it 

would undercut the very nature of the privilege--furtherance and 

protection of the public interest in effective law enforcement 

through recognition that prescribing anonymity encourages 

citizens to communicate their knowledge the violations of the law 

to those charged with enforcin~ the law. v. United 

States, 353 U.S. 53 59 (1957). 

2

While the Commission in Bright suggested camera 

inspection of information sought in order to determine its 

relevance, 6 FMSHRC at 2523, in this instance the relevant nature 

of the material sought is apparent on the face of the Secretary's 

pleadings. 

3Howeveru I agree with the Secretary that the fact that 

those who may be quoted by the Complainant will not be called to 

testify does not, in and of itself 1 render the informer 1 s 

privilege inapplicable" Many who provide information to the 

government during the course of an investigation are not called 

to testify and for a variety of valid reasons. Nonetheless, the 

information they provide and their willingness to come forward is 

vital to the effectiveness of an investigation. Their 

participation should be encouraged. Restricting the protections 

from retaliation inherent in the informer's privilege only to 

those who ultimately testify would, in my opinion, hinder the 

efficacy of governmental enforcement. 

6 59 
Thus, I hold, as both parties seem to recognize, that 

Complainant need not produce to Respondents the names of 

potential miner witnesses until two days prior to trial. Nor 

need Complainant produce to Respondents the names and summaries 

of the testimony of operators and/or miners who communicated with 

MSHA investigators or other government officials or agents 

charged with enforcing the law regarding the substance of 

Complainant's allegations of discrimination. However, and with 

regard to such operators and/or miners who Complainant will quote 

or paraphrase in his testimony and who will not be themselves 

called to testify and who have spoken with Complainant but not 

communicated with MSHA investigators or other government law 

enforcement officials, complainant must produce to Respondents 

their names and a summary of the words Complainant will attribute 

to them. 

Accordingly, Complainant is ORDERED 

summaries in question as outlined above, 

to Interrogatories 3, 4, 13, 14, and 21, 

to produce the names and 

and in further response 

within ten days of this 

order. 

Distribution: 

'·,/J . ,. ;,<''?. ,t"' _ _f,/ :'-''l c(_(/_),;i-t.,_.oai--'...-.._-~· 

David Barbour 

Administrative Law Judge 

(703) 756-6200 

Gretchen M. Lucken, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, 4th Floor, Arlington, 

VA 22203 (Certified Mail) 

Michael Wo Boehmv Esq,v Spears, Moore, Rebman & Williams, 801 

Pine Streetv 8th Flooru Blue Cross Building, PoOo Box 1749u 

Chattanoogau TN 37401-1749 (Certified Mail) 

nb 

660