NARCH 1990 

COl-lliiSSION DECISIONS 

03-08-90 

03-21-90 

03-27-90 

03-28-90 

03-29-90 

Local 2333, UMWA v. Ranger Fuel Corporation 

Ozark-Hahoning Company 

Odell Maggard v. Chaney Creek Coal Co. 

Flippy Coal Company 

Horgan Cor,Joration 

ADMINISTRATIVE LA\v JUDGE DECISIONS 

03-01-90 

03-01-90 

03-02-90 

03-08-90 

03-08-90 

03-08-90 

03-09-90 

03-09-90 

03-13-90 

03-13-90 

03-13-90 

03-15-90 

03-16-90 

03-19...:90 

03-19-90 

03-19-90 

03-21-90 

03-22-90 

03-27-90 

03-27-90 

Rochester & Pittsburgh Coal Co. 

VP-5 Mining Company 

Beth Energy Mines, Inc. 

Hichael Damron v. Reynolds Metals Co. 

William G. Hagy 

Thomas J. Tabor, Jr. 

Davjd Thomas/Georp.e Issacs v. Ampak Mining 

Hinkle Contracting Corporation 

Sec. Labor on behalf of 6 miners v. 

Smooth Sailing Coal Co. & James Runyon 

Energy Fuels Coal, Inc. - includes various 

docket numbers through \VEST 89-294-R 

Big Horn Calcium Company 

Terry Fowler v. Atlas Services Corporation 

Arch of Kentucky, Inc. 

Channel & Basin Reclamation 

Sec. Labor on behalf of Leonard Edwards v. 

Rochester & Pittsburgh Coal Co. 

Arch of Kentucky , Inc. 

Green River Coal Co., Inc. 

Sec. Labor on behalf of Amos Hicks v. 

Cobra Mining, Jerry Lester & Carter Nesser 

Sec. Labor on behalf of Jack Winninghoff v. 

Black Pine Mining Company 

Emery Mining Corporation/Utah Power & Light 

ADMINISTRATIVE LAW JUDGE ORDER 

03-21-90 Armando Rivas v. Phelps Dodge Morenci, Inc. 

WEVA 86-439-C 

LAKE 88-128-RM 

KENT 86-1-D 

VA 90-8 

SE 89-50-M 

PENN 89-75 

VA 89-56 

PENN 88-149-R 

CENT 89-131-DM 

SE 90-43-R 

SE 90-44-R 

KENT 89-13-D 

KENT 90-5-M 

KENT 89-90-D 

WEST 89-237-R 

\VEST 89-294-R 

WEST 90-31-RN 

PENN 88-267-D 

KENT 89-161-R 

\VEST 89-16-1-i 

PENN 90-8-D 

KENT 89-176-R 

KENT 89-210 

VA 89-72-D 

WEST 89-79-D 

WEST 86-240 

Pg. 363 

Pg. 376 

Pg. 380 

Pg. 391 

Pg. 394 

Pg. 397 

Pg. 399 

Pg. 403 

Pg. 414 

Pg. 422 

Pg. 425 

Pg. 428 

Pg. 431 

Pg. 437 

Pg. 446 

Pg. 462 

Pg. 463 

Pg. 468 

Pg. 536 

Pg. 541 

Pg. 543 

Pg. 544 

Pg. 558 

Pg. 563 

Pg. 570 

Pg. 572 

WEST 89-395-DM Pg. 595 
MARCH 1990 

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

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

PENN 88-227. (Judge Melick, January 23, 1990) 

Secretary of Labor, MSHA v. Flippy Coal Company, Docket No. VA 90-8. (Default 

Decision of Chief Judge Merlin on March 9, 1990) 

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

Secretary of Labor, MSHA v. Peabody Coal Company, Docket No. WEST 89-96. 

(Judge Lasher, January 22, 1990) 

Consolidation Coal Company v. Secretary of Labor, Docket No. UEVA 89-234-R, 

etc. (Judge Merlin, Interlocutory Review of January 24, 1990 Order) 
COMMISSION DECISIONS 
FEDERAL MINE SAFETY AND HEALTH .REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

~larch 8, 1990 

LOCAL UNION 2333, DISTRICT 29, 

UNITED MI~~ wORKERS OF AMERICA 

(UMWA) 

v. Docket No. WEVA 86-439-C 

RANGER FUEL CORPORATION 

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

Commissioners 

DECISION 

BY THE C0~1ISSION: 

This compensation proceeding ar1s1ng under the Federal Mine Safety . 

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

"Act"), is before the Commission for the second time. The United Mine 

\~orkers of America ( "UMWA") seeks compensation from Ranger Fuel 

Corporation ("Ranger") under the third sentence of section 111 for an 

idlement of miners following the issuance of an imminent danger 

withdrawal order pursuant to section 107(a) of the Act. ]) Previously, 

11 Section 111 of the Mine Act provides in relevant part as follows: 

[1] If a coal or other mine or area of such mine 

is closed bv an order issued under section [103] 

... , sectio~ [ 104] ••• , or section [ lOi) of this 

[Act], all miners working during the shift when such 

order was issued who are idled by such order shall 

be entitled, regardless of the result of any review 

of such order, to full compensation by the operator 

at their regular rates of pay for the period they 

are idled, but for not more than the balance of such 

shift. [2~ If such order is not terminated prior to 

the next working shift, all min.ers on that shift who 

363 
on interlocutory review, we held that Ranger's payment of a civil 

penalty for a citation issued subsequent to the issuance of the imminent 

danger withdrawal. order precluded Ranger from contesting in this 

are idled by such order shall be entitled to full 

compensation by the operator at their regular rates 

of pay for the period they are idled, but for not 

more than four hours of such shift. [3] If a coal 

or other mine or area of such mine is closed by an 

order issued under section [104] .. . or section. 

[107) of this [Act] for a failure of the operator to 

comply with any mandatory health or safety 

standards, all miners who are idled due to such 

order shall be fully compensated after all 

interested parties are given an opportunity for a 

public hearing, which shall be expedited in such 

cases, and after such order is final, by the · 

operator for lost time at their regular rates of pay 

for such time as the miners are idled by such 

closing, or for one week , whichever is the lesser. 

[4] Whenever an operator violates or fails or 

refuses to comply with any order issued under 

section [103] ...• section [104] ..•• or section 

[107] of this [Act], all miners employed at the 

affected mine who would have been withdrawn from, or 

prevented from entering, such mine or area thereof 

as a result of such order shall be entitled to full 

compensation by the operator at their regular rates 

of pay, in addition to pay received for work 

performed after such order was issued , for the 

period beginning when such order was issued and 

ending when such order is complied with, vacated, or 

terminated . . .. 

30 U.S.C. § 821 (sentence numbers added). 

Section 107(a) of the Act provides in pertinent part: 

If, upon any inspection or investigation of a coal 

or other mine which is subject to this chapter, an 

authorized representative of the Secretary finds 

that an imminent danger exists, such representative 

shall determine the extent of the area of .such mine 

throughout which the danger exists, and issue an 

order requiring the operator of such mine to cause 

all persons, except those referred to in section 

[104(c)] of this title, to be withdrawn from, and to 

be prohibited from entering , such area until an 

authorized representative of the Secretary 

determines that such imminent danger and the 

conditions or practices which caused such imminent 

danger no longer exist. ,,, 

30 U.S .C. § 817(a). 

364 
compensation proceeding the violation that was alleged in the citation. 

We further held, however, that Ranger could challenge in this proceeding 

· the causal relationship between the alleged violation and the issuance 

of the imminent danger withdrawal order. We therefore remanded this 

matter for further proceedings. Loc. U. 2333, UMWA v. Ranger Fuel 

Corp., 10 FMSHRC 612 (May 1988) ("Ranger Fuel I"). On remand, 

Coinmission Administrative Law Judge Gary Melick held that the imminent 

danger withdrawal .order had not been timely contested by Ranger and had 

become final for purposes of section 111. Finding that there was a 

causal nexus between the withdrawal order and the violation alleged in 

the citation, the judge awarded the complainants compensation and 

prejudgment interest. 10 FMSHRC 1474 (October 1988)(ALJ). We granted 

Ranger's petition for discretionary review. 

The principal issues presented on review are: whether an operator 

may challenge in a compensation proceeding the validity of an imminent 

danger withdrawal order despite the operator's failure to contest t~e 

order pursuant to section 107(e)(l) of the Mine Act (n. 3 infra); 

whether there was a causal "nexus" between the withdrawal order and the 

violation alleged in the subsequently issued citation; and whether 

prejudgment interest may be awarded in a compensation proceeding. For 

the reasons that follow, we affirm the judge's award of compensation and 

interest but direct that interest be calculated according to the formula 

set forth by the Commission in Secretary on behalf of Bailey v. 

Arkansas-Carbona Co., S FMSHRC 2642 (December 1983), and, as applicable, 

Loc. U. 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (November 

1988) ("Clinchfield II"), aff'd sub nom. Clinchfield Coal Co. v. FMSHRC, 

No. 88-1873 (D.C. Cir. February ~1990). See also 54 Fed. Reg. 2226 

(January 19, 1989). 

I. 

On May 29, 1986, William Uhl, an inspector of the Department of 

Labor's Mine Safety and Health Administration ("MSHA"), conducted an 

inspection of Ranger's Beckley No. 2 underground coal mine located in 

Beckley, West Virginia. Inspector Uhl entered the mine at approximately 

8:30 a.m. and proceeded to the 7-East section. While inspecting the 

longwall in that section, Uhl heard what he termed a "large fall" in the 

gob. Tr. 100-01. At about 10:00 a.m., Uhl arrived at a location in the 

Number 3 Entry on the tail side of the longwall immediately adjacent to 

the roof fall. Using a hand-held methane detector, he found the level 

of methane gas to be in excess of five percent. (Methane becomes 

explosive at a five percent concentration. Ranger Fuel I, supra, 

10 FMSHRC at 614, citing Monterey Coal Co., 7 FMSHRC 996, ~000-01 (July 

1985).) Uhl testified that the concentration of methane was too "heavy" 

for him to attempt further readings inby. However, he took additional 

readings outby, where the methane content was approximately one percent 

lower. 

Uhl believed that the immediate cause of the methane concentration 

was a sudden inundation resulting from the roof fall that he had heard 

and he also believed that the mine's ventilation bleeder system was not 

working properly to dissipate the methane, due to a water blockage in a 

passageway. Tr. 99, 102-04, 106-12, 115, 118, 125, 148. At 11:30 a.m., 

365 
Uhl issued imminent danger withdrawal order No. 2577281 to Ranger 

pursuant. to section 107(a) of the Mine Act (n . 1 supra) . The order 

states in part: 

An explosive mixture of methane gas in excess of 

five (5) per(c]ent was present in the seven east 

0-13-0 section in the number three •.• entry side of 

the longwall ••. extending inby the face when tested 

with an approved E.70 methane detector (calibrated 

05-22-86) •.. • 0 

As a result, ·Ranger withdrew all miners then underground. 

Later that same day, Kenneth Perdue, Ranger's senior safety 

supervisor, went to the 7-East section with two other foremen and took 

methane readings between 2:00 and 4:00 p.m. Perdue testified that there 

was not an explosive mixture present in the locations that he ·sampled 

and that none of his methane readings exceeded two to three percent. 

Perdue acknowledged, however, that excessive levels of methane were 

found when a gob probe was extended into the gob area. The highest 

methane reading obtained by Perdue using the gob probe was four percent. 

Perdue also testified that his inspection of the bleeder system showed· 

sufficient ventilation and that the bleeder system was doing what it was 

supposed to do . In Perdue ' s opinion, Inspec~or Uhl's five percent 

methane reading was caused by the roof fall and because the bleeder 

system had not had enough time to dissipate the methane . 

Between 6:00 and 8:00p.m. Inspector Uhl's 3upervisor, Jules 

Gautier, arrived at the mine with a group of MSHA inspectors and 

proceeded underground to evaluate the bleeder system and determine what 

area was affected. Gautier testified that, at that time, further 

methane samples indicated that there was still an explosive mixture of 

methane present and, due to the water accumulation resulting in a 

blockage, he could not effectively evaluate the bleeder system. 

The next day, May 30, 1986, MSHA personnel met with Ranger 

officials but did not go underground to inspect the mine. Ranger 

requested that the withdrawal order be modified to allow the miners in 

other sections to return to work. The request was denied because, 

according to Gautier, the methane samples taken the previous evening 

showed an explosive mixture of methane in the tail entries and, due to 

the problems with the water accumulation, it was not known to what · 

extent methane was present. On May 31, 1986, after another visit by 

NSHA inspectors, MSHA modified the withdrawal order, permitting the west 

and north end of the mine to resume operation because the methane was no 

longer in the explosive range in the tail entry. The order remained in 

effect for the 7 East and 8 East sections, however, because the 

inspectors still could not reach the bleeder area. 

On June 3, 1986, Gautier received an oral report concerning the 

results of methane bottle samples that had been collected on May 29 and 

31, 1986 . In Gautier' s view, the report showed that two days after the 

initial outburst of methane. the cited section still had methane in the 

three to four percent range. Tr. 32. As a result of this report and a 

366 
bottle sample taken by Uhl on May 29 indicating 5.56 percent methane, 

Gautier instructed Uhl to issue Ranger a citation, pursuant to section 

104(a) of the Mine Act, 30 U. S.C. § 814(a), alleging an inadequate 

bleeder system in violation of 30 C. F.R. § 75.329 . ~/ The citation, 

issued on June 3, states: 

Based on laboratory analysis of an air sample 

collected on 05/29/86 . .. the bleeder system failed 

to function adequately to carry away an explosive 

mixture of methane in the tail entries of the 7 East 

longwall section (013- 0) .•. extending inby for at 

least 500 feet. Analysis indicated the methane 

content to be in an explosive mixture of 5.567. CH4 with 19.757. oxygen present. The citation was a 

factor that contributed to the issuance of imminent 

danger order No. 2577281 date 05-29-86 , (therefore 

no abatement time is set.) 

(Emphasis added.) Gautier included the underlined sentence in the 

citation because he believed that the bleeder system was not working 

effectively and that there was not enough air in the affected area to 

dilute the methane and render it harmless. Gautier testified that 

usually a bleeder system takes care of the methane "pretty quick" but 

that in this instance it took more than two days to get the methane out 

of the tail entries. 

On June 4, 1986, MSHA terminated the section 107(a) withdrawal 

order and the section 104(a) citation following ~ determination that the 

methane level in the mine was below the maximum permissible level as a 

~/ Section 75.329 , which restates section 303(z)(2) of the Mine Act, 

30 U.S.C. § 863(z)(2), provides in pertinent part: 

On or before December 30 , 1970, all areas from 

which pillars have been wholly or partially 

extracted and abandoned areas .• . shall be 

ventilated by bleede r entries or by bleeder systems 

or equivalent means, or be sealed .•• ! When 

ventilation of such areas is required, such 

ventilation shall be maintained so as continuously 

to dilute , render harmless, and carry away methane 

and other explosive gases within such areas and to 

protect the active workings of the mine from the 

hazards of such methane and other explosive gases. 

Air coursed through underground areas from which 

pillars have been wholly or partially extracted 

which enters another split of air shall not contain 

more than 2. 0 volume pe r centum of methane, when 

tested at the point it enters such other split. 

When sealing is required, such seals shall be made 

in an approved ma~ner so as to isolate with 

explosion-proof bulkheads such areas from the active 

workings of the mine. 

367 
result of.Ranger 's installation of additional ventilation controls. 

Ranger did not contest either the section· 104(a) citation pursuant 

to sections 105(a) or (d) of the Mine Act or the section 107(a) 

withdrawal order pursuant to section 107(e)(1) of the Act. 3/ After 

receiving MSHA's notice of a proposed civil penalty assessm~nt of $213 

for the violation alleged in the citation, Ranger paid the penalty on 

August 29, 1986, without requesting a hearing. 

As relevant here, the mine had been idled by the withdrawal order 

from 11:30 a.m., May 29, to 7:00p.m., May 31, 1986, when the order was 

modified to permit resumption of production in certain areas of the 

mine. The miners working the 8:00 a.m. to 4 : 00 p.m. shift on May 29 

were compensated by Ranger for the remainder of that shift and those 

scheduled to work the following shift, 4:00 p.m. to midnight, were also 

paid by Ranger for that shift. On August 15, 1986, the United Mine 

Workers of America ( 11UMWA11 ), the representative of the miners at the 

Beckley No . 2 Mine , filed with the Commission a compensation complaint 

seeking "one-week compensation11 under the third sentence of section 111 

of the Act (n. 1. supra) on behalf of those miners who had been 

scheduled to work on May 30 and 31, but were idled by the withdrawal 

order. (Under the third sentence of section 111, miners idled as a 

result of a section 104 or 107 withdrawal order issued "for a failure of 

11 Section 105 of the Act, 30 U.S.C. § 815, provides operators with 

two opportunities to contest and request a hearing concerning issuance 

of a section 104 ·citation: section 105(d), 30 U.S.C. § 815ld), permits 

immediate review of a citation and section 105(a), 30 U.S.C. § 815(a) , 

affords an opportunity to contest the penalty (and the underlying 

allegation of violation) after the Secretary has proposed a civil 

penalty for the alleged violation. See, ~· Ranger Fuel I, 10 FMSHRC 

at 617- 19. 

Section 107(e)(1) provides operators an opportunity to contest the 

issuance of an imminent danger order: 

Any operator notified of an [imminent danger] 

order under this section or any representative of 

miners notified of the issuance, modification, or 

termination of such an order may apply to the 

Commission within 30 days of such notification for 

reinstatement, modification or vacation of such 

order. The Commission shall forthwith afford an 

opportunity for a hearing (in accordance with 

section 554 of title 5 but without regard to 

subsection (a)(3) of such section) and thereafter 

shall issue an order, based upon findings of fact, 

vacating, affirming, modifying, or terminating the 

Secretary' s order. The Commission and the courts 

may not grant temporary relief from the issuance of 

any order under subsection (a) of this section. 

30 U.S.C. § 817(e)(l). 

368 
the operator to comply with any mandatory health or safety standards" 

are entitled to compensation "for such time" as they are idled or "for 

one week, whichever is the lesser.") Ranger's payment of the civil 

penalty for the violation alleged in the citation, referenced above, 

occurred some 10 days after Ranger had been served with a copy of the 

UMWA's complaint for compensation under section 111. 

Prior to hearing on the compensation complaint, both the UMWA and 

Ranger filed motions for summary decision. The administrative law judge 

denied both motions. We thereafter granted the UMWA's petition for 

interlocutory review and reversed the judge's order insofar as he had 

held that Ranger could contest in this compensation proceeding both the 

fact of violation and the validity of the citation for which Ranger had 

already paid the proposed civil penalty. 10 FMSHRC at 617-20. We 

affirmed, however, the judge's order to the extent that he permitted 

Ranger to litigate the issue of causal nexus between the violation 

alleged in the citation and the- issuance of the section 107(a) 

withdrawal order. 10 FMSHRC at 620-21. We remanded for further 

proceedings. 

Following a hearing on remand, Judge Melick concluded that the 

section 107(a) imminent danger withdrawal order was "final" for purposes 

of section 111 because of Ranger's failure to contest that order within 

the time set forth in section 107(e)(l) of the Act (n. 3 supra). 

10 FHSHRC at 1475-77. He concluded that the validity of the order and 

the underlying issue of whether the order was, in fact, issued for an 

'imminent danger could not be contested in this compensation proceeding. 

Id. In reaching this conclusion, he stated that our decision in Ranger 

Fuel I "would appear to preclude litigation of the underlying order," 

finding the issue presented to be analogous to the operator's related 

failure to contest the citation or penalty proposal. 10 FMSHRC at 1476-

77. He noted in particular that permitting Ranger to challenge the 

imminent danger order in the compensation proceeding would anomalously 

place the UMWA in the role of the Secretary of Labor in establishing the 

validity of the order. 10 FMSHRC at 1477. Accordingly, citing Old Ben 

Coal Co., 7 FMSHRC 205 (February 1985), he determined that the 

"assertion of 'imminent danger' ••. in the order must ••. be regarded as 

true." Id. 

The judge also concluded that a causal nexus existed between the 

imminent danger order and the violation alleged in the citation, holding 

that an inadequate bleeder system was a causal factor in the existence 

of the explosive mixture of methane found by Inspector Uhl. 10 FMSHRC 

at 1476-78. He indicated that the allegations of violation and imminent 

danger in the citation and withdrawal order respectively "must be 

accepted as true" in light of Ranger's failure to contest those 

allegations. 10 FMSHRC at 1477. He disregarded any evidence 

conflicting with the relevant factual allegations in the citation and 

the order. Id. He then found that the testimony of Inspector Uhl, 

summarized above, concerning the effects of the malfunctioning bleeder 

system in creating the imminent danger, was more credible than the 

contrary testimony of Ranger's safety supervisor Perdue, also noted 

above. 10 FMSHRC at 1478. Accordingly, the judge concluded that "the 

cited violative condition[,] i.e., an inadequate bleeder system, was a 

369 
causal factor for the existence of the explosive mixture of methane 

found . • . in the withdrawal order [and] the requisite causal nexus has 

been established." Id. Based on these conclusions and the parties' 

stipulations, the judge awarded compensation tb the miners in question. 

He also awarded prejudgment interest on the compensation award, 

calculated in accordance with the formula set forth in Arkansas-Carbona, 

supra. 10 FMSHRC at 1479. 

On review, Ranger submits that the judge erroneously refused to 

consider evidence that the withdrawal order upon which the UMWA's 

compensation claim is based was, in fact, invalid. Ranger submits that 

it had the right to challenge the validity of the imminent danger order 

in this compensation proceeding because that issue had never been 

actually litigated . Ranger f urther contends that the judge erred in 

finding a causal nexus between the imminent danger and the underlying 

violation. It notes that the withdrawal order itself was not issued for 

a violation of a mandatory standard, the citation being issued several 

days after the order. Additionally, Ranger argues that the violative 

conditions cited in the citation did not cause any "imminent danger" and 

that, thus, the judge's finding of causal nexus is not supported by 

substantial evidence. Finally, Ranger submits that the judge 

erroneously added prejudgment interest to the award of compensation 

inasmuch as section lll does not specifically provide for interest on 

compensation awards. 

II. 

We turn first to the question of whether Rauger may challenge the 

validity of the section 107(a) imminent danger order in this 

compensation proceeding notwithstanding its failure to contest the order 

under section 107(e)(1) of the Act. 

As we discussed in Ranger Fuel I, section 105 establishes a 

comprehensive scheme for contest and review of citations and orders 

issued pursuant to section 104 of the Act. 10 FMSHRC at 617-19. 

Accord, _Loc. U. 1810, UMWAv. NaccoMining Co., 11 FMSHRC 1231,1238-39 

(July 1989) . We held that an operator's failu~e to contest under 

section 105 (n . 3 supra) an allegation of violation in a citation 

precludes it from challenging the fact of violation in the compensation 

proceeding. Ranger Fuel I , 10 FMSHRC at 618-19·. We ' also concluded that 

an operator's payment of the proposed civil penalty generated the same 

preclusive effect for compensation purposes. Id. See also Loc . U. 

1889, UMWA v. Westmoreland Coal Co. , 8 FMSHRC 1317,-r330 (September 

1986); Loc . U. 2274, ~NWA v. Clinchfield Coal Co., 8 FMSHRC 1310, 1314 

(September 1986) ("Clinchfield I"); Old Ben, supra, 7 FMSHRC at 207-09. 

Relying on Ranger Fuel I, we have subsequently held that an operator's 

failure to contest a section 104 withdrawal order and its later 

modifications (and the operator'.s payment of the civil penalty proposed 

in conjunction with the order) foreclosed it from attacking the validity 

of the order and its modifications in the compensation litigation. 

Nacco, supra, 11 FMSHRC at 1238 -39. 

Underlying thes~ decisions is the recognition that the 

"compensation provisions of section 111 . . . stand apart from the 

370 
interrelated structure for reviewing citations, orders and penalties 

created by section 105. 11 Nacco, 11 FMSHRC at 1239. As we stated in 

~: 

The distinct purpose of section 111 is to 

determine the compensation due miners idled by 

certain withdrawal orders, not to provide operators 

with an additional avenue for review of the validity 

of the Secretary's enforcement actions. That 

section 111 does not provide the basis for 

collaterally attacking the validity of an order that 

underlies a compensation claim is plainly revealed 

by the language of section 111, which, in its first 

two sentences, affords compensation "regardless of 

the result of any review" of an order and in its 

third sentence affords compensation "after such 

order is final. 11 Thus, the Act contemplates that, 

for compensation purposes, the validity of the 

enforcement action upon which a compensation claim 

is based is either irrelevant or has already been 

otherwise established. 

Id. We also emphasized that in section 105 contest proceedings the 

Secretary of Labor is a party, whereas in compensation pr9ceedings only 

the miners and their representative and the operator are parties, and 

that requiring miners and their representative to establish the fact of 

violation or the validity of the Secretary's enforcement action in the 

compensation case would improperly thrust them into the Secretary's 

prosecutorial role. Ranger Fuel I, 10 FMSHRC at 619; Nacco, 11 FMSHRC 

at 1249-40. Accord, Int'l U., UMWA v. FMSHRC, 840 F.2d 77, 81-82 (D.C. 

Cir. 1988). 

These same considerations support a consistent result here. 

Section 107 is an integral component of the Secretary's enforcement 

arsenal under the Act. Section 107(e)(1) specifically provides for 

adjudicative review of section 107(a) imminent danger orders, and 

expressly affords operators the opportunity to contest and request a 

hearing on the validity of such orders within 30 days of notification 

thereof. The contest and review provisions of section 107 are parallel 

to the section 105 scheme for contest and review of section 104 

citations and orders and related penalty proposals. Thus, as with the 

relationship between section 111 and 105, we similarly conclude that 

section 111 "stands apart" from the structure for reviewing imminent 

danger orders created by section 107. See Nacco, 11 FMSHRC at 1239. 

There is no indication in the text or legislative history of 

section 111 that the compensation provisions of the Mine Act were 

intended to provide operators with an additional avenue of review of, or 

a platform for collateral attack on, the validity of the Secretary's 

enforcement actions under section 107. Such an attack in a compensation 

case, as with a similar challenge to a section 104 citation or order, 

likewise would force miners and their representative to assume the 

Secretary's prosecutorial role of establishing the validity of her 

enforcement actions. Thus, we conclude that permitting challenges to 

371 
uncontested section 107 orders in section 111 compensation proceedings 

would create the same kind of statutory contradictions as would be 

created by allowing challenges of uncontested section 104 citations and 

orders under section 111. Ranger Fuel I, supra, Nacco, supra. 

Ranger, however, points to the language in section lOS(a) of the 

Act providing that an uncontested proposed penalty becomes "a final 

order of the Commission ... not subject to review by any court or 

agency" (~, ~· Old Ben, 7 FMSHRC at 209), and argues that the 

absence of s~milar language in section 107 must mean that Congress did 

not intend a failure to contest an imminent danger order under section 

107(e)(1) to carry the same preclusive effect. 

We have observed in another section 111 case that the legal maxim 

expressio unius est exclusio alterius (the express direction for 

something in one provision, and its absence in a related provision, 

implies an intent to deny it in the latter setting), relied on by Ranger 

here , while "often ... useful ... in determining statutory meaning, .. . 

is nevertheless only an aid to construction and not an invariable rule 

of law." Clinchfield II, supra, 10 FMSHRC at 1502, aff'd, Clinchfield 

Coal Co. v. FMSHRC, supra, slip op. at 11 - 12. In affirming our 

Clinchfield II decision on this point, the D.C. Circuit observed: 

The difficulty with this doctrine -- and the 

reason it is not consistently applied •.. -- is that 

it disregards several other plausible explanations 

for an omission. The drafter (here Congress) may 

simply not have been focusing on the po~nt in the 

second context; and, where an agency is empowered to 

administer the statute, Congress may have meant that 

in the second context the choice should be up to the 

agency. Indeed, under [Chevron U.S.A., Inc. v. 

NRDC, 467 U.S. 837, 842-44 (1984)], where a court 

cannot find that Congress clearly resolved an issue, 

it presumes an intention to allow the agency any 

reasonable interpretative choice. 

Clinchfield Coal Co. v . FMSHRC, slip op. at 11-12. 

The legislative history makes it abundantly clear that the reason 

for inclusion of the "final order" language in section 105(a) was 

Congress' deep concern over what it viewed as failures in the civil 

penalty system under the Federal Coal Mine Health and Safety Act of 

1969 , 30 U.S .C. § 801 et seg. (1976)(amended 1977)("1969 Coal Act"). 

See,~· S. Rep. No . 181, 95th Gong., 1st Sess. 40-46 (1977)("S. 

Rep.") , reprinted in Senate Subcommittee on Labor, Committee on Human 

Resources, 95th Gong. , 2d Sess. , Legislative History of the Federal Mine 

Safety and Health Act of 1977, at 628-34 (1978) ("Legis. Hist."). See 

also Coal Employment Project v . Dole , 889 F.2d 1127, 1132 (D.C. Cir. 

1989), and authorities cited. The Senate Committee largely responsible 

for drafting the bill that was enacted as the Mine Act criticized the 

"lengthy, and often repetitive" procedures of penalty assessment and 

collection under the ±969 Coal Act and the delays occasioned thereby 

and, as one of "a number of means by which the method of collecting 

372 
penalties is streamlined," provided in that bill that an uncontested 

penalty would become a final Commission order . S. Rep. 44-45, reprinted 

in Legis. Hist. 632-33. No similar legislative concern is evidenced in 

the legislative history with respect to contest of imminent danger 

orders. Given the distinct substantive purposes of the civil penalty 

and imminent danger schemes in the Act, we can understand why a similar 

"final order" provision would not be deemed necessary for section 

107(e)(1). What we find most decisive, however, is that the Act plainly 

reflects that the only way to challenge an imminent danger order is 

pursuant to section 107(e)(1). The presence of the final order proviso 

in section 105(a) does not, by itself, convince us that Congress 

considered and rejected a similar remedy for section 107(e)(1). See 

Clinchfield Coal Co. v. FMSHRC, slip op. at 12. 

In support of its position, Ranger further contends that the 

failure of the imminent danger order at issue to allege a violation on 

its face is fatal to the UMWA 1 s compensation claim. We rejected the 

identical argument in Clinchfield I & II (8 FMSHRC at 1314; 11 FMSHRC at 

1496-98), and the D.C. Circuit has affirmed our holding. Clinchfield 

Coal Co. v. FMSHRC, slip op. at 4-9. 

Finally, Ranger also relies upon the disparity in the time period 

allowed for an operator to contest an imminent danger order under 

section 107(e)(1) (30 days) and the time provided under Commission 

Procedural Rule 35 (29 C.F.R. § 2700.35) for claimants to file 

compensation complaints under section 111 (90 days). Ranger asserts 

that this divergence inefficiently and unfairly breeds litigation 

because operators will often be forced to contest an order that could 

potentially trigger a compensation claim, without notice of whether they 

actually face such a claim -- particularly in the case of an imminent 

danger order that itself does not cite a violation. We acknowledge that 

practical complications can arise in this regard. Cf. Clinchfield Coal 

Co. v. FMSHRC, slip op. at 6-7. However, we rejected similar arguments 

in Nacco with respect to an operator 1 s failure to contest section 104 

orders in a context of identically disparate contest periods (11 FMSHRC 

at 1240), and the Clinchfield court concluded that the "awkwardness" of 

having to contest an imminent danger order not citing a violation did 

not outweigh the sound reasons for allowing the Secretary, as here, to 

allege the underlying violation in a subsequent. enforcement action. 

Slip op. at 7. 

Thus, we hold that an uncontested section 107(a) imminent danger 

order is final and valid on its face for purposes of section 111 

compensation proceedings and, accordingly, an operator is precluded in a 

compensation proceeding from contesting the validity of such an 

uncontested order . 

Ranger also contends that the judge 1 s finding of a causal nexus 

between the imminent danger order and the bleeder violation alleged in 

the relevant citation is improper and not supported by substantial 

evidence . As previously discussed, Ranger 1 s failure to contest the 

citation and its payment of the civil penalty proposed for the citation 

result in the allegation of violation being treated as true for purposes 

of this compensation proceeding. Ranger Fuel I, 10 FMSHRC at 617-20 . 

373 
As noted, the judge reviewed and specifically accepted as more credible 

the testimony of Inspector Uhl that the bleeder system was not 

functioning properly on May 2~, 1986, and that the system's failure to 

dissipate the sudden inundation of methane was a contributing factor to 

the imminent danger that existed. 10 FMSHRC at 1476-78. We have often 

emphasized that a judge's credibility determinations may not be 

overturned lightly. ~. Quinland Coals, 9 FMSHRC 1614, 1618 

(September 1987). The relevant testimony of record has been summarized 

above and affords substantial support to the judge's finding that the 

inadequately functioning bleeder system contributed to the existence of 

the imminent danger, i.e. , the excessive amount of methane in the mine. 

Therefore, ·we conclude that substantial evidence supports the judge's 

finding of a causal nexus between the imminent danger order and the 

violation set forth in the citation. 

Lastly, Ranger contests the judge's award of prejudgment interest 

on the compensation found due. In Clinchfield II, we approved the award 

of prejudgment interest on compensation, in appropriate cases, and 

adopted the short-term Federal rate applicable to the underpayment of 

taxes as the appropriate rate for both compensation and discrimination 

proceedings under the Act. 10 FMSHRC at 1499- 1506. See also 54 Fed. 

Reg. 2226, supra. The D.C. Circuit has affirmed our determinations in 

this regard (Clinchfield Coal Co. v. FMSHRC, slip op. at 9-13), and 

Ranger's various objections to the Commission ' s award of prejudgment 

interest are accordingly rejected. We modify the judge's award of 

interest, however, by directing that interest be computed as provided in 

Arkansas-Carbona, supra, and, as applicable, Clinchfield II and 54 Fed. 

Reg. 2226. 

374 
III. 

For the foregoing reaso~s , the judge's decision is affirmed but 

his decision regarding the computation of interest is modified . 

Distribution 

Hary Lu Jordan, Esq. 

Joyce Hanula 

United ~1ine Uorkers of America 

900 15th St., N.W . 

Washington, D.C. 20005 

John T. Scott, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave . , ~Lt-1. 

Washington, D.C. 20004 

Dennis D. Clark, Esq. 

Office of the Solicitor 

U.S. DePartment of Labor 

4015 Wilson Blvd . 

Arlington, VA 22203 

. 

Richard 

~L--C~-V~-rv V. Backley, Commissioner 

Administrative Law Judge Gary Helick 

Federal Hine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

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

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v . 

OZARK-MAHONING COMPANY 

1·1arch 21, 1990 

Docket Nos. LAKE 88-128-RM 

LAKE 88-108-M 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

At issue in this proceeding ar1s1ng under the Federal Mine Safety 

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

whether Ozark-Mahoning Company ("Ozark") violated 30 C.F.R. § 57.12016, 

a mandatory underground metal-nonmetal mine safety standard requiring 

deenergizing and locking out electrically powered equipment before 

mechanical work is done on the equipment. 1/ Commission Administrative 

Law Judge George Koutras concluded that Ozark violated section 57.12016 

and assessed a civil penalty of $25. 11 FMSHRC 859 (May 1989)(ALJ). 

The Commission granted Ozark's petition for discretionary review. For 

11 30 C.F.R. § 57.12016 provides: 

Electrically powered equipment shall be 

deenergized before mechanical work is done on such 

equipment. Power switches shall be locked out or 

other measures taken which shall prevent the 

equipment from being energized without the knowledge 

of the individuals working on it. Suitable warning 

notices shall be posted at the power switch and 

signed by the individuals who are to do the wotk. 

Such locks or preventive devices shall be removed 

only by the persons who installed them or by 

authorized personnel. 

376 
the reasons that follows, we affirm the judge's decision. 

Ozark operates the Annabel Lee Mine, an underground fluorspar mine 

in Cavernrock, Illinois. An electrically-powered hoist with a skip 

bucket is used to transport ore out of the mine. The hoist also is used 

to transport miners up and down the mine shaft in a man cage. The skip 

bucket is attached under the man cage and is approximately 4 feet high, 

3 feet wide, and .3-1/3 feet long. When in use, the bucket moves up and 

down the shaft with the man cage. 

The hoist is operated from a control booth inside a shop building 

located approximately 200 feet from the top of the shaft. The main 

disconnect switch for the electric power used to operate the hoist is 

located approximately 10 to 20 feet away from the control booth. 

Another power switch is located on the hoist control panel inside the 

control booth. The hoist is equipped with two sets of brakes,.each set 

capable of holding a full load. The hoist also is equipped with a "dead 

man" braking switch. Foot pressure must be applied to the "dead man" 

braking switch in order to activate the hoist but, as soon as the 

pressure is released, the brakes automatically set. The hoisting system 

includes a control lever that must be manually engaged in order for the 

hoist to move. Thus, in order for the hoist system to move, both power 

switches must be energized, foot pressure must override the "dead man" 

braking switch, and the control lever must be appropriately engaged. 

The hoist system also ·has a manual brake lever that may be used to lock 

the brakes. 

On March 4, 1988, Mine Safety and Health Administration ("MSHA") 

Inspector Gene Upton conducted a safety and health inspection at the 

Annabel Lee Mine. Upton observed a miner inside the skip bucket using 

welding equipment to patch the bottom of the skip bucket. That miner 

was assisted by another miner, who was approximately five feet from the 

shaft, bringing supplies to the area where the work was being performed. 

The skip bucket was located "a little above the level" of the top of the 

shaft while the work was being performed. Tr. 38. A hoist operator was 

at the controls in the control booth. The hoist control operator could 

not see the miner working inside the skip bucket but could see the 

bucket itself. 

Inspector Upton found that the hoisting system was still energized 

because the control power switch, located inside the control booth, and 

the main disconnect switch were not deenergized. Upton also found that 

these switches were not locked out. However, the brakes were engaged, 

the foot pedal overriding the "dead man" braking switch was not 

activated, and the hoist was stationary. · 

Upton issued a citation to Ozark alleging a violation of 

section 57.12016. The citation stated: 

An employee was observed working in the skip under 

the man cage in the main hoist shaft without deenergizing the power for the hoist and locking the 

switch out. The hoist operator was sitting at the 

hoist controls. 

377 
Upton also designated the violation as being "significant and 

substantial" in nature. Ozark abated the violation within 10 minutes by ' 

shutting off and locking out the power switches and hoist controls. 

Before the judge, Ozark argued that it did not violate section 

57.12016 because it complied with the second sentence of the standard. 

Ozark argued that, although it had not deenergized the hoist system (or 

locked out the power switches), appropriate "other measures," within the 

meaning of the standard's second sentence, prevented the hoist from 

being moved without the knowledge. of the miner working on it. These 

"measures" included the two sets of brakes, the "dead man" switch, the 

control lever, and the control panel switch. In Ozark's view, with 

these controls in place, turning the main power switch on could not 

cause the hoist to move. In addition, Ozark contenqed that the hoistman 

in the control booth was prohibited from starting or moving the hoist 

unless he received a signal to do so with the knowledge of the person 

doing the work. 

The judge concluded that Ozark violated section 57.12016. He 

found that the hoist was "electrically powered equipment," that the skip 

bucket was a ·part of the hoist, that the work being performed in the 

bucket was "mechanical work," and that, therefore, the cited conditions 

fell within the scope of section 57.12016. 11 FMSHRC at 868. He 

construed section 57.12016 to require that the mine operator both: 

(1) deenergize electrically powered equipment; and (2) lock out power 

switches before any mechanical work is done on the equipment. 11 FMSHRC 

868-69. 

Crediting Inspector Upton's testimony, the judge found that the 

main power switch located outside the hoist operator's control booth and 

the second power switch located inside the control booth were neither 

deenergized nor locked out during the time that work was performed on 

the skip bucket. 11 FMSHRC 869-70. While the judge found "some merit" 

in Ozark's argument that the the second sentence of section 57.12016 

provides for an alternative method of insuring against inadvertent 

energizing of the equipment while it is being worked on, short of 

locking out the power switches, he concluded that "[the] language [of 

the second sentence] only comes into play once the requirements found in 

the first sentence for completely deenergizing the equipment [are] 

complied with •••• " 11 FMSHRC at 869. Thus, according to the judge, 

"any alternative 'other measures' for insuring against the inadvertent 

energizing of the equipment while it is being worked on ••• may not 

serve as a defense to the requirement found in the first sentence that 

all such equipment be initially deenergized." Id. Accordingly, the 

judge rejected Ozark's argument that there was no violation because 

Ozark had complied with the second sentence of the standard. 11 FMSHRC 

at 869-70. The judge also determined that the violation was not 

significant and substantial and assessed a civil penalty of $25. 

11 FMSHRC at 872-73, 874. 

On ·review, Ozark argues, for the first time in this proceeding, 

that section 57.12016 applies only to unmanned types of electrically 

powered equipment. It asserts that the hoist is manned equipment with 

an authorized person, a hoist operator, in charge and that, therefore, 

378 
the regulations at 30 C.F.R. § 57.19000 £1 seq. (Subpart R-Personnel 

Hoisting) apply. Alternatively, Ozark again argues that it complied 

with the second sentence of section 57.12016, thus negating any finding 

of violation. 

Ozark's contention that section 57.12016 is applicable only to 

unmanned types of equipment was not presented to the judge. Under the 

Mine Act and the Commission's procedural rules, "[e)xcept for good cause 

shown, no assignment of error by any party shall rely on any question of 

fact or law upon which the administrative law judge ha[s] not been 

afforded an opportunity to pass." Section 113(d)(2)(A)(iH) of the Mine 

Act, 30 U.S.C. 823(d)(2)(A)(iii); 29 C.F.R. 2700.70(d). Ozark has not 

proffered any reason why it did not present that argument before the · 

judge, and therefore we do not address this issue. 

With respect to the judge's ·construction of the cited standard, we 

agree that the plain meaning of the first sentence of section 57 .• 12016 

requires that electrically powered equipment be first deenergized before 

mechanical work is done on such equipment. The second sentence of the 

standard requires appropriate measures to prevent reenergization of the 

equipment without the knowledge of the individuals working on it. The 

two sentences set forth conjunctive requirements, not alternative 

requirements. It is undisputed that the hoist was not deenergized 

within the meaning of the regulation. Tr. 10-11, 12, 19, 29, 62. We 

agree with the judge that Ozark's failure to comply with the first 

sentence of the standard is sufficient to sustain a finding of violation 

of section 57.12016. 

For the reasons set forth above, we affirm the judge's decision. 

Ja:~ L. Clair Nelson, Commissioner 

379 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 27, 1990 

ODELL MAGGARD 

v . 

CHANEY CREEK COAL COMPANY 

and 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of ODELL MAGGARD 

v. 

DOLLAR BRANCH COAL CORPORATION 

and CHANEY CREEK COAL COMPANY 

Docket No. KENT 86-1-D 

Docket No. KENT 86-51-D 

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

Commissioners 

DECISION 

BY: Ford, Chairman; Backley and Lastowka, Commissioners 

This consolidated proceeding involves two discrimination 

complaints filed on behalf of Odell Maggard under the Federal Mine 

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

Act"), and is on remand to us from an opinion of the United States Court 

of Appeals for the District of Columbia Circuit affirming in part and 

reversing in part our prior decision in this matter. Chaney Creek Coal 

Corp. v. FMSHRC, etc., 866 F.2d 1424 (1989), rev'g in part, aff'g in 

part, Odell Maggard v . Chaney Creek Coal Co., etc., 9 FMSHRC 1314 

(August 1987). Both discrimination complaints allege that Mr. Maggard 

was illegally discharged in violation of section 105(c)(1) of the Mine 

Act, 30 U.S.C. 815(c)(l), and both are based on the same circumstances. 

The first complaint (Docket No. KENT 86-1-D) was br0ught by Maggard on 

his own behalf against Chaney Creek Coal Company ("Chaney Creek") 

pursuant to section 10S(c)(3) of the Act, 30 U.S.C. § 815(c)(3) (n. 1 

infra). The second complaint (No. KENT 86-51-D) was brought by the 

380 
Secretary of Labor on Maggard ' s behalf against Chaney Creek and Dollar 

Branch Coal Corporation ("Dollar Branch") pursuant to section 105(c)(2) 

of the Act, 30 U.S.C. § 815(c)(2). l/ The complaints allege that Chaney 

l/ Section lOS(c)(l) of the Act, 30 U.S.C. § 

various forms of discrimination against miners. 

the Act provides in relevant part: 

815(c)(l), prohibits 

Section 105(c)(2) of 

Any miner ••• who believes that he has been 

discharged, interfered with, or otherwise 

discriminated against by any person in violation of 

[section lOS(c)] may, within 60 days after such 

violation occurs, file a conplaint with the 

Secretary alleging such discrimination. If upon 

such investigation, the Secretary determines that 

the provisions of [section lOS(c)] have been 

violated, he shall immediately file a complaint with 

the Commission, with service upon the alleged 

violator and the miner, applicant for employment, or 

representative of miners alleging such discrimination or interference and propose an order granting 

appropriate relief. The Commission shall afford an 

opportunity for a hearing and thereafter shall issue 

an order, based upon findings of fact, affirming, 

modifying, or vacating the Secretary's proposed 

order, or directing other appropriate relief. Such 

·order shall become final 30 days after its issuance. 

The Commission shall have authority in such 

proceedings to require a person committing a 

violation of this subsection to take such 

affirmative action to abate the violation as the 

Commission deems appropriate, including , but not 

limited to, the rehiring or reinstatement of the 

miner to his former position with back pay and 

interest. The complaining miner, applicant, or 

representative of miners may present additional 

evidence on his own behalf during any hearing held 

pursuant to [t]his paragraph. 

30 U.S.C. § 815(c)(2). 

Section 105(c)(3) states in relevant part: 

Within 90 days of the receipt of a complaint filed 

under [section 105(c)(2)], the Secretary shall 

notify, in writing, the miner ••• of his 

determination whether a violation has occurred. If 

the Secretary, upon investigation, determines that 

the provisions of [section lOS(c)] have not been 

violated, the complainant shall have the right, 

within 30 days of notice of the Secretary' s 

determination, to file an action in his own behalf 

before the Commission, charging discrimination or 

381 
Creek and Dollar Branch (collectively, "operators") unlawfully 

discharged Maggard because he refused to perform certain work that he 

belieyed to be hazardous. In a decision on the merits and in a 

supplemental decision regarding remedies, Commission Administrative Law 

Judge Gary Melick upheld the complaints, ordered Maggard reinstated with 

back pay, interest and attorney's fees, denied the Secretary's motion to 

dismiss Maggard's section 105(c)(3) complaint on jurisdictional grounds, 

and assessed civil penalties against the operators. 8 FMSHRC 806 (May 

1986)(ALJ); 8 FMSHRC 966 (June 1986)(ALJ). 

The Commission granted the operators' petition for review of the 

judge's decision. The Commission affirmed the judge's conclusion of 

illegal discrimination. 9 FMSHRC at 1320 Further on the basis of the 

Commission's decision in John A. Gilbert v. Sandy Fork Mining Co., Inc., 

9 FMSHRC 1327 (August 1987), aff'd in part, rev'd in part, Gilbert v. 

FMSHRC, etc., 866 F.2d 1433 (D.C. Cir. 1989), and the opinion of the 

United States Court of Appeals for the Fourth Circuit in Eastern Assoc. 

Coal Corp. v. FMSHRC, 813 F.2d 639 (1987), a majority of the Commission 

(Commissioners Doyle and Nelson dissented) dismissed Maggard's section 

105(c)(3) discrimination complaint and vacated the judge's award of 

attorney's fees. 9 FMSHRC at 1322-23. 

I. 

Both Maggard and Chaney Creek appealed the Commission's decision 

to the D.C. Circuit. The Court affirmed the Commission's conclusions 

that Chaney Creek had unlawfully discriminated against Maggard in 

violation of section 105(c)(1) of the Act. 866 F.2d at 1431-32. 

However, the Court reversed the Commission's dismissal of Maggard's 

individual complaint. 866 F.2d at 1429-30. The Court noted that no 

party had challenged before the Commission the judge's denial of the 

interference in violation of [section 105(c)). The 

Commission shall afford an opportunity for a hearing 

••• and thereafter shall issue an order, based upon 

findings of fact, dismissing or sustai'ning the 

complainant's charges and, if the charges are 

sustained, granting such relief as it deems 

appropriate, including, but not limited to, an order 

requiring the rehiring or reinstatement of the miner 

to his former position with back pay and interest or 

such remedy as may be appropriate. Such order shall 

become final 30 days after its issuance. Whenever 

an order is issued sustaining the complainant's 

charges under [section 105(c)], a sum equal to the 

aggregate amount of all costs and expenses 

(including attorney's fees) as determined by the 

Commission to have been reasonably incurred by the 

miner ••. for, or in connection with, the 

institution and prosecution of such proceedings 

shall be assessed against the person committing such 

violation •••• 

30 U.S.C. § 815(c)(3). 

382 
Secretary's motion to dismiss Maggard's section l05(c)(3) complaint and 

that the Commission had not dir~cted review of the issue sua sponte 

pursuant to section 113(d)(2)(B), 30 U.S.C. § 823(d)(2)(B). 

Accordingly, the Court concluded that the matter was not before the 

Commission for review within the meaning of section 113(d) of the Mine 

Act, 30 U.S.C. § 823(d), and that the Commission therefore exceeded its 

authority in dismissing Maggard's individual complaint. 866 F.2d at 

1429-30. 

The Court also reversed the Commission's vacation of the judge ' s 

award of attorney's fees to Maggard. The Court held that because 

Maggard, without successful challenge, had prosecuted his own action 

before the Commission under section 105(c)(3) of the Act , Maggard 

"properly was an individual complaining party •.• entitled to attorney's 

fees once he prevailed on the merits. " 866 F.2d at 1430. In this 

regard, the Court stated: 

There remains a question • .• noted by Commissioners Doyle and Nelson in dissent • . . as to 

whether the fees awarded to Maggard by the ALJ were · 

reasonable, in light of the employer's claim that 

some of the private counsel's work unnecessarily 

duplicated work that was being done by counsel for 

the Secretary. The Commission did not consider this 

question because it dismissed Maggard's individual 

complaint. We thus remand to the Commission for its 

consideration of any issues that may exist regarding 

the amount of attorney's fees that are reasonably 

due to Maggard. 

866 F.2d at 1430 .(emphasis in original). 

Finally, the Court noted Maggard' s argument on appeal that the 

operators owed interest in addition to that awa~ded by the judge, and 

the Court instructed the Commission to resolve "whether the amount of 

interest calculated to be paid Maggard was correct" under the legal 

formula set forth by the Commission in Secretary of Labor on behalf of 

Bailey v . Arkansas-Carbona Co . , 5 FMSHRC 2042 (December 1983). 866 F.2d 

at 1432-33. 

For the reasons set forth below, we reinstate the judge ' s award of 

attorney's fees and remand for further proceedings with respect to the 

m.atter of interest on back pay. 

II. 

A. Attorney's Fees. 

The administrative law judge awarded Maggard attorney's fees of 

$ 16,456.22. 8 FMSHRC at 967- 69. As noted, the Court reversed the 

Commission's conclusion that attorney's fees are not awardable in this 

case and remanded for consideration of "any issues that may exist 

regarding the amount of the attorney's fees that are reasonably due to 

Maggard. 11 866 F. 2d at 1430 (e~phasis in original). Although the Court 

383 
characterized the operator's objection to the attorney's fee award as a 

claim that Maggard's private counsel's work partially duplicated work 

done by counsel for the Secretary, the operator's argument actually is 

somewhat broader. In addition to arguing that Maggard's private 

attorney's work was unnecessary and duplicative once the Secretary filed 

a complaint on Maggard's behalf, the operator also argued that, if fees 

are awardable, time spent by Maggard's private counsel in communicating 

with the Secretary's attorney and in opposing the Secretary's motion to 

dismiss Maggard's individual complaint should not be included in the 

fees assessed against the operator. Petition for Discretionary Review 

at 19-23; Reply Brief at 14-15. Also ~ 9 FMSHRC at 1325 

(Commissioners Doyle and Nelson dissenting), cited at 866 F.2d at 1430. 

The administrative law judge specifically addressed and rejected 

the operator's arguments. He rejected the argument that private 

·representation was unnecessary once the Secretary's complaint was filed, 

finding that Maggard's section 105(c)(l) complaint was "independent" of 

the Secretary's. 8 FMSHRC at 967. (The Court agreed with the judge, 

finding that "Maggard['s] ••• own action [was] independent of that 

brought by the Secretary" and that "Maggard was properly an individual 

complaining party before the Commission ••• entitled to seek attorney's 

fees." 866 F.2d at 1430). As to the operator's further arguments the 

judge found that "[c]onsultation with the Secretary's counsel and the 

litigation of issues surrounding the Secretary's motion to dismiss are 

not unforeseeable consequences of a discriminatory action under the 

Act." 8 FMSHRC at 968. 

An "attorney's fee award is a matter that lies within the sound 

discretion of the trial judge." -Secretary on behalf of Ribel v. Eastern 

Assoc. Coal Corp., 7 FMSHRC 2015, 2027 (December 1985), rev'd in part on 

other grounds, 813 F. 2d 639 (4th Cir. 1987). Here, the authorities 

relied upon by the judge support his determination that Maggard's 

private counsel's communications with the Secretary's counsel and 

Maggard's opposition to the Secretary's motion to dismiss his private 

complaint, can appropriately be included in a fee award against the 

operator. Donnell v. United States, 682 F.2d 240 (D.C. Cir . 1982), 

~· denied, 459 U.S. 1204 (1982); 2 Derfner Court Awarded Attorney 

Fees Par. 16.02 at 16-14 n.25.1 (1989). ~!though our dissenting 

colleagues cite authority arguably supporting a contrary conclusion, we 

cannot say that under the remedial make-whole provisions of section 

105(c) of the Mine Act the judge abused his discretion in determining 

that the expenses objected to were "reasonably incurred" and were not 

"unforeseeable consequences of a discriminatory action under the Act." 

8 FMSHRC at 967, 968. Moreover, the litigation giving rise to the 

instant attorney fee award is traceable back to and occasioned by the 

underlying violative actions taken by Chaney Creek Coal against Maggard. 

See Natural Resources Defense Council v. U.S. Environmental Protection 

Agency, 703 F.2d 700, 713 (3rd Cir. 1983). 

Accordingly, the operator's challenge to the fee award is rejected 

and the judge's award is reinstated. 

384 
B. Interest on back pay. 

The remaining interest issue arises as a result of developments 

after the issuance of our prior decision, while this.matter was pending 

on appeal in the Court. The judge had awarded Maggard back pay and 

interest thereon in the amount of $33,660.19. 8 FMSHRC at 966-67. The 

award reflected the parties' stipulation that Maggard was entitled to 

back pay through June 1, 1986, of $31,812, and interest of $1,848.19 on 

the back pay to that date, computed according to the formula in 

Arkansas-Carbona, supra . The Commission affirmed this award. 9 FMSHRC 

at 1323. Following issuance of our decision, the operators did not pay 

Maggard the backpay and interest found to be due. The Secretary 

petitioned the court on Maggard's behalf for a court orde~ requiring the 

operators to either pay Maggard the amount owed or place the money ·in an 

interest-bearing escrow account. The operators responded that they 

would place the award in an escrow account. Maggard' s private counsel 

then moved the Court to order the operators instead to pay Maggard the 

amount owed plus additional interest. The operators advised the Court 

that they had placed $35,523 . 37 in an escrow account and stated to the 

Court that the money 11 represents the full amount due to Odell Maggard, 

pursuant to the decision of the Commission. 11 Notice at 1 (February 18, 

1988). '1) In turn, Maggard responded that the amount ment'ioned by the 

operators represented backpay plus interest only through June 1, 1986, 

and did not include interest subsequent to that date . Maggard asserted 

to the Court that the operators owed an additional $4,663.50 in 

interest, for a total award of $40,186.87. Maggard's Response to 

Operators' Notice at 2 (March 21, 1988). 

On April 19, 1988, in response to these various claims, the Court 

issued an order directing the operators to pay Maggard the backpay 

awarded by the Commission with "reasonable interest to be agreed upon by 

the parties. 11 Order at 1. Maggard subsequently moved the Court to 

modify the order to require the operators to pay interest pursuant to 

the formula in Arkansas-Carbona. The operators then paid Maggard 

$35,940.03, the amount deposited in the escrow account plus the interest 

that had accrued thereon. However, Maggard advised the Court that the 

operators owed an additional $4 , 246.84 in interest, the difference 

between the total amount of interest accruing after June 2, 1986, and 

the amount paid by the operators. Maggard Motion for Modification 2-6 

(May 10, 1988). As noted, the Court ultimately remanded the interest 

question to the Commission to determine the proper amount of interest 

due. 866 F.2d at 1432-33. 

In Arkansas-Carbona, noting that section 105(c)(3) of the Mine Act 

expressly includes interest on back pay as a form of relief that can be 

granted a discriminatee, the Commission approved the award of interest 

on back pay in appropriate cases. 5 FMSHRC at 2049 . The Commission 

adopted as an appropriate rate of interest the "adjusted prime rate, " 

~I That amount of back pay and interest is larger than the amount 

awarded by the judge because the judge computed both wages and interest 

through June 1, 1986, and Maggard was not actually reinstated until June 

20, 1986. 

385 
then announced semi-annually by the Internal Revenue Service ("IRS") 

under the then applicable version of 26 U. S.C. § 6621, and also adopted 

the "quarterly method" of calculating the amount of interest due. 

5 FMSHRC at 2050-54. 

Following enactment of the Tax Reform Act of 1986, Pub. L. 99-514 , 

100 Stat. 2085 (1986), we reexamined the subject of an appropriate 

interest rate and adopted the "short term Federal rate" as the interest 

rate to be applied on both compensation awards under 30 U.S .C. § 821 and 

on back pay awards in discrimination cases. Loc. U. 2274, Dist. 28, 

UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493, 1504 (November 1988), ~ 

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

announced that the short term Federal rate would become effective 

January 1, 1987, replacing for periods commencing after December 31, 

1986, use ·of the adjusted prime rate approved in Arkansas-Carbona • 

. 10 FMSHRC at 1504-06. In computing the short term Federal rate, we 

retained the quarterly method explained in Arkansas-Carbona (5 FMSHRC at 

2050-54) • . 10 FMSHRC at 1506. We also indicated that the Clinchfield 

formula would apply to all cases in which decisions were issued after 

the date of ·the Clinchfield opinion. 10 FMSHRC at 1505. See 54 Fed. 

Reg. 2226 (January 19, 1989). 

As is clear, the parties dispute the proper amount of interest due 

on the back pay award. Because they have been unable to resolve this 

problem through stipulation, we must remand the matter to the judge, 

pursuant to the Court's remand, for any necessary further findings and, 

if he determines that Maggard is due additional interest, for 

calculation of the amount of the additional interest due in accordance 

with the applicable principles of Arkansas-Carbona and Clinchfi eld and 

the formula set forth at 54 Fed. Reg. 2226, supra. 

III. 

For the foregoing reasons, the judge's award of attorney's fees to 

Maggard is reinstated. We also remand to the judge for necessary 

findings and calculations regarding the interest due on the back pay 

~ward. 

386 
Commissioners Doyle and Nelson, concurring in part and dissenting in part: 

\~e join in the majority's ci~cision to remand this case to the 

administrative law judge for a determination of the interest due 

on Mr. Haggard's back pay award. i-le respectfully dissent, however, 

from the majority's determination that the attorneys' fees awarded 

by the judge were. reasonable and appropriate in their entirety . 

In his petition for review, the operator contends that attorneys' 

fees should be reduced on the grounds that a significant amount of 

the time spent by Mr. Maggard's private attorney was spent on litigating issues surrounding the Secretary of Labor's Motion to nismiss 

Mr . Maggard's section 10S(c)(3) action, was unrelated to the antidiscrimination purposes of the Act, and did not pertain to any 

activities of the operators . Petition for Discretionary Review at 

21, 23 & n . 8. We agree that Mr. Maggard is not legally entitled to 

recover from the operator for time spent by his attorney on collateral 

issues, i.e., for time spent by the claimant's attorney in defending 

against the Secretary's Motion to Dismiss. ll 

Some months after Maggard's attorney instituted the private action, 

the Secretary instituted her section 10S(c)(2) action and moved to dismiss the 10S(c)(3) action . The operator did not join in or oppose 

that motion. The judge found against the Secretary and allowed the 

105(c)(3) action to continue. The Secretary petitioned for review of 

the judge's denial of her Hotion to Dismiss and a majority of the Commission overruled the judge, found for the Secretary, and dismissed 

Maggard's 105(c)(3) action. On appeal to the D.C. Court of Appeals, 

Maggard contested only the retroactive application of the Commission's new Rule 40(b) . The Secretary effectively conceded that 

retroactive application was not appropriate and asserted that she 

was primarily concerned about the prospective application of Rule 

40(b). The operator was, for the most part, a silent observer of 

these machinations. The majority is of the opinion that the 

operator should pay for his ringside seat. We disagree. 

1/ In our earlier dissent , we stated that we would affirm the award 

of attorneys' fees to the extent that they were incurred in instituting and prosecuting Mr. Maggard's discrimination claim but would disallow such fees to the extent that they were incurred in relation 

to the jurisdictional issue or coordinating the prosecution of the 

two cases. While the D.C. Circuit made reference to the issue we had 

raised, the court characterized it and the operator's argument as a 

challenge pertaining to duplication of work rather than one pertaining 

to collateral issues. 866 F. 2d 1424, 1430 (D.C. Cir. 1989). I~ any 

event, the court's remand requires us to consider the amount of the 

attorneys' fees that are reasonably due to Maggard (Id. at 1430) and 

"to resolve any disputes remaining over the reasonableness of 

attorneys' fees due to Maggard." Id. at 1433. (emphasis added). 

387 
We are of the opinion that the majority's reliance on Ribel v. 

Eastern Assoc. Coal Corp., 7 FMSHRC 2015 (December 1985). to th~ 

effect that-the attorneys' fee award is within the sound discretion 

of the trial judge (slip op. at 5) is misplaced. In fact, Ribel was 

reversed on the grounds that there was no legal basis for the award 

of attorneys' fees made by the judge. Eastern Assoc. Coal Corp. v. 

FMSHRC, 813 F.2d 639, 644 (4th Cir. 1987). 

Similarly, its reliance on Donnell v. United States, 682 F.2d 240 

(D.C. Cir • . 1982) is misplaced. Donnell involved a claim for attorneys' 

fees by defendant intervenors and the court held that "intervenors 

may be denied fees where their participation was unnecessary in light 

of the efforts of the prevailing governmental litigant". Id. at 246-7, 

n. 12. The case was remanded for consideration of that is~e and of 

the appellan·ts 1 specific challenges to time charges, including the 

challenge to duplicative efforts. Id. at 250. The administrative law judge properly distinguished Donnell from this case because Mr. Maggard was not an intervenor but rather had an "independent" 

action. 8 BiSHRC at 96 7. JJ 

Liability for attorneys' fees is limited to those matters litigated between Haggard and the mine operator. Fees generated by the 

litigation between the Secretary and }~ggard over jurisdiction under 

section 105(c), a separate legal issue warranting entirely different 

relief, are not appropriately assessed against the operator. See 

Smith v. Robinson, 468 U.S. 992, 1015 (1984). In United Nuclear 

Corp. v. Cannon, 564 F. Supp. 581 (D.R.I. 1983), the court denied 

fees for time spent by the plaintiff in battling a collateral issue, 

beyond the defendant's control. "The decision to battle against it 

was essentially a tactical judgment on plaintiff's part for its own 

ends" (Id. at 585), much like Maggard's decision to oppose the 

Secretary's Motion to Dismiss here. (emphasis added . ) In ~lor 

v. Sterrett, 640 F.2d 663 (5th Cir. 1981), the court found that time 

spent on a collateral issue should be excluded because "[a]ppellee's 

opposition to intervention was irrelevant to the sval of obtaining 

compliance; the attempted intervention was also a circumstance beyond 

appellants' control" (Id. at 670), again much like the case here, 

where Maggard's attorney opposed the Secretary's motion, not to obtain 

compliance with the Mine Act's anti-discrimination provisions but to 

2/ In its earlier opinion, the majority relied on Eastern Associated 

Coal Corp., 813 F.2d 639, also dealing with intervention, to support 

its vacation of attorneys' fees in their entirety. The court found 

that case to be inapposite because "Maggard, by contrast, did 

not intervene in the Secretary's action" but rather "prosecuted 

his own action before the Commission under section 105(c) (3) ... " 

866 F.2d at 1430. 

388 
retain control of the litigation. Fees should not be awarded against 

a defendant for activities in which it did not oppose the plaintiff. 

See Dubose v. Pierce, 579 F. Supp. 937, 957 (D. Conn. 1984), rev'd 

and remand~d on other grounds, 761 F. 2d 913 (2d Cir. 1985) . -----

The majority also concludes that the judge did not abuse his discretion when he found that consultation with, and litigation against, 

the Secretary were not "unforeseeable consequences of a discriminatory 

action" and hence could be assessed against the operator as attorneys' 

fees. (slip op. at 5, quoting 8 TitSHRC at 968 .) Even were the record 

to support that finding, it does. not convert a wholly separate claim, 

on a different issue, that requested a totally different type of relief, 

into a discrimination claim. See Stickle v. Heublein, Inc. , 716 F.2d 

1550, 1564 (Fed. Cir. 1983). Rather, claims for fees generated by 

litigation against the Secretary are limited to those fees provided 

under the Equal Access to Justice Act, 5 U.S.C. 504 . 

For the foregoing reasons, we would remand to the judge with 

directions to delete that portion of the claimed fee which stems from 

litigation between Maggard and the Secretary • 

. ~o/n:;r; Commissioner c/. ~ 

L. Clair Nelson 

Commissioner 

389 
Distribution 

Tony Oppegard, Esq. 

Appalachian Research & Defense Fund 

of Kentucky, Inc. 

P.O. Box 360 

Hazard, Kentucky 41701 

John Chaney · 

Chaney Creek Coal Corporation 

Rt. 1, Box 286 

East Bernstadt, Kentucky 40729 

Colleen A. Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Gary Melick 

Federal l-1ine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

390 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATI ON (MSHA) 

v. 

1730 K STREET NW, 6TH FLQOR 

WASHINGTON, D.C. 20006 

Harch 28, 1990 

Docket No. VA 90-8 

FLIPPY COAL COMPANY, INC. 

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

Conunissioners 

ORDER 

BY THE COMMISSION: 

In this civil penalty proceeding ar1s1ng under the Federal Mine 

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

Commission Chief Administrative Law Judge Paul Merlin issued an Order of 

Default on March 9, 1990, finding Flippy Coal Company, Inc. ("Flippy" ) 

in default for failure to answer the Secretary of Labor's civil penalty 

petition and the judge's order to show cause. The judge assessed civil 

penalties in the amount of $1,486 as proposed by the Secretary of Labor. 

For the reasons that follow, we vacate the default order and remand the 

case for further proceedings. 

On March 14, 1990, Flippy's bookkeeper wrote a letter to this 

Commission stating that an attached letter explaining why "there should 

be no penalty" had been sent to the wrong address. The attachment, a 

letter from Flippy's president dated February 15, 1990, and addressed to 

the Department of Labor ' s "MSHA Civil Penalty Compliance Office" in 

Arlington , Virginia, contains a short and plain statement of the reasons 

why Flippy disagrees with a roof support violation and a roof plan 

violation alleged by the Secretary. Flippy's letter of March 14, 1990, 

was received by the Commission on March 16, 1990. 

The judge's jurisdiction over the case terminated when his 

decision was issued. 29 C.F.R. § 2700 . 65(c) . We are treating Flippy's 

March 14 letter as a timely filed petition for discretionary review 

because it was received within 30 days of the judge's decision. ~. 

Patriot Coal Co., 9 FMSHRC 382 (March 1987). The petition is granted. 

391 
The record discloses that on July 11, 1989, and on August 4 and 

10, 1989, inspectors of the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued seven citations and one order to Flippy 

alleging violations of various safety regulations. Upon preliminary 

notification by MSHA of the civil penalties proposed for these alleged 

violations, Flippy's president filed a "Blue Card" request for a hearing 

before this independent Commission. On December 12, 1989, counsel for 

the Secretary filed a proposal for penalty assessments, which was served 

by mail on Flippy. When .no answer to the penalty proposal was filed, 

the judge, on January 22, 1990, issued a show cause order directing 

Flippy to file an answer within 30 days or show good reason for 'the 

failure to do so. As noted, Flippy's president mailed an answer to the 

Secretary on February 15, 1990. Under the Commission's rules of 

procedure, the party against whom a penalty is sought must file an 

answer with the Commission within 30 days after service of the proposal 

for penalty. 29 C.F.R. § 2700.5(b) & .28. 

Flippy appears to be a small coal company proceeding without 

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

R. Civ. P. 60(b)(1), the Commission has previously afforded such a party 

relief where it appears that the party's failure to respond to a judge's 

order and the party's default are due to inadvertence or mistake . See, 

~· Kelley Trucking Co., 8 FMSHRC 1867 (December 1986); Patriot co;I 

Co., 9 FMSHRC 382 (March 1987). Flippy may have confused the roles of 

this independent Commission and the Department of Labor in this 

adjudicatory proceeding. As noted, Flippy's Answer was apparently sent 

to the Department of Labor within the time provided in the judge's order 

to show cause. In light of these considerations, we believe that the 

operator should have the opportunity to present its position to the 

judge. ~.Amber Coal Co., 11 FMSHRC 131-32 (February 1989). 

392 
For the foregoing reasons, the judge's default order is vacated 

and the matter is remanded to the judge, who shall determine whether 

final relief from default is appropriate. See, ~, Doug Connelly Sand 

& Gravel, 9 FMSHRC 385 (March 1987). 

Distribution 

Ruby H. Cyphers 

Flippy Coal Company 

106 Suffolk Avenue 

Richlands, Virginia 24641 

Javier I. Romanach, Esq. 

Dennis D. Clark, Esq. 

Office of the Solicitor 

U.S. Deoartment of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Richard V. Backley, Commissioner 

Chief Administr~tive Law Judge Paul Herlin 

Federal Nine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

393 
·FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C; 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MORGAN CORPORATION 

March 29, 1990 

Docket No. SE 89-50-M 

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

Commissioners 

ORDER 

BY THE COMMISSION: 

In this civil penalty proceeding ar1s1ng under the Federal Mine 

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

or "Act"), counsels for the Secretary of Labor and.Morgan Corporation 

("Morgan") have filed with the Commission a Joint Motion to Approve 

Settlement. For the following reasons, the parties' settlement approval 

motion is granted and this matter is dismissed. 

On February 16, 1990, we granted Morgan's petition for 

discretionary review of a decision of Commission Administrative Law 

Judge George A. Koutras, concluding that Morgan had violated 30 C.F.R. 

§ 56.9005 (1988) and assessing a civil penalty of $1,000 . 00. 12 FMSHRC 

40 (January 1990)(ALJ) . On March 28, 1990, the Secretary and Morgan 

filed the Joint Motion to Approve Settlement. 

The parties note that section 56.9005 was superseded on 

October 24, 1988, by currently applicable 30 C.F.R. § 56.14200. 53 Fed. 

Reg. 32496, 32514 (August 25, 1988). The parties emphasize that under 

these circumstances, an adjudicative interpretation of section 56.9005 

would have no precedential value in the Secretary's future enforcement 

.efforts or in regulating Morgan's future conduct. They further state 

that Morgan has raised substantial questions concerning the proper 

interpretation of section 56.9005 and whether it violated the standard. 

The Secretary also seeks settlement because of her desire to use most 

effectively her limited resources. Accordingly, the Secretary and 

Morgan request approval of their settlement, including vacation of the 

citation and assessed penalty, vacation of the Commission's direction 

for review, and dismissal of the proceeding. 

Oversight of proposed settlements of contested cases is an 

important aspect of the Commission's adjudicative responsibilities under 

the Mine Act (30 U.S.C. § 820(k)) and is, in general, committed to the 

Commission's sound discretion. See,~· Pontiki Coal Corp., 8 FMSHRC 

394 
668, 674-675 (May 1986). The Commission has granted motions to vacate 

citations and orders and to dismiss review proceedings if "adequate 

reasons" to do so are present. ~. Southern Ohio Coal Co., 10 FMSHRC 

1669, 1670 (December 1988), and authorities cited ("SOCCO"). 

We conclude that adequate cause exists to grant the parties' 

motion. As the prosecutor charged with enforcement of the Act, the 

Secretary has determined that she should seek dismissal of this 

proceeding, particularly in view of the replacement of the cited 

standard by a new and differently worded standard. The operator joins 

in the motion and has not asserted that it would be prejudiced by 

dismissal. No other reason appears on this record as to why the motion 

should not be granted. See, ~· SOCCO, supra, 10 FMSHRC at 1670. 

·Therefore, upon consideration of the motion, it is granted. 

Morgan's petition for review is dismissed. The underlying citation and 

the assessed civil penalty are vacated. Our direction for review is 

also vacated and this proceeding is dismissed. 

~~ · 

Richard 

~~~Pj__ V. Backley, Commissioner 

395 
Distribution 

Carl B. Carruth, Esq. 

McNair Law Firm, P.A. 

1301 Gervais ,Street 

P.O. Box 11390 

Columbia, South Carolina 29211 

Dennis D. Clark, Esq. 

Eva L. Clark, Esq. 

Office of ~he Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge George Koutras 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

396 
ADMINISTRATIVE LA\v JUDGE DECISIONS 

. t 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CH~RCH, VIRGINIA 22041 

MAR 1 1990 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

Docket No. PENN 89-75 

A.C. No. 36-02404-03744 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ROCHESTER & PITT.SBURGH COAL 

COMPANY, 

Respondent 

. . 

. . 

: Greenwich Collieries No. 2 

DECISION 

Appearances: Linda M. Henry, Esq., Office of the Solicitor, 

u.s. Department of Labor, Philadelphia, PA, 

for the Petitioner; 

Joseph A. Yuhas, Esq., Rochester and Pittsburgh 

Coal Company, Ebensburg, PA, for the 

Respondent. 

Before: Judge Fauver 

The Secretary seeks a civil penalty for an alleged 

violation under § llO(a) of the Federal Mine Safety and _Health Act of 1977, 30 u.s.c. § 801 et seg. 

The same citation was involved in Docket NO. PENN 88-194-R, 

a contest proceeding, in which the parties stipulated that this 

civil penalty case be adjudicated along with the notice of 

contest. After the hearing, the contest case was decided, 

affirming the citation and assessing a civil penalty of $78. 

The civil penalty case was STAYED pending review by the 

Commission of the contest decision. 

The Commission decided the contest case on February 21, 

1990, affirming the judge's decision. 

397 
ORDER 

WHEREFORE IT IS ORDERED that: 

1. The STAY in this case is LIF·rED . 

2. Respondent shall pay the assassed civil penalty of 

$78 within 30 days of this Decision. 

Distribution: 

tf}d,t.~ 1-'AMv~ William Fauver 

Administrative Law Judge 

Linda M. Henry, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Joseph A. Yuhas, Esq., Greenwich Collieries, P.O. Box 367, 

Ebensbllrg, PA 15931 (Certified Mail) 

iz 

398 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

VP-5 MINING COMPANY, 

Respondent 

MAR 1 1990 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. VA 89-56 

A.C. No. 44-03795-03592 

VP-5 Mine 

DECISION 

Appearances: Javier Romanach, Esq., Office of the Solicitor, 

u.s. Department of Labor, Arlington, Virginia 

for Petitioner; 

Marshalls. Peace, Esq., Assistant General 

Counsel, Peabody Coal Company, Lexington, 

Kentucky, for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to section 

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

30 U.s .c. § 801 et seq., the "Act," charg.ing the VP-5 Mining 

Company (VP-5) with 10 violations of the regulatory standard 

at 30 C.F.R. § 50.20(a). The general issues before me are 

whether VP-5 violated the cited regulatory standard and, if 

so, the appropriate civil penalty to be assessed in 

accordance with section llO{i) of the Act. 

At hearing the Secretary moved to vacate Citation Nos. 

2760925, 2970940, 2970922 and 2971927 for the reason that 

those citations were controlled by the Commission decision in 

the case of Secretary v. Garden Creek Pocahontas Company, 

11 FMSHRC 2148 <1989). The Secretary further moved to vacate 

Citation No. 2971939 on the grounds that she cannot prove 

that the miner suffering the alleged eye injuries actually 

used the prescribed medication. 

The parties also moved for approval of a settlement 

agreement regarding Citation Nos. 2971928, 2971932, 2971935 

and 2971936 in which Respondent agreed to pay the proposed 

penalties of $80 in full. I have considered the 

representations and documentation submitted herein and 

399 
conclude that the proffered settlement is appropriate 

the criteria set forth in section llOCi) ot the Act. 

Accordingly an appropriate •. 9rder wil}:M be incorporated 

decision setting forth the · terms;, of'. payment. 

under 

in this 

The citation remaining at issue, No. 2971929, alleges a 

violation of the regulatory standard at 30 C.F.R. S 50.20(a) 

and charges as follows: 

The operator failed to report to MSHA on Form 

7000-1 an occupational injury as required by 

50.20(a) of C.F.R. Employee Curtis Osborne 

incurred an injury on June 30, 1987, and returned 

to work on July 3, 1987, resulting in one lost work 

day. 

30 c.F.R. § 50.20Ca> provides in relevant part as 

follows: 

Each operator shall maintain at the mine office a 

supply of MSHA mine accident injury and illness 

report Form 7000-1 ••• each operator shall report 

each accident, occupational injury or occupational 

illness at the mine ••• the operator shall mail 

completed forms to t-1SHA within 10 working days 

after an accident or occupational injury occurs or 

an occupational illness is diagnosed. 

30 C.F.R. § 50.2(e) provides that: 

[o)ccupational injury" means any injury to a miner 

which occurs at a mine for which medical treatment 

is a~~inistered, or which results in death or loss 

of consciousness, inability to perform all job 

duties on any day after an injury ••• 

The term "injury" is not further defined in the 

regulations.. However the ordinary meaning of the term 

"injury" is "an act that damages, harms or hurts"; or "hurt, 

damage, or loss sustained . " Secretary v. Freeman United Coal 

Mining Company, 6 FMSHRC 1577, 1578-1579 (1984), quoting from 

Webster's Third New International Dictionary (Unabridged) 

1164 ( 19 77). In the Freeman case, a miner developed back 

pains while putting on his work boots before entering the 

mine. There was no showing that he had suffered any work rel~ted mishap. The miner was hospitalized and did not work 

for 13 days. The Commission ruled in Freeman that the 

Secretary did not have to prove that the miner's back injury 

was related to his work, only that it occurred at the job 

site. In this regard the Commission stated: 

400 
The remainder of the definition in section 50.2(e) 

refers only to the location where the injury 

occurred ("at a mine .. ), and to the result of an 

injury ("medical. treatment, death,"etc.). Thus, 

sections 50.2(e) and 50.20(a), when read together, 

require the reporting of an injury if the injury - a hurt or damage to a miner - occurs at a mine and 

if it resu.Lts in any of the -specified serious 

consequences to the miner. These regulations do 

not require a showing of a causal. nexus. 

6 FMSHRC at 1579. 

It is not disputed in this case that Curtis Osborne, a 

1niner working at the VP-5 mine on June 30, 1987, suffered 

pain in his lower back after exiting the cage and as he was 

walking toward the bottom of the mine. Osborne testified 

as follows: 

I remember getting off the cage, and I was walking 

over towards the bottom, on the shop-side of the 

cage. And a pain hit me in my lower back. 

It is further undisputed that Osborne was unable to work 

the next workday because of this back pain and that VP-5 did 

not file the MSHA Form 7000-1 within 10 days of the onset of 

tt:lis back pain. 

Contrary to VP-5's suggestion in its brief, the 

Commission did not set torth a requirement in the Freeman 

decision that an "act" must precede the "hurt, damage or loss 

sustained" in order to establish that an "injury .. occurred. 

It is apparent in any event that the miner herein incurred a 

"hurt, damage or .Loss sustained" whi.Le engaged in the act of 

walking in the VP-5 underground mine. 

Under the circumstances I find that the Secretary has 

sustained her burden of proving that Mr. Osborne, a miner, 

suffered a "hurt" or "damage" in a mine within the context of 

the Freeman decision and that he therefore suffered an 

occupational injury under 30 C.F.R. § 50.2(e). Accordingly 

VP-5 had the responsibility under the cited regulatory 

standard to report the injury within 10 days of its 

occurrence. Its failure to do so constitutes a violation as 

charged. 

Since the law on this point has been clearly established 

since at least the 1984 Freeman decision, VP-5 was grossly 

negligent in failing to have reported the injury in this case. 

Considering all of the criteria under section llO(i) of the ~ct I conclude that a civil penalty of $150 is appropriate 

for this violation. 

401 
VP-5 Mining Company 

totalling $230 within 30 

Distribution: 

ORDER k. is directed to pa~•,ci11il penalties 

days of the date of~~his decY~ion. 

V\ \~ Lry2~lick Adrni · istrative 

Javier I. Rornanach, Esq., Office of the Solicitor, u.s. 

Department of Labor, 4015 Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail) 

MarshallS. Peace, Esq., Assistant General Counsel, 250 West 

Main Street, P.O. box 11430, Lexington, KY 40575 (Certitied 

Mail) 

nt 

402 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE Of ('OMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 1990 . 

BETH ENERGY MINES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, , MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

BETH ENERGY MINES, INC., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, 

Petitioner 

v. 

SAMUEL J. KUBOVCIK, 

EMPLOYED BY 

BETH ENERGY MINES, INC., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, 

Petitioner 

v . 

JOHN RONTO, 

EMPLOYED BY 

BETH ENERGY MINES, INC., 

Respondent 

. . 

. . 

. . 

. . 

. . 

403 

CONTEST PROCEEDING 

Docket No. PENN 88-149-R 

Order No. 2941672; 2/4/88 

Livingston Portal 

Eighty Four Complex 

Mine I.D. #36-00958 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 88-197 

A.C. No. 36-00958-03727 

Livingston Portal 

Eighty Four Complex · 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 89-154 

A.C. No. 36-00958-03767 A 

Livingston Portal 

Eighty Four Complex 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 89-155 

A.C. No. 36-00958-03769 A 

Livingston Portal 

Eighty Four Complex 
SECRETARY OF LABOR, 

MINE S~FETY AND HEALTH 

ADMINISTRATION, 

Respondent 

v . 

JAMES NUCCETELLI, 

EMPLOYED BY 

BETH ENERGY MINES , INC ., 

CIVIL PENALTY PROCEEDING 

Docket No . PENN 89-156 

A.C. No. 36- 00958 - 03727 

DECISION 

Livingston Portal 

Eighty Four CompleK 

Appearances: R. Henry Moore , Esq. , Buchanan Ingersoll, P.C., 

Pittsburgh, Pennsylvania for Beth Energy Mines, 

Inc., Samuel J. Kubovcik , James Nuccetelli and 

John A. Ronto; 

James B. Crawford, Esq., Office of the 

Solicitor, u.s. Department of Labor , Arlington, 

Virginia for the Secretary of Labor. 

Before: Judge Melick 

Dockets No. PENN 88 - 149-R and PENN 88 - 197 

These consolidated cases are before me under 

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

1977, 30 U.S.C. § 801 et seq., the "Act," to challenge Order 

No. 2941672 issued by the Secretary of Labor pursuant to 

section 104(d)(2) of the Act against Beth Energy Minas, Inc., 

(Beth Bnergy) and for review of civil penalties ~reposed by 

the Secretary for the violation alleged therein._/ 

~/Section 104(d) of the Act reads as follows: 

(1) If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds 

that there has been a violation of any mandatory 

health or safety standard, and if he also finds 

that, while the conditions created by such 

violation do not cause imminent danger , such 

violation is of such nature as could significantly 

and substantially contribute to the cause and 

effect of a coal or other mine safety or haalth 

hazard, and if he Einds such violation to be caused 

by an unwarrantable failure of such ooerator to 

comply with such mandatory haalth or ;;afety 

404 
As amended at hearing, Order No. 2941672 alleges a 

"significant and substantial" violation of the regulatory 

standard at 30 C.F.R. § 75.303 and charges as fellows: 

Representative [sic] of the operator (foreman) had 

a miner remove a danger-board and go inby at 

No. 79 to 80 cross-cut 4 butt track-haulage, to 

bring in 20 empty cars under "I" Beams that were 

not straped [sic] or saddled. Then proceed to come 

back through area second time with motor, and 

rehung the danger-board. This violation occurred 

on January 31, 1988. 

The cited standard reads in part as follows: 

If such mine examiner finds a condition which 

constitutes a violation of a mandatory health or 

safety standard or any condition which is hazardous 

to persons who may enter or be in such area, he 

shall indicate such hazardous place by posting a 

"danger" sign conspicuously at all points which 

persons entering such hazardous place would be 

required to pass, and shall notify the operator of 

cont'd fn.l 

standards, he shall include such finding in any 

citation given to the operator under this Act. If 

during · the same inspection or any subsequent 

inspection of such mine within 90 days after the 

issuan-ce of such citation, an authorized 

representative of the Secretary finds another 

violation of any mandatory health or safety 

standard and finds such violation to be also caused 

by an unwarrantable failure of such operator to so 

comply, he shall forthwith issue an order requiring 

the op~rator to cause all persons in the area 

affected by such violation, except those persons 

referred to in subsection (c) to be withdrawn from, 

and to be prohibited from entering, such area until 

an authorized representative of the Secretary 

determines that such violation has been abated. 

(2) If a withdrawal order with respect to any area in a 

coal or other mine has been issued pursuant to 

paragraph (1), a withdrawal order shall promptly be 

issued by an authorized representative of the 

Secretary who finds upon any subsequent inspection 

the existence in such mine of violations similar to 

those that resulted in the issuance of the 

~ithdrawal order under paragraph (1) until such 

time as an inspection of such mine discloses no 

si1nilar violations. Following an inspection of 

such mine wnich discloses no similar violations, 

the ~revisions of paragraph (1) shall again be 

appl1cable to tnat mine. 

405 
the mine. No person, other than an authorized 

representative of the Secretary or a State mine 

inspector or persons authori-zed by the operator to 

enter such place for the purpose of eliminating the 

hazardous condition therein, shall enter such ~lace 

while such sign is so posted. 

At hearing the Secreta~y maintained that the violation 

occurred in this case when construction foreman John Ronto autho~ized the removal on January 31, 1988, of a dange~ sign 

and danger tag at the No. 53 tr9lley switch thereby allowing 

a miner to pass into the area so "dange~ed off". While the 

Secretary acknowledges that Mr. Ronto, a certified assistant 

mine foreman, was also a qualified mine examiner and was 

therefore authorized to remove such signs if he found no 

violation or hazard he did so unlawfully in this case because 

both a hazardous condition and a violation of a mandatory 

safety standard continued to exist at this time within the 

"dangered off" area.2/ 

Summary of the Evidence 

On January 30, 1988, around 2:00 or 3:00 p.m., 

Donald Rados, a Beth Energy Mina Examiner, discovered five 

unsaddled beams in the 4-butt empty track area near the No. 

80 stopping. According to Rados it was the uniform practice 

at the subject mine to saddle beams placed in haulageways 

immediately after installation of beams or, at the 

latest, before traffic was permitted in the area. Rados 

observed that the roof in the cited area was in bad shape. 

He thought the area was particularly dangerous because it had 

a history of de~ailments and indeed he had previously 

reported these types of dangerous conditions in the "Fire 

Boss" books in the past. According to Rados derailments 

could occur with a locomotive pushing the cars and the cars 

could be pushed as much as 100 feet before the locomotive 

operator might notice the derail~ent. 

2; At the conclusion of the Secretary's 

case-In-chief a motion to vacate the Section l~4(d)(2) 

withdrawal order was made on the grounds that .the 

Secretary failed to p~oduce any evidence of the absence 

of an intervening clean inspection following the 

issuance of the precedential Section 104(d)(l) Order. 

See United Mine workers of America v. FMSHRC 768 F.2d 

1477 (D.C. Cir. 1985). The motion ~as granted and the 

order was accordingly ~odified to a citation under .Section 104(d}(l) of the Act. See Footnote 1 suora. 

406 
Rados accordingly "dangered" the area off by placing a 

danger sign at the mouth of the empty track off the main 

haulage and by placing a danger tag on the trolley switch . According to Rados such danger signs mean that no one is to 

enter the "dangered" area except those "authorized by law". 

Rados, following company procedures, then warned the 

dispatcher not to send empty cars into the danger area and 

advised one of the "bosses" of the "dangered off" area. 

Rados also made a written entry in the mine examiner's book 

warning of the danger (See Exhibit G-3). 

John Ronto was construction foreman on the 12:01 a.m. 

shift on January 31, 1988, with a 4-man crew. He too was a 

certified mine examiner. Together with his supervisor, 

acting shift foreman Sam Kubovcik, he learned that coal on 

the belt was hindering the work of a subcontractor. Kubovcik 

later called Ronto directing him to obtain some empty rail 

cars stored in the 4-Butt area to use to remove the coal from 

the belt. According to Ronto, KuQovcik advised him that 

unsaddled beams ·were in the 80 Stopping area and that whoever 

Ronto sent to obtain the empty rail cars should be so warned 

and should proceed with caution. 

Ronto thereupon directed two locomotive operators to 

meet him at the 4-Butt dump area. Ronto testified that he 

then proceeded to the 80 Stopping, examining the roof, the 

beams, the legs, and the track clearance and condition. 

Ron·to struck each leg with a hammer and checked its alignment 

and clearance . According to his testi1nony Ronto found the 

track to be in good shape and dry and clean. Ronto testified 

that he also measured between the tracks and the posts and 

found what he deemed to be ample clearance on both sides. Ronto then proceeded to the dump to wait -for the locomotive 

operators. 

Ronto later received a call from the locomotive 

operators inquiring about the danger sign. Ronto told them 

"everything was O.K." and that they were to bring in the 

empty cars. Ronto remained in the area to give directions. 

He estimated the speed of the locomotive and cars to be not 

more than one or two miles per hour. After the cars had been 

removed and the track mounted Fletcher returned to the area, 

the miners asked Ronto what to do with the danger sign. 

Ronto believed that he responded "let's put everything back 

the way we found it". According toRonto the danger sign was 

replaced "possibly" over concern about the unstrapped beams. 

Ronto testified that he did not believe there was 

"considerable danger" but nevertheless left the danger sign 

as a caution to people who might not otherwise know of the 

conditions. Ronto acknowledged that he did not make any 

407 
entry in the mine examiner's book that the dangerous 

conditions previously reported ~y Mine Examiner Rados had at 

any time been eliminated. 

MSHA Coal mine inspector Alvin Shade received a request 

to investigate the alleged violation on February 4, 1988, 

pursuant to section 103(g)(l) of the Act. Shade later 

interviewed witnesses and examined the subject area of the 

mine. The previously dangered area consisted of 5 "I" ~earns 

set on 8 inch by a inch posts over a 20 foot area. The beams 

had been ·strapped by the time of his examination on February 

4. Shade concluded that indeed a hazard had been presented 

by such beams e~isting without strapping and that it was a 

"significant and substantial" violation of the cited standard. 

Shade believed that if any of the posts should have become 

dislodged by a rail car it could have caused the beam to fall. 

He observed that bolts were in the roof area but the roof was 

sagging and needed the support of the additional beams. 

Shade concluded that the condition could have resulted in a 

lost time accident. 

Shade also concluded that the violation was the result 

of high negligence, aggravated conduct and "unwarrantable 

failure" for the reason that Construction Foreman Ronto 

replaced the danger sign upon his departure from the dangered 

off area. Shade believed that this act was an admission by 

Ronto that he knew a danger continued to exist throughout the 

time the empty cars were removed. 

James Nuccetelli was acting chief construction foreman 

at the Beth Energy Eighty Four Mine on January 30 and 31, 

1988. According to Nuccetelli the beams had been installed 

in the cited area on the 12:01 a.m. shift on Saturday, 

January 30, 1988, because of reports from fire bosses that 

the roof was getting "heavy". The beams were to be saddled 

on the Sunday, January 31, day shift. Nuccetelli agreed that 

the Beth Energy Roof Control Plan did in fact require 

saddling of the beams but contends that they had a 

"reasona.ble time" to accomplish this task. Nuccetelli 

observed that according to past practices they had been given 

up to 4 days to strap beams on even the main haulage area 

where there is more activity. According to Nuccetelli, 

these practices had been permitted over the years ~Y MSHA 

inspectors. Nuccetelli also disagreed with Rados' conclusion t~at the unsaddled beams posed a danger but he, like Ronto, 

d1d not seek to overturn Rados' posting of the danger signs 

and reporting of hazardous conditions in the Mine Examiner's 

booics. 

On the morning of January 31st Nuccetelli purportedly 

warned shift toreman Kubovcik that the beams were not saddled 

408 
and told him to check the safety of the area in question 

before obtaining the empty cars-. 

Acting Shift Foreman Sam Kubovcik testified that he was 

called early on the shift concerning the need to remove coal 

from the belt. Nuccetelli told him to have Ronto inspect the 

4-Butt area empty track and to remove the empty cars but 

since the beams had not been saddled, only if he determined 

the area was safe. Based upon Rente's opinion, Kubovcik also 

coined that there was no hazard at that time. Kubovcik also 

c~ntends that they \'lere permitted a "reasonable time'' to 

strap the beams. 

Ronald Bizick a mine inspector for the Beth Energy Eighty 

Four Mine, testified that he could not recall any injuries at 

the mine caused by unstrapped beams falling. He also 

testified that he knew of MSHA inspectors who had themselves 

traveled beneath unsaddled beams in the main haulageway of 

the mine without having cited that condition. 

James Gallick, Director of Safety and Environmental 

Health for Beth Energy, is "responsible for reviewing its 

roof control plans. It was Gallick's understanding that 

beams in the Eighty Four mine need only be strapped \oli thin a 

"reasonable time". He believed that a "reasonable time" 

meant until the next idle shift follow~ng the installation of 

the beams--which could be up to five days later. Gallick 

acknowledged however that even after the dispute in this case 

arose there had been no effort to amend the roof control plan 

to specify the time within which beams must be strapped. It 

was also Gallick's opinion that only "imminent dangers" need 

be dangered off and reported ·as a danger in the mine 

examiner's book. Although Gallick had never observed the 

conditions cited in this case it was his opinion that no 

"imminent danger" existed. Gallick also concluded that it 

was not reasonably likely for an accident to occur in the 

cited area based on his understanding that no injuries have 

ever occurred at Beth Energy mines as a result of a displaced 

beam. 

In rebuttal, Alfred Paterini, a Beth Energy mine 

examiner for the previous 13 years, testified that it had 

been the practice at Beth Energy mines to strap beams on the 

same st1ift or the shift immediately following installation. 

According to Paterini it had also been the practice at 

Beth Energy where beams had not been strapped, for 

t~ansportation to be provided .up to the affected area and for 

m1ners to then be routed around the unstrapped beams. 

Patarini also recalled that there had been derailments in the 

cited area on several occasions and that he had been sent to 

409 
reset legs under beams displaced by derailments in that 

particular area. 

Also in rebuttal, Mine .Examiner Donald Rados testified 

that indeed an "imminent danger" existed in the cited entry 

when he dangered it off. When dangering the area off he put 

up a tag and 2-brattice boards across the empty track and 

erected a danger sign on the barrier. 

Evaluation of the Evidence 

In determining whether a violation existed in this case 

it is necessary to decide whether at the time Foreman 

John Ronto had the cited danger sign and danger tag removed, 

and at the time of the entry of the locomotive operator into 

the previously "dangered off" area there then continued to 

exist either a violation of a mandatory health or safety 

standard or a hazard in that area within the meaning of 

30 C.F.R. § 75.303. I find in this case that both a 

violation of a mandatory safety standard (i.e. a violation of 

the Roof Control Plan) and a hazard of a significant nature 

continued to exist at that time. Since Ronto would have been 

authorized to remove the danger signs only if there was no 

hazard and no violation of a mandatory health or safety 

standard he was in clear violation of the cited standard in 

authorizing and directing that danger tag and sign to be 

removed. 

The Secretary maintains in this case that the following 

provisions of the Beth Energy Roof Control Plan were 

violated: 

19. On haulageways, all cross bars or beams shall 

be installed with some means of support that will 

prevent the beam or cross bar from falling in the 

event the supporting legs are accidently dislodged. 

It is undisputed that at the time Ronto authorized entry 

into the dangered-off area the beams at issue had in fact not 

been "installed with some means of support that will prevent 

the beams or cross bar from falling in the event the 

supporting legs are accidently dislodged". Beth Energy and 

its agents argue however that this Roof Control Plan 

requir~ment that "beams shall be installed with some means of 

support" actually 1neans that the support may be installed up 

to five days after the beams themselves are installed. I 

disagree. The Roof Control Plan could not be more clear and 

unambiguous in requiring that the means of support must 

be provided at the same time the beams are installed. If 

indeed it '.flas the intent of the parties to allow "five days" 

410 
or "until the next idle shift" or for some other "reasonable 

time" for installation of the support after the beams 

themselves are installed, the Plan could easily have so 

provided. Thus it is clear that a violation of a mandatory 

standard (30 C.F.R. § 75.220} existed at the time Foreman 

Ronto authorized· the removal of the danger sign and tag and 

accordingly directed the commission of a violation of the 

regulatory standard at 30 C.F.R. § 75.303. 

The testimony of experienced mine examiner .Don Rados 

is also credible and is sufficient in itself to support a 

finding that a significant hazard continued to exist at the 

time Foreman Ronto authorized and directed removal ot the 

danger tag and sign. This testimony is fully corroborated by 

that of the experienced MSHA Inspector, Alvin Shade. Even 

Ronto himself acknowledged that although the conditions did 

not pose a "large hazard" and they were "not a considerable 

danger" a "caution to people" was nevertheless warranted. 

For this additional reason then it is clear that a violation 

of 30 c.F.R. § 75.303 was committed by Ronto. 

The evidence also. supports the "significant and 

substantial" findings in the citation at bar. In order to 

find a violation "significant and substantial" the Secretary 

has the burden of provin.9 an underlying violation of a 

mandatory safety standard, a discrete safety hazard (a 

measure of danger to safety} . contributed to by the 

violation, a reasonable likelihood that the hazard 

contributed to will result in an injury, and a reasonable 

likelihood that the injury in question will be of a 

reasonably serious nature. Mathies Coal Co., 

6 FMSHRC 1 (1984}. Here I have found · that there was indeed a 

violation of the mandatory safety standard at 30 C.F.R. 

§ 303(a), and that a discrete safety hazard i.e. exposure of 

miners to the hazard of falling beams, was contributed to by 

the violation. I further find it reasonably likely that the 

hazard of falling beams would have resulted in an injury and 

that it was reasonably likely that resulting injuries would 

be reasonably serious or fatal. 

Whether the violation was the result of the 

"unwarrantable failure" of Beth Energy to comply with the law 

depends on whether it was the result of aggravated conduct 

constituting more than ordinary negligence. Emery Mining 

Corp., 9 FMSHRC 1997 (1987} app~al pending (D.C. Cir. No. 

411 
88-1019>. In the Emery case the Commission compared ordinary 

negligence (conduct that is inadvert~nt, thoughtless, or 

inattentive) with conduct that is not justifiable or 

excusable. On the facts of this case I conclude that the 

conduct of the operator's agents in authorizing the removal 

of the danger tag and sign and permitting an employee to remove 

rail cars from the "dangered off" area (and where the facts 

constituting a hazard and a violation of the Roof Control 

Plan were then known to the operator's agents) constituted 

such aggravated conduct as to meet the definition of 

"unwarrantable failure". Indeed the conduct of the 

operator's agents, Ronto, Kubovick and Nuc~etelli, was so 

aggravated that it constituted violations of Section llO(c) 

of the Act. For the same reasons noted, infra, this conduct 

also constitutes "unwarrantable failure". Considering the 

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

penalty of $1,000 is appropriate. 

Finally, Beth Energy's claims herein that a 

Section 104(d) violation cannot be based upon an 

after-the-fact investigation are rejected. Secretary of 

Labor v. Emerald Mines Co., 9 FMSHRC 1590 (1987), aff'd 

863 F.2d 51 (D.C. Cir. 1988). 

Docket Nos. PENN 89-154, PENN 89-155, and PENN 89-156 

The·se cases are before me upon the petitions for civil 

penalties filed by the Secretary pursuant to section llO<c> 

of the Act charging Samuel Kubovcik, John Ronto and James 

Nuccetelli as agents of the corporate mine operator 

(Beth Energy> with knowingly authorizing, ordering, or 

carrying out the corporate mine operator's violation of the 

mandatory standard at 30 C.F.R. § 75.303 as charged in 

Citation No. 2941672 previously upheld in this decision. 

Section llO(c) of the Act provides in part of follows: 

Whenever a corporate operator violates a mandatory 

health or safety standard ••• ,any director, 

officer or agent of such corporation who knowingly 

authorized, ordered, or carried out such violation, 

failure, or refusal shall be subject to the same 

civil penalties, fines and imprisonment that may be 

imposed upon a person under Subsection (a) and (d). 

There is no dispute in this case that each of the three 

named Respondents were, at the time of the alleged violation, 

agents of Beth Energy. Upon the credible evidence before me 

I find that all of the cited agents "knowingly ~uthorized, 

ordered, or carried out" the violation charged in this case. 

Mssrs. Ronto, Nuccetelli and Kubovcik all acknowledge that 

412 
when they issued orders to obtain the empty cars from the 

dangered- off area they were fully aware of the requir ements 

of the Roof Control Plan including the requirement that 

"beams shall be installed with some means of support" . It is 

undisputed moreover that they were also then aware of the 

fact that the cited beams were without support and that the 

area had been legally "dangered- off " by a qualified mine 

examiner pursuant to 30 C. F.R. § 75 . 303. Since the language 

of the Roof Control Pl an is clear and unambiguous in its 

requirement that the means of support be i nstalled 

contemporaneous with the installation of the beams it may 

.reasonably be inferred tha t they "know i ngl y authorized [and ] 

ordered" the violation herein . Thei r self serving claims 

t hat the Roof Contr ol Pl an gr anted them a " reasonabl e time " 

of up to five days to suppo rt the beams by strapping or 

saddling are without credible legal or fact?al basis. 

Under the circumstances the Secretary has sustained her 

burden of proving that the three agents of the operator cited 

herein were in violation of Section llO<c> of the Act . Considering the .relevant criteria under Section llO(i) of the 

Act I find that penalties of $400 each are appropriate . 

ORDER 

Order No . 2941672 is modified to a citation under 

Section 104(d)(l) of the Act and Beth Energy t-iines, Inc. , is 

directed to pay a civil penalty of $1 , 000 within 30 days of 

the date of this decision. John A. Ronto, ~ames Nuccetell i 

and Samuel Kubovcik are in violation of Sec ion lO(c) of the 

Act as charged and are directed to pay a ci il penalty,of 

$400 each within a 30 days of th\ate of t is d~cisiorl . 

. II J \ l I 

V/ i I I \Jt. .. . 

~ ary M,elick $

)'l 

. \v \ ~' Admin~s~rative La Judge 

(703) ~i6 626l 

Distribution: 

R. Henry Moore , Esq . , Buchanan Ingersoll, 600 Grant Street, 58th Floor, Pittsburgh , PA 15219 (Certified Mail) 

James B. Crawford , Esq ., Office of the Solicitor, u.s. Department of Labor , 4015 Wilson Boulevard, Room 516 , Arlington , VA 22203 (Certified Mail) 

nt 

413 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALlS CHURCH, VIRGINIA 22041 

MAR 8 1990 

MICHAEL P. DAMRON, 

Complainant 

v. 

REYNOLDS METALS COMPANY, 

Respondent 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. CENT 89-131-DM 

Sherwin Plant 

DECISION 

Appearances: Michael LaBelle, Esq., Powers and Lewis, 

Washington, D.C., for Complainant; 

Jean w. Cunningham, Esq., Richmond, Virginia, 

for Respondent. 

Before: Judge Broderick 

STATEMENT OF . THE CASE 

Complainant contends that he was discharged by Reynolds 

Metals Company (Reynolds), on September 7, 1988, from his job as 

a hydrate area helper because he refused to perform work that he 

reasonably and in good faith believed to be dangerous, and that 

his refusal was protected under the Federal Mine Safety and 

Health Act of 1977 (the Act). Reynolds contends that Complainant 

was discharged for failure to obey a direct order, and that the 

task he was ordered to perform was not dangerous. Pursuant to 

notice; the case was heard on November 28 and 29, in 

Corpus Christi, Texas. Richard W. Spencer, Robert H. Lehman, 

Dalma Edward Rogers, Pete Zamora, Guy Asher, Paul Bucey, 

Michael P. Damron, and Bobby Tucker testified on behalf of 

Complainant. Thomas Glenn Reynolds, Arlon Boatman, 

Amos Stanley Millsap, Kennedy Wayne Haley, Bobby Joe Sasser and 

Darrell M. Harriman testified on behalf of Reynolds. Both 

parties have filed post hearing briefs. I have considered the 

entire record and the contentions of the parties, in making the 

following decision. 

FINDINGS OF FACT 

At all times pertinent to this proceeding Reynolds was the 

owner and operator of an alumina plant in Corpus Christi, Texas, 

known as the Sherwin Plant. The plant processes bauxite into 

aluminum ore, called alumina. 

414 
Prior to September 7, 1988, Complainant was employed as a 

laborer at the Sherwin plant for more than 9 years. In 1988, he 

worked as a hydrate area helper. Among the duties to which he 

was assigned was the operation of a ball mill -which pulverized 

scale coming from the precipitation area. The scale, taken from 

the alumina tanks, is fed on to a conveyor belt from a hopper, 

and travels up· the belt to the ball mill which crushes it to 

powder. The ball mill operator is required to maintain the 

conveyor belt with a head and a tail pulley at either end, and to 

remove foreign objects from the belt. A magnet is affixed to the 

belt, at about its midpoint, and the belt shuts down 

automatically when any metallic object passes under the magnet. 

The ball mill operator is required to remove and discard the 

metal, and restart the belt. He is also required to remove and 

discard other nonmetallic foreign objects from the belt to 

prevent. th5n from .passing into the ball mill. Two bins are 

provided near the magnet where the metal and nonmetal objects are 

deposited. A majority of the mill operator's work time is 

performed at or near the magnet. The ball mill and belt are 

located outside and immediately below the operating floor where 

the kilns are located. The operating floor is open and is 

approximately 30 feet above the ground where the ball mill is 

operated. 

In about 19 84, the then operator of the ball mill, Robert 

Lehman, asked to have overhead protection erected because of 

falling objects coming from the operating floor. These included 

filter cloths, caustic metal, bolts, valves and trash. About two 

or three weeks after this request, a 6-foot high scaffold was 

erected, 6 feet square, covered with three 2xl2 boards and a 

piece of plywood on top of the boards. Lehman later enclosed the 

area to keep out the cold, the caustic and the dust. After about 

two years, Reynolds tore down the shelter because "it was an 

eyesore and they didn't want visitors to see it." (R. 54}. 

However, it was replaced by a new similar shelter after two or 

three days. This remained in place until September 1988. 

During the period from 19 84 until September 19 88, on 

numerous occasions large cloth filters weighing in excess of 100 

pounds were dropped from the operations floor to the ground below 

by operations employees. Metal rods, pieces of scaffold boards, 

bolts, tools, and pieces of corrugated metal siding also fell or 

were dropped; liquid hydrate spilled from the upper floor to the 

ball mill area. The ball mill operators were aware of these 

occurrences and at least on some occasions reported them to 

supervisory personnel. Therefore, I find that Reynolds was aware 

that objects fell or were thrown from the calcinator floor or the 

floor where the numbers 8 and 9 kilns were located, to the ground 

below in the area of the ball mill. 

415 
On August 31, 1988, a regular Mine Safety and Health 

Administration (MSHA> inspection took place at the Shen'lin plant. 

The inspector found missing guards on the two tail pulleys on the 

conveyor belt of the ball mill. A section 104(d) order was 

issued because Respondent had been cited previously for the same 

violation. Complainant Damron was operating the ball mill at the 

time and was inside the shelter. The MSHA inspector pointed out 

that an electrical extension cord running to the shelter was not 

properly grounded. He also commented th~t the shelter area was 

dirty, and the chair on which Damron sat was broken. No 

citations were issued for any conditions in the shelter. The 

following day, September 1, the shelter was taken down by 

Respondent. 

On the day the shelter was torn down, Complainant protested · the action to Glenn Reynolds, the General Supervisor in the 

precipitation and calcination areas of the plant. He also 

contacted Paul Bucey, the Union Safety Co~ittee Chairman and 

requested a safety procedure meeting. Such a meeting was held on 

Friday, September 2. Complainant and the Union representatives 

contended that a safety issue was involved because of objects 

falling or being thrown from the upper floors, and caustic liquid 

spilling on to the area where the ball mill operator worked. The 

company representatives agreed to erect a barrier against the 

handrail of the upper floor and to erect a metal shed over the 

area where the magnet was located to protect the ball mill 

operator. Complainant sought a wooden overhead structure until 

the metal shed could be completed. Complainant testified that 

the company agreed to this proposal, but the company 

representatives testified that they specifically denied the 

request on the ground that it would "create more hazards then 

what we take care of." (R. 382). There may have been a 

misunderstanding of what was agreed to, but I find as a fact that 

the company did not accede to Complainant's request that a 

temporary wooden overhead structure be erected over the ball mill 

pendin9 the erection of the metal shed. The company did agree 

not to operate the mill until the guardrail barrier was erected. 

On Monday, September 5 (Labor Day), a number of sheets of plywood 

were stacked up inside the handrail of the floor above the ball 

mill. The ball mill operator (Robert Lehman) was instructed to 

attach the sheets of plywood to the handrail with pieces of wire. 

No other overhead protection was in place. T~hman operated the 

mill by stepping, away from the belt 15 or 20 feet. Operating 

from this position he was unable to remove nonmetallic foreign 

objects from the belt. Complainant worked on the next shift and 

was told by his foreman Arlon Boatman that he was going to have 

to run the mill. Boatman had not been present at the safety 

procedure meeting, and was not aware of what had been agreed upon. 

He assigned Complainant to work on certain problems in the "tray 

area," and he discussed with management people what had taken 

416 
place at the safety meeting. At the beginning of his shift on 

Tuesday, September 6, Complainant again worked on the trays. 

During discussions between Boatman and Complainant, Boatman told 

Complainant he would direct the overhead operators to be careful in 

hosing down the upper floor and to inform Boatman if they had to 

remove objects from the floor. He also told Complainant that he 

could operate the ·mill by turning the belt switch on, and then 

stepping back away and monitoring the belt from a distance. 

Complainant protested that he could not operate it in that manner 

because the metal detector does not always stop the belt when metal 

objects come up, and this could result in severe damage to the mill. 

Boatman told Complainant "that should anything go through the 

detector, if for any reason it failed and we did get metal in the 

mill, that it would be my responsibility." (R. 352) . Boatman 

explained that a metal shed was being constructed which would be 

placed over the metal detector area. Because of the need for 

workers in the tray_ area, Complainant continued on that job and did 

not run the ball mill on Tuesday, September 6 (he worked a double 

shift 4:00p.m. to midnight and 12:00 to 8:00a.m., Wednesday). On 

Wednesday, September 7, on the day shift, Lehman was discharged for 

refusing to run the ball mill. 

On Wednesday, Complainant reported to work on the afternoon 

shift. Boatman gave him a direct order to run the ball mill. 

Complainant refused because "I feel it's unsafe." (R. 231). 

Respondent gave him a suspension with intent to discharge. 

Complainant filed a grievance under the union contract which 

ultimately resulted in an arbitration proceeding. As a result of 

the arbitration decision, Complainant was reinstated without back 

pay. 

General Superintendent Reynolds was at the Plant on Monday, 

September 5, because of severe tray problems. He was approached by 

Complainant Damron who told him that the company had agreed at the 

safety procedure meeting to erect a plywood overhead shelter for 

the ball mill. Reynolds denied that the company made such an 

agreement, and told Complainant that a metal structure was being 

constructed. Reynolds further testified: 

And I told him that, if he had any real safety concerns 

regarding the operation of the belt line, without that 

temporary shed, that he should go outside the building, 

down the tunnel, and operate the bel~ standing in that 

position. And that as metal came up the belt, he could 

shut the belt down and remove it. ( Tr. 319) . 

On rebuttal, Complainant referred to this testimony: 

Q. Mr. Damron, did you hear testimony earlier by 

Mr. Reynolds that indicated that he had given you the 

4;1.7 
option of working down in the pit next to the conveyor 

belt of the ball mill? · 

A. Yes, I heard what he said. It's not true, he never 

given [sic] me any options, just to do it or else. 

* * * 

Q. Did _anybody other than Mr. Boaonan, ever suggest to 

you any other way of operating the ball mill, other than 

standing by the magnet? 

A. No, they didn't. Nobody but Mr. Boatman. (R.460). 

I find as a fact that Reynolds did tell Complainant that he 

could run the mill away from the building, "down the tunnel." 

Boatman was asked whether on Wednesday when Complainant was 

terminated he would have permitted Complainant to operate the mill 

"from outside the building." He answered: 

I would have allowed him to operate that mill as I had 

directed him to, which would have been under normal 

conditions, as we had been operating ••• 

Q. And had he objected to working or standing at the 

magnet, what about that? 

A. No. Because the situation, as far as me as a 

representative of the company, and as a supervisor, that 

if I gave him the direct order to operate the facility 

under normal conditions, standing where he needed to, if 

he needed to stand at the metal 9etector, if he needed to 

clean conveyor belts, tail pulleys or whatever, it would 

be the general operator, the regular operation of the 

facility. (R. 353). 

This testimony is ambiguous on the issue of whether Boatman 

would have permitted Complainant to monitor the belt from a 

distance--away from the building as he indicated on Monday, 

September 5. However, he did not withdraw his authorization given 

two days before that Complainant could have operated the ball mill 

away from the belt. Nor did -Complainant testify that he understood 

that it had been withdrawn. 

Subsequent to Complainant's discharge (within a matter of a 

few days), the permanent metal barrier was in place inside the 

handrail of the operating floor and the metal shed was erected over 

the magnet area where the ball mill operator worked. 

418 
ISSUES 

1. Was Complainant's work refusal, for which he was 

discharged, protected activity under the Act? 

2. If so, to what remedies is he entitled under the Act? 

CONCLUSIONS OF LAW 

I 

Complainant and Respondent are protected by and subject to the 

provisions of section 105(c) of the Act . Complainant is a miner; 

Respondent is a mine operator. I have jurisdiction over the 

parties and subject matter of this proceeding. 

II 

In order to establish a prima facie case of discrimination 

under the Act, a complaining miner must prove that he was engaged 

in protected activity and that the adverse action complained of was 

motivated in any part by that activity. In order to rebut the 

prima facie case, the operator must show either that no protected 

activity occurred or that the adverse action was not motivated in 

any part by the protected activity. Secretary/Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786 (1980), rev'd on other 

grounds sub . nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 

(3rd Cir. 1981); Secretary/Robinette v. United Castle Coal Co., 3 

FMSHRC 803 (1981). ·secretary/Wayne v. Consolidation Coal Co., 11 

FMSHRC 483 (1989). 

III 

A refusal to perform work is protected activity under the act 

if the miner has a good faith, reasonable belief that the work he 

refuses to perform is hazardous. The burden of proof is on the 

miner to establish both the good faith and the reasonableness of 

his belief that a hazard existed. Robinette, supra; Secretary/Bush 

v. Union Carbide Corporation, 5 FMSHRC 993 (1983); Biddle, Means 

and Levine, Protected Work Refusals Under Section 105(c)(l) of the 

Mine Safety and Health Act, 89 W.Va. L. Rev. 629 (1987). 

IV 

The reasonableness of the miner's belief in the hazardous 

nature of the work is not determined by whether a hazard 

objectively exists, but by the miner's reasonable perception of a 

hazard. Haro v. Magma Copper Co., 4 FMSHRC 1935 (1982); 

Secretary/Pratt v. River Hurricane Coal Co., 5 FMS~RC 1529 (1983). 

Respondent's witnesses here denied that there was a safety hazard 

419 
resulting from falling or thrown objects to a ball mill operator 

without overhead protection. But the weight of evidence 

contradicts Respondent's position. I have found as a fact that on 

numerous occasions objects fell or were dropped or spilled from the 

operating floor to the . ball mill area . A hazard existed 

objectively. The extent of the hazard, that is, the frequency or 

likelihood of falling objects landing in the ball mill area is a 

matter of dispute. From the perspective of the ball mill 

operators, including Complainant, the hazard was real, and their 

perception of· the hazard was reasonable. 

v 

The miner's work refusal must be made in the good faith belief 

that a hazardous condition obtained. Good faith "simply means 

honest belief that a hazard exists." Robinette, supra, at 810. 

Good fai.th requires the miner to inform the mine operator of his 

belief in the safety hazard to give the operator the opportunity to 

correct the condition. Secretary/Dunmire and Estle v. Northern 

Coal Co., 4 FMSHRC 126 (1982). See also, Gilbert v. FMSHRC, 866 

F.2d 1433 (D.C. Cir. 1989). 

Complainant's safety concerns were communicated in a formal 

safety meeting with Respondent. Respndent addressed the concerns 

by agreeing to put up a permanent barrier along the handrail of the 

operating floor above the ball mill and to erect a metal shed for 

the mill operator at or near the magnet. Although neither of these 

were completed at the time of Complainant's work refusal and 

discharge, a plywood barrier was in place at the handrail, and a 

permanent metal barrier as well as a metal shed were being 

constructed . Complainant knew that these would be erected in a few 

days and would provide him more protection than the shed which had 

been torn down. Superintendent Reynolds told Complainant that he 

could operate the mill from "down in the tunnel," where he would 

not be exposed to falling objects. Foreman Boatman told him he 

could operate from outside the belt area, and that he (Boatman) 

would take the responsibility if metal objects got into the mill. 

Did these instructions, coupled with the erection of a barrier 

at the handrail overhead, and the planned erection o~ a metal shed, 

address the perceived hazards so as to make the work refusal in bad 

faith? Ordinarily a ball mill operator, wherever he stations 

himself at the beginning of his shift, must spend a substantial 

part of his time at or near the magnet where the belt control is 

located. However, Respondent Reynolds through Superintendent 

Reynolds and Boatman gave Complainant clear permission to operate 

the mill from outside the area of danger during the short period 

while the shed was being erected. Respondent addressed 

Complainant's reasonable fear of a hazard, and his refusal to work 

thereafter is not shown to be in good faith. 

420 
I conclude therefore that Complainant Damron's refusal to 

operate the ball mill on September 7, 1988, was not based on a 

reasonable, good faith belief that the work was hazardous. Respondent's action in discharging him was not in violation of 

section 105(c) of the Act. 

Based on the above findings of fact and conclusions of .law, IT 

IS ORDERED: 

1. Complainant's discharge on September 7, 1988, was not in 

violation of section 105(c) of the Act. 

2. The Complaint and this proceeding are DISMISSED. 

: J ' . 

1

. / ·-"f . . / £.> 

/ a_,y?tf-5 /~_..,lviC:"t.:ft:-:- -t l'(_. 

James A. Broderick 

v' Administrative Law Judge 

Distribution: 

R. Michael LaBelle, Esq., 4201 Connecticut Avenue, N.W., Suite 400, 

Washington, D.C. 20008 (Certified Mail) 

Jean W. Cunningham, Esq., Reynolds Metals Company, 6601 W. Broad 

Str e e t Road, Richmond, VA 23261 (Certified Mail) 

slk 

421 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

WILLIAM G. HAGY , 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth fLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 8 1990 · 

CONTEST PROCEEDING 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. SE 90-43-R 

Citation No. 3180625; 5/18/89 

Matthews Mine 

Mine ID 40-00570 

ORDER OF DISMISSAL 

Before: Judge Broderick 

Contestant filed a Notice of Contest with the Commission on 

February 12, 1990, coniesting order/citation 3180625 issued to 

Consolidation Coal Company on May 18, 1989. The order/citation 

was under section 107(a) and 104(a) of the Act and alleges a 

violation of 30 C.F.R. § 75.202(a). A copy of the order/citation 

was sent to Contestant, with a letter from MSHA District Manager 

Joseph J. Garcia dated January 3, 1990, in which Contestant was 

notified that "MSHA is proposing to assess a civil penalty 

against you for knowingly authorizing, ordering or carrying out a 

violation of 30 C.F.R. § 75.202(a) as cited in Citation No. 

3180625 issue~ May 18, 1989, which is enclosed." 

The Secretary filed a Motion to Dismiss on February 16, 

1990, on the grounds that the Notice of Contest was filed 

untimely, in that the citation was issued May 18, 1989, and the 

notice was filed February 12, 1990. 

Contestant responded to the Motion on March 7, 1990. 

Although filed out of time, I accept and have considered the 

response. 

Section 105(d) of the Act provides in part: 

If, within 30 days of receipt thereof, an operator 

notifies the Secretary that he intends to contest the 

issuance or modification of an order issued under 

section 104, or citation ••• issued under subsection 

(a) or (b) of this section, ••• or ••• any miner or 

representative of miners notifies the Secretary of an 

intention to contest .the issuance, modification or 

termination of any order issued under section 104, or 

422 
the reasonableness of the length of time set for 

abatement by a citation ••• issued under section 104, 

the Secretary shall immediately notify the commission 

••• and the Commission shall afford an opportunity 

for a hearing • • 

Section 107(e)(l) provides that an operator or 

representative of miners may apply to the Commission 

for review of an order issued under section 107 . 

The Notice of Contest states that Contestant is a Section 

Foreman at the subject mine. Assuming this to be true, as I must 

in considering the motion to Dismiss, he is a miner under the Act. 

It is not alleged that he is a representative of miners. 

Contestant argues that he is an "operator" under section 3(d). 

Without deciding that question, it is evident that the 

order/citation, which Contestant attempts to contest here was 

issued to Consolidation Coal Company and not to Contestant. I do 

not accept Contestant's argument that the January 3, 1990 letter 

"must be considered an issuance of the citation which was served 

by mail on the Applicant for purposes of protest by the 

Applicant." Contestant contests the validity but not the 

reasonableness of the length of time set for abatement of 

Citation 3180625. He apparently contests the 107(a) withdrawal 

order: Paragraph 3(b) "the Contestant was not in violation of 30 

C. F.R. § 75.202(a} or§ 107(a} of the Act ••• (d) no alleged 

violation discribed in Citation No. 3180625 was of such a nature 

as could reasonably be expected to cause death or serious 

physical injury before it could be abated, ••• " The Notice 

further avers that no alleged violation resulted from knowing 

conduct on the part of the Contestant. 

Miners or their representatives do not have the right under 

the Act to chall~nge the validity of a citation issued under 

section 104(a} of the Act, but may only challenge the 

reasonableness of the abatement time. UMWA v. Secretary, 5 

FMSHRC 807 (1983), aff'd sub nom. UMWA v. FMSHRC, 725 F.2d 126 

(D.C. Cir. 1983}. ----

Section 107 permits review by the Commission of a section 

l07(a) withdrawal order by an operator or representataive of 

miners. There is no provision for a miner to initiate such a 

review proceeding. 

The order/citation does not charge a violation by Contestant 

of section llO(c) of the Act. Whether Contestant knowingly 

authorized, ordered, or carried out a violation is not before me 

in this proceeding. 

423 
I therefore conclude that Contestant does not have the right 

in this proceeding to challenge the order/citation issued to 

Consolidation Coal Co. On this basis, and not on the basis urged 

in the Motion to dismiss, this proceeding is DISMISSED. This 

disposition does not affect Contestant's right to challenge the 

citation in any proceeding which may be brought against him under 

section llO(c) of the Act. 

Distribution: 

. I ~.' / . ~ /f ~ !£..5,· ./J-,/._. rr.;r:te.f'?t!/c. 

~ames A. Broderick 

Administrative Law Judge 

J. Philip Smith, Esq., u.s. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Laura E~ Beverage, Esq., Jackson & Kelly, 1600 Laidley Tower, 

P.O. Box 553, Charleston, WV 25322 (Certified Mail) 

slk 

424 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

THOMAS J. TABOR, 

v. 

OFFICE OF ADMINISTRATIVE lAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

t1AR 8 1990 

JR. I . . CONTEST PROCEEDING 

Contestant . . 

. . Docket No. SE 90-44-R 

Citation No. 3180625; 

SECRETARY OF LABOR, . . MINE SAFETY AND HEALTH Matthews Mine 

ADMINISTRATION (MSHA) I Mine ID 40-00570 

Respondent . . 

ORDER OF DISMISSAL 

Before: Judge Broderick 

5/18/89 

Contestant filed a Notice of Contest with the Commission on 

Febr-uary 12, 1990, contesting order/citation 3180625 issued to 

Consolidation Coal Company on May 18, 1989. The order/citation 

was under section l07(a) and 104(a) of the Act and alleges a 

violation of 30 C.F.R. § 75.202(a). A copy of the order/citation 

was sent to Contestant, with a letter from MSHA District Manager 

Joseph J. Garcia dated January 3, 1990, in which Contestant was 

notified that "MSHA is proposing to assess a civil penalty 

against you for knowingly authorizing, ordering or carrying out a 

violation of 30 C.F.R. § 75.202(a) as cited in Citation No. 

3180625 issued May 18, 19 89, which is enclosed." 

The Secretary filed a Motion to Dismiss on February 16, 

1990, on the grounds that the Notice of Contest was filed 

untimely, in that the citation was issued May 18, 1989, and the 

notice was filed February 12, 1990. 

Contestant responded to the Motion on March 7, 1990. 

Although filed out of time, I accept and have considered the . response. 

Section 105(d) of the Act provides in part: 

If, within 30 days of receipt thereof, an operator 

notifies the Secretary that he intends to contest the 

issuance or modification of an order issued under 

section 104, or citation ••• issued under subsection 

(a) or (b) of this section, ••• or ••• any miner or 

representative of miners notifies the Secretary of an 

intention to contest the issuance, modification or 

termination of any order issued under section 104, or 

425 
the reasonableness of the length of time set for 

abatement by a citation • •• issued under section 104 , 

the Secretary shall immediately notify the Commission 

. and the Commission shall afford an opportunity 

for a hearing •• 

Section 107(e)(l) provides that an operator or 

representative of miners may apply to the Commission 

for review of an order issued under section 107 . 

The Notice of Contest states that Contestant is a Section 

Foreman at the subject mine. Assuming this to be true, as I must 

in considering the motion to Dismiss, he i s a miner under the Act . 

It is not alleged that he is a representative of miners. 

Contestant argues that he is an "operator " under section 3(d). 

Without deciding that question , it is evident that the 

order/citation, which Contestant attempts to contest here was 

issued to Consolidation Coal Company and not to Contestant. I do 

not accept Contestant 1 s argument that the January 3 , 1990 letter 

"must be considered an isauance of the citation which was served 

by mail on the Applicant for purposes of protest by the 

Applicant." Contestant contests the validity but not the 

reasonableness of the length of time set for abatement of 

Citation 3180625 . He apparently contests the 107(a) withdrawal 

order: Paragraph 3(b) "the Contestant was not in violation of 30 

C.F.R·. § 75.202(a) or§ 107(a) of the Act •.. (d) no alleged 

violation discribed in Citation No . 3180625 was of such a nature 

as could reasonably be expected to cause death or serious 

physical injury before it could be abated , . • • " The Notice 

further avers that no alleged violation resulted from knowing 

conduct on the part of the Contestant. 

Miners or their representatives do not have the right under 

the Act to challenge the validity of a citation issued under 

section 104(a) of the Act , but may only challenge the 

reasonableness of the abatement time. UMWA v. Secretary, 5 

FMSHRC 807 (1983) , aff 1 d sub nom . UMWA v. FMSHRC, 725 F . 2d 126 

(D . C. Cir . 1983). -----------

Section 107 permits review by the Commission of a section 

107(a) withdrawal order by an operator or representataive of 

miners. There is no provision for a miner to initiate such a 

review proceeding . 

The order/citation does not charge a violation by Contestant 

of section llO(c) of the Act . Whether Contestant knowingly 

authorized , ordered , or carried out a violation is not before me 

in this proceeding. 

426 
I therefore conclude that Contestant does not have the right 

in this proceeding to challenge the order/citation issued to 

Consolidation Coal Co . On this basis, and not on the basis urged 

in the Motion to dismiss, this proceeding is DISMISSED. This 

disposition does not affect Contestant ' s right to challenge the 

citation in any proceeding which may be brought against him under 

section llO(c) of the Act . 

Distribution: 

I ., . . • 

j t ~ I :;_·· I 0 

• - l • /-, ,, ,/ ' :,;/~;u; ;:, A- " t-t.(y.-.. .• 7-e .... 

James A. Broderick 

Administrative Law Judge 

J . Philip Smith , Esq., U.S. Department of Labor , Office of the 

Solicitor, 4015 Wilson Blvd ., Arlington , VA 22203 (Certified 

Mail) 

Laura E . Beverage , Esq ., Jackson & Kelly, 1600 Laidley Tower , 

P . O. Box 553, Charleston, WV 25322 (Ce rtified Mail) 

slk 

427 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 9 1990 

DAVI D THOMAS , DISCRIMINATION PROCEEDING 

Complainant 

Docket No. KENT 89 -1 3-D 

v . . . BARB CD 88- 16 

AMPAK MI NI NG, INC. , Respondent Mine No . 1 

GEORGE ISSACS , DISCRIMINATION PROCEEDING 

Complainant 

Docket No . KENT 89-1 4-D 

v . BARB CD 88- 34 

AMPAK MINING, INC., 

Respondent Mine No. 1 

DECISION 

Appearances: Tony Oppegard, Esq . , and Stephen A. Sanders, Esq. 

Appalachian Research and Defense Fund of 

Kentucky, Inc., Hazard , Kentucky for the 

Complainants; 

Geary Burns, Vice President, Ampak Mining , Inc., 

Van Lear, Kentucky for Respondent Ampak Mining, Inc. , G. Graham Martin , Esq . , Martin Law Offices, P.s.c ., Prestonsburg , Kentucky for Respondent Johnson Coal 

Company , Inc. · 

Before: Judge Me l ick 

These proceedings are before me to determine the amount of 

damages, attor ney's fees and costs to be allowed based upon the 

December 26, 1989 , decision finding that Ampak Mining, Inc., 

discriminated against the Complainants in violation of Section 

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

30 u.s.c. § 801 et , the "Act". 

The parti es remaining in these cases have reached 

stipulations as to the damages incurred by the Complainants as 

follows: 

The backpay period for the unlawful demot~on of 

David Thomas is 1 2/21/87 through 2/ 14/88; and the 

backpay peri od for the unlawful termination of Thomas 

is 2/15/8 8 through 7/l/88. Thomas' damages for these 

periods (what he woul d have earned at Ampak less his 

interim earnings) total $6 , 250 , plus interest to be 

428 
computed at the time of payment pursuant to the 

formula employed by the Commissi.on in UMWA v . Clinchfield Coal Co. , 10 FMSHRC 1493 (1988) . 

The backpay period for the unlawful termination of 

George Issacs is 4/22/88 through 7/1/88. Issacs' 

damages for this period total $6 , 080 plus interest to 

be computed at the time of payment pursuant to the 

formula e.'l'lployed by the Commission in Clinchfield Coal 

Co. 

Complainants have also filed a "Statement of Attorney's 

Fees and Expenses" seeking attorney's fees and litigation 

expenses of $43,806.80. These fees and expenses are not 

challenged a~d are accordingly awarded in accordance with 

Section 105(c)(3) of the Act. 

The Complainants have also filed a pleading captioned "I'iotion for Leave to Proceed Against Ampak' s Owners 

Individually , Based on the Alter Ego Doctrine, for the Liability 

Found Herein". In said Motion the Complainants apparently seek 

to enforce the judgment on this case individually against Geary 

Burns and Peggy A. Kretzer the alleged owners of the Respondent 

Arnpak Mining Inc . 

The Commission stated under similar circumstances in 

Tolbert v. ·Chaney Creek Coal Corp., 9 FMSHRC at 1848, (1987) , that: 

[t]he essential nature of the remedy sought • . • is 

collection of a judgement debt. This relief involves 

inter alia, enforcement and execution of the 

Commission ' s final decision in this matter. Such an 

enforcement request is properly directed to the 

Secretary of Labor . Under the Mine Act the Secretary 

is e.'tlpowered to seek compliance with Commission orders 

in the federal Courts. See 30 U. S . C. §§ 816(b) & a1a . 

The Complainants herein must therefore direct their 

enforcement and execution efforts accordingly. 

429 

ORDER 

Ampak Mining Inc., is hereby directed to pay the noted 

backpay award plus interest computed in accordance with the 

Commission decision in UMWA v. Clinchfield Coal Co., 

10 FMSHRC 1493 (1988) within 30 days of the date of this 

decision . Ampak Mining Inc., is further directed to pay the 

Complainants attorney's fees and litigation expenses of 

$43,806.80 w1thin 30 days of the date of this deyision. The 

Complainants "Motion for Leave to Proceed Againsl Ampak's Owners 

Individually, Based on the Alter Ego Doctrine, f~r the Liability 

Found Herein" is denied. This depision represen~s the fina~ 

disposition of these proceedings/pefore the unde~signed juqge • 

.I .: { · • !f G< /11 \ ~1-1 i A 

; tf~ii~ V .. vv ', 

i ' { \ j 

; • ,!? \ i 

Gary; Mel1cJj ); Adm~nistra~ive Law Judye 

I Distribution: 

Tony Oppegard, Esq., Appalachian Research and Defense Fund 

of Kentucky, P.O. Box 360, Hazard, KY 41701 (Certified 

Mail) 

Graham Martin, Esq., Main Street, United Federal Building, 

Hindman, KY 41822 (Certified Mail) 

Mr. Geary Burns, P.O. Box 1183, Painstsville, KY 41240 

(Certified Mail) 

Ms. Peggy A. Kretzer, HC 83, Box 172, River, KY 41254 

(Certified Mai 1) 

Office of the Solicitor, u.s. Depart~ent of Labor, 4015 

Wilson Boulevard, Arlington, VA 22203 

nt 

430 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 9 

SECRETARY OF LABOR , 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v . 

HINKLE CONTRACTING CORP., 

Respondent 

1990 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 90-5-M 

A.C. No. 15-00099- 05514 

Strunk Crushed Stone 

DECISION 

Appearances: Anne T. Knauff, Esq ., Office of the Solicitor, 

u.s. Department of Labor, Nashville, Tennessee 

for Petitioner; 

Bob Connolly, Esq ., Stites & Harbison, 

Louisville, Kentucky for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to 

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

1977 , 30 u.s.c. § 801 et seq ., the " Act , " charging 

Hinkle Contracting Corporation (Hinkle) ~ith two violations 

of mandatory standards and proposing a civil penalty of 

$1,350 for the violations. The general issue before me is 

whether Hinkle violated the cited standards and , if so , the 

appropriate civil penalty to be assessed in accordance with 

Section llO(i) of the Act. 

Citation No. 3438481 issued pursuant to Section 

104(d)(l) of the Act~ 

~/Section 104(d)(l) reads as follows: 

If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds 

that there has been a violation of any mandatory 

health or safety standard, and if he also finds 

that, while the conditions created by such 

violation do not cause imminent danger, such 

violation is of such nature a~ could significantly 

and substantially contribute to the cause and 

effect of a coal or other mine safety or health 

431 
charges, as amended , as follows: 

A 36 inch belt conveyor provided with an elevated 

walkway along its entire length was not equipped 

with a functional emergency stop device. The 575 

conveyor was approximately 4 50 feet long . The 

trough rollers created pinch po i nts along the 

length of the conveyor at approx imately 42 inches 

from the walkway level. The conveyor had been 

installed approximately 6 months prior and had been 

fitted with the emergency stop device but had not 

been wired e l ectrically in order for the device to 

function . The plant had been in operation since 

March 13, 1989 . The plant superintendent 

William Huckaby , stated that they had been waiting 

on the availability of company electricians to 

furnish the installations. Management had not 

taken any steps to lessen the risk or hazard 

through warning signs or hazard training for the 

employees. This is an unwarrantable failure on the 

part of the operator. 

The cited. standard, 30 C.F.R. § 56 . 14109 , provides as 

follows: 

Unguarded conveyors next to the travelways shall be 

equipped with- - (a) Emergency stop devices which are located so 

that a person falling on or against the conveyor 

cont ' d fn . l 

hazard, and if he finds such violation to be caused 

by an unwarrantable failure of such operator to 

comply with such mandatory health or safety 

standards, he shall include such finding in any 

citation given to the operator under this Act . If 

during the same inspection or any subsequent . 

inspection of such mine within 90 days after the 

issuance of such citation, an authorized 

representative of the Secretary finds another 

violation of any mandatory health or safety 

standard and finds such violation to be also caused 

by an unwarrantable failure of such operator to so 

comply, he shall forthwith issue an order requiring 

the operator to cause all persons in the area 

affected by such violation , except those persons 

referred to in subsection (c) to be withdrawn from , 

and to be prohibited from entering, such area until 

an authorized representative of the Secretary 

determines that such violation has been abated. 

432 
can readily deactivate the conveyor drive motor, or 

(b) Railings which--

(1) Are positioned to prevent persons from falling 

on or against the conveyor. 

(2) Will be able to withstand the vibration, shock, 

and wear to which they will be subjected during normal operation~ and 

(3) Are constructed and maintained so that they will 

not create a hazard. 

Hinkle acknowledged at hearing that it had neither an 

operable emergency stop device nor guard rails along its 450 

foot long No. 57 conveyor. Hinkle alleges that an unwritten 

so-called "42 inch exception" to the cited mandatory standard 

was applicable to this case . Under this purported exception 

belt conveyors that are 42 inches or higher above the 

adjacent walkway need not be guarded or have an operable 

emergency stop device. Since the conveyor here was higher 

than 42 inches Hinkle maintains that the "42 inch exception" 

applies and that there was accordingly no violation. 

The origins of this purported ''42 inch exception" are 

unclear. In its answer filed in this case Hinkle states it 

was an unwritten "rule-of-thumb" applied by another Federal 

agency, the Occupational Safety and Health Administration 

<OSHA). William Huckaby a Hinkle superintendent recalled 

that it was a guideline once used by the State of Oklahoma 

which he learned about when taking a licensing test there. 

Safety Director Lowell Manning thought that other MSHA 

inspectors had told him of the "42 inch ~ception". Hinkle 

elected however not to call any such MSHA inspector who had 

allegedly given this advice. 

Neither Inspector Shanholtz nor MSHA field office 

supervisor Vernon Denton had ever heard of any such "42-inch 

exception" to the mandatory standard. Indeed there is 

nothing in the language of the regulation to even remotely 

suggest such an exception . Moreover there is no rational 

basis for such an exception . Indeed, to the contrary, the 

most hazardous area of exposure to miners would appear to be 

within arms reach above 42 inches. Onder the circumstances I 

find the so-called "42-inch exception" to be a fiction. The 

plain language of the standard must in any event prevail. 

Since the conveyor when installed in 1988 came already 

furnished with an emergency stop cord and required only 

minimal ~lectrical installation to activate, I find the 

failure of management to have had the cord activated 

to have been particularly negligent. This negligence is 

further aggravated by allowing the non-functioning stop cord 

433 
to remain in place thus giving a false sense of security. 

Operator negligence ~as even further aggravated by isolating 

the only means of stopping the conveyor at a location some 

200 feet from the conveyor. This is the type of aggravated 

conduct and omission that constitutes unwarrantable failure. 

Emery Mining Corporation 9 FMSHRC 1997 (1987>. 

In reaching these negligence and "unwarrantable failure" 

findings I have not disregarded Hinkle's claims that the 

conveyor had previously been inspected by MSHA inspectors and 

had never before been cited. However the only credible 

evidence that the belt had in fact previously been inspected 

came from Inspector Shanholtz himself. According to Shanho~tz when he previously inspected the plant it was not 

in production and the cited belt was not running. In any 

event even had other inspectors failed to discover the 

violative inoperable stop cord on prior inspections, that is 

by no means indicative of any MSHA approval of the violation. 

Indeed the presence of the stop cord, albeit an inoperable 

one, may very well have deceived other inspectors into 

believing there was no violation. 

The violation was also of high gravity and "significant 

and substantial". In order to find a violation "significant 

and substantial", the Secretary has the burden of proving the 

eKistence of an underlying violation of a mandatory standard, 

the existence of a discrete hazard <a measure of danger to 

health or safety) contribut~d to by the violation, a 

reasonable likelihood that the hazard contributed to will 

result in an injury, and a reasonable likelihood that the 

injury in question will be of a reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC 1 {1984) • 

.. The testimony of Inspector Shanholtz is credible in this 

regard and fully supports the gravity and "significant and 

substantial" findings. In reaching this conclusion I have 

not disregarded Hinkle's claims that the condition was not 

hazardous since there had never previously been any injuries 

along the belt and that the work of lubrication, maintenance 

and cleanup along the belt was performed only when the belt 

was shut down. Inspector Shanholtz noted however, without 

contradiction, that there was in fact pedestrian traffic on 

the walkway immediately adjacent to the unguarded conveyor. 

Moreover the hazard was particularly serious in this case 

because of the absence of any stopping mechanism in close 

proximity to the beltline. The only ~top switch for tha belt 

was located some 200 feet away. Thus if a minec became 

caught in the belt it was indeed reasonably likely that 

serious injuries or death would occuc before the belt could 

be shut down. 

434 
Citation No. 3438483 charges a "significant and 

substantial " violation of the mandatory standard at 

30 C. F. R. § 56.3200 and charges as follows: 

Loose , unconsolidated material was observed on the 

highwall where the pit haul road parallelled the 

west quarry wall . Large loose slabs and boulders, some weighting several tons, were observed along a 

200 foot section of the wall. The ground along the 

wall was fractured and fragmented . The wall was 

approximately 40 feet high . Haulage equipment and 

pickups utilized the road on a daily basis. One 

section of the road was slightly overhung by the 

loose material. 

The cited standard 30 C. F.R. 56.3200 provides as 

follows: 

Ground conditions that create a hazard to persons 

shall be taken down or supported before other work 

or travel is permitted in the affected area . Until 

corrective work is completed, the area shall be 

postad with a warning against entry and, when left 

unattended, a barrier shall be installed to impede 

unauthorized entry . 

According to Inspector Shanholtz the cited loose 

material was fractured with numerous cracks. Some of the 

material was also in overhanging rock. He also found that 

along the top edge there were large round boulders "just 

sitting there" with "nothing holding them". According to 

Shanholtz , Foreman Tim Hatton, who was· accompanying him 

during his inspection, agreed that the cited conditions d id 

exist and admitted that the large boulders on the top edge 

appeared to be "sitting on nothing but their imagination" . 

Shanholtz also observed that the highwall actually over 

hung a section of the road . Other loose material along the 

highwall also was in need of scaling . hccording to Shanholtz 

falling material would likely have dropped onto the haul road 

on which haulage equipment and pick-up trucks were operati ng. 

Shanholtz opined therefore that it was highly likely for · serious injuries or fataliti~s to occur. 

Shanholtz also Eound the operator chargeable with high 

negligence in that MSHA officials had previously discussed 

the highwall problems with Hinkle officials. Hinkle had then 

agreed to scale the highwall and widen the road . Indeed 

435 
Shanholtz himself had discussed these problems with Hinkle 

representatives during his October 1988 visit. 

Accocding to Shanholtz, Hatton also admitted that he and 

Lowell Manning had inspected the highwall the week before the inspectio~ and h~4 agreed that it needed scaling. They had 

reportedly stopped · scaling operations however because the 

machinery they had would not reach high enough along the 

wall. Shanholtz observed that it took seven days after the 

citation wa~ issued to properly scale the highwall and thus 

abate the prqblem. 

Within this framework it is clear that the violation is 

proven as charged and that it was "significant and 

substantial" and of high gravity. I find Inspector 

Shanholtz's testimony in this regard to be credible including 

his testimony regarding admissions by representatives of the 

operator at the time of the inspection. 

While Hatton denied at hearing that he made the 

admissions attributed to him by Shanholtz I do not find his 

denials to be credible. Moreover I can give but little 

credence to the self-serving statements of Lowell Manning, 

William Huckaby, and Timothy Coomer. 

Considering the criteria under section llO<i> of the Act 

I find that the following civil penalties are appropriate. 

Citation No. 3438481, $750, Citation No. 3438483, $600. 

ORDER 

Hinkl~ Contracting Corporation 

civil penalties of $1,350 within 30 

decision. 

t : 

is herery directed to pay days of the date of this 

I . ! 

(

l . .: I .· 

-.l/ r v·- ., 

I • f3ary Me'll.ck 

' 

•Administrative Law Judge 

Distribution: 

Anne T. Knuaff, Esq., Office of the Solicitor, u.s. 

Department of Labor, 2002 Richard Jones Road, Suite B-201, 

Nashville, TN 37215 (Certified Mail> 

Robert M. Connolly, Esq., Stites & Harbison, 600 West Main 

Street, Louisville, KY 40202 (Certified Mail) 

nt 

436 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATI ~ LAW JUDGES 

2 SKYLINE, l Oth FLOOR 

5203 l EESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 13 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF 

SIX MINERS , 

Compla i nant 

v . 

SMOOTH SAILING COAL COMPANY , 

INC ., AND JAMES W. RUNYON , 

Respondents 

SECRETARY OF LABOR , 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

')N BEHALF OF 

DARRELL MAYNE , LARRY D. 

SAYLOR , RICKY G. SAYLOR, 

AND TERRY D. SAYLOR , 

Complainants 

v. 

SMOOTH SAILING COAL CO., 

INC. , AND JAMES W. RUNYON , 

Respond ent s 

. . 

. . 

DECI SI ON 

DISCRI MI NATION PROCEEDING 

Docket No. KENT 89 - 90 - D 

Mine No. 4 

DISCRIMINATION PROCEEDING 

Docket No . KENT 89- 100-D 

BARB CD 89- 04 

BARB CD 89- 05 

BARD CD 89 - 06 

BARB CD 89 - 08 

Mine No . 4 

Appearances: Thomas A. Grooms, Esq . , Of fice of the Solicitor, 

u.s. Department of Labor, Nashville , Tennessee , for 

the Compl ainant; 

Guy E. Millward , Jr., Esq., Mil lwa rd and Jewell , 

Barbourville , Kentu cky, for the Respondents. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

These proceedings concer n a d i scr imination complaint and an 

application for tempor ary r e i nst atement filed by the Secretary of 

Labor (Secretary) on behalf of the affected miners named herein 

pursuant to section lOS<c > o f the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 815(c). 

437 
on March 15 , 1989, an Application for Temporary Reinstate -

ment dated March 1 , 1989 , was filed with the Commission by the 

Secretary on behalf of Darrell Mayne , Larry D. Saylor, Terry D. 

Saylor and Ricky G. Saylor. On that same day , the case was 

assigned to the undersigned. No response was had from the 

respondents requesting a hearing on the application and on 

March 27 , 1989 , an order was issued by the undersigned dire cting 

the respondents to immediately reinstate the aforementioned four 

miners to the positions they held on August 26 , 1988. However , 

the No . 4 Mine, where they all worked, became non-producing as of 

March 6, 1989. 

- On ·March 2 , 1989 , a Discrimination Complaint was filed with 

the Commission on behalf of these four miners plus Carl Croley 

and Timothy Cox. The complainant a l leged that the respondents 

discriminated against the six miners by laying them off in 

retaliation fo r them making safety and health- related complaints 

to the respondents on several occasions prior to the date of the 

layoff. Respondents answered with what was essentially a gene ral 

denial. 

Pursuant to notice, a hearing on the merits was held in this 

matter on August 8 and 9 , 1989 , in Berea, Kentucky. A 

post- hearing brief was filed by the Secretary on December 5 , 

1989 , on behalf of the six individual complainants. The 

respondents did not choose to file a post-hearing submission. 

General Law Applicable to the Case 

In order to establish a orima facie case of discrimination 

under section 105<c> of the Mine Act, a complaining miner bears 

the burden of production and proof to establish (1) that he 

engaged in protected activity and (2) that the adverse action 

complained of was motivated in any part by that activity. 

Secretary on behalf of Pasu1a v . Consolidation Coal Company , 

2 FMSHRC 2768 (1980), rev ' d on other grounds sub nom. 

Consolidation Coal Company v. Marshall , 663 F . 2d 1211 (3d Cir. 

1981); Secretary on behalf of Rob i nette v . United castle Coal 

Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v . 

Hecla-Day Mi nes Corporation , 6 FMSHRC 1842 (1984); Secretary on 

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

(November 1981) , rev'd on other grounds sub nom. Donovan v. 

Phelps Dodge Corp ., 709 F . 2d 86 (D . C. Cir. 1983) . The operator 

may r e but the prima facie case by showing either that no 

protected activity occurred or that the adve rse action wa s in no 

way motivated by protected activity . If an operator cannot rebut 

the prima facie case in this manner it may nevertheless 

affirmatively defend by proving that it was also motivated by the 

1niner ' s unprotected activities alone. The operator bears the 

burden of proof with regard to the affirmative d e fense. Haro 

438 
v. Magma Copper Company , 4 FMSHRC 1935 (1982). The ultimate 

burden of persuasion does not shift from the complainant. 

Robinette, supra. See also Boich v. FMSHRC, 719 F . 2d 194 (6th 

Cir. 1983); and Donovan v. Stafford Construction Company , 

No . 83-1566 D.C. Cir. (~pril 20, 1984) (specifically approving 

the Commission ' s Pasula-Robinette test). See also NLRB v. 

Transportation Management Corooration, 462 u.s. 393,~L.Ed.2d 

667 (1983), where the Supreme Court approved the NLRB's virtually 

identical analysis for discrimination cases arising under the 

National Labor Relations ~ct . 

Findings of Fact 

Having considered the record evidence in its entirety, I 

find that a preponderance of the reliable , substantial and 

probative evidence establis~es the following findings oE fact : 

1. The six miners named herein as complainants along with 

their job titles from Nhich they were laid off are: Ricky G. 

Saylor, roof bolter; Terry D. Saylor, scoop operator; Darrell 

Mayne , scoop operator; Carl Croley , drill operator; Timothy G. 

Cox, tailpiece man; and Larry D. Saylor, scoop operator. 

2. The individual respondent herein , James Runyon, with 

Larry Bryant, owned and operated Smooth Sailing Coal Co1npany 

(Smooth Sailing) , and also worked in and around the mine as the 

foreman. 

3. Smooth Sailing and Runyon were contract mine·cs for Davis 

Branch Coal Company (Davis Branch) meaning that Smooth Sailing 

actually mined the coal for which Davis Branch held the mineral 

lease for the No. 4 Mine. Davis Branch also held the oermit and 

~rovided the bond required by the State of Kentucky an~ "faced 

up" the area to be mined by Smooth Sailing. 

4. The coal mined by Smooth Sailing at the No. 4 Mine was 

sold to the Gatliff Coal Company (Gatliff). Smooth Sailing was 

identified in the records of Gatliff as Davis Branch No. 3 . 

smooth Sailing had no direct contractual relationship with 

Gatliff, but Gatliff was aware that Smooth Sailing and Davis 

Branch No. 3 were one and the same . 

5. Payments for the coal mined by Smooth Sailing and 

trucked to Gatliff, were made directly to Davis Branch from which 

Davis Branch deducted a fee and then paid the remainder to Smooth 

Sailing by issuing its own checks to Smooth Sailing. 

6. The No. 4 Mine began operations on or about May 15, 

1987, and was listed with MSHA as being non-producing as of 

March 6, 1989 . 

439 
7 • . Ricky Saylor, more or less the spokesman for all the 

complainants by mutual agreement, began working for Runyon in or 

about 1983 at an earlier coal mine operation called Wax 

Enterprises. He started working for Smooth Sailing, per se, in 

ot about 1985. He was laid off on August 26, 1988, along with 

the other five miners named herein as complainants. 

8. Terry Saylor, brother of Ricky Saylor, . worked for Smooth 

Sailing for approximately three years before he was laid off on 

August 26, 1988. 

9. Darrell Mayne was hired by the respondents in the summer 

of 1987 and worked at the No. 4 Mine until being laid off on 

August 26, 1988. 

10. 

until he 

Carl Croley worked for Mr. Runyon fro~ 1984 or 1985, 

was laid off from the No. 4 Mine on August 26, 1988. 

11. Tim cox worked at the No. 4 Mine fo~ the respondents for 

four or five months prior to the layoff of August 26, 1988. 

12. Larry Saylor, another brother of Ricky, worked 

continuously -for Mr. Runyon between approximately 1982 and the . 

August 26, 1988 layoff. 

13. Prior to being laid off, all the complainants had 

engaged in protected activity, that is, they all had complained 

to Runyon or to their spokesman or representative, Ricky Saylor, 

about bad roof conditions and the lack of adequate ventilation 

~ the working areas of the mine. On many occasions, the other 

1nen would look to Ricky Saylor to speak for them to Mr. Runyon. 

When the men registered a safety or health-related complaint 

about the mining operation with him, he would tell Runyon of it 

on their behalf. 

14. Ricky Saylor, on behalf of himself and others, had 

complained to Runyon on numerous occasions about the lack of 

ventilation to the working areas which caused an accumulation of 

what Saylor described as "bad air". Be believed this was caused 

by a lack of ventilation curtains (or line brattices) which would 

have direct.ed ventilating air into the working places. He .als0 

had complained to Runyon on many occasions about "bad top"., i.e., 

unsupported roof, on the "right side" where the ventilation was 

also ·extremely poor. More specifically, he complained about the 

lack of "safeties" which are necessary as temporary 3Upport to 

protect him while he roof bolts. Saylor also testified that 

Runyon's practice of "double-cutting" caused the other 

complainants, particularly the drill operator and scoop operators 

to have to work under unsupported roof while doing their 

440 
respective jobs._ "Double-cutting" was described by Saylor as 

drilling and shooting two rounds in the face of the coal without 

roof bolting in between. 

15 . Ricky Saylor had made the safety and health-related 

complaints enumerated in Finding of Fact No. 14 to Runyon at 

least on a weekly basis for the six months immediately prior to 

the August 1988 layoff. He testified that Runyon's response to 

these complaints was to the effect that if the current miners 

(the complainants) didn't want to work in these conditions, he 

had a hundred applications from other men who would be glad to 

take their place. 

16. Terry Saylor had also on occasion complained to Runyon about working in the "smoke" and "dead air" in the mine, as well 

as having to go out under unsupported roof to get the coal. 

Typically, he would come out of the mine and tell Runyon it was 

too smoky in there, that he couldn't stand anymore of it. He 

would tell Runyon that he needed to hang some curtains to provide 

some ventilation. Runyon, instead of hanging curtains, however, 

would just go pull the coal out himself. 

17. Darrell Mayne also personally complained to Runyon on 

many occ:lsions about 11 bad top11 and "bad air" in the mine, 

primarily during the last six months of his employment because of 

the worsening conditions at the mine. Runyon would get mad about 

it and say there was plenty of people looking for a job. 

18. Carl Croley was the drillman for Smooth Sailing. 

Croley's job was to drill into the face of the coal, load these 

holes with explosives (assisted by the tamp man> and shoot down 

the coal. Croley corroborated the fact that there were roof and 

ventilation problems at the No. 4 Mine and that he had been 

required by Runyon to double-cut the coal faces. Croley had 

complained to Ricky Saylor who he knew would take his ~omplaints 

to Runyon, as well as to Runyon himself about this. Furthermore, 

he had on at least one occasion shortly before he was laid off, 

refused to work in an area that had not been roof-bolted. 

19. Ricky Saylor also testified and I find it credible that 

two to three months prior to the layoff, he and Carl Ccoley had 

refused to work on the "right side" of the mine because of 

becoming sick on 11 dead air". He testified that this "right side" 

had been advanced four to -five hundred feet and .that ':here had 

never been any ventilating air directed into this area. 

20. Timothy cox was the tailpiece man for 8mooth Sailing and 

had also worked as the tamp man, assisting Carl Croley. 

441 
21. Cox had complained to Runyon about bad ventilation in 

the mine whenever he was in the smoke while. greasing the belt. 

Moreover, on the few occasions he had worked with Croley as tamp 

man, he complained to Ricky Saylor, whom he considered his 

spokesman or representative with Runyon, about the bad 

ventilation and unsupported roof at the face. 

22. Cox had also been present when the other complainants 

herein had made safety complaints to Runyon. He observed that 

Runyon's response to such complaints was to threaten to hire new 

miners. 

23. Larry Saylor ~lso testified concerning problems in the 

No. 4 Mine with working out under unsupported roof, and 

ventilation. He had also voiced complaints to Runyon about the 

lack of ventilation and roof support. He likewise observed that 

Runyon wo~ld respond angrily to complaints about safety from the 

men. Two to three weeks before the layoff Larry Saylor had 

refused to work on the "right side" of the No. 4 Mine where there 

was absolutely no ventilation. He made this refusal to Runyon 

who responded that "he'd find people to run the mine for him." 

24. When Runyon initially announced the layoff, he told 

Larry Saylor that he wanted him to stay on after the layoff to 

i(eep the water pumped out of the mine and to produce 

approximately 52 tons of coal per day. Larry Saylor was the 

longest tenured mii.1er at the time of the layoff and was also a 

qualified foreman. However, within two d~ys, Runyon changed his 

mind and told Larry Saylor that he too was laid off. 

25. Between November 12, 1985, and August 5, 1986, MSHA 

Inspector Earl Lankford issued seventeen (17) section 104(a) 

citations, and a section 104(d)(l) citation to Runyon for 

violations of Smooth Sailing's roof control plan at the No. 3 

Mine. 

26. On May 22, 1986, and Aug~st 5, 1986, Lankford found that 

no line brattice or curtains had been installed to direct air to 

the working section at the No. 3 Mine and therefore issued 

section 104(~) citations to Runyon. 

27. · The No. 3 Mine and the No. 4 Mine were similar 

oper~tions ~hich were mined in consecutive order by Smooth 

Sailing. The No. 3 Mine was abandoned prior to the start of 

operations at the No. 4 Mine on or about May 15, 1987. 

28. MSHA Inspector James Langley issued a citation on 

~ugust 12, 1988, at the No. 4 Mine, when he found that a cut had 

not been bolted as required by the roof control plan. 

442 
29. MSHA Inspector Richard Gibson inspected the No. 4 Mine 

in December, 1987 and November, 1988. During both inspections he 

issued citations for the failure of Smooth Sailing to have 

properly installed line brattices. 

30. MSHA Inspector Charles Blume issued a citation at the 

No. 4 Mine on June 1, 1988, for the failure of Smooth Sailing to 

provide a line brattice to the No. 3 heading. Inspector Blume 

testified that there was no line brattice at all in this heading. 

The face was approximately 30 feet from the last open crosscut. 

31. At the time of the August 26, 1988 layoff, there were 

ten miners, including the six complainants, working at the Smooth 

Sailing No. 4 Mine. After the layoff, Runyon and the Gray 

brothers worked the mine until Runyon left for college in the 

fall. After this, Ricky and Ronnie Gray worked the mine 

themselves until the first new miner was hired on September 19, 

1988. Another new miner was hired on or about October 10, 1988 

and another on or about October 31, 1988. After the layoff, it 

is noteworthy that Runyon never offered any of the complainants 

their jobs back at an hourly rate or on any other basis. 

32. The claimed basis (although never proven) for the layoff 

by respondents was a notification by Gatliff that Smooth 

Sailing's output that they would accept had been cut to 52 tons 

per day. Prior to that time, Gatliff would take all the coal 

that Smooth Sailing could produce. 

33. Purportedly, a truck driver named "Spider" had notified 

Smooth Sailing that they were cut back to 52 tons per day. 

Runyon was not personally present at the time and to confirm this 

information, he states he called Sam Carr, a Gatliff employee, 

who told him that they were cut back until December. Carr, 

however, doesn't believe he told him that. Also casting doubt on 

Mr. Runyon's version of the cut-back is the fact that after 

August 26, 1988, and up to the time the No. 4 Mine was shut down 

on March 6, 1989, Smooth Sailing never shipped as little as 52 

tons a day Con a weekly basis) except the weeks of September 1, 

1988, September 15, 1988, October 6, 1988 and March 10, 1989 

<four days after it shut down). The actual coal production and 

sales for Smooth Sailing between August 26, 1988 and March 1989 

when Runyon shut the mine down show that Smooth Sailing 

continuously and consistently produced more than 52 tons per day. 

34. Runyon also testified that he believed the complainants 

wouldn't work if limited to producing 52 tons per day. However, 

the six complainants had never told Runyon that they would not 

work producing 52 tons per day and had, prior to August 26, 1988, 

443 
continued to work for Runyon even when the production tonnage was 

below 52 tons per day (on a weekly basis) or even zero. 

DISCUSSION WITH FURTHER FINDINGS 

The Secretary has demonstrated to my satisfaction that the 

six complainants named herein .engaged in activity protected under 

section 105(c) of the Mine Act by making repeated complaints about unsafe and/or unhealthful conditions at the respondent's 

No. 4 Mine •. After these complaints had ·gone on for some period 

of time, the six were laid off and have never been offered a 

chance to return to work. 

Respondents claim that the layoff was motivated only by a 

cut-back in the purchase of coal instituted by Gatliff on the 

date of the layoff. However, the Secretary has amply 

demonstrated the pretextual nature of this "justification". 

Documents prepared in the o~dinary course of business by Gatliff 

employees show that within one week of the layoff Smooth Sailing 

was scheduled to produce 1600 tons of high quality stoker coal 

for September 1988 and as of November 3, 1988, Smooth Sailing was 

scheduled to produce 400 tons per week or 80 tons per day of coal. 

Furthermore, the fact that Runyon hired three new employees 

shortly thereafter is further evidence that the layoff was 

motivated by the complainants' protected activity. I therefore 

find that the respondents have failed to show that there was a 

valid economic reason for the layoff or that the layoff was not 

motivated by the complainants' protected activities. 

In summary, I find and conclude that the complainants 

engaged in repeated and justifiable protected activity over a 

protracted period of time prior to the layoff and that the layoff 

was motivated exclusively by those protected activities. 

Although there is no direct evidence of this latter point, I find 

the circurnstantial evidence to be strongly supportive of this 

conclusion. The operator has failed . to rebut this prima facie 

case of discrimination under the Act and therefore I find a 

violation of section 105(c) of the Mine Act to be proven as 

alleged in this instance. 

ORDER 

Based on th~ aoove findings of fact and conclusions of law, 

IT IS ORDERED: 

1. That the respondents shall reinstate the . herein named 

six miners to the positions from which they were terminated at 

the No. 4 Mine, on August 26, 1988, at the same rates of pay, on 

444 
the same shift and with the same or equivalent duties, including 

seniority rights and all employee benefits to which they were 

entitled to immedia·tely prior to their discharge, at such time as 

the No. 4 Mine should again become a producing mine. 

2. That the respondents shall pay back wages with interest. thereon computed in accordance wi_th the Commission decision in 

UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 <1988) and provide 

all other employment bene.Eits to the six miners which were lost 

because of their unlawful layoff. The back wages to which the 

six complainants are due shall be computed as follows: 

a. The four miners who prior to the unlawful layoff 

were paid $.90 per ton (Larry, Ricky, and Terry Saylor, and Carl 

Croley) shall be paid for each ton produced by Smooth Sailing 

from ~ugust 26, 1988, until March 10, 1989, the date of the last 

payment from Davis Branch to Smooth Sailing; and 

b. Darrell Mayne and Timothy Cox shall be paid at their 

regular rates of pay, for forty hours per week from the date they 

were laid off on August 26, 1988, until March 6, 1989, the date 

the No. 4 Mine was listed with MSHA as non-producing. 

3. That the respondents shall within 30 days of the date of 

this decision, pay to the Secretary a civil penalty in the amount 

of $2000 for the violation found herein. 

Law Judge 

Distribution: 

Thomas ~. Grooms, Esq., Office of the Solicitor, U.S. Dep::irtment 

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

TN 37215 (Certified Mail) 

Guy E. Millward, Jr., Esq., Millward and Jewell, P.O. Box 650, 

Barbourville, KY 40906 (Certified Mail) 

/ml 

445 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

ENERGY FUELS COAL, INC. 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABO~, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), · Petitioner 

v. 

ENERGY FUELS COAL, INC., 

Respondent 

MAR 13 1990 . . 

. . 

. . 

. . 

. . 

. 

. 

CONTEST PROCEEDINGS 

Docket No. WEST 89-237-R 

Citation No. 3077172~ 5/2/89 

Docket No. WEST 89-239-R 

Citation No. 3077170~ 5/2/89 

Docket No. WEST 89-240-R 

Citation No. 3077169; 5/2/89 

Docket No. WEST 89-243-R 

Citation No. 3077166; 4/27/89 

Docket No. WEST 89-245-R 

Citation No. 3077164; 4/27/89 

Docket No. WEST 89-248-R 

Citation No. 3077161; 4/25/89 

. : Docket No. WEST 89-249-R 

Citation No. 2875340; 4/25/89 

. . 

Docket No. WEST 89-250-R 

Citation No. 2875339; · 4/25/89 

Docket No. WEST 89-252-R 

Citation No. 2875337; 4/25/89 

Docket No. WEST 89-254-R 

Citation No. 2875335; 4/25/89 

: Southfield Mine 

Mine I.D. 05-03455 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 89-435 

A.C. No. 05-03455-03572 

: Southfield Mine 

. . 

446 
DECISION APPROVING PARTIAL SETTLEMENT 

Appearances: Phillip D. Barber, Esq., Welborn, Dufford, Brown & 

Tooley, Denver, Colorado, 

for Contestant/Respondent; 

Margaret A. Miller; Esq., Office of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

for Petitioner/Respondent 

Before Judge Lasher: 

At an on-the-record prehearing conference in Denver, 

Colorado, on February 14, 1990, the parties reached a settlement resolving 10 of the 20 Citations involved in Penalty Docket 

WEST 89-435 each of which Citations is the subject of a separate 

Contest proceeding as reflected in the caption. As part of the 

settlement reached, as to all 10 Cita.tions, which settlement 

was approved from the bench at hearing, Contestant/Respondent 

Energy Fuels Coal, Inc. (herein Energy Fuels) agreed to the 

withdrawal of its Notice of Contest in each of the related 

Contest proceedings and to the dismissal of such proceedings 

(T. 6,7, 8-25). 

As to 5 of the 10 Citations, Energy Fuels agreed to pay in 

full MSHA's proposed penalty assessments. As to the remaining 

5 citations, the penalty reductions reflected in the schedule 

below were based on re-evaluation of the. degree of gravity of 

such violations and MSHA's agreement to mollify its original 

penalty appraisals thereof. 

Contest Initial Agreed 

Citation No. Docket No. Agreement Penalt~ 

3077172 WEST 89-2·37-R $79 $79 

3077170 WEST 89-239-R 79 40 

3077169 WEST 89-240-R 79 40 

3077166 WEST 89-243-R 126 63 

3077164 WEST 89-245-R 85 45 

3077161 WEST 89-248-R 79 79 

2875340 WEST 89-24'9-R 147 . 75 

2875339 WEST .89-250-R 20 20 

2875337 WEST 89:...252-R 20 20 

2875335 WEST 89-254-R 20 20 

447 
ORDER 

1 . The penalties agreed to by the parties in the total sum 

of $481 as set forth hereinabove are here assessed and Energy 

Fuels shall pay the same to the Secretary of Labor within 30 days 

from the date hereof if it has not previously done so. 

2. Citation No. 3077170 is modified to delete the "Significant and Substantial" designation thereon: Citation No. 3077169 

is modified to delete the "Significant and Substantial designation thereon; Citation No. 3077166 is modified to delete the 

"Significant and Substantial" designation theron; Citation No. 

3077161 is modified to delete the "Significant and Substantial" 

designation thereon: Citation No. 2875340 is modified to change 

Paragraph lOD thereof to reflect that "6" persons were affected 

by the violation rather than "10;" Citations numbered 2875339, 

2875337 and 2875335 are modified to change Paragraph 9C thereof 

to charge a violation of 30 C.F.R. 75.1103-8(b) rather than 30 

C.F.R. 75.1103-8(a) and to change Paragraph 8 therof to reflect 

the gravamen of the violation described to be that there was no 

record of the required inspections having been made, rather than 

that such inspections had not actually been made. 

3. Contest Dockets numbered WEST 89-237-R, 239-R, 240-R, 

243-R, 245-R, 248-R, 249-R, 250-R, ~52-R and 254-R are dismissed. 

'f . _,.(: /. 

'1!;:.:~4.(: 4 ~~~·/ J·1 ~ichael A. Lasher, Jr: 

Administrati've Law Judge 

Distribution: 

Ppillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700 

Broadway, Suite 1700, Denver, CO 80290-1701 (Certified Mail) 

Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

co 80294 (Certified Mail> 

/ot 

448 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARD 

ENERGY FUELS COAL, INC., 

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. 1 . 

Respondent 

DENVER. CO 80204 . MAR 131990 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

CONTEST PROCE~DING 

Docket No . WEST 89-247-R 

Orde~ No. 3077162; 4/26/89 

southfield Mine 

Mine I.D. 05-03455 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 90-8 

A.C~ No. 05-03455-03575 

Southfield Mine 

DECISION APPROVING SETTLEMENT 

Appearances; Phillip D. Barber, Esq., Welborn, Dufford, Brown & 

Tooley, Denver, Colorado, 

for Contestant/Respondent; 

Margaret A. Miller, Esq., Office of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

for Petitioner/Respondent. 

Before: Judge Lasher 

The parties, at the prehearing conference held on-the-record 

in Denver, Colorado on February 14, 1990, reached a settlement 

fully resolving the issues in these two related (Penalty arid 

Contest> dockets. Penalty Docket WEST 90-8 contains two enforcement documents, Citation No. 2875336 and a related Section 104(b) 

Order No. 3077162·, which Order is also the subject of Contest 

Proceeding WEST 89-247-R. Pursuant to their accord, the parties 

agreed that the "Significant and Substantial" designation on 

the Citation should be deleted and the $225 penalty originally 

proposed by MSHA therefor should be reduced to $125 based on 

such modification. As a further part of their settlement, the 

Section 104(b) (Failure to Abate) Order issued after Citation 

No. 2875336 is to be vacated. Based on such vacation, Contestant 

Energy Fuels withdraws its contest in Docket WEST 89-247-R. The 

approval of settlement issued from the bench (T. 14-18) is here 

affirmed. 

449 
ORDER 

Citation No . 2875336 is MODIFIED to delete the "Significant 

and Substantial" designation thereon and is otherwise affirmed. 

Withdrawal Order No. 3077162 is VACATED. 

Docket No. WEST 89-247-R, having been withdrawn, is DISMISSED. Penalty Docket No. WEST 90-8, having been fully resolved, is DISMISSED. 

Respondent, if it has not previously done so, shall pay the 

Secretary of Labor within 30 days from the date hereof the sum of 

$125 as and for the civil penalty for Citation No. 2875336 above 

assessed. 

Distribution: 

$. ~; / /(' ~~ ~ r 

Michael A. Lasher, Jr. 'Administrative Law Judge 

Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700 

Broadway, Suite 1700, Denver, CO 80290-1199 {Certified Mail) 

Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor,· 1585 Federal Building, 1961 Stout Street, Denver, 

CO · (Certified Mail) 

/ot 

450 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF AD~INISTRATIVE LAW JUDG"ES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER. CO 80204 

ENERGY FUELS COAL, INC., 

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 

. . 

: 

HAR 13_1990 

CONTEST PROCEEDING 

Docket No. WEST 89-255-R 

Citation No. 2875334;4/25/89 

Southfield Mine 

Mine I.D. 05-03455 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 89-434 

A.C. No. 05-03455-03571 

Southfield Mine 

DECISION APPROVING PARTIAL SETTLEMENT 

Appearances: Phillip D. Barber, Esq., Welborn, Dufford, Brown & 

Tooley, Denver, Colorado, 

for Contestant/Respondent; . 

Margaret A. Miller, Esq., Of~ice of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

for Petitioner/Respondent. 

Before: Judge Lasher 

At a prehearing conference held on-the-record in Denver, 

Colorado, on February 14, 1990, the parties reached an amicable 

resolution as to Citation No. 2875334 - one of 20 enforcement 

documents involved in Penalty Docket WEST 89-434. On the basis 

of a -reduced evaluation of the gravity of the violation and a 

modification of Section lO{D) of the Citation, the parties agreed 

that a penalty of $100 rather than the original assessment of 

$168 was appropriate and moved for approval of such settlement 

(T. 26). This motion and Energy Fuels' corollary motion to withdraw its contest in Docket No. WEST 89-255-R were approved from 

the bench and such ruling (T. 25-26> is here affirmed. 

451 
ORDER 

1. Contestant/Respondent Energy Fuels, if it has not 

previously done so, shall pay the Secretary of Labor within 

30 days from the date hereof, the sum of $100 as and for a civil 

penalty for Citation No. 2875334. 

2. Section lO(D) of Citation No. 2875334 is MODIFIED to 

show the "Number of Persons Affected•' by the violation to be 

"1" rather than "2" , 11 7.. or any other number. 

3. Contest Docket No. WEST 89-255-R is DISMISSED. 

4. Penalty Docket No. WEST 89-434 will remain on the 

Judge's docket pending resolution of the remaining Citations 

contained therein. 

Distribution: 

~~_// c? ~~~;" /. c 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700 

Broadway, Suite 1700, Denver, CO 80290-1199 (Certified Mail> 

Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail> 

/ot 

452 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARD 

ENERGY FUELS COAL, INC., 

Contestant 

v~ 

SECRETARY OF LABO~, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABO~, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

ENERGY FUELS COAL, INC., 

Respondent 

DENVER. CO 80204 

MAR 13 1990 

CONTEST PROCEEDING 

Docket No. WEST 89-273-R 

Citation No. 2875322;4/13/89 

Southfield Mine 

Mine I.D. 05-03455 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 89-434 

A.C. No. 05-03455-03571 

Southfield Mine 

DECISION APPROVING PARTIAL SETTLEMENT 

Appearances: Phillip D. Barber, Esq., Welborn, Dufford, Brown & 

Tooley, Denver, Colorado, 

for Contestant/Respondent; 

Margaret A. Miller, Esq., Office of the Solicitor, 

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

for Petitioner/Respondent~ 

Before: Judge Lasher 

At the prehearing conference held on-the-record in Denver, 

Colorado, on February 14, 1990, the parties reached various 

settlement agreements revolving some 18 enforcement documents 

(Citations and Orders) which were the subject of both Contest 

and Penalty proceedings. With respect to Citation No. 2875322 

- one of the 20 enforcement documents involved in Penalty Docket 

WEST 89-434 - the Secretary, on the basis of proof of violation, 

moved to vacate such CT. 27). Such motion was approved as was 

Energy Fuel's corollary motion to withdraw its contest in Docket 

No. WEST 89-273-R (T. 27-28). See Commission Rule 11 (29 C.F.R. 

2700.11>~ such bench ruling is here affirmed. 

453 
ORDER 

1. Citation No. 2875322 is VACATED·. 

2. Contest Docket No . WEST 89-273-R is DISMISSED. 

3. Penalty Docket No. WEST 89-434 will remain on the . 

Judge ' s docket pending resolution of the remaining Citations 

contained therein. 

~ I ,. ? '- /.!( -f-/:" '/ ( ' //. ~:~ /. %1 ' V/ /Jkt~· £./ , /'1 

M~chael A. Lasher, Jr. 

Administrative Law Judge 

Distribution: 

Phillip D. Barber, Esq . , Welborn, Dufford, Brown & Tooley, · 1700 

Broadway, Suite 1700, Denver, CO 80290-1199 (Certified Mail> 

Margaret A. Miller, Esq., Office of the Solicitor, U. S . Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO (Certified Mail) · 

/ot 

454 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

ENERGY FUELS COAL, INC., 

Contestant 

v . 

SECRETARY OF LABO~, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABO~, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

ENERGY FUELS COAL, INC., 

Respondent 

MAR 13 1990 

CONTEST PROCEEDING 

Docket No. WEST 89-274-R 

Citation No. 2875321;4/12/89 

Southfield Mine 

Mine I.D. 05-03455 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 89-434 

A.C. No. 05-03455-03571 

Southfield Mine 

DECISION APPROVING PARTIAL SETTLEMENT 

Appearances: Phillip D. Barber, Esq., Welborn, Dufford, Brown & 

Tooley, Denver, Colorado, 

for Contestant/Respondent; 

Margaret A. Miller, Esq . , Office of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

for Petitioner/Respondent.· 

Before: Judge Lasher 

At a prehearing conference held on-the-record in Denver, 

Colorado, on February 14, 1990, the parties reached an amicable 

resolution as to Citation No. 2875321 - one of 20 enforcement 

documents involved in Penalty Docket WEST 89-434. On the basis 

of a reduced evaluation of the gravity of the violation, the 

parties agreed that a penalty of $50 rather than the original 

assessment of $98 was appropriate and moved for approval of such 

settlement (T. 27). This motion and Energy Fuels' corollary 

motion to withdraw its contest in · Docket No. WEST 89-274-R were 

approved from the bench and such ruling (T. 26-27) is here 

affirmed. 

455 
ORDER 

1. Contestant/Respondent Energy Fuels, if it has not 

previously done so, shall pay the Secretary of Labor within 

30 days from the d~te hereof, the sum of $50 as and for a civil 

penalty for Citation No. 2875821. 

2. Contest Docket No. WEST 89-274-R is DISMISSED. 

3. Penalty Docket No. WBST 89-434 will remain on the 

Judge's docket pending resolution of the remaining Citations 

contained therein. 

Distribution: 

~;;,~~< 4- c;6ri:i::r A' __ Michael A. Lasher, Jr. 

Administrative Law Judge 

Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700 

Broadway, Suite 1700, Denver, CO 80290-1199 (Certified Mail) 

Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

/ot 

456 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER. CO 80204 MAR 13 1990 

ENERGY FUELS COAL, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRAT.ION (MSHA) 

Petitioner 

v. 

ENERGY FUELS COAL, INC., 

Respondent 

CONTEST PROCEEDING 

Docket No. WEST 89-290-R 

Citation No. 3077181;5/11/89 

Southfield Mine 

Mine I.D. 05-03455 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 89-449-A 

A.C. No. 05-03455-03569 

Southfield Mine 

DECISION APPROVING PARTIAL SETTLEMENT 

Appearances: Phillip D. Barber, Esq., Welborn, Dufford, Brown & 

Tooley, Denver, Colorado, 

for Contestant/Respondent; 

Margaret A. Miller, Esq., Office of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

for Petitioner/Respondent. 

Before: Judge Lasher 

At the prehearing conference held on-the-record in Denver, 

Colorado, on February 14, 1990, the parties reached various 

se_ttlement agreements involving some 18 enforcement documents 

(Citations and Orders> which were the subject of both Contest 

and Penalty proceedings. With respect to Citation No. 3077181 

- one of the 4 enforc~nent documents involved in Penalty Docket 

WEST 89-449-A - the Secretary determined that no violation had 

occurred and moved to vacate such (T. 29). Such motion was 

approved on the record as was Energy Fuel's corollary motion to 

withdraw its contest in Docket No •. WEST 8.9-290-R (T. 28-29). 

See Commission Procedural ~ule 11 (29 C.F.R. 2700.11). Such 

bench ruling is here affitmed~ 

457 
ORDER 

Citation No. 3077181 is VACATED. 

Contest Docket No. WEST 89-290-R is DISMISS.ED. 

Penalty Docket No. WEST 89-449-A will remain on the Judge's 

docket pending resolution of the remainin_g Citations contained 

therein. 

Distribution: 

dt.A I fl .-" _/.' di / 4 /.~ -:'~·!'.:N/ /t'· ~../C't'.(' ~ I 

M~chael A. asher, Jr. 

Administrative Law Judge 

Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700 

Broadway, Suite 1700, Denver, CO 80290-1199 (Certified Mail) 

Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver 1 

CO (Certified Mail) 

/ot 

458 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, co 80204 MAR 13 1990 

ENERGY FUELS COAL, INC., 

Contestant 

v. 

SEC~ETARY 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 

. . 

. . 

. . 

: 

. . 

: 

CONTEST PROCEEDING 

Docket No . WEST 89-291-R 

Citation No. 3077180;5/11/89 

Southfield Mine 

Mine I.D. 05-03455 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 89-449-A 

A.C. No. 05-03455-03569 

Southfield Mine 

DECISION APPROVING PARTIAL SETTLEMENT 

Appearances: Phillip D. Barber, Esq., Welborn, Dufford, Brown & 

Tooley, Denver, Colorado, 

for Contestant/Respondent; 

Margaret A. Miller, Esq., Office of the Solicitor, 

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

for Petitioner/Respondent. 

Before: Judge Lasher 

At the prehearing conference held on-the-record in Denver, 

Colorado, on February 14, 1990, the parties reached various 

settlement agreements involving some 18 enforcement documents 

(Citations and Orders) which were the subject of both Contest 

and Penalty proceedings. With respect to Citation No. _3077180 

- one of the 4 enforcement documents involved in Penalty Docket 

WEST 89-449-A - the parties settled the matter on the basis of · 

Respondent's agreement to pay in full C$79) MSHA's proposed 

penalty and moved for approval of such agreement {T. 32). Such 

motion was approved as was Energy Fuel's corollary motion to 

withdraw its contest in Docket No . WEST 89-291-R CT. 32-33}. 

Such bench ruling is here affirmed. 

459 
ORDER 

1 . Contestant/~espondent Energy Fuels shall pay the 

Secretary of Labor the sum of $79 as and for a c i vil penalty 

for Citation No. 3077180. 

2. Contest Docket No . WEST 89-291-R is DISMISSED. 

3. Penalty Docket No. WEST 89-449-A will remain on the 

Judge's docket pending resolution of the remaining Citations 

contained therein. 

Distribution: 

~;; ~ d-; .. //-~.; d.,.-y ./f . . 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700 

Broadway, Suite 1700, Denver, CO 80290-1199 (Certified Mail) 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

co (Certified Mail> 

/ot 

460 
FEDERAL MINE SAFETY AND HEALTH REVIEW CO~MISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 MAR 131990 

ENERGY FUELS COAL, INC. CONTEST PROCEEDING 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION (MSHA), 

Respondent 

Docket No. WEST 89-293-R 

Citation No. 3077178; 5/11/89 

Southfield Mine 

Mine I.D. No. 05-03455 

DECISION 

Appearances: Phillip D. Barber, Esq., Welford, Dufford, Brown & 

Tooley, Denver, Colorado, 

for the Contestant; 

Margaret A. Miller, Esq., Office of the Solicitor, 

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

for the Respondent. 

Before: Judge Lasher: 

The parties have reached a settlement covering the sole 

Citation (No . 3077178) involved and, in accord therewith, 

Contestant having moved to withdraw its contest, pursuant 

to 29 C.F.R. 2700.11 the same is approved, and this Contest 

proceeding is dismissed. 

Although there is no related penalty proceeding involving 

Citation No. 3077178, as part of their settlement agreement 

reached on the record of a prehearing conference in Denver, 

Colorado on February 14, 1990 (T. 29-30), Contestant, Energy 

Fuels Coal, Inc., has agreed to pay a penalty of $50 for the 

violation and such is here approved and Contestant is ordered to 

pay such within 30 days of this Decision. Further, in effectuation of the settlement, Citation No. 3077178 is ordered MODIFIED 

to delete the "Significant and Substantial" designation thereon. 

Distribution: 

J • ••• / ' • "Z · .. ·. /.:r. / £"1"· ;-&:. f/, -,-· .' ' /[ " 

M1chael A~ Lasher, Jr. 

Administrative Law Judge 

Phillip D. Barber, Esq., Welford, Dufford, Brown & Tooley, 1700 

Broadway·, Suite 1700, Denver, CO 80290-1701 (Certified Mail) 

Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail> · 

/ot 

461 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARD 

DENVER. co 8'0204 MAR 13 1990 

ENERGY FUELS COAL, INC. CONTEST PROCEEDING 

Contestant 

v. 

SECRETARY OF. LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. WEST 89-294-R 

Citation No. 3077177; 5/11/89 

Southfield Mine 

Mine I.D. No. 05-03455 

DECISION 

Appearances: Phillip D. Barber, Esq., Welford, Dufford, Brown & Tooley~ Denver, Colorado, 

for the Contestant; 

Margaret A. Miller, Esq., Office of the Solicitor, 

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

for the Respondent. 

Before: Judge Lasher: 

The parties have reached a settlement covering the sole 

Citation (No. 3077177) involved and, in accord therewith, 

Contestant having moved to withdraw its contest, pursuant to 

29 C.F.R. 2700.11 the same is approved, and this Contest proceeding is dismissed. 

Although there is no related penalty proceeding involving 

Citation No. 3077177, as part of their settlement agreement 

reached on the record of a prehearing conference in Denver, 

Colorado on February 14, 1990 (T. 31-32), Contestant, Energy 

Fuels Coal, Inc., has agreed to pay a penalty of $112 for the 

violation and such is here approved and Contestant is ordered 

to pay such within 30 days of this Decision. 

Distribution: 

0:;.~_.--{;,-( ' ~ ~ ... ·. ,_.~_.,<4. . / ./.· . Michael A. Lasher, ·Jr. 

Administrative Law Judge 

Phillip D. Barber, Esq., Welford, Dufford, Brown & Tooley, 1700 

Broadway, Suite 1700, Denver, CO 80290-1701 (Certified Mail) 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

/ot 462 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

MAR 131990 

BIG HORN CALCIUM COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION (MSHA) , 

Petitioner 

. . 

. . 

CONTEST PROCEEDING 

Docket No. WBST 90-31-RM 

Citation No. 3455166~ 7/24/89 

Granite Canyon Quarry 

ORDER DISMISSING CONTEST PROCEEDING 

Before: Judge Cetti 

I have before me the Secretary of Labor's Motion to 

"Dismiss" the contest of Citation No. 3455166, issued on 

July 24, 1989, for the failure of Big Horn Calcium to contest 

the Citation within 30 days of receipt, as required by Section 

105(d) of the Mine Act, 30 u.s.c. § 815(d), and Section 2700.20 

of the Commission's Rules. 

The Secretary in support of the motion states that on 

July 24, 1989, MSHA Inspector Thomas L. Markve issued Citation 

No. 3455166 for violation of 30 C.F.R. § 56.11001 to Big Horn 

Calcium Company, a contractor working at the Granite Canyon 

Quarry. The Secretary contends that the facts clearly establish 

that Mike Latka, Big Horn Calcium's supervisor and company agent 

on the property, was served with the citation on July 24, 1989, 

and Mr. Latka . participated in the close-out conference on 

July 25, 1989, where both Citation Nos. 3455165 and 3455166 were 

discussed. 

I issued a Notice of Intention advising the parties of my 

intention to grant the Motion of Dismissal unless good cause to 

the contrary be shown in writing within the next 10 days. 

In response to the "Notice of Intention" Big Horn stated in 

part as follows: 

"2. Big Horn does not maintain a corporate office 

at the Granite Canyon Quarry or in Cheyenne, Wyoming, 

staffed by corporate officers. Citation No. 3455166 

was not received by Big Horn at its corporate office 

in Billings, Montana. 

463 
3. Citation No. 3455166 apparently was tendered by 

an MSHA inspector to local personnel at Big Horn's 

Granite Canyon Quarry. The receipt by subordinate 

personnel at the Granite Canyon Quarry of Citation 

3455166 does not constitute receipt within the meaning 

of the Act. See, J.I. Hass Co. Inc., 1981 CCH OSHD 

~ 25,375 (3d Cir. 1981); Buckley & Company Inc. v. 

Secretary of Labor, 507 F.2d 78 (3d Cir. 1975). 

4. Local quarry personnel inadvertently failed to 

notify and provide Big Horn a copy of this citation. 

The administrative error and neglect of subordinate 

personnel at the Granite canyon Quarry to promptly 

forward Citation No. 2455166 to authorized corporate 

representatives was excusable and inadvertent. See, 

P & A Construction Co . , Inc., 1981 CCH OSHD ~ 25,783 

(1981); Special Coating Systems of New Mexico, Inc., 

1980 CCH OSHO ~ 24,904 (1980). Big Horn did not 

initially submit a notice of intent to contest Citation 3455166 due to mistake, inadvertent surprise and 

excusable neglect within the meaning of Rule 60(b), 

Federal Rules of Civil Procedure. 

5. Big Horn has made a good faith effort to comply 

with the procedural requirements of the Act, and has 

.promptly responded to all known citations received 

by it within the meaning of the Act. Upon receipt 

in late September, 1989, of an Accident Investigation Report, Big Horn became aware of a reference to 

Citation 3455166. Big Horn attempted to locate a 

copy of that citation but could not find a record of 

having received the citation •••• Big Horn sutsequently obtained a copy from the MSHA office in Denver, 

Colorado, and filed its notice of contest." 

The Secretary replied to Big Horn's response in part as 

follows: 

"Big Horn's legal position is clearly wrong. 

The statutory scheme of the 1977 Mine Act is very 

different from the 1970 Occupational Safety and 

Health Act. Section 104(a) of the Mine Act, requires that MSHA issue citations and withdrawal 

orders for violations of Mine Act, or any mandatory 

health or safety standards, with reasonable prompt-

· ness. Requiring MSHA inspectors to issue citations 

464 
to mine operators at their corporate offices, instead 

of to their agents on mine property, would restrict 

MSHA's enforcement actions and limit the mine operator's ability to abate violations rapid_ly. 

It is beyond dispute that mine operators are 

liable for the acts of their agents under the Mine 

Act. Allied Products Co . v . FMSHRC, 666 F.2d 890 

(5th Cir. 1982) . Mr. Latka was clearly an agent as 

defined by Section 3(e) of the Mine Act, and his 

receipt of the citation is binding on Big Horn • . 

The OSHA cases cited by Big Horn relate to a 

regulatory and statutory scheme in which the notice 

of proposed penalties are served upon a corporate 

employer at the same time the citation is issued. 

Thus, there is always a delay between the date of 

the inspection and the issuance of citations under 

OSHA. 

Mine Act citations and orders are issued at the 

time of the inspection in most cases, and such documents are served on a responsible official at the mine 

site. Furthermore, a mine operator may challenge the 

citation either immediately after its issuance or 

during a later penalty proceeding. An OSHA contest 

of a citation always occurs after both the citation 

and penalty proposed have been issued. Therefore, 

the rationale concerning receipt of a .citation by a 

corporate employer in an OSHA case does not apply to 

serving an operator's agent on the mine property in 

a MSHA c~se." · 

On March 2, 1990, the parties filed joint written stipulations so as to avoid need for a hearing on the Secretary's 

pending Motion to Dismiss. 

Agreed Stipulations 

1 . On July 24, 1989, MSHA Inspector Thomas L. Markve issued 

Citation No . 3455166 to Mike Latka, a supervisor employed by ·Big 

Horn at the Granite Canyon Quarry, located in Granite, Wyoming. 

465 
2. Big Horn states, and the Secretary does not dispute, 

that Mr. Latka did not forward a copy of Citation No. 3455166 to 

Big Horn's corporate office located in Billings, Montana. 

3. Big Horn and the Secretary stipulate that with the exception of . the jurisdictional issue raised herein, all ot her · issues raised in this contest proceeding can also be aised in· the pending civil penalty proceeding in Docket No. WEST 90-80-M. 

Discussion 

Upon careful review of the entire record I adopt and incorporate by reference the rationale set forth in the Secretary's 

above quoted reply to Big Horn. 

It is also noted that 30 F.~ . § 41.1 and 30 C.F.~. § 52. 2 

(c)(2) and several other 30 C.F . R. sections define 11 0perator" as 

including any agent or person charged with the responsibility 

for the operation or supervision of a mine and 30 C.F.R. § 41.11 

requires an operator to notify MSHA of "the name and address of 

the person at the mine in charge of health and safety." (Emphasis 

added) . 

In Island Creek Coal Company v . Secretary of Labor and 

United Mine Workers of America, FMSHRC Docket No. PIKE 79-18 

(August 3, 1979), the Review Commission -affirmed the Administrative Law Judge's dismissal of Island Creek Coal Company's Appli- cation for Review "as not having met the jurisdictional filing 

period established by Section 105(d) of the Act." In that case 

the Application for Review was not received until 3 days after 

the 30-day filing period. 

Stipulation No. 2 quoted above, conforms with existing 

practice. Under Quinland Coals, Inc., 9 FMSHRC 1641 (September 

1987) the failure to file a notice of contest does not preclude 

the mine operator from ch~llenging in a penalty proceeding the 

fact of violation or any special findings contained in a citation 

or order including that the· violation was of a significant and 

substantial nature or was caused by the operator's unwarrantable 

failure to comply with the standard. 

466 
ORDER 

The Secretary's motion to dismiss the contest of Citation 

No. 3455166 as not having met the filing period established by 

Section 105(d) of the Mine Act is granted. The above captioned 

contest proceeding is dismissed. 

Judge 

Distribution: 

James J. Gonzales, Esq., Holland & Hart, 555 17th Street, Denver, 

CO 80201 (Certified Mail) 

Robert A. Cohen, Esq., Office of the Solicitor, u.s. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

/ot 

467 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

TERRY FOWLER, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 151990 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. PENN 88-267-D 

MSHA Case No. PITT CD 88-19 

ATLAS SERVICES CORPORATION, 

Respondent Nemacolin Mine 

ROGER D. BROADWATER, 

Complainant 

DISCRIMINATION PROCEEDING 

v. Docket No. PENN 88-281-D 

MSHA Case No. PITT CD 88-20 

ATLAS SERVICES CORPORATION, 

Respondent Nemacolin Mine 

Appearances: 

Before: 

DECISIONS 

Thomas Whitney Rodd, Esq., and James B. 

Zimarowski, Esq., Morgantown, West Virginia, for 

the Complainants; 

Robert L. Ceisler, Esq., and Thomas A. Lonich, 

Esq., CEISLER RICHMAN SMITH, Washington, 

Pennsylvania, for the Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern discrimination complaints filed by 

the complainants against the respondent pursuant to section 

105(c) of the Federal Mine ·safety and Health Act of 1977. The 

complainants filed their initial complaints with the Secretary of 

Labor, Mine Safety and Health Administration (MSHA), and were 

advised by MSHA that after review of the information gathered 

during the investigation of their complaints, MSHA"determined 

that violations of section 105(c) had not occurred. The complainants then filed their complaints with the Commission, and 

hearings were held in Washington, Pennsylvania. The partie·s 

filed posthearing arguments which I have considered in the course 

of my adjudication of these matters. 

The record reflects that the Nemacolin Mine was at one time 

an active producing mine, and that it was operated by the LTV 

468 
Steel Corporation. The respondent was an independent contractor 

performing contract services at t he mine incident to its disman- tling and sealing, and the mine was still under the ownership of 

the LTV Steel Corporation while this work was being performed. 

Complainant Terry Fowler alleges that he was terminated from his 

employment with the respondent for reporting safety violations to 

mine management ~nd to MSHA and state mine inspectors. Complainant Roger D. Broadwater alleges that he was terminated from 

his employment for speaking with an MSHA inspector who was at the 

mine site conducting an investigation into an alleged safety 

violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act _of 1977, 

30 u.s.c. § 301 et seq. 

2 . Sections 105(c) (1), (2) and (3) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. §§ 815(c) (1), (2) and 

( 3) • 

3 . Commission Rules, 29 C.F.R. § 2700.1, et seq. 

Issues 

The issues presented in these proceedings are (1) whether 

the complainants engaged in any safety activities protected by 

the Act, and if so, (2) whether the respondent retaliated against 

them by terminating their employment for engaging in such 

activities. Additional issues raised by the parties are identi- fied and discussed in the course of these decisions. 

Complainants' Testimony and Evidence 

James Vavrek, testified that he worked at the Nemacolin Mine 

for 12 years as a continuous-miner operator, repairman, and 

electrician, and also served as a union safety walkaround and 

committeeman. He confirmed that the mine ceased operating in 

August, 1986, because it was "basically mined out." After he was 

laid off, he was hired by the respondent in March, 1987, as part 

of several crews working to seal the underground shafts and the 

slope. He worked as a general laborer, and in April, 1988, was 

appointed the safety director because of his knowledge of the 

mine safety rules. He confirmed that he would report saf~ty 

violations to project superintendent Jay McDowell and job super- intendent Bill Parshall, but primarily to Mr. Parshall (Tr. 

17-27). 

Mr. Vavrek stated that he was appointed safety director the 

day after a Federal inspector carne to the mine and issued some 

"(d) orders" shutting down the job site at the slope. Prior to 

this inspection, Mr. Fowler had registered "certain observations 

469 
and complaints about problems on the slope" to 11Arty," an 

individual who he believed was a foreman. Mr. Vavrek stated that 

Mr. Fowler also mentioned these problems to him before he became 

the safety director, and to Ben Jordan, a laborer who was not 

part of management (Tr. 33). 

Mr. Vavrek identified the "problems" referred to by 

Mr. Fowler as "illegal" lights on the slope which were not 

enclosed in glass, the use of a gasoline chain saw and cement 

cutter inside the slope, and the smoking of cigarettes by job 

superintendent W.illiam Parshall. Mr. Vavrek identified "Arty" 

and "Kenny11 as Art Brienza and Ken Laida, and he stated that 

these individuals came to the slope area with daily work orders 

and told the workers what work was neede~ to be done on the slope 

(Tr. 36). Mr. Vavrek did not know whether Mr. Parshall was also 

advised of these complaints (Tr. 35). 

Mr. Vavrek stated that employees would bring "safety issues 11 

to him, and that Mr. Fowler also brought safety complaints to his 

attention. He confirmed that he previously worked with 

Mr. Fowler at the Nemacolin Mine "off and on" for 2 or 3 years, 

and he considered him to be a very good worker while employed at 

the mine and with the respondent. He stated that Mr. Fowler 

never had a safety or mine management grievance filed against 

him, and that he would rate Mr. Fowler as "extremely high" as a 

foreman who paid attention to safety questions (Tr. 43). 

Mr. Vavrek stated that in April and May, 1988, Mr. Fowler 

complained to him about people being transported in a bucket with 

oxygen and acetylene tanks which were not fastened or tied off. 

Mr. Vavrek stated that he told Mr. Parshall about these complaints and informed him that if the violations persisted and 

were not corrected, there was a risk that an inspector would 

issue a violation if he were in the mine and observed the 

conditions {Tr. 46-47). 

Mr. Vavrek stated that Mr. Fowler also complained about a 

contractor blasting and shooting while the blaster was 25 feet 

away, the failure to tie down acetylene torches while they were 

in use or stored, the lack of fire extinguishers at the places 

where welding was taking place, and the hauling of unsecured 

acetylene tanks in pickup trucks. Mr. Vavrek stated that these 

complaints were brought to his attention, and to the attention of · 

Mr. Parshall (Tr. 47-49). He also stated that Mr. Fowler complained that he was not being permitted to make his gas checks in 

accordance with the mine sealing plan (Tr. 50-Sl). 

Mr. Vavrek stated that Mr. Fowler's complaint about 

Mr. Parshall smoking underground was made to him and to Art 

Brienza, and that his complaint about the use of gasoline tools 

underground was made to him, to Mr. Brienza, and to Mr. Jordan 

(Tr. 49, 51). Mr. Fowler also complained on a few occasions 

470 
about the handling of asbestos which was being thrown down off 

the side of the building and permitted to lay on the ground, and 

the lack of self- contained self- rescuers underground while work 

was being performed at the slope (Tr. 51 , 54) . 

Mr. Vavrek ·stated that Mr. Fowler regularly brought up 

safety matters, and that Mr. Parshall was more aware of the 

complaints than Mr. McDowell because Mr. Parshall was at the 

slope area where the work was being performed, and Mr. McDowell 

remained at the office (Tr. 54). 

Mr. Vavrek stated that he told Mr. Parshall about Mr. Fowler 

bringing up these safety matters on "a few occasions" (Tr. 55). 

Mr. Vavrek stated that in April, 1988, Federal inspectors James 

Conrad, Cliff Spangler, and Robert Newhouse were in the slope 

area and called the miners out after issuing an imminent danger 

order. Mr. Fowler was talking to Inspector Conrad about hunting, 

and Mr. McDowell told Mr . Vavrek that he did not want Mr. Fowler 

talking to the inspector. Mr . Vavrek did not know why 

Mr. McDowell singled out Mr . Fowler (Tr. 55-58) . 

Mr. Vavrek stated that it was his impression that 

Mr. Brienza and Mr. Laida were foremen, that everyone went to 

them for orders "quite a bit," that Mr. Brienza and Mr. Laida 

"came down and told what was to be done," and if there were any 

questions "we would go to Art or Ken" (Tr. 60). If Mr . Brienza 

or Mr. Laida needed direction, they would go to Mr. Parshall, and 

Mr. Parshall was on the slope "sometimes" (Tr. 60). 

Mr . Vavrek stated that approximately 3 days before 

Mr. Fowler was terminated he (Vavrek) was with Inspector Spangler 

and Mr. Fowler informed them that he had not made a gas check at 

the slope work area and that "they were not following the plans." 

Mr. Vavrek explained that Mr. Fowler was the only person working 

for the respondent who was qualified to make the required gas 

checks prior to the start of any work in the slope (Tr. 61). 

Mr. Vavrek stated that after speaking with Mr . Fowler, he 

(Vavrek) and Inspector Spangler spoke with Mr. John Hoelle, an 

engineer who drafted the MSHA approved mine sealing plan . 

Mr. Vavrek believed that the plan required a qualified person to 

preshift the shaft work areas, and that the plan was not being 

followed (Tr. 63). Mr. Vavrek stated that he and Inspector 

Spangler then spoke with Mr. McDowell in his office, and after 

reviewing the mine fire boss book, Mr . Spangler found that it was 

not signed. Mr. Vavrek stated that Inspector Spangler commented 

that "Terry approached us and said that the plan was not being 

followed11 (Tr. 63). 

Mr. Vavrek stated that after Mr. Spangler informed 

Mr. McDowell that the plan was not being followed, Mr. McDowell 11was pretty upset. He swore a little bit, " and referre~ to 

471 
Mr . Fowler as a "fat roly-poly" (Tr. 64). Mr. Vavrek stated that 

this encounter with Mr. McDowell occurred the day prior to 

Mr. Fowler's lay-off, and that he (Vavrek) continued in the 

respondent's employ for another 4 months or so until August, 1988 

(Tr. 65). 

Mr . Vavrek stated that the day following Mr. Fowler's 

departure, the job was shutdown by a state inspector because 

there was no qualified or certified person to preshift the work. 

The respondent then contacted LTV Mine Superintendent Art Jones 

to come and preshift the job. Mr . Vavrek stated that the state 

inspector called him and asked if he were certified, and 

Mr. Vavrek told him that he was not. Mr. Vavrek stated further 

that Mr. Fowler was the only person on the job who was qualified 

to legally preshift the work, and that a day or so later, the 

respondent hired someone else who had the "papers" to do the 

morning preshifting, and the work then resumed (Tr. 66). 

Mr. Vavrek stated that sometime in May or June, 1988, after 

Mr. Fowler's termination, Mr. Parshall told him that Mr. Fowler 

"would never get a job at Meadow Run if he had anything to do 

with it" (Tr. 66). He explained that Meadow Run was a new mine 

which had opened up and was hiring (Tr. 66). Mr. Vavrek stated 

that Mr. Fowler was "the main person" bringing safety matters to 

the attention of respondent's management, and that 2 days later 

the Federal inspectors carne in and shut the slope down. 

Mr. Vavrek believed that Mr. Parshall or Mr. McDowell had knowledge of Mr. Fowler bringing up the safety issues 2 days before 

the slope was closed because Mr. Fowler brought these matters to 

Mr. Brienza, and he in turn would go to the office and report 

what was going on (Tr. 68). 

Mr . Vavrek also believed that Mr. Fowler was the "main man" 

who brought the safety matters to the MSHA inspectors because 

Mr. Fowler told him and Inspector Conrad about the slope conditions. Mr. Vavrek stated that the inspectors had received a 

phone call, and he believed that Mr. Fowler had made the call. 

Mr. Vavrek denied that he had made the call, and confirmed that 

he was not the safety director or involved with the safety 

committee prior to the time the slope was closed down (Tr. 70). 

Mr. Vavrek confirmed that he did not know for a fact that 

Mr. Brienza told Mr. McDowell and Mr. Parshall about Mr. Fowler's 

complaints, and that he did not know whether Mr. Fowler went 

directly to Mr. Parshall or Mr. McDowell with his complaints. 

Mr. Vavrek stated that Mr. Fowler went through Mr. Brienza with 

his complaints "because he thought, just like everyone else, 

thought he was a foreman" (Tr. ?1). 

Mr. Vavrek stated that in June, 1988, the respondent and 

several other contractors were involved in the demolition of 

surface structures which housed electrical transformers or panel 

472 
boxes which were labeled to indicate that the equipment contained 

PCB's. An allegation was made that the respondent was dumping these transformers down a shaft which was being sealed, and MSHA 

conducted an investigation of the matter. Mr. Vavrek stated that 

the day prior to Mr. Broadwater's discharge, he "heard" that the 

transformers were dumped down the shaft, but that he was not on 

the job when this purportedly occurred and "just heard talk about 

it." He stated that he heard about it from Mr. Broadwater, Homer 

Nicholson, and Bob Vance, and that Mr. Broadwater told him that 

"he saw them dumping" (Tr. 77} . He explained that Mr. Broadwater 

told him about the dumping while they were having lunch and that 

he was upset about it. The next day, the inspectors came to the 

mine (Tr. 74-78). 

Mr. Vavrek stated that the inspectors spoke to a number of 

people about the purported dumping, including Mr. Broadwater, but 

they did not speak to him (Vavrek) about the matter. Mr. Vavrek 

stated that Mr. Broadwater told him that he had called the 

inspectors (Tr. 81). 

on cross-examination, Mr. Vavrek confirmed that Mr. McDowell 

placed him in charge of safety matters on the project because of 

his safety experience, and that it was his job to remedy safety violations. He also confirmed that MSHA inspectors receive 

safety complaints in confidence and are not permitted to reveal 

the names of individuals who complain. He believed that Inspector Spangler violated confidentiality by telling Mr. McDowell 

that Mr. Fowler had brought the matter concerning the preshift 

gas check to his attention (Tr. 85). 

Mr. Vavrek identified the mine preshift examination book, 

and stated that he checked the book and found that no gas checks 

were recorded in the book for the 2 days l;>efore Mr. .Fowler was 

terminated on May 23, 1988 (Tr. 87). He stated that he checked 

the book to determined whether Mr. Fowler had made gas checks 

while "burning" was going on, and he could not find any onshift 

book that one would sign to verify that gas checks were made 

under state law (Tr. 90-91). He explained that no entries were 

made concerning the gas checks because Mr. Fowler did not examine 

the area (Tr. 93). He believed that anytime Mr. Fowler makes a 

preshift or onshift examination, it must be noted in the book 

(Tr. 94). 

Mr. Vavrek stated that Mr. Fowler told him that Mr. Parshall 

would contact him when he was needed to make his examinations and 

would then send him to the areas which needed to be examined. He 

confirmed that the book entry reflects that Mr. Fowler examined 

the number one shaft on May 17, 1988 (Tr. 96). Mr. Vavrek 

further confirmed that state law required anyone in Mr. Fowler's 

position to inspect a shaft before any burning is done, and he 

assumed that Mr. Fowler knew the law (Tr. 97} . 

473 
Mr. Vavrek confirmed that he specifically told Mr. Brienza 

about the -gasoline cement cutter and chain, the lights on the 

slope, and smoking underground, but that .he did not speak to 

Mr. McDowell or Mr. Parshall about these matters even though they 

were on the job every day, and no one stopped him from speaking 

with them. He explained that he spoke with Mr. Brienza because 

he believed he was a foreman (Tr. 99-100). 

Mr. Vavrek stated that when he received complaints from 

Mr. Fowler he either told Mr. Parshall about them or corrected 

the problem himself. He confirmed that when he complained to 

Mr. Parshall about safety violations, Mr. Parshall would at times 

have them corrected, and at times would not. Mr. Vavrek stated 

that when Mr. Parshall did nothing, he (Vavrek) also did nothing. 

Mr. Vavrek confirmed that he told Mr. McDowell about a few 

complaints, and when he told him about the need for fire extinguishers, Mr. McDowell would take -them out and put them on the 

equipment (Tr. 104). 

Mr. Vavrek confirmed that when he was laid off in August, 

1988, Mr. Parshall and Mr. McDowell knew that he had made safety 

complaints. He confirmed that he did not file any discrimination 

claim because he asked to be laid off. He explained that he 

found another job and requested to be laid off and "couldn't see 

someone else getting laid off" (Tr. 105). He confirmed that in 

August, 1988, the respondent's job at the mine "was running down" 

and people were being laid off. He confirmed that lay-offs were 

taking place from March through June, 1988, but denied that the 

work had slowed down (Tr. 105). He confirmed that he knew that 

the respondent had subcontracted part of the shaft sealing work 

to another contractor, but denied that this reduced the need for 

laborers or employees (Tr. 106). 

Mr. Vavrek stated that he could only recall John Bair and 

Dave Knisely being laid off (Tr. 107). He theP. confirmed that 

employee James Lowther was laid off, and that employee Frank 

Pavlovich got another job (Tr. 108). After the layoffs, additional people were hired to do the same work, but he did not know 

how many were hired (Tr. 114). 

Mr. Vavrek confirmed that in a statement made to MSHA 

Inspector John Savine during his investigation of the discrimination complaints he told Mr. Savine that he was not sure that 

Mr. Brienza and Mr. Laida were "bosses or management men," that 

he is still not sure that they were in fact foremen, and that all 

he knew was that they came in with work orders (Tr. 111-112). 

Mr. Vavrek confirmed that Mr. Broadwater never made any 

safety complaints to him. He also confirmed that "he heard" that 

MSHA found no evidence that any transformers were in fact dumped 

down the shaft, and he denied any knowledge that an inventory 

474 
made of· the transformers revealed that only one transformer was 

missing (Tr. 11~-119) . 

Mr. Vavrek confirmed that Mr. Broadwater told him that he 

had complained to MSHA about the transformers (Tr. 119). He also 

confirmed that he did not tell Mr. McDowell or Mr. Parshall about 

Mr. Broadwater's statement to him (Tr. 120). He also confirmed 

that he did not tell Mr. Savine about Mr. Broadwater's statement 

because he did not· know about it at the time he was interviewed 

by Mr. Savine, and Mr. Broadwater told him about the transformers 

after he had spoken to Mr. savine (Tr. 121). 

Terry L. Fowler testified with respect to his employment at ·the Nemacolin Mine, and confirmed that he held several foreman's 

positions, including underground shift foreman supervising 120 

underground miners. He confirmed that he holds certifications 

from the state of Pennsylvania as an underground assistant mine 

foreman, and that he is certified to make methane gas tests and 

air readings. He confirmed that he had a good work record at 

Nemacolin and never had any disciplinary problems (Tr. 125) ~ He 

identified a letter of recommendation dated June 15, 1983, from 

the superintendent of the Nemacolin Mine (Tr. 126). 

Mr. Fowler confirmed that he has worked for Jedco Minerals 

at the Ocean Five Mine since October 31, 1988, as a section 

foreman, and that he was unemployed for a few months after he was 

terminated by the respondent, except for "odds and ends jobs" 

doing road and contract work tearing down buildings (Tr. 127, 

exhibits C-1 and C-2). 

Mr. Fowler confirmed that he was laid off by Nemacolin 

because the mine shutdown, and that Mr. McDowell hired him after 

confirming that he had fire boss and assistant mine foreman's 

papers. He confirmed that he started work on. approximately 

February 17, 1988, as an underground fire boss and laborer and 

was paid approximately $8 an hour (Tr. 130). He described his 

fire boss duties, and confirmed that management would inform him 

where the work was taking place, and that he would make his 

preshift examination before work began in the shafts and slope. 

He con.firmed that there were four shafts, the slope, and surface 

buildings and ponds, and a tipple. After completing his preshift 

examinations, he performed his laborer's work (Tr. 131). 

Mr. Parshall would inform him where the work was taking place, 

and Mr. McDowell was present in the office when he went there to 

receive his assignments from Mr. Parshall (Tr. 132). 

Mr. Fowler stated that his work assignments conducting the 

required tests took him to different shafts, two of which are six 

or seven miles apart. He always entered his inspections in the 

mine books after he completed them, and would then receive his 

work assignments from Mr. Parshall, and on occasion from 

Mr. McDowell (Tr. 134). He described the work which he did at 

475 
the slope and shafts, including the 11 burning" or cutting of metal 

with acetylene torches (Tr. 134-136). 

Mr. Fowler stated that after observing violations around the ~. shaft, he informed Mr. Parshall about a compressor, the use of a 

gasoline powered grinder and power saw, Mr. Parshall smoking 

underground, and the presence of uncertified and untrained people underground. He explained that Mr. Brienza and Mr. Laida walked 

down the shaft.slope for a few hundred feet without a flame 

safety light or spotter and without permission to enter the mine . He also expressed his concern about self-rescuers, backup horns 

on vehicles, the improper hauling of oxygen and acetylene tanks, 

and fire extinguishers. Mr. Fowler stated that he raised these 

concerns when he was working in the slope in late March and .early April, 1988, and before Mr. Vavrek became the safety director 

(Tr. 138) . He stated that he spoke to Mr. Parshall about these 

matters and "mentioned a few" to Mr. McDowell. Mr. Fowler stated 

that he advised Mr. Parshall about the violations and informed 

him that the inspectors would 11write them up" and that he 

(Parshall) should take care of them. He also stated that 

Mr. Parshall said "I know" when he called these matters to his 

attention (Tr. 138). 

Mr. Fowler stated that he informed Mr. Parshall and 

Mr. McDowell about the slope violations 2 days before the inspectors came in and issued violations closing down the slope (Tr. 

140). Most of the violations were brought to the attention of 

Mr. Parshall, and "a few" were brought to Mr . McDowell's attention, but nothing was done to correct the conditions (Tr. 141) . 

Mr. Fowler confirmed that he telephoned MSHA inspector James 

Conrad at his home and told him about the violations and informed 

him that he was the fire boss and wanted him to do something 

about it and have the violations corrected. Mr. Fowler stated 

that he called Mr. Conrad the day before the inspectors came to 

the mine, and he requested that his name not be divulged (Tr. 

143). Mr . Fowler stated that he also complained about a nonpermissible cable running down the slope where he was working, and 

uncovered light bulbs (Tr. 143). 

Mr. Fowler confirmed that he did not enter the violations he 

complained about in the mine books because the conditions did not 

exist when he made his examinations. He asserted that the 

violations occurred during the shift after the completion of his 

examination. He further explained as follows at {Tr. 148-149): 

Q. You did bring it to the attention of management on 

numerous occasions that there were problems even though 

you didn't enter it in the book. Is that right? 

A. Yes, sir. 

476 
Q. Is there any other reason you did not enter these 

hazardous conditions into the book? 

A. I just didn ' t want to see the company have it 

inspected by the inspectors and give them a bad name 

and write violations. It's bad practice. 

Q .. After you had done that numerous times, you say, 

you called the federal inspectors. Is that right? 

A. Yes, sir. 

Q. And they came out and they inspected the slope and 

they shut it down. 

A. Yes, sir. 

Q. Are you aware of the specific things they were 

written up for right now? 

A. Yes, sir. 

Q. What is your recollection? 

A. All the violations I talked about. 

Mr. Fowler believed that the slope was shutdown for 1 day , 

and that following this, Mr. Vavrek was appointed as safety 

director (Tr. 150). The parties agreed that the slope was shutdown on or about March 24 or 25 , 1988, and that exhibit C- 3, are 

the copies of the citations issued by the MSHA inspectors (Tr. 

153). Mr. Fowler confirmed that the violations which were issued 

were those that he previously discussed with Mr. Parshall and 

Mr. McDowell 2 days earlier. He stated that he called Inspector 

Conrad because management was not taking any action to correct 

the violations, and he identified the other MSHA inspectors who 

came to the mine as Cliff Spangler and Robert Newhouse (Tr. 154). 

Mr . Fowler stated that following the shutdown of the slope 

by the MSHA inspectors, he informed Mr. Parshall and Mr. McDowell 

that the company truck he was driving was not being inspected and 

that they replied "so" (Tr. 155). He also found out that "stuff" 

was being dumped down the shaft, and no certified person was 

examining the shaft. He asked the state and Federal inspectors 

about the matter, and they confirmed that if any work is done 

around the shafts they were required to be inspected by a certified person. Since he was the only certified person at the mine 

site, and he did not inspect the shaft when the material was 

dumped, Mr. Fowler concluded that the required shaft inspection 

had not been conducted. He reported this to Mr. Vavrek in the 

presence of Inspector Spangler, and Mr. Vavrek told Mr . . Fowler 

that he would check on it. Mr. Fowler stated that he called 

477 
state mine inspector Raoul Vincinelli that same evening and 

informed him that the respondent did not allow him to conduct his 

shaft inspections, and that Mr. Vincinelli told him he would 

speak to management (Tr. 156-160) . Mr. Fowler called Mr. Vavrek 

at his home and Mr. Vavrek told him that Mr. McDowell had 

referred to him (Fowler) as "a wimp or fat boy or something. 11 

Mr. Fowler did not tell Mr. Parshall that work was being conducted at the shaft without anyone inspecting it, but that a 

State and Federal inspector told Mr. Parshall to make sure that 

he (Fowler) makes his tests (Tr. 159-160). Mr. Fowler stated 

that he was terminated 1 day later after these events occurred 

(Tr. 160). 

Mr. Fowler stated that Mr. Parshall spoke with him at the 

end of his work shift and informed him that "I'm going to have to 

let you go" for "lack of work." Mr. Fowler stated that he said 

nothing and left the site. He then called Mr. Vincinelli that 

day or evening and informed him that management had lied to him 

and had no certified people working for them. The next day, 

Mr. Vincinelli went to the site and shut the job down. 

Mr. Fowler stated that following this shutdown, it was his understanding that the methane checks were made by Mine Superintendent 

Art Jones (Tr. 163-164). 

In response to a question as to whether Mr. Parshall or 

Mr. McDowell ever expressed any displeasure with his safety 

activities, Mr. Fowler stated that Mr. Parshall questioned his 

whereabouts when he was gone for 4-1/2 hours making methane 

checks where holes were being drilled and shot. Mr. Fowler 

stated that he informed Mr. Parshall that he could contact the 

State or Federal inspectors to verify what he was doing, and 

asked Mr. Parshall not to interfere with his methane testing (Tr. 

167). 

Mr. Fowler stated that Mr. McDowell questioned him about 

some comments he purportedly made to the mine owner, and indicated that he (Fowler) had made the owner mad (Tr. 167). The 

next day, Mr. Parshall and Mr. McDowell argued with him about his 

reporting late for work, and when Mr. Fowler asked them whether 

there was "a problem" and did not want to be harassed, 

Mr. McDowell stated "well, I've been getting too many 800 phone 

calls" (Tr. 168). Mr. Fowler took this to mean that someone had 

called an inspector, and that Mr. McDowell believed he had called 

the inspectors (Tr. 169). 

Mr. Fowler stated that he did not know the mine owner, but 

offered to speak with him. However, Mr. McDowell stated "that is 

not a good idea" and that "the owner could get real tough." 

Mr. McDowell stated that he did not like to be threatened, and 

Mr. Fowler stated "I don't either, Jay" (Tr. 169). Mr. Fowler 

stated he wanted to speak with the owner because he had never 

spoken to him and wanted to find out why he was mad (Tr. 170). 

478 
Mr. Fowler stated that on one occasion when a safety meeting 

was supposed to be held, Mr. McDowell commented that "he was not 

going to be a safety nut on no job" (Tr. 171). Mr. Fowler stated 

that management never criticized his job performance. He stated 

that he called the Federal inspectors because management was not 

doing anything about the violations, and since he had to sign the 

fire boss books, he was concerned that management would blame 

him, and that Mr. Parshall and Mr. McDowell "did not know the 

laws" (Tr. 172). 

Mr. Fowler stated that Mr. Brienza and Mr. Laida rode to 

work with Mr. Parshall and they talked on the job about someone 

calling the MSHA inspectors. Mr. Fowler stated that they stated 

that Mr. Parshall and Mr. McDowell were mad because someone was 

calling the MSHA inspectors and they wanted to know who it was. 

Mr. Fowler stated that he wanted everyone to know about the 

conditions that he complained about, and he believed that 

Mr. Brienza and Mr. Laida "would run to management and tell them 

everything" (Tr. 173). 

Mr. Fowler stated that he did not resent Mr. Brienza and 

Mr. Laida giving him work assignments and had "no ax to grind 

with them." He stated that Mr. Brienza and Mr. Laida "both told 

me they was company." He also stated that he received his daily 

work assignments from Mr. Brienza, Mr. Laida, and Mr. Parshall, 

and that he would find out about his daily work assignments when 

he went to work (Tr. 176). 

On cross-examination, Mr. Fowler stated that approximately 

3 days after he was hired by the respondent he began making 

complaints about safety violations, and that he made them intermittently from F~bruary 20 to May 22, 1988. He confirmed that he 

knew that Mr. Parshall was the superintendent and that 

Mr. McDowell was the project manager, and that they would be the 

logical people to complain to (Tr. 178-181). 

Mr. Fowler reviewed a copy of his 12-page statement given to 

MSHA Inspector John Savine in connection with his complaint, and 

stated that although "he may have left something out, ... his statements were true (Tr. 183). Mr. Fowler stated that he told 

Mr. Parshall and Mr. McDowell about all of the complaints which 

are referred to in his statement to Mr. Savine (Tr. 189). He 

conceded that he did not tell Mr. Savine that he had spoken to 

Mr. McDowell and Mr. Parshall about these complaints, and stated 

that he told Mr. Savine that "I went to management . Management 

is Jay and Bill" (Tr. 188). In response to a comment by respondent's counsel that his statement made to Mr. Savine does not 

include any assertion that he specifically told Mr. Parshall or 

Mr. McDowell about his complaints, Mr. Fowler responded "I told 

you I left things out" (Tr. 189) . 

479 
Mr. Fowler confirmed that he was a member of the United 

Steelworkers Local 3403, and that the local represented the 

respondent's employees on the job· at the mine. He confirmed that 

the President of the local, Tom Simon, filed a grievance on his 

behalf regarding his termination. Mr. Fowler confirmed that he 

told Mr. Simon that "I got laid off or discharged or fired, 

whatever you want to call it, and they hired a guy in my place" 

(Tr. 190-195). Mr. Fowler confirmed that his grievance was not 

pursued because it was not timely filed (Tr. 211). 

Mr. Fowler identified the mine examiner's book, and he 

confirmed that in his capacity as the examiner he was supposed to 

make entries concerning mine conditions, gas tests, and any 

safety violations. In response to questions concerning certain 

entries he made in this book, Mr. Fowler conceded that without 

exception, each of the shafts and slope which he examined on the 

days shown in the book were all noted by·him to be safe (Tr. 

195-198, exhibit R-1). Mr. Fowler explained that these areas 

"were safe at the time" he inspected them and that the violations 

that he complained about took place during the shifts and that 

the areas noted in the book 11 vlas safe every day except the few 

days I told management about." He further conceded that there 

are no entries in the book that do not say "safe" in his own 

handwriting for every examination noted in the book (Tr. 199). 

Mr. Fowler confirmed that no one ever told him not to write up 

any violations in the book (Tr. 201). 

In response to further questions, Mr. Fowler stated that he 

believed that Mr. Brienza and Mr. Laida were foremen because they 

told him they were "company" and not "union" (Tr. 208). He 

stated that neither Mr. Brienza, Mr. Laida, Mr. Parshall, or 

Mr. McDowell were authorized to go underground unescorted because 

they were not certified under Pennsylvania State law and had no 

underground training (Tr. 208-210). 

Mr. Fowler stated that Mr. Brienza and Mr. Laida made comments that "the inspectors are here. Fowler must have called the 

inspectors," and that they made the statements "quite a few 

times." He also stated that he personally observed Mr. Brienza 

and Mr. Laida riding in a vehicle with Mr. Parshall (Tr. 

213-214). 

Mr. Fowler stated that one may assume that any violations 

which may have occurred during a work shift were corrected in 

1 day if he found the area safe during his next daily preshift 

inspection (Tr. 218). He stated that "most of the time" his 

safety complaints were ignored and that is why he called the 

Federal inspectors. In response to certain bench questions with 

respect to whether he ever went to Mr. McDowell or Mr. Parshall 

with his complaints of violations, Mr. Fowler stated as follows 

(Tr. 218-220): 

480 
Q. The point I'm making is were these complaints that 

were just altogether ignored or were they taken care 

of? 

A. Most of the time they were ignored. That is why I 

called. 

Q. Most of the time they were ignored. 

A. That is why I called the Federal inspector. 

Q. How were they ignored? 

A. They weren't taken care of. 

Q. Did you ever go to Mr. McDowell or Mr. Parshall, 

who were the powers to be at the mine? 

A. I told Bill and I told Jay about a few. 

Q. Which ones? 

A. Which ones? 

Q. Do you remember which ones you told them about? 

A. I can't remember. They didn't want to correspond 

or help out, so I said I would have to go to an inspector to get something done. 

Q. You told them that. 

A. Yes. 

Q. On how many occasions did you tell them that you 

had to go to the inspector? 

A. I told Jay -- excuse me. I told Bill if he interfered with my tests, with my examinations, that I would 

go to the Federal and State inspectors. I told Bill 

this. 

Q. I'm taking about the conditions that you say they 

didn't take care of. Did you tell them about conditions that 

A. I told them about -- we had conditions. And they 

did nothing. They gave me dirty looks and started 

treating me --

Q. Do you know whether they took care of them? 

.481 
A •. Some they did and some they didn't. 

Mr. Fowler denied that he ever heard Mr. Brienza state that 

he was "union," denied that he ever cursed Mr. Brienza or had a 

fight with him, or that he ever told Mr. Laida that he wanted to 

be laid off because he had another job (Tr. 221-224). 

John R. Bair testified that he was formerly employed by the 

respondent as a laborer for approximately 6 weeks beginning on 

March 3, 1988. He stated that some oil spilled out of a transformer one day and he requested Mr. Vavrek to have him tested for 

possible PCB exposure. Mr. Vavrek told him that he would ask 

management about it, and Mr.. McDowell came to him later and 

cursed him and told him that if he had any problems he should 

come to management. Mr. · Bair stated that he also asked 

Mr. McDowell for the identity of his union president so that he 

could file a request to be tested for PCB exposure, and that 

Mr. McDowell cursed him. Mr. Bair stated that Mr. McDowell never 

responded to his testing request or for the identity of his union 

president. Mr. Bair claimed that he never received a union card, 

that no one knew what union they belonged to, and that he could 

not find the information (Tr. 227-231). 

Mr. Bair stated that after his encounter with Mr. McDowell, 

Mr. Parshall told him that he would assign him to "burn cable" on 

the hoist house tower, but then left him standing in the rain for 

3 hours without a further work assignment after he told 

Mr. Parshall that he would not climb the tower because it was too 

high and he feared for his life (Tr. 234). The next day, 

Mr. Parshall told him he was laying him off because there was a 

shortage of work. Mr. Bair stated he was actually laid off the 

following day and was not called back to the job (Tr. 235). He 

confirmed that Mr. McDowell had initially hired him for the job 

(Tr. 238). Mr. Bair denied that he was still mad at 

Mr. McDowell, but was mad at the company because of the treatment 

he received (Tr. 247). 

Roger Broadwater testified that he worked for the respondent 

from approximately the middle of March, 1988 until June 1, 1988, 

and that .he was hired by Mr. McDowell to work as a bulldozer 

operator. He stated that he has never been fired from a job for 

poor work and has never been the subject of any disciplinary 

actions (Tr. 250-252). 

Mr. Broadwater described his work duties, including 

laborer's work, and cutting metal with a torch. He stated that 

his work assignments were primarily made by Mr. Parshall, and 

that Mr. Brienza and Mr. Laida would also inform him where he was 

needed to work on any given day (Tr. 252-255). 

Mr. Broadwater stated that he was concerned about unsafe 

work practices such as the lack of fire extinguishers, unsecured 

482 
oxygen and acetylene bottles, the use of a Cherry picker with a 

broken front stabilizer, and a man cage being hauled around 

without a safety rig (Tr. 255). He stated that he mentioned 

these conditions to Mr. Parshall, and he believed that he spoke 

to Mr. McDowell about the oxygen and acetylene bottles when he 

first started work (Tr. 256). 

Mr. Broadwater stated that he observed two transformers 

being pushed down a skip shaft by a highlift operated by 

Mr. Laida, and that Mr. Parshall and others were present when 

this occurred. Mr. Broadwater stated that he did not know 

whether the transformers contained any PCB's, but that he was 

upset because contaminants, oils, and flammable, combustible, and 

corrosive materials were not allowed to be put down the shafts 

(Tr. 258-261). After arriving home that same day he called 

Mr. Fowler and told him about the transformers being pushed down 

the shaft and Mr. Fowler had a friend of his, John Cox, call him. 

back. Mr. Broadwater told Mr. Cox what he observed, and 

Mr. Fowler called the MSHA inspectors, and they came to the mine 

the next day (Tr. 264). 

Mr. Broadwater stated that when he returned to work the day _after speaking with Mr. Fowler, the inspectors were at the mine 

and wanted to know if anyone knew anything about the transformers 

being dumped down the shaft. Mr. Broadwater stated that he 

feared for his job and said nothing directly to the inspectors, 

but he did take Inspector Newhouse's phone number and told him 

that he would call him that evening (Tr. 266) . At the end of the 

shift Mr. Parshall told him that four laborers were no longer 

needed and that he was one of them. Mr. Broadwater stated that 

he was laid off at the end of the day and that Mr. Parshall told 

him to find another job (Tr. 267). Mr. Broadwater stated that he 

had no opportunity to call or speak with Mr. Newhouse, but that 

he subsequently went to see him and filed-his discrimination 

complaint with him (Tr. 268). 

Mr. Broadwater believed that there was still "plenty of 

work" to be done when he was laid off, and that he was the only 

one laid off that day. He did not know whether the other three 

laborers mentioned by Mr. Parshall were subsequently laid off 

(Tr. 270). 

Mr. Broadwater stated that when the inspectors were at the 

mine speaking with people about the transformers being pushed 

down the shaft he told four individuals what he had observed and 

that he was going to be telling the inspectors about it (Tr. 

273). He believed he was laid off because he called the inspectors to look into the matter (Tr. 273). 

On cross-examination, Mr. Broadwater stated that he believed 

that management knew that he had complained about the transformers being pushed down the shaft because they "probably must 

483 
have had a snitch." He could not identify the "snitch" because 

"I don't have a crystal ball." Mr. Broadwater confirmed that he 

did not say anything to management about the transformers {Tr. 

275). 

With regard to his complaint-about the Cherry picker with a 

broken stabilizer being used to hoist men in a man cage, 

Mr. Broadwater confirmed that in a prior statement given to MSHA 

Special Investigator John savine, he stated that "This cage was 

not used to hoist men, to the best of my knowledge. " When asked 

to explain· this contradiction, Mr. Broadwater stated that "I must 

have remembered something else," "I don't know if its a matter of 

time lapse," and "maybe I don't know" (Tr. 277-278). 

Mr. Broadwater confirmed that in his prior statement to 

Mr. Savine he stated that he asked Mr. Parshall that "it looked 

like the job was slowing down and if there were going to be any layoffs" and that Mr. Parshall assured him that employees would 

not be laid off because there was a lot of work to do in the 

preparation plant (Tr. 282). 

Mr. Broadwater acknowledged that he had several different 

jobs with the respondent but denied that he was ever taken off a 

job because he could not perform sat~sfactorily. He also 

acknowledged that Mr. Parshall gave him "an ear! beating" when he 

backed up a backhoe and it caught some powerlines and broke down 

an old rotted telephone pole (Tr. 285). 

Mr. Broadwater stated that he and the other miners -who were 

interviewed by the MSHA inspectors concerning the transformers 

were all interviewed in private, and that there were no witnesses 

present during the interviews (Tr. 287). He confirmed that 

Mr. Fowler advised him of his right to file his discrimination 

complaint, but that he did not file a grievance over his layoff. 

When asked why he had not filed a grievance, he stated "I don't 

know why I didn't. Because there is .no union representative on 

the job" (Tr. 291). He confirmed that his union dues were 

"checked off" and sent to the Steelworkers union but that he had 

no union card, and only received one after he was laid off (Tr. 292). He confirmed that other people were hired after Mr. Bair 

and Mr. Knisely were laid off to do the same work, and it was his 

impression that they were not laid off because of a lack of work 

(Tr. 295) . 

Homer W. Nicholson testified that he was hired by 

Mr. McDowell as a laborer on March 1, 1988, and worked at the 

project in question for 3-1/2 months. He testified with respect 

to his knowledge concerning the transformers which were allegedly 

dumped down the mine shaft and explained what had occurred (Tr. 296-305). With regard to this incident, Mr. Nicholson stated 

that during the dinner hour one evening Mr. Broadwater stated 

that he was going to call the federal or state people about the 

484 
transformers, and he could only recall one other individual who 

was present at this time, and he identified him as Roger "Hobby" 

Vance. The following day, the Federal inspectors showed up at 

the site, and prior to their arrival, Mr. Brienza and Mr. Laida 

asked him not to say anything about the transformers. He stated 

that "he thought" that Mr. Laida and Mr. Brienza were foreman but 

that he did not know (Tr. 306). He confirmed that when he was 

interviewed by the inspectors about the transformers he told them 

that he did not see any transformers go down the shaft and that 

"once I load them, they're not my problem no more" (Tr. 306). 

Mr. Nicholson confirmed that after the transformer incident, 

which he believed occurred on May 31, 1988, he continued to work 

for the respondent at the mine until approximately June 15, 1988, 

and then obtained a job at another mine with another "branch" of 

the respondent (Tr. 308) . He confirmed that he heard the argument between Mr. Bair and Mr. McDowell, but could not hear any of 

the details because he was "downstairs." Although he had no 

personal knowledge of any safety problems at the site, he "heard" 

from others that burning was being done without the use of any 

fans, but that Mr. McDowell had him "fix up a fan for them" (Tr. 

309) . 

On cross-examination, Mr. Nicholson testified further about 

his involvement with the transformers in question, and he confirmed that he visited Mr. McDowell's office many times (Tr. 

309-313) . He confirmed that there was a bulletin board in the 

office and that he has seen some "papers" posted on the wall 

concerning the union. Although Mr. Nicholson could not read in 

any detail a copy of a union agreement produced by the respondent's counsel because he did not have his glasses, he identified 

the name of the Local Union 1474 of the United States Steelworkers of America printed on the docum~nt, and stated that it 

could have been the document posted on the wall (Tr. 316-318). 

In response to a question as to whether he ever told anyone 

in "management" that Mr. Broadwater complained about the transformers, Mr. Nicholson responded "Not in management, not unless 

it was Arty and Kenny, and they say they wasn't in management 

now" (Tr. 318). Mr. Nicholson stated further that when he began 

work for the respondent he thought that Mr. Brienza and Mr. Laida 

were foremen, but that they informed him that they were not (Tr. 

319). Mr. Nicholson confirmed that Mr. Broadwater told him that 

he was going to make a complaint, and that he had heard that· 

Mr. Robert Vance told Mr. Brienza that Mr. Broadwater "was going 

to tell on them" (Tr. 320). 

David D. Knisely, testified that he was hired by 

Mr. McDowell as a skilled laborer and worked for the respondent 

for 10 days during the middle of April, 1988. He worked at 

"burning metal and stuff, steel, then stacking it on the truck or 

whatever, just labor work." He stated that on one occasion when 

485 
he was working with Mr. Broadwater and Mr. Bair, he asked 

Mr. Vavrek to find out if there was a union representative or 

steward on the job, and Mr. Broadwater inquired about the presence of any PCB's in the transformer banks in the building where 

they were working at. Shortly thereafter Mr. McDowell and 

Mr. Parshall carne to the building while they were tearing it down 

and wanted to know whether there was a problem, and they used a 

few curse words. They also stated that they were to come to them 

if they had any questions, and Mr. Bair did most of the talking. 

Words were exchanged, and after Mr. ·Bair asked Mr. McDowell about 

the union steward and the PCB's, Mr. McDowell stated that he 

would find out about it. The next day, he and Mr. Bair went to -the office to find out if Mr. McDowell had any answers to their 

questions, and Mr. McDowell informed them not to worry about the 

union because it would take 60 days for them to be in. When 

Mr. Bair asked to be tested for PCB's, Mr. Knisely stated that "I 

forgot what happened after that. It's been awhile" {Tr. 326}. 

Mr. Knisely stated that on the day that he and Mr. Bair went 

to see Mr. McDowell in his office, Mr. Parshall spoke with him 

later in the afternoon and informed him that he was laid off 

because of a lack of work, and that was his last day on the job. 

Although he had no personal knowledge whether there were any new 

hires after 'his layoff, Mr. Knisely stated that it was his understanding that there were (Tr. 326). Mr. Knisely stated that 

Mr. Broadwater and Mr. Fowler then advised him that he had "a 

good case if I filed 105(c)." He confirmed that he filed a 

complaint but was informed by MSHA by letter that his case had 

been "dropped" and he elected not to pursue it further and found 

other work in July (Tr. 327). 

On cross-examination, Mr. Knisely stated that he and 

Mr. Bair asked Mr. McDowell about the union, and that 

Mr. McDowell was upset because they spoke to Mr. Vavrek first and 

did not come to him with their questions about the union. He 

confirmed that Mr. McDowell eventually "got to finding out about 

the union" but "ranted and raved about not corning to him first" 

(Tr. 330). Mr. Knisely confirmed that he had visited 

Mr. McDowell's office and recalled seeing "something about the 

retirement and health care" posted on the bulletin board, and 

that something about the union was also possibly posted, but he 

did not recall. Mr. Knisely stated further that Mr. McDowell was 

upset "mostly" with Mr. Bair, but was not pleased with him either 

because 11 I guess he didn't want nobody talking about the union" 

(Tr. 334). He confirmed that he had no first hand knowledge 

about the transformer question (Tr. 337). 

Edward K. Locy, stated that he worked for the respondent as 

a heavy equipment operator from March 14 to approximately 

August 10, 1988, and later became an acting foreman. He stated 

that sometime in June or July, 1988, Mr. Parshall told him to 

start work early before the usual starting time of 7:00a.m., and 

486 
that following Mr. Parshall's instructions, he dumped five or six 

plastic barrels of acid down a shaft after breaking them up with 

a dozer so they would not float. He stated that Mr. Parshall 

told him that Mr. Phil Stout, the respondent's owner, happened to 

see Mr. Fowier "doing something one day" and commented that "he 

didn't like the M-F'ers look, get rid of him," and that this 

occurred the day before Mr. Fowler left the job (Tr. 342). 

In response to a question concerning his opinion of 

Mr. Fowler as a worker and safety conscious person, Mr. Locy 

responded "I can't really say that ·much about him ..•• I 

actually don't know the man. But he was always doing the job 

when I was around him" (Tr. 343). With regard to his opinion of 

Mr. Broadwater, Mr. Locy stated "Well, I know him. But personally associating with him, going to his house or something like 

that, no, I've never been there" {Tr. 343). 

Respondent's Testimony and Evidence 

Armand "Arty" Brienza testified that he was employed by the 

respondent during April through June, 1988, at the mine site in 

question as a carpenter and that Mr. Fowler and Mr. Broadwater 

were his co-workers. He confirmed that the work being performed 

by the respondent was a "union job," and that he and the other 

employees belonged to the United Steelworkers union at that time. 

He also confirmed that Mr. Kenny Laida worked for the respondent 

as a cement finisher and also belonged to the union, and that he 

and Mr. Laida were not foremen or bosses and were not part of 

management. 

Mr. Brienza denied that he and Mr. Laida ever went into any 

of the work areas at the site with "work orders of the day" for 

any individual or group of employees to follow. Mr. Brienza 

explained that part of his work was to seal bore holes which were 

located within a 10-mile radius of the mine, and that he would 

generally have laborers helping him. The men were assigned to 

him by Mr. · Parshall and he (Brienza) had nothing to do with 

selecting them. In view of the .fact that he was a carpenter and 

needed to have materials available to him, he would instruct the 

laborers assigned to him to bring the materials to the work 

locations and that this was a normal practice "in the trade." He 

believed that this probably explains why others may have believed 

that he and Mr. Laida were foremen or a part of management. He 

further stated that he and his crew of two laborers would travel 

around in a dump truck used to haul the materials for sealing the 

bore holes, and that he would instruct the laborers as to where 

to take or place the materials needed for the job. He confirmed 

that once the laborers were assigned to him by Mr. Parshall, they 

were under his (Brienza's) control while they were in the field 

working with him, and that Mr. Fowler and Mr. Broadwater were 

never assigned to him to do any of the bore hole work (Tr. 

354-360). 

487 
Mr. Brienza confirmed that the only time he gave any work 

orders to Mr. Fowler and Mr. Broadwater was during the work to 

seal off the slope, and on these occasions he would instruct them 

to bring _in materials, do the "chipping out," carry blocks, or do 

anything else that was necessary, and that these orders were no 

different than was customary "in the trade." He believed that 

Mr. Fowler and Mr. Broadwater should have realized that craftsmen 

such as a carpenter or cement finisher could tell a laborer to 

"bring me this or that," and that although· an experienced miner 

or construction person might believe that a carpenter was management or a boss or foreman "he ought to know" {Tr. 361). 

Mr. Brienza stated that Mr. Fowler never treated him as a 

boss or foreman or part of management, that he used foul language 

while they talked and worked together while "kidding around," and 

that on one occasion they engaged in an altercation, but then 

shook hands. He further stated that he and Mr. Fmvler worked "as 

a crew" together doing slope work for 6 to 8 weeks {Tr. 363). 

Mr. Brienza stated that Mr. Parshall and Mr. McDowell never 

worked "in the hole" with the men, and that the men did not talk 

to them like they did with him and treated them differently. 

There was no question that the men knew that Mr. Parshall was the 

superintendent and that Mr. McDowell was the project manager (Tr. 

364) • 

Mr. Brienza stated that Mr. Fowler and Mr. Broadwater never 

made any safety complaints to him, but that he did hear 

Mr. Fowler mention or complain about the lights and use of a 

generator in the shaft, and fire extinguishers. These comments 

were made in "general conversation," and Mr. Brienza denied that 

he ever reported them to Mr. Parshall or Mr. McDowell. 

Mr. Brienza explained that he did not believe it was his responsibility to inform management about these matters, and since 

Mr. Fowler had more mine experience and knew the safety regulations, "he should have went and done more complaining to somebody 

else beside me" (Tr. 366). 

On cross-examination, Mr. Brienza confirmed that he "heard 

talk" about transformers being dumped down a shaft, but that he 

had left the site four times on the day in question and had no 

personal knowledge about this purported incident (Tr. 368). 

Although he initially stated that he was "fire-bossing," and had 

"a card" allowing him to make methane checks, he later clarified 

his testimony and stated that he was not a fire boss, and was 

only certified to make methane tests on the surface (Tr. 371). 

Mr. Brienza confirmed that he rode to work with Mr. Parshall 

in his vehicle because it was a trip of 37 miles one way and he 

had the opportunity to get a ride to work every day (Tr. 379). 

He confirmed that he still works for the respondent as a carpenter, does not act as a foreman, and is not presently a member 

488 
of the union (Tr. 380). He did not believe that it was reasonable for anyone to believe that he was the .conduit between 

Mr. Parshall and the work force "because Mr. Parshall came down 

every morning and he gave the orders to everybody, what they had 

to do down there" (Tr. 381). He denied that he ever acted as a 

foreman, and stated that he was a carpenter who worked part of 

the time doing slope and bore hole work, and that there were days 

when he worked and labored with the men on different jobs (Tr. 

382). 

Mr. Brienza confirmed that he had no training "in the m1.n1.ng 

area," and that he and Mr. Laida took it upon themselves to go to 

the slope bottom to retrieve some copper material and that he 

knew this was illegal or improper and that Mr. Fowler told him so 

(Tr. 384). Mr. Brienza stated that he never received a union 

card, and that Mr. McDowell told him that Mr. Laida was the shop 

steward (Tr. 384). He also stated that the work which he performed around the bore holes took place after Mr. Fowler was 

terminated, and he conceded that this work would not be relevant 

to Mr. Fowler's perception that he was a foreman (Tr. 390). 

Mr . Brienza confirmed that Mr. Fowler pointed out problems 

in the workplace on more than one occasion in his presence, and 

that he did .so "as a group . In the hole talking, yes, he mentioned different things" (Tr. 391). Mr. Brienza denied that 

Mr. McDowell or Mr. Parshall were present during these discussions, and he had no knowledge that Mr. Fowler or 

Mr. Broadwater ever went directly to Mr. McDowell or Mr. Parshall 

with any safety complaints (Tr. 392). He believed that 

Mr. ~arshall was concerned about the safety of the employees (Tr. 393) •. When asked why he did not communicate Mr. Fowler's safety 

concerns to Mr. Parshall, Mr. Brienza replied "Because I figured 

Mr. Fowler, he has a complaint, let him g~. He complained down 

in the hole to all of us" (Tr. 395). Mr. Brienza confirmed that 

Mr. Fowler complained about fire extinguishers, lights, and 

self-rescuers, and that one of the reasons he was hired was 

because he was experienced in these matters. Mr. Brienza stated 

that all of these items in the slope was "new to me," and that as 

a carpenter he usually worked on the surface (Tr. 397). 

Mr. Brienza denied any knowledge of Mr. Fowler's calling any 

federal inspectors. He confirmed that he was aware that the 

inspectors came to the site on March 24, 1988, and "writing up a 

bunch of stuff," and that he had no reason to dispute 

Mr. Fowler's claim that he called in the inspectors (Tr. 399). 

He confirmed that Mr. Fowler had worked in the mine, and that he 

was the only person who had knowledge about the mining laws and 

regulations (Tr. 405). 

Mr. Brienza confirmed that he was at the mine when the slope 

was shutdown by the inspectors, but he was not interviewed and 

did not believe that he spoke with Inspectors Newhouse or 

489 
Spangler. ·He did not know who the inspectors spoke with, and 

never heard Mr. McDowell or Mr. Parshall say anything to 

Mr . Fowler suggesting that he should not speak to any federal 

inspectors (Tr. 407). 

William Parshall testified that he was formerly employed in 

1988 by the respondent as the job superintendent at the Nemacolin 

Mine, and that he and Mr. McDowell managed the project. He 

stated that Mr. Laida and Mr. Brienza were in no way part of 

management and that he never authorized them "to carry orders of 

the day to the men on the site." He confirmed that 14 to 16 men 

worked at the site, and that he would make the work assignments 

on a daily basis and directed all of the work orders (Tr. 410) . 

He confirmed that Mr. Fowler and Mr. Broadwater worked for him 

(Tr. 411) • 

Mr. Parshall denied that Mr. Fowler or Mr. Broadwater ever 

made any safety complaints to him, and stated that the only time 

he found out that any complaints had been made was when the MSHA 

inspectors came to the site and shut the job down. He stated 

that "they shut the job down until I .cleaned everything up that 

they wrote up, that I had that was improper" (Tr. 412). He 

confirmed that he never found out who may have complained, but 

that he was curious and asked Inspector Newhouse about it. 

Mr. Newhouse informed him that a complaint may be filed by using 

a toll free number to call MSHA in Washington, and that the 

source of any complaint is confidential and could not be 

revealed. Mr. Parshall stated that he had no knowledge that 

Mr. Fowler or Mr. Broadwater made any safety complaints about the 

area which was shutdown (Tr. 412). 

Mr. Parshall denied that Mr. Fowler or Mr. Broadwater were 

fired because they made safety complaints. He stated that they 

were laid off. The decision to lay off Mr. Fowler was a joint 

decision made with Mr. McDowell. Mr. Fowler was laid off because 

the company was catching up with the work, had subcontracted work 

to another contractor, and he knew that he was going to reduce 

his work force. He laid Mr. Fowler off because he was the least 

qualified to do the work and he did not consider him to be a 

satisfactory employee. He stated that Mr. Fowler "walked around 

and talked to people instead of doing his work," was not a "production worker," was not an "energetic worker," and did not give 

him "eight hours work for eight hours pay" (Tr. 415). Although 

Mr. Fowler did what he was told, "it wasn't no expediency" and 

"it was just moping around and stop and talk to people. Things 

like that" (Tr. 415). Four or five other employees were laid off 

2 or 3 weeks before Mr. Fowler, and others were laid off after 

Mr. Fowler (Tr. 416-417). 

Mr. Parshall confirmed that at the time the MSHA inspectors 

came to the job site and shut the slope down and issued violations, he was aware that they spoke with Mr. Fowler. He stated 

490 
that he observed Mr. Fowler speaking with the inspectors, and he 

recalled that Mr. Ben Jordan and Mr. Brienza were also present at 

the slope with Mr. Fowler and the inspectors when it was shutdown, but he had no idea what the conversations were about (Tr. 

419). He denied making any statement that Mr. Fowler would never 

get to work at the Meadow Run Mine, and confirmed that he never 

heard of that mine (Tr. 421). 

Mr. Parshall confirmed that he laid off Mr. Broadwater. He 

explained that Mr. Broadwater was hired as a high lift operator, 

but that he did not consider him to be satisfactory at that job. 

He assigned Mr. Broadwater to other equipment at another shaft 

because the superintendent at that site needed an operator, but 

he -v;as sent back within 2 days because the superintendent did not 

want him "because he wasn't very goo<;i" ( Tr. 4 2 0) . He then 

assigned Mr. Broadwater to "burning work," but found that he had 

difficulty doing that job. He then assigned him to "laboring 

here and there until I had to make a cutback . . . . I was going 

to lay laborers off, so I just let him go because he wasn't 

qualified to do any of the work, really" (Tr. 421). 

Mr. Parshall denied that he ever told Mr. Broadwater that 

there was plenty of work, and he considered such statements to be 

a bad business practice. He denied that he laid off 

Mr. Broadwater because of any complaints concerning safety violations or transformers, and stated that he had no knowledge that 

Hr. Broadwater had made any complaints prior to the time he laid 

him off. He also denied that Mr. Vavrek ever infonr.ed him that 

Hr. Fowler and Mr. Broadwater had made safety complaints (Tr. 

422) • 

Mr. Parshall confirmed that he knew about the EPA's interest 

in the complaint concerning PCB's and equipment being pushed down 

the shafts and that he "heard talk about it." He confirmed that 

MSHA came to the site to look into the matter and 11 found 

nothing." He stated that he had no idea that MSHA had anything 

to do with the mine prior to March 24, 1988, when the inspectors 

came and shut the job down, and that MSHA had never visited the 

site prior to that time while he was the superintendent. He had 

no idea who called MSHA, but assumed that someone called or made 

a complaint, "but I have no idea who" (Tr. 428). Mr. Parshall 

stated that he has been "in this business 39 years" and considers 

himself to be a safety conscious person and that he tries to work 

as safe as he can (Tr. 434). 

Mr. Parshall confirmed that he was not familiar with the 

safety rules for underground mines when the job was started at 

the mine, and that Mr. Vavrek was appointed as the "safety man" 

because he had worked at the mine and was familiar with the 

safety rules. Mr. Fowler was appointed as a "fire boss for 

checking for methane gas" (Tr. 435). Mr. Parshall denied that he 

ever permitted any safety violations, and he denied that he ever 

491 
knowingly and deliberately committed any safety violations (Tr. 

436). . 

on cross-examination, Mr. Parshall stated that he "vaguely" 

recalled the day that Mr. Fowler was laid off, and he denied any knowledge that Mr. Vavrek and MSHA Inspector Spangler spoke to 

Mr. McDowell about Mr. Fowler's concerns that gas checks were not 

being properly made (Tr. 450). Mr. Parshall believed that the 

joint decision to lay off Mr. Fowler was discussed and made 

approximately 10-days prior to the lay off, but that he was not 

sure. It was his understanding that Mr. Fowler was hired because 

he had fire boss papers, and that he and Mr. McDowell discussed 

the significance of laying off Mr. Fowler, and any particular 

problems which may have resulted by the lay off. He confirmed 

that when state mine inspector Raoul Vincinelli came to the site 

the day after Mr. Fowler was laid off and informed him that he 

would not allow work to continue until he brought in Mr. Art 

Jones or someone else to fire boss the job, he was surprised (Tr. 

451). 

Mr. Parshall stated that prior to Mr. Fowler's lay off, 

there were nine individuals qualified to make methane checks, but 

that none of them had fire boss or mine superintendent papers. 

He confirmed that Mr. Vincinelli informed him that the mine had 

to be firebossed, and stated as follows at (Tr. 453): 

THE WITNESS: I had no knowledge of it, but a fire boss 

we don't need a fire boss outside. We need a man -- he was a fire boss bec.ause he can take methane checks. 

We all, later, got cards to check methane. That way I 

didn't need Terry Fowler, because I had nine men go to 

school for methane checks. And that is all we had him 

do. 

BY MR. RODD: 

Q. Who did you have come in to ·fire boss the job 

before Mr. Vincinelli would let you get to work the day 

after Terry Fowler -- who did you have come in? 

A. Mr. Jones took the methane check because we did not 

have our authorization cards yet. 

Mr . Parshall stated that Mr. Vincinelli instructed him not 

to do any further work until he had a qualified person to conduct 

the methane checks (Tr. 459). Since Mr. Jones was available at 

the nearby LTV mine and was still the superintendent and wellqualified to make the methane checks, he made the checks, and 

Mr. Vincinelli then permitted the work to continue (Tr. 460). 

Mr. Parshall confirmed that Mr. Barry Cox was then hired on a 

part-time basis to make the methane checks (Tr. 460). 

492 
Mr. Parshail stated that at the time Mr. Vincinelli came to 

the site, seven or nine of the respondent's employees had 

received training for taking methane checks, but had not as yet 

received their cards to show Mr. Vincinelli. They did have a 

"signed paper" from the methane instructor but the cards had not 

as yet arrived from Denver. Mr. Vincinelli later accepted the 

papers after Mr·. Jones conducted the methane checks (Tr. 463). 

Hr. Cox had "mine papers," and although Mr. Parshall never saw 

any certifications, it was his understanding that Mr. Cox was 

certified to make certain inspections, and that after Mr. Fowler 

left, "we had certified or qualified methane check . cards" (Tr. 

465) . . 

Mr. Parshall confirmed that Mr. Brienza and Mr. Laida rode 

to work with him in a company furnished pickup trucks, and that 

he picked them up on the highway on the way to work (Tr. 466). 

He denied that he ever ate lunch with Mr. Brienza and Mr. Laida, 

and stated that he lunched with Mr. McDowell (Tr. 467). 

Mr. Parshall confirmed that he was curious about who may 

have complained to the MSHA mine inspectors, and that he discussed it with Mr. McDowell, but was not sure whether he discussed it on more than one occasion (Tr. 468). He also confirmed 

that "it was kind of shocking" to find out that he could not 

continue working until the violations were corrected. Since the 

mine was being closed, he was unaware of MSHA's involvement in 

surface mining, and he was not sure if Mr. McDowell was aware of 

it (Tr. 470). Mr. Parshall identified a copy of a mine sealing 

plan prepared for the respondent and submitted to MSHA, and 

stated that he had never seen it prior to the hearing in these 

proceedings (Tr. 474). 

Mr. Parshall confirmed that he selected Mr. Vavrek as the 

responsible person for dealing with safety complaints because he 

believed he was a reliable and responsible person for dealing 

with such matters. He stated that he knew that Mr. Vavrek 

carried out his duties in a responsible and proper fashion 

"because I directed him to" (Tr. 481). He stated that Mr. Vavrek 

made his inspections prior to starting time, signed the papers 

attesting that "the job was safe," and that he always instructed 

Mr. Vavrek to correct any unsafe conditions. He had no reason to 

believe that Mr. Vavrek was not fulfilling his safety responsibilities, and he would verify Mr. Vavrek's safety assessments as 

he moved around the job project (Tr. 482). Mr. Parshall confirmed that Mr. Fowler had to travel 4 miles to perform some of 

his gas checks at the shafts, and used his own vehicle to do this 

on his way to work. He was then assigned a company truck to make 

these checks, and spent more time than he should have, and 

Mr. Parshall stated that he complained about it to Mr. Fowler, 

and that after this "he did a little better" (Tr. 483). 
Mr. Parshall confirmed that after Mr. Bair and Mr. Knisely 

were laid off, other people were hired and were assigned the same 

jobs that they had performed. He denied that he told 

Mr. Broadwater that four others would be laid off at the same 

time that he was laid off. He confirmed that Mr. Broadwater was 

laid off alone, but that he laid off others at a later time "as I 

needed to." He also confirmed that he laid off people prior to 

Mr. Broadwater's lay off, and he identified them as Mr. Bair, 

Mr. Knisely, and Mr. Ben Jordan (Tr. 488). Mr. Parshall denied 

that he considered these individuals as "troublemakers" (Tr. 

489). 

Mr. Parshall stated that Mr. Fowler would spend an hour and 

a half making methane checks, and the rest of his 8-hour day 

doing labor work. He confirmed that o~ one occasion Mr. Fowler 

was gone for 2 hours and 10 minutes on a methane check, and when 

he discussed it with him, "his timing changed and he shortened 

his time" (Tr. 490). Mr. Parshall stated that Mr. Fowler's 

assigned job was to do labor work and make methane checks, and 

that Mr. Vavrek was responsible for making all of the other 

safety checks in his capacity as the "safety man" (Tr. 492). 

Mr. Parshall stated that he did not lay off Mr. Fowler 

earlier because he needed someone to make the methane checks and 

that Mr. Vavrek could not make them because his card was not 

updated and Mr. Fowler was the only one with an updated card (Tr. 

495) . In response to questions concerning what he may have told 

Mr. Fowler and Mr. Broadwater when he laid them off, Mr. Parshall 

stated as follows (1r. 495-496): 

Q. Did you tell Mr. Broadwater and Mr. Fowler you were 

laying them off because you weren't too happy with 

their work? 

A. Yes. 

Q. Is that what you told them? 

A. I just told them, "I'm through. I don't need you 

people anymore. I've caught up on my work." 

Q. That sounds as if you laid them off for a lack of 

work. 

A. Lack of work. Exactly. 

signed up for unemployment. 

lack of work. 

That is how they got 

They were laid off for 

Q. I thought you said you laid them off because you 

weren't too happy with their work. 

A. Well, naturally --

494 
Q. Which one was it? 

A. Okay. I wasn•t happy with their work, which is the 

normal procedure for any superintendent on any construction job. 

Q. Well, why not fire the man outright and say, 11 I 1m 

not happy with your work. You didn't do your job. You 

didn't do this. You didn't do that. You're out the 

door, over the hill. Take your bucket and go home? 11 

Why didn't you tell them that? 

A. Because I told them they was laid off. That was 

it. I wasn•t happy with their work. 

Q. You kind of let them down easy? 

A. I just let them go. 

Mr. Parshall stated that Mr. Fowler and Mr. Broadwater 

received unemployment benefits, and that he has never denied 

anyone these benefits (Tr. 497). He confirmed that the violations which were issued on March 24, 1988, were issued 2 months 

before Mr. Fowler and Mr. Broadwater were laid off, and he denied 

any connection between the violations and the layoffs (Tr. 497). 

He denied that Mr. Fowler ever stated to him that citations would 

be issued and inspectors would come to the mine if certain conditions were not corrected, or that anyone else informed him that 

Mr. F·owler had made such statements (Tr. 498). He further stated 

th~t during the entire time that Mr. Fowler worked for the 

respondent, he never directly or indirectly made any statements 

about his safety concerns (Tr. 498). 

Mr. Parshall stated that when he discussed Mr. Fowler's lay 

off with Mr. McDowell, he informed Mr. McDowell that he wanted to 

lay off Mr. Fowler because he was 11 veryunsatisfactory and not 

productive at all. 11 He denied that he was aware that 

Mr. Broadwater had raised any concerns .concerning about PCB 

exposure, and also denied any knowledge about any request by 

Mr. Bair to be tested for PCB exposure (Tr. 500). He pointed out 

that Mr. Fowler and Mr. Broadwater were still employed many weeks 

after the MSHA inspectors came to the mine and closed it (Tr. 

501). He confirmed that after Mr. Fowler and Mr. Broadwater were 

laid off, 11 quite a few other people 11 were hired as equipment · 

operators as the job progressed, but that the hirings were made 4 

or 5 months after they were laid off. He confirmed that he did 

not consider hiring Mr. Fowler and Mr. Broadwater back, and 

stated that 11 I don•t know if they ever came back to ask for a 

job, but I wouldn't hire them11 (Tr. 503-504). 

495 
Mr. Parshall stated that the respondent's work at the mine 

site did not end until late December, 1988,- or January, 1989, but 

that he was not there to complete the job (Tr. 505-506). He 

denied that any complaints were ever made about his smoking 

underground, but admitted that he did smoke outside of the slope 

and that an MSHA inspector informed him that he was to leave his 

smoking material at least 25 feet away from the slope. He denied 

that Mr. Vavrek, Mr. Fowler, or Mr. Broadwater ever discussed his 

smoking with him, and he did not know if they made any issue 

about his smoking (Tr. 508). 

Jay McDowell, testified that he was last employed by the 

respondent in October, 1988, as the project manager in connection 

with the work to seal the mine. He identified the three "management11 personnel as himself, Mr. Parshall, and Mr. Clayford 

Matthews, the superintendent of the sealing work performed at the 

Number 4 shaft (Tr. 480, 510). He confirmed that Mr. Brienza and 

Mr. Laida worked on the project but were not part of management. 

Mr. McDowell stated that he issued work orders to Mr. Parshall 

and Mr. Matthews, and that he never directed or authorized that 

any orders given to these individuals be passed on to Mr. Laida 

or Mr. Brienza to be passed out to the other men (Tr. 510). He 

stated that he was at the job site on a daily basis and maintained an ot'fice there, and he believed that everyone knew that 

he was at the site because he was familiar with everyone there. ·His involvement with the project began in January, 1988, and 

ended during the first part of October, 1988. He entployed as 

many as 27 men on the project and they all knew where his office 

was located because they came there to fill out forms when they 

were hired. There was a bulletin board in the office which 

contained a copy of the Steelworkers Agreement, the health and 

welfare benefits, and copies of MSHA citations (Tr. 512, exhibit 

R-2). 

Mr. McDowell identified exhibit R-3 as a copy of a "green 

registration form used as part of the signup package for new 

employees" the day they start work and he stated that it is 

signed by Mr. John Robert Bair. He also identified an insurance 

and health and welfare waiver form signed by Mr. Bair when he was 

hired (exhibit R-4; Tr. 514-515) . He further identified copies 

of the Steelworkers union cards signed by Mr. Fowler and 

Mr. Broadwater when they were hired, or shortly thereafter 

(exhibit R-5; Tr. 517). 

Mr. McDowell stated that he entered into negotiations with 

some subcontractors to dismantle the mine preparation plant, and 

that he knew that this would result in the reduction of his work 

force. He stated that he discussed these· negotiations with 

Mr. Parshall in April or May, 1988, and when his work on the 

project was diminishing he discussed who would be laid off with 

Mr. Parshall, and that other people were laid off before 

Mr. Fowler. Mr. McDowell confirmed that he initially authorized 

496 
the hiring of Mr. Fowler as a laborer after Mr. Matthews stated 

that he could use him, and that he knew that Mr. Fowler could 

inspect for methane and that this was "a plus" (Tr. 520). He 

stated that he did not consider Mr. Fowler's work performance to 

be satisfactory because he was "not very enthusiastic," had poor 

work skills, was not a "team play"er," and was not particularly 

qualified in any of his assigned work activities. He stated that 

Mr. Fowler was allowed to perform duties other than an laborer, 

and these included "burning" and operating a highlift, but that 

his performance at these tasks was not satisfactory (Tr. 521). 

Mr. McDowell stated that on one occasion, one of the principal owners of the company, Philip Stout, his father-in-law, was 

at the job site, and after observing Mr. Fowler's performance 

while dumping some material commented to him (McDowell) that 

Mr. Fowler "didn't know what he was supposed to be doing" and 

that "I had better find someone who could get him on the right 

track and pointed in the right direction." Mr. McDowell stated 

that Mr. Fowler was apparently not working and that Mr. Stout's 

comments about Mr. Fowler embarrassed him. Mr. McDowell stated 

that he mentioned Mr. Stout's displeasure to Mr. Fowler and told 

him that Mr. Stout was "pissed off" and that he (Fowler) had 

emba+rassed him (Tr. 524). Mr. McDowell stated that he considered this incident in his decision to lay off Mr. Fowler. 

Mr. McDowell confirmed that seven MSHA inspectors came to 

the site on March 24 and 25, ·1988, and he was told that they were 

there for an inspection. He also confirmed that they issued a 

series of violations and would not allow any work to continue 

until they were remedied. He stated that he had no knowledge 

that Mr. Fowler had called the inspectors, and had no reason to 

believe that he had done so. He stated that Mr. Fowler and 

Mr. Broadwater never made any complaints to him about safety 

violations, and that no one ever told him that they had made any 

complaints (Tr. 525). 

Mr. McDowell stated that the decision to lay off Mr. Fowler 

was made 10 days in advance of his release, and that he delayed 

the lay off because Mr. Fowler was the only one at the job site 

who could do the methane testing and he needed to prepare others 

to do the testing. He subsequently learned from State Inspector 

Vincinelli after Mr. Fowler's lay off that the individuals who 

were trained under MSHA's guidelines to make the tests did not 

meet the state requirements for certification, and he then 

requested Mr. Art Jones to make the checks (Tr. 528). 

Mr. McDowell confirmed that Inspector Newhouse was at the 

mine on the day the slope was shutdown, but said nothing about 

interviewing any of the men. Mr. Newhouse returned on June 1, 

1988, in connection with the transformer issue, and although 

Mr. McDowell understood that Mr. Newhouse may have interviewed 

everyone at the site, he did not know who he spoke with since he 

497 
returned to his office while Mr. Newhouse was at the work areas 

(Tr. 530). 

Mr. McDowell identified exhibit R-6 as a May 6, 1988, proposal made by a subcontractor for the demolition of the preparation plant, and he confirmed that he signed it. There was no 

question that Mr. Parshall knew about this and that there would 

be a marked reduction in the work force, and Mr. McDowell knew of 

no reason why Mr. Parshall would have told Mr. Broadwater that 

"there was a lot of work coming up" (Tr. 533}. 

Mr. McDowell denied ever telling Mr. Fowler that ''there was 

no problem with his work," and he stated that he first learned 

about MSHA's 800 telephone number from Mr. Newhouse during the 

investigation of the transformer issue after Mr. Fowler was laid 

off. He also denied ever telling Mr. Fowler that he "was not 

going to be a safety nut," and denied cursing Mr. Bair or 

Mr. Knisely (Tr. 539). He further stated that he learned that 

Mr. Fowler had made some complaints after he was laid off, and 

that it came to his attention during the discrimination inquiry. 

He denied that these complaints had anything to do with his lay 

off on May 23, 1988 (Tr. 540). 

With regard to Mr. Broadwater, Mr. McDowell characterized 

him as "a sad sack," and stated that "he wanted to do well, but 

he ·was just not capable of doing it." He stated that he had a 

friendly feeling for Mr. Broadwater and hired him as a heavy 

equipment operator, but that he performed "very poorly" and "did 

not have a sense of his work area." He assigned Mr. Broadwater 

work burning or cutting metal and that he was very slow at this 

task, had to be taken "step by step" and could not think for 

himself or do the work on his own and always "seemed to be at a 

loss for where he was or what he was doing" (Tr. 543). 

Mr. McDowell confirmed that he paid Mr. Broadwater at an hourly 

rate ·of $11, which was the rate for an equipment operator, and 

although the pay rate for a skilled laborer doing burner work was 

$8 an hour, he did not cut his pay and kept him at the higher 

rate of $11 an hour even though he was doing lower rate work, and 

he did so because he liked him (Tr. 543-544). Since 

Mr. Broadwater did not perform well as a burner, he was taken off 

that work and assigned to a "basic grunt" position around the 

project putting pipe together at the $8 an hour rate, and he and 

Mr. Parshall finally decided to lay him off (Tr. 544). 

Mr. McDowell stated that Mr. Broadwater never came to him 

with any safety complaints, and the fact that he may have made 

any such complaints had nothing to do with his decision to lay 

him off. He confirmed that he hired three or four equipment 

operators during a period of a month after Mr. Broadwater was 

laid off (Tr. 545). He denied that Mr. Brienza or Mr. Laida ever 

communicated any safety complaints to him, and he knew of no 

reason why anyone would consider them to be bosses, foremen, or 

498 
part of management. He confirmed that he never invested them 

Hith any responsibility or authority _over the work force (Tr. 

564) • 

Mr. McDowell stated that he left the job before it .was 

finished in January or February of 1989, and some of the men who 

talked to the Federal inspectors about the transformers were 

still employed by the respondent and finished out the job at the 

time that he left (Tr. 548). Mr. McDowell identified exhibit 

R-7, as a cover letter and his response to a grievance report he 

received from the Steelworkers Union with regard to Mr. Fowler, 

and confirmed that he stated that Mr. Fowler's "work qualification was less than _those of the workers I continue to employ." 

Mr. McDowell stated that he heard nothing further about the 

grievance and made no further inquiry (Tr. 552). He stated that 

Mr. Fowler and Mr. Broadwater were not laid off because of any 

safety complaints, and that they were laid off because "they were 

the most unsatisfactory or the least satisfactory employees of 

those left in the area" he was going to reduce (Tr. 552) . 

On cross-examination, Mr. McDowell confirmed that his wife 

is employed by ·the respondent as the controller and that she is 

the daughter of one of the principal owners (Stout). He stated 

that he stopped working for the respondent to do graduate college 

work, but did not pursue this endeavor, and that he worked in the 

family business for approximately 8 years (Tr. 555). Insofar as 

Mr. Laida and Mr. Brienza are concerned, he believed that as a 

carpenter and cement finisher, they were "key people," and "a 

couple of the dominant workers" (Tr. 564) . He confirmed that in 

a statement made on June 13, 1988, he stated that Mr. Brienza and 

Mr. Laida may be used as "key people in their work group" but 

that they were not foremen (Tr. 5 68). 

Although he did not have any specific ·information to refer 

to, Mr. McDowell did not dispute the fact that after Mr. Knisely 

and Mr. Bair were laid off, there were at least 11 additional 

hirings made at the project. He could not specifically state 

when the subcontract he previously referred to was performed, but 

believed that it could have been 4 to 5 weeks later (Tr. 570). 

Mr. McDowell confirmed that he spoke with Mr . Knisely and 

Mr. Bair, but denied that he was angry with them. He stated that 

Mr. Bair was aggressive and demanded to know about his union 

c ard, and that a question was raised about whether they were 

handling any asbestos (Tr. 580). Mr . McDowell conceded that he 

may have sworn, but denied that he cursed at them and stated that 

Mr . Bair put him "in a defensive position." He stated that 

Mr . Bair "got in his face," and although Mr. McDowell admitted 

that he may have "used some choice words," he asserted that "I 

did not direct them at his person" (Tr. 581). 

499 
.when asked by the Court for an explanation as to why the 

~it~esses in th~s proc7e~i~g believed ~hat the respondent engaged J.n J.llegal durnpJ.ng actJ. VJ. tJ.es at the rnJ.ne and vlhether they had 

"an ax to grind," Mr. McDowell speculated that "they were disgruntled employees and pursued an avenue of retaliation11 (Tr. 

601). He explained that at the time the respondent began work on 

the demolition project at the mine the United Mine Workers 

picketed the mine entrance because they felt that the work should 

have been done by coal miners rather than the respondent, and 

that he was physically accosted and threatened and had difficulty startin~ the job. He stated that he had no problem with the 

Steelworkers Union, and speculated that the UMWA was concerned 

that the steelworkers were going to represent the workers on the 

project (Tr. 602). Mr. McDowell stated that since the mine was 

closed down and there were unemployed miners in the area, he 

believed that it would be "good P.R." to hire the miners that had 

previously worked in the mine because they were familiar with the 

facility. He further speculated that some of the miners were 

"antimanagement and pro UMWA" and that they resented the respondent doing the work and "it carne back to haunt me" (Tr. 603). 

Mr. McDowell confirmed that he vaguely knew MSHA Inspector 

Spangler and did not spend much time with any of the MSHA inspectors who carne to the mine, and he believed that Mr. Spangler was 

there when the citations were issued on the slop~ (Tr. 604). 

When asked whether Mr. Spangler informed him as to who may have 

complained, Mr. McDowell responded "absolutely not 11 (Tr. 604). 

He denied that Mr. Fowler ever told him that if certain conditions were not corrected, inspectors may. come to the mine and 

take corrective action (Tr. 604). He denied that Mr. Vavrek ever 

made such a statement prior his appointment as the safety director, but conceded that after his appointment, Mr. Vavrek vTOuld 

periodically tell him about certain conditions that needed attention and that "we better take care of it" (Tr. 605). 

Mr. McDowell further stated that when Mr. Vavrek advised him 

about the need for fire extinguish~rs or backup alarms, he 

(McDowell) would order them. Mr. McDowell stated that as the 

safety man, it was Mr. Vavrek's responsibility to work with · Mr. Parshall to resolve safety matters or to order the necessary 

safety equipment (Tr. 606). 

Mr. Broadwater was recalled by the respondent as an adverse 

witness, and he confirmed that he complained about the transformers being put down the shaft. He further confirmed that he 

was interviewed by Inspector Newhouse "for a short time" about 

the . alleged incident, but did not wish to speak with him at 

length at the mine site and asked for his phone number so that he 

could call him at a later time. He confirmed that he did not 

call him (Tr. 612). 

Mr. Vavrek was called in rebuttal by the complainants, and · he confirmed that during his employment with the respondent he 

500 
received the appropriate training and had the qualifications for 

making methane tests, and that some of the employees were also 

trained to make such tests (Tr. 637). He also confirmed that 

Mr. Barry Cox was hired by the respondent after Mr. Fowler was 

terminated and that Mr. Cox was a certified person qualified to 

make the required preshift examinations and sign the books (Tr. 

638) • 

Mr. Vavrek confirmed that it was his.understanding that 

Mr. Fowler was to conduct preshift checks anytime that burning 

was going on every 15 minutes, and before any dumping was done. 

He believed that if Mr. Fowler were visiting a job site while 

burning was ·taking place it would be consistent for him to remain 

there and make his checks while burning was being done (Tr. 639). 

He recalled an incident when Mr. Fowler came back later than 

normal and got into an argument with Mr. Parshall over the 

ma·tter, and that Mr. Fowler told Mr. Parshall that burning was 

taking place (Tr. 640). 

In response to further questions, Mr. Vavrek stated that the 

day before he was terminated, Mr. Fowler approached him and 

Inspector Spangler and stated to them that he was not making his 

gas checks, and that Mr. Fowler also complained about asbestos. 

Mr; Vavrek stated that Mr. · Fowler believed that he should be 

performing these checks because he was the fire boss. After 

making these statements, Mr. Vavrek stated that he and Inspector 

Spangler then went to the mine office to check the books and the 

mine sealing plan and that Mr. McDowell was present~ Mr. Vavrek 

stated that he wanted to check the plan to determine whether or 

not Mr. Fowler was supposed to be the person making the gas 

checks and that the matter was discussed with Mr. McDowell after 

speaki ng with Mr. Hoelle, and that Mr. Hoelle had made a statement that Mr. Fowler was supposed to be making the gas checks. 

Mr. Vavrek stated that Inspector Spangler made the statement that 

"Terry approached us that the air--that the gas readings were not 

being made" (Tr. 642-647). 

Mr. McDowell was recalled by the Court and he denied that 

the conversations testified to by Mr. Vavrek with respect to 

himself and Mr. Spangler ever took place. Mr. McDowell denied 

that Mr. Vavrek and Mr. Spangler ever visited his office about 

the matter concerning the gas checks (Tr. 653). Mr. McDowell 

further denied any knowledge that Mr. Vavrek was qualified to 

make gas checks when he hired him. He also denied that he knew, 

or had reason to know, that Mr. Fowler had complained to any 

inspector, state or federal, that he was not making his gas 

checks (Tr. 654). He confirmed that state mine inspector 

Vincinelli told him that he could not operate unless he had 

someone making gas checks, and that 3 to 5 days later he had 

Mr. Art Jones make the checks. Mr. McDowell did not recall that 

he ever received any citations for no~ having properly qualified 

501 
people make gas checks, or for not having gas checks done (Tr. 

655). Complainant's counsel produced a copy of a citation issued 

by Inspector Conrad on March 25, 1988, serVed on Mr. Parshall 

citing· a violation of section 77.1713, which states that "The 

examination of each working area was not being performed by a 

certified person," and Mr. McDowell stated that he did not 

believe it was a citation for not performing methane checks, but 

"did not know" if this was the case. Although he could not 

recall any citations for failing to make gas checks, Mr. McDowell 

stated that it .was "a possibility" that the respondent was issued 

.the citation in question . and that he "wouldn't be surprised" and 

did not dispute its authenticity (Tr. 657-658). 

Findings and Conclusions 

In order to establish a prima facie case of discrimination 

under section 105(c) of the Mine Act, a complaining miner bears 

the burden of production and proof to establish (1) that he 

engaged in protected activity and (2} that the adverse action 

complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Company, 

2 FMSHRC 2768 (1980}, rev'd on other grounds sub nom. 

Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 

1981); Secretary on behalf of Robinette v. United Castle Coal 

Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v. 

Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on 

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

(November 1981), rev'd on other grounds sub nom. Donovan v. 

Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator 

may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no way 

motivated by protected activity. If an operator cannot rebut the 

prima facie case in this manner it may nevertheless affirmatively 

defend by proving that it was also motivated by the miner's 

unprotected activities alone. The operator bears the burden of 

proof with regard to the affirmative defense. Haro v. Magma 

Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of 

persuasion does not shift from the complainant. Robinette, 

supra. See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); 

and Donovan v. Stafford Construction Company, No. 83-1566 D.C. 

Cir. (April 20, 1984) (specifically-approving the Commission's 

Pasula-Robinette test). See also NLRB v. Transportation Management Corporation, U.S. , 76 L.ed.2d 667 (1983), where the 

Supreme Court approved the NLRB's virtually identical analysis 

for discrimination cases arising under the National Labor 

Relations Act. 

Direct evidence of actual discriminatory motive is rare. 

Short of such evidence, illegal motive may be established if the 

facts support a reasonable inference of discriminatory intent. 

Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC 

2508, 2510-11 (November 1981), rev'd on other grounds sub nom. 

502 
Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983}; 

Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984) . 

As the Eight Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in 

NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 

1965): 

It would indeed be the unusual case in which the 

link between the discharge and the [protected) activity 

could be supplied exclusively by direct evidence. 

Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial 

evidence . Furthermore, in an~lyzing the evidence, 

circumstantial or direct, the [NLRB] is free to draw 

any reasonable inferences. 

Circumstantial indicia of discriminatory intent by a mine 

operator against a complaining miner include the following: 

knowledge by the operator of the miner's protected activities; 

hostility towards the miner because of his protected activity; 

coincidence in time between the protected activity and the 

adverse action complained of; and disparate treatment of the 

complaining miner by the operator. 

In Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 (June 

1982), the Commission stated as follows: 

As we emphasized in Pasula, and recently 

re-emphasized in Chacon, the operator must prove that 

it would have disciplined the miner anyway for the 

unprotected activity alone. Ordinarily, an operator 

can attempt to demonstrate this by showing, for 

example, past discipline consistent with that meted to 

the alleged discriminatee, the miner's unsatisfactory 

past work record, prior warnings to the miner, or 

personnel rules or practices forbidding the conduct in 

question. our function is not to pass on the wisdom or 

fairness of such asserted business justifications, but 

rather only to determine whether they are credible and, 

if so, whether they would have motivated the particular 

operator as claimed. 

Protected Activity 

It is clear that Mr. Fowler and Mr. Broadwater enjoy a . 

statutory right to voice their concerns about safety matters or 

to make safety complaints to mine management or a mine inspector 

wi tho.ut fear of retribution or harassment by management. 

Management is prohibited from interfering with such activities 

and may not harass, intimidate, or otherwise impede a miner's 

503 
participation in these kinds of activities. Secretary of Labor 

ex rel. Pasula v. Consolidation Coal Co.; 2 FMSHRC 2786 (October 

1980), rev'd on other grounds sub nom. Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 (3d Cir. 1981), and Secretary of Labor 

ex rel. Robinette v. United Castle Coal co., 3 FMSHRC 803 (April 

1981). Baker v. Interior Board of Mine Operations Appeals, 

595 F.2d 746 (D.C. Cir. 1978); Chacon, supra. 

Communication of Safety Complaints and Respondent's Knowledge of 

the Complaints 

The critical issues in these proceedings concern the questions of whether or not Mr. Fowler and Mr. Broadwater in fact 

made safety complaints to mine management or to mine safety 

inspectors, whether the complaints were otherwise communicated to 

management, whether management knew or suspected that Mr. Fowler 

and Mr. Broadwater made the complaints, and whether the terminations of Mr. Fowler and Mr. Broadwater were retaliatory and 

motivated by the complaints, rather than for other legitimate 

management reasons. 

In a number of safety related "work refusal" cases, it has 

· been consistently held that a miner has a duty and obligation to 

communicate such complaints to mine management in order to afford 

the operator with a reasonable opportunity to address them. See: 

Secretary ex rel. Paul Sedgmer et al. v. Consolidation Coal 

Company, 8 FMSHRC 303 (March 1986); Miller v. FMSHRC, 687 F.2d 

194 (7th Cir. 1982); Simpson v. Kenta Energy, Inc ., 8 FMSHRC 

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

992 (June 1987); Sammons v. Mine Services Co., 6 FMSHRC 1391 

(June 1984); Charles Conatser v. Red Flame Coal Company. Inc ., 

11 FMSHRC 12 (January 1989), review dismissed Per Curiam by 

agreement of the parties, July 12, 1989, u.s. Court of Appeals 

for the District of Columbia Circuit, No. 89-1097. 

Although the protected safety activities of Mr. Fowler and 

Mr. Broadwater concerned safety complaints rather than work 

refusals, the same principals apply and the complainants have the 

burden of establishing that they in fact made safety complaints, 

that they were communicated to mine management or an inspector, 

that management knew or had reason to know about the complaints, 

and that the adverse actions which followed were the result of 

the complaints and therefore discriminatory. In short, the 

complaints must establish a nexus between their complaints and 

the adverse discriminatory actions which followed. See: Sandra 

Cantrell v. Gilbert Industrial, 4 FMSHRC 1164 (June 1982); Alvin 

Ritchie v. Kodak Mining Company, Inc., 9 FMSHRC 744 (April 1987); 

Eddie D. Johnson v. Scotts Branch Mine, 9 FMSHRC 1851 (November 

1987}; Robert L. Tarvin v. Jim Walter Resources, Inc., 10 FMSHRC 

305 (March 1988); Connie Mullins v. Clinchfield Coal Company, 

11 FMSHRC 1948 (October 1989). 

504 
The fact that the respondent may not have known as a fact 

that Mr. Fowler or Mr. Broadwater had complained to an MSHA 

inspector, or called MSHA to the mine to pursue a safety cornplaint, is immaterial. In Moses Development Corporation, 

4 FMSHRC 1475 (1982), the Commission held that a complaining 

miner may establish a prima facie case by (1) proving that the 

operator suspected that he had engaged in protected activity, and 

(2) the adverse action was motivated in any part by such suspicion. See also: Judge Broderick's similar hold in Larry Brian 

Anderson v. Consol Pennsylvania Coal Company, 9 FMSHRC 413 (March 

1987). 

During the cours~of the hearing, and in his posthearing 

brief, Mr. Fowler's counsel attacks the credibility of 

Mr. McDowell (Tr. 557-563; proposed finding #32, pg. 8, brief) . 

In support of his argument, counsel pointed out that the respondent initially failed to file an answer to the complaint, and he 

suggested that its failure to do so is indicative of its continued deliberate disregard for the law. Counsel further pointed 

out that the corporate respondent, in its response to my Order to 

Show Cause of February 2, 1989, stated that pursuant to an agreement with Mr. McDowell, he would continue to assume responsibility for the handling of the complaint even though he had 

terminated his employment relationship with the respondent in 

late October, 1988, and that the respondent assumed that 

Mr. McDowell would continue to handle the matter and that all 

material received by the respondent from the Commission was 

brought to Mr. McDowell's attention. Counsel asserts that 

Mr. McDowell "testified clearly under oath that the papers had 

not been turned over to him for a response . Nor had he been 

contacted by respondent's attorney as represented in the pleadings." Counsel further asserts that these denials on 

Mr. McDowell's part "is further indicative of management's 

ignorance and contempt of mine safety and health regulations, and 

• • • that such false swearing by a party and/or his attorney is 

a fraud upon the court, and a proper ground for the imposition of 

sanctions under the Federal Rules of Civil Procedure Rule 11." 

Mr. McDowell's testimony was in response to a question by 

Mr. Fowler's counsel as to whether he was delegated the responsibility of responding to the complaint in October, 1988, 

Mr. McDowell responded as follows at (Tr. 557-558) : 

A. No, sir. They didn't delegate all the responsibility of that to me . 

* * * * * * * 

A. I understand the point. No. I was not delegated. 

I was not delegated that. And Atlas Services, it says, 

assumed, and they did, and I did, in fact, assume that 

role . I felt a r e sponsibility. 

505 
And at (Tr. 559- 560): 

Q. Can you explain why you didn't file any response in 

this case? 

A. Because I wasn't handling that. 

* * * * * * * 

Q. Did anybody tell you to take care of it, Jay? 

A. No, sir. 

The record in these proceedings reflects that all of the 

prehearing orders and notices, including the complaint, were 

served on the corporate respondent by certified mail at a post 

office box number in Washington, Pennsylvania. The returned 

postal service certified mail receipts reflect that they were 

received and signed for by an individual other than Mr. McDowell . 

In its response to my show cause order, the respondent asserted 

that it first learned about Mr. McDowell's failure to respond to 

the complaint when it received my order. Respondent pointed out 

that in view of MSHA's finding after investigating the complaints 

that a violation of the Act had not occurred, and in view of its 

denials that it discriminated against Mr. Fowler or 

Mr. Broadwater, respondent would have no reason to ignore its 

responsibility to respond to the complaints, and that its failure 

to do so w~s due solely to the neglect on the ·part of 

Mr. McDowell in failing to file a response to the complaints. 

I take note of the fact that at the time the complaints and 

prior notices were issued, the respondent was not represented by 

counsel . I also take note of the fact that Mr . McDowell is not 

an ·attorney. While it is true that Mr. McDoweJl's father- in-law 

is the company president, and that Mr. McOowell ' s wife worked for 

the company, and that he was still in contact with the respondent 

after he terminated his employment relationship in October, 1988, 

he was not employed by the company at t~e time Chief Judge Merlin 

issued an Order on November 23, 1988, directing the respondent to 

file an answer to the complaints, and at the time I issued my 

show cause order on February 2, 1988 . 

While it is also true that Mr. McDowell's assertions that he 

failed to respond to the complaints because he "was not handling" 

the matters, and that no one told him to take care of the 

matters, is contradicted by the response and supporting affidavit 

of his father- in- law in reply to my show cause order, which 

reflects an agreement and an assumption on the part of the 

respondent that Mr. McDowell would continue to handle the matters 

after his employment with the respondent ceased, I cannot conclude that Mr. McDowell ' s testimony amounts to ''false swearing . " 

506 
Mr. McDowell's denials that he was deleaat2d the responsibility 

to respond to the complaints was truthfully explained when he 

testified that the respondent assumed, as did he, that he would 

assume this role and that he felt a responsibility to do so. 

Although Mr. McDowell may be guilty of neglect or ignorance in 

failing to carry out this responsibility, I cannot conclude that 

he is guilty of willfully lying or that he has shown contempt for 

these proceedings. Nor can I conclude on the basis of this very 

brief testimony that all of his testimony in these proceedings is 

less than credible and is tainted and untrue. 

Mr. Broadwater's Complaint, Docket No. PENN 88-281-D 

In his posthearing brief, Mr. Broadwater's counsel asserts 

that Mr. Broadwater's complaints did not concern any specific 

MSHA requirements, but focused on his concerns with the proper 

handling and disposal of PCB contaminated equipment at the mine 

site, and that the respondent retaliated against him by terminating him for voicing these concerns about the PCB materials and 

his "involvement" in calling the inspectors about the alleged 

dumping of these materials. (MSHA investigated the matter, and 

found no evidence of illegal dumping). Counsel argues that 

Mr. Broadwater witnessed the alleged dumping, reported the incident to the inspectors, and that he made it known to other 

employees, and in particular Homer Nicholson, that he had called 

the inspectors. Counsel characterized Mr. Nicholson as "a credible and impartial employee." Counsel concluded that it appears 

that Mr. Broadwater called the Federal inspectors on the PCB 

issue, and that fact became known to respondent. This led to 

respondent's decision to fire Mr. Broadwater. (Proposed Finding 

No. 35, posthearing brief). 

Contrary to the assertion that Mr. Nicholson was told by 

Mr. Broadwater that he had called the inspectors about the PCB 

incident, Mr. Nicholson testified that during a dinner hour at 

the mine Mr. Broadwater told him that he was going to call the 

inspectors about the incident. Mr. Nicholson confirmed that he 

did not inform mine management about Mr. Broadwater's PCB complaint, and although h~ speculated that he may have told 

Mr. Laida and Mr. Brienza, individuals who he thought may have 

been foreman, I find no credible evidence that Mr. Nicholson told 

anyone about Mr. Broadwater's statement that he intended to call 

the inspectors about his PCB concerns. Mr. Brienza testified 

that Mr. Broadwater never made any safety complaints to him, and 

although he confirmed that he "had heard" about the transformer 

dumping incident, he had no personal knowledge of the matter. I 

find nothing in Mr. Brienza's testimony to indicate that 

Mr. Nicholson may have told him about Mr. Broadwater's statement 

concerning the dumping incident. 

Former safety committeeman and safety director Vavrek confirmed that he too "heard about" the PCB dumping incident, but 

507 
that he was not at the mine when this incident allegedly 

occurred. Mr. Vavrek testified that Mr. _Broadwater expressed his 

concern to him about this incident while having lunch, and that 

Mr. Broadwater told him that he had called the inspectors about 

the matter. Mr. Vavrek confirmed that' he never told Mr. Parshall 

or Mr. McDowell about Mr. Broadwater's statement that he had 

called the inspectors, and when cross-examined about 

Mr. Broadwater's statements, Mr. Vavrek further confirmed that he 

said nothing about this statement to MSHA Special Investigator 

John Savine, .the individual who conducted MSHA's investigation of 

Mr. Broadwater's discrimination complaint, and he admitted that 

Mr. Broadwater told him that he had complained to MSHA after he 

had been interviewed by Mr. Savine. 

David Knisely confirmed that Mr. Broadwater had raised a 

question about the presence of PCB's in the transformers which 

were allegedly dumped, and that Mr. Parshall and Mr. McDowell 

later came to the area where the building housing the transformers was being torn down, and where he, Mr. Broadwater, and 

Mr. Bair were working, aDd that Mr. Bair and Mr. McDowell 

exchanged a few words. Mr. Knisely stated that Mr. Bair had 

raised a union question with Mr. Vavrek, and that Mr. Broadwater 

inquired about the presence of any PCB's in the transformers. 

Mr. Knisely f~rther confirmed that Mr. McDowell advised Mr. Bair 

that he would look into the questions concerning the union. and 

the PCB's, and that he and Mr. Bair went to Mr. McDowell's office 

the next day to pursue the matters further. There is nothing in 

Mr. Knisely's testimony to indicate or suggest that 

Mr. Broadwater said anything to him about complaining to the 

inspectors, or that Mr. Broadwater said anything to Mr. Parshall 

or Mr. McDowell about his PCB concerns. To the contrary, given 

the fact that Mr. Bair was doing most of the complaining, the 

fact that he and Mr. McDowell exchanged words, and the fact that 

Mr. Bair and Mr. Knisely went to Mr. McDowell the next day to 

seek further answers from him concerning these matters, I believe 

that it is reasonably to assume that if Mr. McDowell suspected 

anyone of complaining to MSHA about the PCB's, the likely candi-

-dates would have been Mr. Bair or Mr. Knisely, and not 

Mr. Broadwater. Mr. Bair was the individual who initially complained about possible PCB contamination by making a request to 

Mr. Vavrek that he be tested. Mr. Vavrek told Mr. Bair that he 

would discuss his request with Mr. McDowell, and shortly thereafter, Mr. McDowell came to the area where he was confronted by 

Mr. Bair. 

Mr. Broadwater admitted that he never said anything to mine 

management about the alleged PCB dumping incident. His belief 

that management knew that he had complained was based on his 

belief that management "probably must have had a snitch" as the 

source of his complaint, but he could not identify the "snitch" 

because he "did not have a crystal ball." Mr. Broadwater stated 

that while he did not know for a fact that the transformers 

508 
contained PCB's, he was concerned about these and other contaminants being dumped down the mine shafts. As a result of this 

concern, he testified that he called Mr. Fowler at his home and 

informed him that the transformers were being dumped into the 

shafts, and that Mr. John Cox, a friend of Mr. Fowler's, called 

him back that same evening to discuss the matter. Mr . . Broadwater 

testified further that Mr. Cox told -him that he would "send the 

mine people down the next day," and that he (Cox) and Mr. Fowler 

would call the inspectors (Tr. 264-265). 

Mr. Broadwater confirmed that after returning to the mine 

the day after his conversations with Mr. Cox and Mr. Fowler, the 

inspectors were at the mine inquiring about the alleged dumping 

incident and they interviewed several miners in private. 

Mr. Broadwater stated that he said nothing to the inspector who 

interviewed him about the dumping incident "because he feared for 

his job." He further stated that he took the inspector's phone 

number and told him that he would call him that evening, but did 

not do so and only went to see him after his layoff when he filed 

his discrimination complaint. Although Mr. Broadwater believed 

that he told four individuals that day that he was "definitely 

going to be telling the inspectors what I had seen," and that he 

may have told Mr. Locy, none of these individuals were called to 

testify in these proceedings. Although Mr. Locy testified, his 

_testimony is devoid of any information that Mr. Broadwater said 

anything to him about his intentions to inform the inspectors, 

and Mr. Locy confirmed that he had a limited association with 

Mr. Broadwater. 

I conclude and find that the preponderance of the credible 

testimony does not support a reasonable conclusion or inference 

that Mr. Broadwater made any safety complaints to MSHA or any 

inspector, or that he called the inspectors to the mine. The 

only witnesses who purportedly had knowledge of Mr. Broadwater's 

statements that he had called the inspectors were Mr. Nicholson 

and Mr. Vavrek. Mr. Nicholson's testimony indicates that 

Mr. Broadwater said he intended to call, and Mr. Vavrek confirmed 

that the statement was made after Mr. Broadwater was terminated 

during the time that Mr. Savine was conducting his investigation 

of Mr. Broadwater's complaint. Contrary to any suggestions that 

Mr. Broadwater called the inspectors, his own testimony reflects 

that Mr. Cox andjor Mr. Fowler called the inspectors. 

I further conclude that there is no credible evidence to 

support any conclusion or reasonable inference that mine management suspected that Mr. Broadwater had complained to the inspectors about the alleged PCB dumping incident. Employees other 

than Mr. Broadwater were interviewed and the interviews were 

conducted in private and the names of the employees wer~ not 

solicited or given (exhibit C-5). As noted earlier, although 

Mr. Parshall and Mr. McDowell were aware of the PCB concerns 

raised by Mr. Bair, it was Mr. Bair and Mr. Knisely who openly 

509 
pursued the matter, not Mr . Broadwater. Although Mr. Broadwater 

. asser ted t.hat he told four individuals that he intended to tell 

the inspectors ab out the PCB dumping i ncident while they were at 

the mine conducting interviews, there is .absolutely no evidence 

that Mr . Parshall or Mr. McDowell were aware of these statements. 

In addition to his asserted complaints about the dumping of 

PCB's, Mr. Broadwater testified that he was "concerned" about the 

lack of fire extinguishers, unsecured oxygen and acetylene 

bottl~s , a cherry picker with a broken stabilizer, and a man cage 

which was used with a safety rig, and that he "had mentioned" 

these matters-to Mr. Parshall. Mr. Broadwater also "believed" 

that he had mentioned the oxygen and acetylene bottles to 

Mr. McDowell when he began working for him. 

I find no credible evidence that Mr. Broadwater ever complained about his "safety concerns" to any inspectors. I find no 

reasonable evidentiary basis to support any conclusion that these 

" concerns" were in fact safety complaints. Mr. Parshall and 

Mr. McDowell denied that Mr. Broadwater ever complained to them 

about any safety matters~ Mr. Vavrek, the individual directly 

responsible for safety matters at the project, confirmed that 

when he received complaints from Mr. Fowler, he either told 

Mr. Parshall, or corrected the conditions himself. Mr. Vavrek 

also confirmed that when he advised Mr . McDowell about any complaints, and in particular, the fire extinguishers, Mr. McDowell 

took care of the matter and provided the fire extinguishers. 

Mr. Vavrek said nothing about any safety complaints communicated 

to him by Mr . Broadwater. Further, with the exception of the PCB 

matter, there is no evidence that Mr. Broadwater ever mentioned 

his " concerns" about the other conditions to Mr. Fowler, and 

there is no evidence that Mr. Broadwater was involved in the 

incident of March 24 or 25, 1988, when the slope was shut down by 

the MSHA inspectors. Mr . Brienza denied that Mr . Broadwater had 

ever made any safety complaints to him, and he confirmed that it 

was Mr. Fowler who commented about fire extinguishers, nonpermissible lights and the use of a generator in the shaft, and that 

he (Brienza) did not inform Mr. Parshall or Mr. McDowell about 

Mr. Fowler's comments. 

In view of the foregoing findings and conclusions, and after 

careful consideration of all of the evidence and testimony with 

respect to Mr. Broadwater ' s discrimination complaint, I conclude 

and find that he has failed to establish a prima facie case. I 

conclude and find that the preponderance of all of the credible 

testimony and evidence in Mr. Broadwater's case does not, either 

directly or by any reasonabie inference, establish that 

Mr. Broadwater made any bona fide safety complaints to MSHA or 

its inspectors, or to mine management. I further conclude and 

find that the evidence does not support any conclusion that 

Mr. Parshall or Mr. McDowell knew or suspected that 

Mr. Broadwater had made any safety complaints, or that their 

510 
decision to terminate his employment was in any way connected 

with any safety complaints. I further conclude and find that 

Mr. Broadwater's termination was not the result of any illegal 

discrimination, and that his termination was not motivated by 

mine management's desire to retaliate against him for making 

safety complaints to mine management or to MSHA or its inspectors. Accordingly, Mr. Broadwater's complaint IS DISMISSED, and 

the relief requested IS DENIED. 

Mr. Fowler's Complaint, Docket No. PENN 88-267-D 

Complainant's Arguments 

In support of Mr. Fowler's complaint, his counsel a~gues 

that the evidence establishes that during his first month at the 

job site Mr. Fowler repeatedly brought mine safety concerns to 

the attention of supervisory personnel on the job, but the conditions were not corrected. Under the circumstances, Mr. Fowler 

contacted MSHA inspectors who came to the job site and shut the 

slope down, and it was widely speculated on the job that 

Mr. Fowler had called the inspectors, and that several witnesses, 

including Mr. Parshall and other witnesses who testified for 

Mr. Fowler corroborated the fact that Mr. Fowler was observed 

speaking to the inspectors, and speculated that he was one who 

had called them. Counsel cites the statement made by 

Mr. Parshall that "had he known it was Fowler, he would have 

fired him immediately" as evidence of the respondent's attitude 

and response to anyone voicing safety concerns. 

Counsel argues further that following Mr. Fowler's calling 

of the inspectors to the site, Mr. Fowler continued to bring 

other matters regarding MSHA's safety requirements to the attention of respondent's supervisory personnel, including the newly 

appointed safety director, James Vavrek, who testified on 

Mr. Fowler's behalf. Counsel asserts that Mr. Fowler subsequently made a complaint about uncertified personnel making 

certain methane gas checks, and about other gas checks not being 

made, on the day prior to his termination. In connection with 

Mr. Fowler's complaint that the required gas checks were not 

being made, a federal mine inspector (Spangler) and Mr. Vavrek 

went to mine management (McDowell and Parshall) with Fowler's 

complaint, and Mr. Vavrek testified that Mr. Fowler's name came 

up as the person who had complained in the conversations with 

management. Counsel points out that although Mr. Parshall and 

Mr. McDowell denied that any such meeting with the inspector and 

Mr. Vavrek ever took place, it is apparent from the testimony and 

that of corroborating witnesses and circumstances, that such a 

meeting did in fact occur, and that the inspection records 

revealed that such a meeting did occur, but the inspector in his 

report did not indicate that he had mentioned Mr. Fowler. Assuming that Mr. Fowler's name was not revealed with the meeting with 

the inspector, counsel concludes that the identity of Mr. Fowler 

511 
as the person who complained was nonetheless readily deduced from 

the nature and circumstances of the complaint, particularly since 

Mr. Fowler was the certified fire boss who was required to make 

the checks, and no one else would have complained about the gas 

checks not being made by him. 

Counsel further points out that immediately following the 

meeting with the inspector about the gas checks not being made, 

Mr. Fowler was terminated, and Mr. McDowell had to hire another 

certified fire boss to perform the gas checks in order to continue the work at the site. Counsel concludes that mine management's complete denial of the existence of the meeting concerning 

Mr. Fowler's complaint about the gas checks casts serious doubts 

of its credibility with respect to its explanation of the circumstances which precipitated his termination, particularly in 

light of the fact that the respondent failed to. produce any 

records or documentation showing that Mr. Fowler's termination 

resulted purely from a reduction in the work force. Counsel · 

further concludes that Mr. Parshall's statement that had he known 

of Mr. Fowler's complaints, he would have immediately terminated 

him, casts further doubt on the respondent's motives and 

credibility. 

Counsel asserts that the work performed by the respondent at 

the job site "was a relatively short-term, in-and-out sort of 

job, where a number of people were hired for relatively short 

period of time, and that there was a significant flux in the work 

force." Under these circumstances, counsel asserts that it was 

easier for the respondent to simply "let go" persons, such as 

Mr. Fowler, who were being a "pain" about various safety issues. 

Counsel further concludes that when management believed that 

Mr. Fowler was no longer necessary to perform the gas checks, 

they let him go, but were subsequently proven wrong because 

management had to find someone else with Mr. Fowler's certifications in order to continue with the job _the day after the inspectors were once again called by Mr. Fowler. 

In response to the respondent's assertion that Mr. Fowler's 

termination immediately following his contacts with the inspectors was "mere coincidence," counsel maintains that it is such 

"mere coincidences" . that the Act was partially designed to prevent. Finally, counsel concludes that the preponderance of the 

evidence clearly supports the conclusion that Mr. Fowler was 

terminated in retaliation for discharging his safety duties, and 

reporting numerous safety violations to State and Federal inspectors, and being a "pain" on safety issues. 

The Respondent's Arguments 

Respondent argues that the safety complaints allegedly made 

by Mr. Fowler were made to either Mr. Vavrek, or to Mr. Brienza, 

a carpenter, or to Mr. Laida, a cement finisher, and that 

512 
Mr. Brienza and Mr. Laida were not bosses, supervisors, or in any 

way connected with mine management. Respondent points out that 

although Mr. Vavrek testified that he was aware of the fact that 

Mr. Parshall was the job superintendent, and that Mr. McDowell 

was the project manager, he confirmed that at no time did he 

inform them that Mr. Fowler had complained about safety violations. Citing the applicable case law, respondentrs counsel 

points out that ·a complaining miner must communicate any safety 

complaints to the project foreman or other management or supervisory personnel in order to afford management an opportunity to 

take corrective action, and to distinguish between genuine and 

spurious invocations of the Act's protection. 

Respondent asserts that Mr. Fowler's safety complaints were 

nothing more than "gripes" communicated to fellow workers, and 

although he was aware of Mr. Parsha-ll's and Mr. McDowell's management positions, he chose not to inform them of his alleged 

safety complaints. Respondent rejects Mr. Fowler's attempt to 

, persuade the court that he believed that Mr. Brienza and 

Mr. Laida were management representatives and that his safety 

complaint to them would constitute notice to management. Respondent points out that the evidence establishes that neither 

Mr. Laida or Mr. Brienza were management personnel, that they 

were both union members, worked side by side with Mr. Fowler, and 

that daily orders to the work force were given by Mr. Parshall. 

Respondent asserts that any work instruction that Mr. Brienza may 

have given were based upon his job as a carpenter instructing 

laborers to bring him materials to the job site. 

Respondent argues that since Mr. Parshall and Mr. McDowell 

were not aware that Mr. Fowler reported any alleged safety violations, or were aware that Mr. Fowler was the source of the complaints, they could not have discriminated against him for 

registering such complaints. Respondent maintains that because 

of the confidential manner in which a safety complaint is filed 

with MSHA, the respondent did not know, nor did it learn until 

the filing of the discrimination complaint, what individual 

registered complaints with MSHA. With regard to the March 1988, 

MSHA inspection which resulted in the closure of the mine slope 

area by the inspectors, respondent asserts that Mr. McDowell was 

unaware that Mr. Fowler had made the complaints of safety violations to MSHA. 

Respondent maintains that it has articulated legitimate 

business reasons for the layoff of Mr. Fowler, and that he was 

laid off pursuant to the union contract as the least qualified 

person to perform the existing work. Respondent points out that 

in May 1988, the preparation plant demolition, which represented 

a large portion of the reclamation and demolition project contracted to the respondent, was subcontracted to another contracting firm. When this occurred, a reduction in the work force was 

indicated, and that before and after Mr. Fowler's layoff, other 

513 
workers were also laid off. Respondent maintains that Mr. Fowler 

was laid off because of a reduction in the work force, because 

his work performance was ineffective and unsatisfactory, and 

because he was the least qualified employee to perform the 

remaining job tasks, and that he was not laid off because of 

reporting safety violations. 

Mr. Fowler's Safety Complaints 

The Alleged Dumping of PCB Contaminated Transformers 

I find no credible evidence or testimony to establish that 

Mr. Fowler made any complaints concerning the alleged dumping of 

PCB contaminated transformers down a mine shaft, or that he was 

otherwise involved in that alleged incident. Mr. Fowler was 

terminated on May 23, 1988. An MSHA memorandum report of June 6, 

1988, concerning this incident reflects that the dumping complaint was made to MSHA on June 1, 1988 (exhibit G-5). An 

inquiry made by the appropriate Federal EPA office concerning 

this incident reflects that an EPA inspection of the site 

followed MSHA's inquiry, and it took place on October 25, 1988. 

Thus, the complaint and inquiries conducted by MSHA and the EPA 

in this matter came after Mr. Fowler's termination, and I cannot 

conclude that this matter had any connection with Mr. Fowler's 

termination on May 23, 1988. 

MSHA's March, 1988, Inspection and Mine Slope Closure 

The testimony and evidence adduced in this case establishes 

that Mr. Fowler made safety complaints about the slope conditions 

which triggered the MSHA inspection which resulted in the issuance of violations. I conclude and find that some of the complaints were made by Mr. Fowler to MSHA Inspector Conrad, to 

union safety walkaround representative Vavrek, and to 

Mr. Brienza, a carpenter. The critical question is whether or 

not Mr. Fowler's slope complaints were made or communicated to 

mine management (Parshall and McDowell), whether management had 

any reasonable basis for believing that Mr. Fowler had complained, and whether they retaliated against him for complaining. 

The evidence establishes that MSHA Inspectors Newhouse, 

Spangler, and Conrad inspected the mine site in late March, 1988, 

and issued several section 104(a) citations and section 104(d) (1) 

citations and orders on March 24, 25, and 28, 1988 (exhibit C-3). 

Although Mr. Vavrek testified that the slope was shutdown by an 

imminent danger order, I find no evidence that any section 107(a) 

imminent danger order was issued. A section 104(d) (1) order 

issued on March 25, 1988, ordered the withdrawal of all "people 

working underground" for the failure to provide self-rescue 

devices to four employees working underground at the drift opening, and it was subsequently terminated on March 28, 1988. Two 

514 
additional section 104(d) (1) orders were issued on March 24, 

1988, for failure to provide fire protection for a gas driven 

electrical generator providing lighting at the track slope area 

where sealing work was being performed, and for accumulations of 

combustible oil on the motor compartment of a compressor being 

used at the mine slope entrance. The operators of the compressor 

and generator were ordered withdrawn. A section 104(d) (1) order 

issued on March 24, 1988, ordered the withdrawal of a compressor 

operator because of accumulations of combustible oil on the 

cooling fan, motor mounting compartment, and the floor at the 

slope entrance of the mine. 

The section 104(a) citations issued on March 24 and 25, 

1988, were issued for a number of violations of mandatory safety 

standards, and the conditions cited are as follows:· 

Failure to record the examination of active work 

areas of the mine. 

Failure by a certified person to perform examinations of the No. 1 and No. 4 shaft working areas, 

and the supply yard. 

Failure to provide a back-up alarm on a dozer. 

Failure to inspect and record the date of inspection of a fire extinguisher provided for a dozer. 

Failure to provide a permanent inspection tag for 

a fire extinguisher provided for a front-end 

loader. 

Failure to provide protective devices and to 

remove gauges from oxygen and acetylene bottles 

stored at the mine slope entrance . 

Improper storage of gasoline and· oil at the mine 

track slope area. 

Failure to inspect mobile loading and haulage 

equipment before placing it in service. 

Failure to provide a back-up alarm for a truck 

being operated in the supply yard. 

Copies of the results of Mr. Fowler's daily inspections of 

the mine shafts, and slope areas, during intermittent periods 

from February 18, through May 17, 1988, including March 24 and 

28, 1988, when nine of the violations were issued by the MSHA 

inspectors, contain a notation by Mr. Fowler that on all of these 

inspection days he found the areas to be "safe" and no violative 

conditions are noted. When asked to explain why he had not 

515 
recorded any of the violative conditions in the mine examiner's 

book, Mr. Fowler initially stated that "I just didn't want to see 

the company have it inspected by the inspectors and give them a 

bad name and write violations." He later explained that the 

violative conditions occurred during the work shif.ts after he had 

completed his examinations, and that at the time he conducted his 

examinations, the areas were indeed "safe." He confirmed that no 

one ever instructed him not to record any violative conditions in 

the mine examiner's book. 

Mr. Vavrek testified that Mr. Fowler complained to him and 

to Mr. Brienza about the slope conditions, and he suggested that 

Mr. Parshall was aware of the complaints because he was at the 

slope area where the work was being performed, and that he told 

Mr. Parshall about the complaints. However, with respect to 

Mr. Fowler's complaints concerning the use of "illegal" lights on 

the slope, Mr. Parshall's smoking at the slope, and the use of 

gasoline powered chain saws and cement cutters inside the slope, 

Mr. Vavrek testified that he had no knowledge whether 

Mr. Parshall was informed about these complaints. In fact, 

Mr. Vavrek specifically testified that he informed Mr. Brienza 

about these complaints, and did not speak to Mr. Parshall or 

Mr. McDowell about them. 

Despite his testimony that he did not speak with 

Mr. Parshall or Mr. McDowell about Mr. Fowler's slope complaints, 

Mr. Vavrek suggested that he spoke to Mr. Parshall "on a few 

occasions" about Mr. Fowler's safety concerns, and he confirmed 

that Mr. Parshall would sometimes take corrective action, and at 

times would do nothing about them. Mr. Vavrek confirmed that he 

would sometimes take care of the problems himself, and that when 

they were ignored by Mr. Parshall, he too would ignore them, even 

though he was the union safety committeeman. Mr. Vavrek further 

confirmed that when he advised Mr. McDowell about the need for 

fire extinguishers, Mr. McDowell took appropriate action and 

provided the fire extinguishers. 

Mr. Brienza confirmed that Mr. Fowler "mentioned" or complained to him about the use of a generator and the lights in the 

shaft, fire extinguishers, and self-rescue devices, and that 

these matters were mentioned to him and other employees by 

Mr. Fowler "as a group" during "general ·conversation." 

Mr. Brienza denied that Mr. Parshall or Mr. McDowell were present 

during these discussions, and he denied that he ever communicated 

Mr. Fowler's complaints to them. Mr. Brienza took the position 

that Mr. Fowler should have communicated his complaints directly 

to Mr. Parshall or Mr. McDowell. Although Mr. Brienza's testimony reflects that the complaints made by Mr. Fowler to him may 

not have been in the nature of "formal" safety complaints, I 

nonetheless conclude and find that they were safety complaints 

made by Mr. Fowler and communicated to Mr. Brienza. 

516 
Both Mr. Vavrek and Mr. Fowler, as well as other witnesses, 

testified to their belief that Mr. Brienza and Mr. Laida were 

mine foremen and part of management. Although Mr. Vavrek testified as to his belief that these individuals were mine foremen, 

he admitted that when he was interviewed by. the MSHA inspector 

during the investigation of Mr. Fowler's complaint, he told the 

inspector that he was not sure that they were management personnel, and that he is still not certain. The respondent's 

credible and unrebutted testimony establishes that Mr. Brienza 

and Mr. Laida were not management personnel or mine management 

foremen. In fact, they were skilled craftsmen who were necessarily assigned laborers by Mr. Parshall to assist them· in their 

work. The day-to-day management of the work and the workforce 

rested with Mr. McDowell and Mr. Parshall, and I am not convinced 

that the workforce was unaware that this was the case. 

Mr. Fowler acknowledged that he was aware of the fact that 

Mr. Parshall was the project superintendent, and that 

Mr. McDowell was the project manager, and that any safety complaints would logically be filed with them. Under. the circumstances, I conclude and find that any safety complaints made by 

Mr. Fowler to Mr. Laida or Mr. Brienza, were made to them in 

their capacities as members of the union workforce, rather than 

mine managers or foremen. I further conclude and find that the 

slope complaints made by Mr. Fowler to Mr. Vavrek were communicated to Mr. Vavrek in his union walkaround capacity rather than 

a member of management. 

Mr. Fowler asserted that 2 days before the MSHA inspectors 

shutdown the slope area, he informed Mr. Parshall about the 

viola~ive conditions which resulted in the issuance of the violations, and that he also informed Mr. McDowell about 11 a few of 

them." Mr. Fowler could not recall which specific conditions he 

complained to Mr. Parshall or Mr. McDowell about, and he confirmed that some of the conditions were corrected, but some were 

not. 

Mr. Vavrek testified that during the MSHA inspection which 

resulted in the shutdown of the slope, Mr. Parshall and 

Mr . McDowell were present, and that Mr. Fowler was speaking with 

Inspector Conrad about hunting, and that the other employees who 

were present were also speaking to the Inspector. Mr. Vavrek 

stated that Mr. McDowell told him that he did not want Mr. Fowler 

speaking with the inspector, but said nothing to him or any of 

the other employees about talking to the inspector. Mr. Vavrek 

did not know why Mr. McDowell singled out Mr. Fowler, and there 

is no testimony that Mr. Vavrek ever communicated this instruction to Mr. Fowler, and Mr. Fowler did not mention the incident 

during his testimony. · 

Mr. McDowell confirmed that he was aware of the fact that 

the inspectors were at the site during the inspection of the 

slope area which was shutdown, but he denied any knowledge that 

51~ 
Mr. Fowler had called the inspectors, and stated that he had no 

reason to believe that Mr. Fowler had complained to the inspectors. Mr. McDowell confirmed that Inspector Newhouse said 

nothing to him about interviewing any of the employees who were 

present, and he was asked no questions, either on direct, or 

cross-examination, about his purported statement to Vavrek concerning his alleged admonition that he did not want Mr. Fowler 

speaking to the inspectors. 

Mr. Brienza, who was present at the slope area when the 

inspectors were there, confirmed that he never heard Mr. Parshall 

or Mr. McDowell say anything to Mr. Fowler suggesting that he not 

speak with any of the inspectors. Mr. Parshall confirmed that he 

observed Mr. Fowler speaking with the inspectors, and that 

Mr. Brienza and laborer Ben Jordan were also present. 

Mr. Parshall stated that he had no idea what the conversation was 

all about, and he acknowledged that he was curious about who may 

have complained to the inspectors and asked Inspector Newhouse 

about it, and that Mr. Newhouse simply informed him that complaints may be filed through MSHA's toll-free telephone system 

and informed him that the source of any complaint is confidential 

and could not be revealed. Mr. Parshall denied any knowledge of 

who may have complained to the inspectors. 

I find no credible evidence or testimony to establish, 

either directly, or by any reasonable inference, that 

Mr. McDowell made the statement attributed to him by Mr. Vavrek. 

such a statement, if in fact made, would lend support to an 

inference that Mr. McDowell may have suspected that Mr. Fowler 

made the complaint and did not want him speaking with the inspectors. However, there were other employees present who also spoke 

with the inspectors, and there is no evidence to indicate that 

Mr. McDowell expressed any concern about anyone else speaking to 

the inspectors, what was said, or that he in any way interfered 

with, or otherwise inhibited the inspectors. If the statement 

were made, I believe it would be reasonaple to assume that 

Mr. Vavrek would have communicated this to Mr. Fowler, and that 

Mr. Fowler would have mentioned it during his complaint interview 

with Inspector Savine, or. at least testified about it during his 

testimony at the hearing. Under all of these circumstances, I 

give no credence to Mr. Vavrek's uncorroborated testimony concerning this purported statement, and I conclude and find that 

Mr. McDowell did not make the statement. · 

In a signed statement given to MSHA Inspector John Savine on 

June 3, 1988, in connection with his discrimination complaint, 

Mr. Fowler stated that he complained to Mr. Laida, Mr. Brienza, 

and to "union walkaround safety man" Vavrek in March, 1988, and 

that shortly after he began working for the respondent, he complained about the compressor located too close to the mine shaft 

with oil over it, the lack of self-rescue devices, the use of a 

gasoline powered grinder in the slope shaft, the failure to 

518 
properly seal the mine shafts, the use of nonpermissible lighting 

1n the slope, the lack of back-up alarms, and the transportation 

of unsecured oxygen and acetylene bottles (exhibit C-4). 

In his prior statement, Mr. Fowler said absolutely nothing 

about complaining to Mr. McDowell or to Mr. Parshall about any of 

the safety complaints which he stated were made to Mr. Brienza, 

Mr . Laida, or Mr·. Vavrek, and which resulted in the issuance of 

the slope violations by the MSHA inspectors. The only reference 

to Mr. McDowell was a statement by Mr. Fowler that he "thought" 

that Mr. Vavrek may have told Mr. McDowell about his complaint on 

May 19 or 20, 1988, about gas checks being made by uncertified 

people. In connection with this complaint, Mr. Fowler stated 

that he did not make it to "anyone in management." Indeed, the 

only reference of complaints by Mr. Fowler to mine management is 

his statement to Mr. Savine that he assumed that Mr. Brienza and 

Mr. Laida were "management people" because they gave him orders. 

In his prior statement to Inspector Savine, Mr. Fowler 

stated that he did not believe that the respondent found out 

about his complaints to Inspector Conrad from Mr . Conrad, but 

believed that the respondent "found out from someone because my 

name was always mentioned when inspectors carne around." 

Mr. Fowler did· not mention Mr. Brienza or Mr. Laida as the 

individuals who may have mentioned his name, but during the 

hearing, he speculated that Mr. Brienza and Mr . Laida informed 

Mr. Parshall about his complaints because they rode together to 

work and that they "would run to management and tell them every-

. thing. 11 Mr. Fowler asserted that Mr . La ida and Mr. Brienza 

talked about someone calling the inspectors, and that 

Mr. Parshall and Mr. McDowell were angry and were trying to learn 

the identity of the informant. Mr. Fowler further asserted that 

Mr. Laida and Mr . Brienza commented "quite a few times" that "the 

inspectors are here, Fowler must have called the inspectors." 

. When a mine operator's adverse action against an employee 

closely follows the employee's protected activity, that fact 

itself may be considered evidence of an illicit motive. Donovan 

v. Stafford Construction Co . , 732 F.2d 954, 960 (D.C . Cir. 1984); 

Secretary of Labor on behalf of Chacon v. Phelps Dodge Corporation, 3 FMSHRC 2508 (1981), rev'd on other grounds sub nom., 

Donovan v. Phelps Dodge Corporation, 709 F.2d 86 (D.C. Cir. 

1983). In Mr. Fowler's case, the evidence establishes that he 

was laid off on May 23, 1988, 2 months after the MSHA inspectors 

shutdown the slope area and issued · violations for the conditions 

which Mr. Fowler alleged he had complained about. 

Except for Mr. Fowler, none of the other witnesses who 

testified on his behalf said anything about the purported statements made by Mr. Brienza and Mr. Laida that they suspected that 

Mr. Fowler called the inspectors. Although Mr. Fowler told 

Mr. Savine that his name was mentioned as the possible source of 

519 
the safety 'complaints, Mr. Fowler did not mention Mr. Brienza or 

Mr. Laida as the source of the statements. If it were true that 

Mr. Brienza and Mr. Laida openly mentioned Mr. Fowler's name as 

the possible source of the complaints "quite a few t,imes," I 

believe it would be reasonable to assume that other employees 

would have heard the statements, and would have testified about 

them. Yet, no one other than Mr. Fowler, testified about any 

such statements. Further, if it were also true that Mr. Brienza 

and Mr. Laida routinely informed Mr. Parshall or Mr. McDowell 

about everything that was going on, it would be reasonable to 

assume that if they in fact informed them about their suspicions, 

and Mr. Parshall or Mr. McDowell were predisposed to terminate 

Mr. Fowler because of his safety complaints, I believe they would 

have done so immediately, rather than wait for 2 months before 

doing so. 

In support of his conclusion that Mr. Parshall had knowledge 

of Mr. Fowler's safety complaints, and would have fired him 

immediately if he had known that it was Mr. Fowler who made the 

safety complaints, Mr. Fowler's counsel cites Mr. Parshall's 

"proffer" made in this regard during the hearing. Mr. Parshall's 

statement came in response to certain bench questions and testimony by Mr. Parshall that even though Mr. Fowler or other 

employees made safety complaints, they were still employed by the 

respondent after any such complaints. Mr. Parshall made the 

following statement (Tr. 501): 

Whatever was--that they figured that we called--we 

figured they might have called the MSHA people. They 

were still employed. If I ever thought--if I was any 

kind of a scrupulous man and I thought you called the 

Federal inspector, if I was a scrupulous man, I would 

lay you off tonight. (Emphasis added). 

Having viewed Mr. Parshall on the stand during his testimony, and after listening and specifically recalling this testimony, I believe that Mr. Parshall ·intended to use the word 

unscrupulous rather than scrupulous. The term scrupulous means 

"having moral integrity" (Webster's New Collegiate Dictionary), 

and I seriously doubt that Mr. Parshall intended to convey the 

impression that a scrupulous person would have immediately fired 

anyone for complaining to an inspector. I do not believe that 

Mr. Parshall had any intention of admitting that he would 

immediately fire anyone who complained to an inspector, particularly in light of his consistent denials that Mr. Fowler was 

terminated because of his safety complaints. Under the circumstances, and taken in context, I reject the suggestion that this 

statement by Mr. Parshall supports any conclusion that he was 

aware that Mr. Fowler complained to the inspector, or that he was 

predisposed to terminate Mr. Fowler because of such complaints. 

520 
After careful examination of Mr. Vavrek's testimony, I find 

it contradictory and inconsistent with respect to whether or not 

he communicated Mr. Fowler's safety complaints to Mr. Parshall or 

to Mr. McDowell. Mr. Vavrek stated that he did not know whether 

Mr. Parshall was advised of some of the complaints (Tr. 35) . He 

stated that Mr. Parshall was aware of the complaints because he 

was at the job site where the work was being performed, and that 

he advised Mr. Parshall about Mr. Fowler's "bringing up safety 

matters" on "a few occasions" (Tr. 54-55). He then stated that 

Mr. Fowler made his complaints to and through Mr. Brienza (Tr. 

71), and that he (Vavrek) believed that Mr. Parshall or 

Mr. McDowell had knowledge that Mr. Fowler had made the slope 

complaints 2 days before the sl9pe was closed down by the inspectors because Mr. Brienza probably told them about Mr. Fowler's 

complaints (Tr. 68). Mr. Vavrek further testified that he did 

not speak with Mr. McDowell or Mr. Parshall about some of the 

slope conditions, even though they were on the job every day and 

no one prevented him from communicating with them (Tr. 99-100). 

When asked a direct question as to whether he had at any time 

told Mr. Parshall nor Mr. McDowell that Mr. Fowler had made 

safety complaints, Mr. Vavrek responded "No" (Tr. 104). 

Mr. Fowler confirmed that after the slope area was shutdown, 

he continued performing his laborer's duties and continued making 

his normal fire boss inspections (Tr. 151, 155). When asked 

whether or not Mr. McDowell or Mr. Parshall ever expressed any 

displeasure with the manner in which he was making his safety 

inspections, Mr. Fowler indicated that on one occasion 

Mr. Parshall questioned his absence while he had gone to inspect 

several shafts, and that Mr. McDowell discussed the incident 

which prompted Mr. McDowell's father-in-law to question whether 

Mr. Fowler was doing any work. Shortly thereafter, Mr. Fowler 

stated that he had an "encounter" with Mr. McDowell about his 

reporting time for work, and they mutually accused each other of 

harassment and that Mr. McDowell purportedly stated that he was 

receiving "too many 800 phone calls." Mr. Fowler took this to 

mean that Mr. McDowell knew that someone was complaining to the 

inspectors, and "that I was calling the inspectors." Notwithstanding this alleged conversation, Mr. Fowler confirmed that 

after asking Mr. McDowell where he wanted him to test for 

methane, he proceeded to make the tests, and there is nothing to 

suggest that Mr. McDowell prohibited or otherwise inhibited him 

from doing so (Tr. 168). 

Mr. Parshall confirmed that he asked Mr. Fowler about his 

whereabouts after he had been assigned a company truck and was 

away conducting methane checks at some of the shafts. 

Mr. Parshall acknowledged that he believed that Mr. Fowler was 

spending too much time making his checks, and that his timing 

improved after he discussed it with him. I find nothing unusual 

about a job superintendent such as Mr. Parshall raising this 

question with one of his employees, and absent any credible 

521 
evidence to the contrary, I cannot conclude that Mr . Parshall 

attempted to inhibit Mr . Fowler from continuing to make his fire 

boss checks. 

With regard to Mr. Fowler's encounter with Mr. McDowell, 

Mr. McDowell's explanation that his father-in-law's comments 

about one of his employees caused him some embarrassment, was 

reasonable and plausible in the circumstances, and I find nothing 

unusual about Mr. McDowell's discussing this with Mr. Fowler. 

Indeed, as noted earlier, after this conversation took place, 

Mr. Fowler -continued to perform his fire boss duties, and I find 

no credible evidence to support any reasonable conclusion that 

Mr. McDowell interfered with his duties in this regard. As a 

matter of fact, the fire boss records reflect that Mr . Fowler 

continued to inspect the shafts well after the closure of the 

slope by MSHA, and at least up to May 17, 1988, 6 days before he 

was laid off. 

When asked for an explanation as to why he said nothing in 

his 12 page statement of June 3, 1988, to Mr . Savine about his 

alleged complaints made to Mr. Parshall and Mr. McDowell, when 

"it was fresh on his mind," Mr. Fowler explained that he "left 

things out" of the statement. He conceded that the information 

which he omitted from his prior complaint statement to Mr. savine 

was a critical part of his claim that he communicated his safety 

complaints to Mr. Parshall and Mr. McDowell . Mr. Fowler further 

explained that he told Mr. Savine that "I went to management, 

management is Jay and Bill" (McDowell and Parshall). I have 

closely examined Mr. Fowler's prior statement to Mr. Savine, and 

the only reference I find to "management" is Mr. Fowler ' s denial· 

that he complained "to anyone in management" about his complaint 

that gas checks were being made by uncertified people (pg. 3, 

exhibit C- 3). As noted earlier, Mr. Fowler's statements to 

Inspector Savine concerning his safety complaints specifically 

state that they \vere made to Mr. Vavrek, Inspector conrad, 

Mr. Brienza, and Mr. Laida, and. there are no statements or 

inferences that he ever complained to Mr. McDowell or to 

Mr. Parshall. 

In addition to his prior statement to Inspector savine, I 

take note of the fact that in a complaint statement executed by 

Mr . Fowler on May 24, 1988, and filed with MSHA's field office, 

Mr. Fowler stated that he reported safety violations "to management and the safety department." There are no statements that he 

complained to Mr. Parshall or to Mr. McDowell. 

Although Mr. Fowler testified that 2 days before the slope 

was shutdown, he informed Mr. Parshall and Mr. McDowell about all 

of the conditions for which violations were issued by the MSHA 

inspectors, he confirmed that he only "mentioned a few of them" 

to Mr . McDowell. Further, although Mr. Fowler testified that he 

informed Mr . Parshall about the compressor and the use of a 

522 
gasoline powered grinder and sav! in the slope, and "expressed his 

concern" to Mr. Parshall about the lack of self-rescuers, fire 

extinguishers, back-up alarms, and oxygen and acetylene tanks, 

his prior statement to Inspector Savine, which was made more than 

a year before the hearing, when the events were fresh in his 

mine, reflect that these "complaints" or "concerns" were made to 

Mr. Vavrek, Mr. Brienza, Mr. Laida, or Inspector Conrad, and not 

to Mr. Parshall· or to Mr. McDowell. 

In view of the foregoing, I consider Mr. Fowler's testimony 

that he communicated his safety complaints to Mr. Parshall and 

Mr. McDowell, to be inconsistent, contradictory, and less than 

credible, particularly in light of his prior critical omissions 

when he made his complaint statement to Mr. Savine. I can find 

no reasonable basis for mitigating Mr. Fowler's failure to 

include a critical element of his case from the prior statement 

which he made to Mr. Savine. Mr. Fowler was an experienced miner 

who held prior mine foreman's positions, and had knovJledge of 

MSHA's safety rules and regulations. He admitted that he was 

aware of the fact that Mr. Parshall and Mr. McDowell were the 

project managers, and that any safety complaints should logically 

be communicated to them. I find nothing to suggest that 

Mr. Fowler was inhibited in any way from communicating his complaints to Mr. Parshall or to Mr. McDowell, or that he was intimidated in any \vay by Mr. McDowell or Mr. Parshall. Having viewed 

Mr. Fowler during the course of the hearing, he did not impress 

me as a timid individual. 

I take note of the ~act that in his posthearing proposed 

findings and conclusion~ .. Mr. Fowler's counsel made several 

references concerning Mr. Fowler's safety complaints to "supervisory personnel on the job," including "the newly appointed 

safety director, Mr. Vavrek" (proposed findings No. 4, No. 9, 

No. 14, No. 15). During a bench colloquy at the hearing, counsel 

confirmed that part of the theory of his case is that Mr. Brienza 

and Mr. Laida were perceived as part of mine management by the 

workforce, and that Mr. Fowler's day-to-day safety complaints 

about the alleged unsafe work practices in the workplace, as 

distinguished from his fire boss complaints, were brought to the 

attention of the persons in the "chain of command who every day, 

told him what to do in the work place" and that "on some occasions, he also communicated or believed it was communicated, 

either both, to higher management" (Tr. 205). Counsel further 

stated that the respondent was clearly on notice ''of what .our 

claim about Arty and Kenny's (Brienza and Laida) relationship is 

to this case," and that "the cumulative evidence in this case 

will show that management, through Arty and Kenny, through the 

entire gestalt of events that occurred, were well aware this man 

(Fowler) was a significant source of raising safety complaints" 

(Tr. 206-207). In yiew of these arguments, it seems apparent to 

me that Mr. Fowler is advancing an argument that since his safety 

complaints were communicated to Mr. Brienza and Mr. Laida, the 

523 
"supervisory personnel" who he believed constituted "mine manageme-nt," the complaints obviously reached, or were communicated to 

Mr. Parshall and Mr. McDowell. However, I have rejected this 

argument. 

After careful consideration of all of the evidence and 

testimony in this case with respect to Mr. Fowler's safety cornplaints concerning the slope conditions which ·prornpted the shutdown by MSHA and the issuance of the violations for the cited 

conditions in question, I conclude and find that the preponderance of all of the credible testimony and evidence does not 

establish that Mr. Fowler made or communicated his safety cornplaints concerning the slope conditions to Mr. Parshall or to 

Mr. McDowell, or that these individuals had any knowledge of the 

complaints, or had reason to know that Mr. Fowler had registered 

complaints to the MSHA inspectors. Although I have found that 

Mr. Fowler made complaints about the slope conditions, I conclude 

and find that the slope complaints were made to non-management 

personnel, g.g., Mr. Brienza, Mr. Laida, possibly to other rank 

and file employees, and to Mr. Vavrek, who at the time the slope 

was inspected and shutdown by the inspectors, was serving as a 

union walkaround man. The evidence establishes that Mr. Vavrek 

was appointed the respondent's safety director after the slope 

was shutdown, and although one may reasonably assume that a 

company safety director is a member of mine management, the 

record in this case is devoid of any evidence to establish that 

Mr. Vavrek was in fact a part of mine management. I further 

conclude and find that while Mr. Vavrek may have told 

Mr. Parshall or Mr. McDowell about some of the slope conditions, 

he did not inform Mr. Parshall or Mr. McDowell that Mr. Fowler 

had made the complaints. 

Methane Gas Check Complaints 

Mr. Fowler alleges that immediately prior to his lay off on 

May 23, 1988, he complained to Mr. Vavrek and to Inspector 

Spangler that gas checks were not being made, and that uncertified personnel were making the checks. Mr. Fowler also has 

alleged that he was not allowed to perform the gas checks and did 

not perform them prior to any work in the shafts. In order to 

resolve this issue, a determination must be made as to whether or 

not the preponderance of the credible testimony and evidence 

establishes with any degree of probative certainty, or by any 

reasonably supportable inferences, that Mr. Fowler complained to 

Inspector Spangler, that Mr. Spangler inforrned .rnine management 

(Parshall or McDowell) that Mr. Fowler had complained, and that 

acting on the knowledge that Mr. Fowler had complained, 

Mr. McDowell andjor Mr. Parshall retaliated against Mr. Fowler by 

laying him off. 

Mr. Fowler testified that QDg day before his termination he 

informed Mr. Vavrek and Inspector Spangler that the examination 

524 
of the shaft was not being made when materials were being dumped, 

and that Mr. Vavrek informed him that he would look into it. 

Mr . Fowler stated that he called Mr. Vavrek at his home that same 

evening, and Mr. Vavrek informed him that Mr. McDowell had 

referred to him (Fowler) as a "wimp or fat boy or something." 

Mr . Fowler also testified that he called state mine inspector 

Raoul Vincinelli that same evening and informed him that the 

respondent did not allow him .to conduct his shaft inspections, 

and that Mr. Vincinelli told him that he would talk to management 

and also told him that management told him (Vincinelli) that 

people were available to test for methane (Tr. 158). Mr. Fowler 

further testified that he spoke with Mr. Vincinelli after he was 

laid off, that $arne day or evening, and informed him that management had lied to him and that there were no certified people 

working at the mine. The following day, Mr. Vincinelli went to 

the mine and shut the mine down, and it was Mr. Fowler's understanding that following this shutdown, Mr. Art Jones made the 

methane checks. 

Mr. Vavrek te·stified on direct examination that three days 

before Mr. Fowler was terminated, Mr. Fowler spoke with him and 

Inspector Spangler and informed them that while work was being 

· performed at the slope area he did not make a gas check and that 

the respondent was not following the mine sealing plan (Tr. 61). 

Mr. Vavrek testified later that this conversatio!) took place .Qng 

Q£¥ before Mr. Fowler was laid off (Tr. 64). Mr . Vavrek stated 

that following this conversation, he and Inspector Spangler went 

to the mine office and spoke with Mr. Hoelle, the LTV engineer 

w~o drafted the· sealing plan. After reviewing the plan, 

Mr. Vavrek concluded that the plan was not being followed. 

Mr . Vavrek further testified that after reviewing the plan, he 

and Inspector Spangler spoke to Mr. McDowell in his office, and 

after reviewing the fire boss book, Mr. Spangler found that it 

had not been signed. Mr. Vavrek stated that Inspector Spangler 

commented that "Terry (Fowler) approached us and said the plan 

was not being followed," and that Mr. McDowell became upset, 11S\vore a little bit," and called Mr . Fowler as a "fat roly-poly." 

Mr. Vavrek further testified that "the day before or two days 

before" Mr. Fowler's termination, Mr. Spangler made the statement 

that "Terry is the one that brought this to our attention" and 

that "Terry approached us and we checked into it" (Tr. 85, 86). 

During his testimony on the second day of the hearing after 

being called in rebuttal by Mr. Fowler, Mr. Vavrek again testified that the conversation with Mr. McDowell took place one day 

prior to Mr. Fowler's termination, and that during the conversatio:l, Inspector Spangler stated that "Terry approached us that 

the air- -that the gas readings were not being made" (Tr. 642, 

643). Mr. Vavrek further stated that Mr. Fowler had also complained to Inspector Spangler about asbestos (Tr. 646). 

525 
Mr. Hoelle and Inspector Spangler did not testify in these 

proceedings. In light of Mr. Vavrek's testimony concerning the 

statements purportedly made by Inspector Spangler identifying 

Mr. Fowler as the individual who had complained about the gas 

checks, the respondent was afforded the opportunity to take the 

posthearing deposition of Mr. Spangler, and a contact was made by 

the respondent with the appropriate MSHA Solicitor's Office to 

make Mr. Spangler available to be deposed. However, Mr. Spangler 

suffered a heart attack on September 22, 1989, and his return to 

duty was delayed. In view of his physical incapacity and 

unavailability to be deposed, the respondent filed a motion 

requesting my reconsideration of a ruling made during the hearing 

rejecting a prior statement made by Mr. Spangler to Special 

Investigator John Savine in the course of his investigation of 

Mr. Fowler's discrimination complaint. The motion was granted 

over the hearsay objection's of Mr. Fowler's counsel, and the 

statement was received and made a part of the record in this 

case. Mr. Spangler's statement, which is not signed, and which 

reflects that it was made to Mr. Savine by telephone on June 30, 

1988, states as follows: 

This interview was conducted by telephone. Statement was sent to Conrad to be signed. One morning 

while I was inspecting Atlas Services I was told by Jim 

Conrad that he had been told of some safety problems at 

Atlas. Conrad did not tell me who had made the cornplaints. I checked out what he told me and took the 

appropriate action. I never heard management call 

Fowler a whimp (sic). Fowler did complain to me about 

Samtek people throwing asbestos coated siding off a 

building. I did not observe this. I don't remember 

any other complaints made by Fowler. I never told the 

company of any complaints I received about safety. 

Respondent argues that Mr. Spangler's statement directly 

refutes Mr. Vavrek's testimony, and reflects that Mr. Spangler 

did not inform mine management about ariy safety complaints he 

received and was never informed who made any safety complaints. 

The respondent points out that the only complaint Mr. Spangler 

could recall from Mr. Fowler concerned "Samtek people throwing 

asbestos coated siding off a building." Respondent concludes 

that since Mr. Spangler was not informed as to who was making 

safety complaints, he could not have informed mine management of 

the source of the complaints. Absent any evidence that management knew that Mr. Fowler had made the complaint, respondent 

concludes further that it cannot be inferred that management 

retaliated against Mr. Fowler. 

I take particular note of the fact that Mr. Fowler does not 

argue that his gas check complaint to state Inspector Vincinelli 

was known to mine management prior to his lay-off, or that it had 

anything to do with his termination. The thrust of Mr. Fowler's 

526 
case is his assertion that his gas check complaint to MSHA 

Inspector Spangler was communicated to Mr . McDowell by Mr . Vavrek 

and Mr. Spangler, and that Mr. Spangler's purported comments in 

the presence of Mr. McDowell identifying Mr . Fowler as the person 

who had complained, motivated Mr. McDowell to lay him off in 

retaliation for making the complaint. 

I find no credible evidence to support any conclusion that 

mine superintendent Parshall was present during the alleged 

"meeting" with Mr. McDowell, Mr. Vavrek, and Inspector Spangler. 

Nor do I find any credible evidence that Mr. Fowler communicated 

his complaint about the gas checks to Mr. Parshall, or that 

Mr. Parshall laid him off for making the complaint. Mr. Parshall 

testified that Mr. Vincinelli came to the mine the day after 

Mr. Fowler was laid off, informed him that the mine had to be 

firebossed, and instructed him not to do any further work until 

he had a qualified person available to conduct the methane 

checks. Mr. Parshall explained that seven or nine individuals 

working at the mine had received training for making methane 

checks and had papers signed by the instructor who trained them, 

but had not as yet received their official cards certifying them 

as qualified to make the checks. Under the circumstances, the 

required checks were made by Mine Superintendent Art Jones, who 

was qualified, and Mr. Vincinelli later accepted the certification "papers" of the other trained individuals. Mr. McDowell 

confirmed that after Mr. Fowler's lay off, Mr. Vincinelli 

informed him that the individuals who had been trained to make 

the methane checks pursuant to MSHA's requirements did not meet 

the state certification requirements, and that under these circumstances, he requested Mr. Jones to make the checks. 

Mr. Fowler's testimony suggests that he made two telephone 

calls to Mr . Vincinelli, one on the evening prior to his termination, and after he had spoken to Mr. Vavrek, and one on the day 

or evening after he was terminated. Mr. Fowler's initial testimony reflects that he spoke with Mr . Vincinelli and that 

Mr. Vincinelli informed him that he would talk to management 

about the matter and also informed him at the same time that 

management claimed that it had certified people available to make 

the gas checks. I find it difficult to believe that 

Mr. Vincinelli would have told Mr. Fowler that he would discuss 

the matter with management, and at the same time tell him about 

management's explanations to his complaint before he had an 

opportunity to discuss the matter with them. When pressed for 

the time frame when he spoke with Mr. Vincinelli, Mr. Fowler 

stated that "it must have been the next day," which would have 

been the day he was laid off. This testimony is consistent with 

Mr. Fowler's later testimony that he called Mr. Vincinelli on the 

day he was laid off after Mr. Parshall informed him that he was 

laid off, and that Mr. Vincinelli went to the mine the following 

day and shut the job down because of the unavailability of qualified personnel to fire boss the mine. 

527 
Mr. Vincinelli was not called to testify in this matter. 

The testimony of Mr. Parshall and Mr. McDowell that they discussed the gas check matter with Mr. Vincinelli after 

Mr. Fowler's lay off stands unrebutted, and I find it credible 

and believable. Mr. Fowler's testimony that he spoke with 

Mr. Vincinelli after he was laid off corroborates the testimony 

of Mr. Parshall and Mr. McDowell. Further, in the absence of any 

evidence to the contrary, I cannot conclude that Mr. Parshall or 

Mr. McDowel·l had any knowledge of Mr. Fowler's gas check cornplaints to Mr. Vincinelli prior to Mr. Fowler's lay off, or that 

this complaint influenced their decision to lay off Mr. Fowler. 

I find no evidence to support Mr. Fowler's assertion that 

the "inspection records" confirmed that the purported meeting 

with Inspector Spangler, Mr. Vavrek, and Mr. McDowell did in fact 

take place. The only mention of any such report was made during 

the course of the hearing by Mr. Fowler's counsel during his 

cross-examination of Mr. McDowell (Tr. 587-588). The report, 

(exhibit C-5), is a memorandum from MSHA Inspectors Newhouse and 

Spangler to MSHA's District 2 Manager Donald w. Huntley concerning their inquiry of the alleged PCB dumping incident conducted 

on June 1, 1988. The report reflects that Mr. McDowell spoke to 

the inspectors about the alleged dumping incident, but it contains absolutely no information concerning the issue of gas 

checks or the purported meeting in question. Further, as noted 

in the report, the visit by Inspectors Newhouse and Spangler was 

made on June 1, 1988, a week after Mr. Fowler's lay-off. Under 

the circumstances, counsel's assertion that the report establishes that the purported meeting with Inspector Spangler was in 

fact held a day before, or immediately prior to Mr. Fowler's 

lay-off, is unfounded and it is rejected. 

During his direct and cross-examination testimony, 

Mr. McDowell was asked no questions . concerning the purported 

meeting with Inspector Spangler and Mr. Vavrek. Mr. McDowell 

testified that he "vaguely" recalled Mr . Spangler as one of the 

MSHA inspectors who came to the mine during the slope inspection, 

and that he would be "hard pressed" to recognize him in a crowd. 

He also stated that he did not spend a lot of time with the 

inspectors when they visited the mine {Tr. 603-604). 

When called in rebuttal, Mr. McDowell unequivocally denied 

that any meeting ever took place with Inspector Spangler and 

Mr. Vavrek, and he characterized Mr. Vavrek's testimony to the 

contrary as untrue. Mr. McDowell denied that Mr. Spangler and 

Mr. Vavrek ever visited his office to discuss the matter of gas 

checks, and he denied that he knew or had reason to know that 

Mr. Fowler ever complained to any State or Federal inspector that 

he was not performing gas checks. 

528 
Mr. McDowell further testified that. he could not recall ever 

receiving any citation for failure to make the required gas 

checks. Mr. Fowler's counsel produced a copy of an MSHA citation 

issued by Inspector conrad and served on Mr. Parshall on 

March 28, 1988, citing a violation of 30 C.F.R. § 77.1713, for 

the failure of any certified person to examine the working areas 

at the Nos. 1 and 4 shafts, and the supply yard (exhibits C-3 and 

C-7). Mr. McDowell did not dispute the authenticity of the 

citation, and stated that he did not know that it was issued for 

failing to make the methane checks. 

With regard to Mr. Fowler's argument in his supplemental 

brief that "the t~stimony of the mine superintendent did not 

refute the fact that the issue concerning the gas checks was 

raised by Mr. Fowler, and simply contradicted Mr. Vavrek's testimony that Mr. Fowler's name was actually mentioned," I take note 

of the fact that the respondent's project superintendent William 

Parshall gave no testimony concerning the alleged meeting with 

Inspector Spangler or the statements attributed to him by 

Mr. Vavrek. As noted . earlier, there is no evidence that 

Mr. Parshall was present when the Spangler statements were purportedly made. With regard to the testimony of project manager 

McDowell, he unequivocally denied that any meeting took place, or 

that Mr. Spangler made the statements in question, and he denied 

any knowledge of Mr. Fowler's asserted complaint about the gas 

checks. Mine superintendent Art Jones, the individual who conducted the gas checks after the job was shutdown by 

Mr. Vincinelli, did not testify in this case. 

In his prior statement of June 3, 1988, to MSHA special 

investigator Savine in the course of the investigation of. his 

complaint, Mr. Fowler stated that he complained to Mr. Vavrek on 

May 19 and 20, 1988, 3 or 4 days prior to nis lay off on May 23, 

1988, about gas checks being made by uncertified people. 

Mr. Fowler characterized Mr. Vavrek as the "safety man (union)" 

and "walkaround union man." Mr. Fowler stated that he "thought" 

that Mr. Vavrek told Mr. McDowell about his complaint and that 

Mr. Vavrek informed him that Mr. McDowell had referred to him as 

a "wimp" for making the complaint. Mr. Fowler further stated 

that Inspector Spangler was present "and should have heard the 

comment," and that he did not make his complaint "to anyone in 

management." 

Mr. Fowler's prior statement that he made his gas check 

complaint 3 or 4 days before his lay-off, contradicts his hearing 

testimony that it was made the day before his termination. 

Although -Mr. Vavrek initially testified that the complaint was 

made to him and to Mr. Spangler 3 days before Mr. Fowler was 

terminated, he later testified that the complaint was made the 

day before. In his prior statement, Mr. Fowler does not state 

that he also complained to ~r. Spangler. He simply states that 

Mr. Spangler was present when Mr. McDowell referred to him as a 

529 
"wimp" for making the complaint, and that Mr. Spangler should 

have heard the comment. The prior statement contains no information concerning the statements attributed to Mr. Spangler by 

Mr. Vavrek with respect to Mr. Fowler's name being mentioned by 

Mr. Spangler. 

There is no evidence that the mine closure which occurred a 

day after Mr. Fowler's alleged complaint about the. gas checks 

resulted fro~ any enforcement action by MSHA or its inspectors. 

The evidence reflects that. the mine was shutdown by State Inspector Vincinelli on the basis of the complaint made to him by 

Mr. Fowler after he was laid off. Further, there is 110 evidence 

that Mr. Vincinelli informed Mr. Parshall or Mr. McDm.;ell about 

the complaint made by Mr . FO\·ller, or that they were aware of it. 

There is no evidence in this case that Inspector Spangler 

took any enforcement action or issued any citations as a result 

of the alleged complaint by Mr. Fowler and meeting with 

Mr . McDowell a day before Mr. Fowler's termination. Although 

Mr. Vavrek testified that after reviewing the fire boss book 

during this meeting, Mr. Spangler found that it had not been 

signed, there is no evidence that Mr. Spangler issued a citation 

as a result of this finding. The only evidence of record concerning the respondent's failure to record the results of inspections of its work areas in the mine books, and the failure by 

certified persons to examine the active work areas, are two 

citations issued by MSHA Inspector James Conrad on March 24 and 

25, 1988, 2-months prior to Mr . Fowler's lay-off (exhibits C-3 

and C-7). Mr. Spangler's involvement with these citations concerned the modifications of the citations extending the abatement 

times for correcting the cited conditions, and his termination of 

the citations on March 30, 1988, after finding that the required 

examinations were being conducted by a certified person and that 

the results of the examinations were being recorded in the mine 

book. 

I take note of the fact MSHA's mandatory safety standard 

30 C.F.R. § 77.1713, requires daily on-shift examinations of the 

active surface working areas of a mine by certified persons 

designated by the mine operator, and the examiner is required to 

report any hazardous conditions noted to the operator. Section 

77.1901, requires preshift and onshift examinations of slope and 

shaft areas by a certified person, including tests for methane 

and oxygen deficiency. Both of the prior citations issued by 

Inspector Conrad were issued for a violation of section 77.1713, 

and none of the remaining citations which were issued during 

MSHA's slope inspection of late March, 1988, were for violations 

of section 77.1901. Given the fact that Mr. Spangler had participated in the inspections and shutdown of the slope area in 

March, 1988, and that a number of citations were issued, including the two citations concerning inspections by qualified mine 

examiners, I believe that one may reasonably conclude that 

530 
Mr. Spangler would have issued additional citations, particularly 

for repeat offenses, as a result of the complaint which 

Mr. Fowler contends he made to Mr. Spangler immediately before 

his lay-off. The absence of any evidence that Mr. Spangler took 

any enforcement action on the basis of Mr. Fowler's alleged 

complaint raise serious doubts in my mind that Mr. Fowler ever 

complained to Mr. Spangler about the gas checks. 

Mr. Vavrek's testimony reflects three different versions of 

the statement purportedly made by Inspector Spangler in 

Mr. McDowell's presence during the alleged meeting in question. 

The purported statements are as follows: "Terry approached us 

and said the plan was not being followed;" "Terry is the one that 

brought this to our attention. Terry approached us and we 

checked into in;" and "Terry approached us that the air •. • that 

the gas readings were not being made." Mr. Vavrek's testimony 

also reflects inconsistent statements as to when the statements 

were made, ranging from 1 to 2 or 3-days prior to Mr. Fowler's 

lay off. As previously noted, Mr. Fowler's prior statement to 

Special Investigator Savine over a year prior to the hearing that 

he complained about the gas checks to Mr. Vavrek 3 or 4-days 

prior to his lay off, contradicts his hearing testimony that he 

made ~he complaint 1 day before his lay off. These inconsistencies and contradictions raise doubts with me about the credibility of Mr. Vavrek and Mr. Fowler. 

With regard to the hearsay statement of Inspector Spangler, 

the Commission has held that hearsay is admissible in Mine Act 

proceedings so long as it is material and relevant, Secretary of 

Labor v. Kenny_Richardso~, 3 FMSHRC 8, 12 n. 7 (January 1981), 

aff'd 689 F.2d 632 (6th Cir. 1982), cert. denied, 77 L.Ed.2d 299 

(1983); Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1135-1137 

(May 1984). 

Although Mr. Spangler's statement is not signed, it was made 

to Inspector Savine .during his investigation of Mr. Fowler's 

complaint and it is part of MSHA's official report of investigation made by Mr. savine. Although the entire report was rejected 

by me in the course of the hearing, Mr. Spangler's statement has 

been admitted, and I find it relevant and material to the issue 

raised by Mr. Vavrek's testimony that Mr. Spangler revealed a 

confidence and informed Mr. McDowell that Mr. Fowler complained 

to him about the gas checks not being made by certified or qualified personnel. 

Mr. Spangler states that in the course of his inspection of 

the respondent, Inspector Conrad informed him that he (Conrad) 

was told of "some safety problems at Atlas," but did not tell him 

who had complained. Although Mr. Spangler does not state when 

this inspection took place, and simply states that it was "one 

morning," I find the statement to be otherwise reliable since it 

~ends credence to Mr. Fowler's testimony that he telephoned 

531 
Mr. Conrad about some safety complaints at the mine site where 

the respondent was performing work. The -statement also corroborates Mr. Fowler's prior statement to Mr. Savine that he had 

complained to Mr. Conr~d about the slope conditions. 

Mr. Spangler denied that he ever informed the respondent of 

any safety complaints that he received, denied that he ever heard 

management call Mr. Fowler "a whimp," (sic) and he stated that 

the only complaint that he could recall receiving from Mr. Fowler 

was about "Sanitek people throwing asbestos coated siding off a 

building." This statement lends credence to Mr. Vavrek's testimony on direct that there was a "problem on a few occasions" with 

asbestos being thrown off the side of a building (Tr. 51). Under 

all of these circumstances, I find Mr. Spangler's statement to be 

reliable and trustworthy, and have no basis for concluding that 

· he would be less than truthful. 

Mr. Spangler's statement that the only complaint he could 

recall made to him by Mr. Fowler concerned asbestos 'directly 

refutes Mr. Vavrek's testimony that while he and Mr. Spangler 

were together at the site, Mr. Fowler informed them that he was 

not making his gas checks while work was being performed in the 

slope work area. It also refutes Mr. Fowler's testimony that he 

informed Mr. Spangler about this matter at the time he complained 

to Mr . Vavrek, and that Mr. Spangler "was standing right with" 

Mr . Vavrek when he told him (Tr. 160). 

As noted earlier, in his prior statement to Mr . Savine, 

Mr. Fowler, on two occasions, stated that he had made his gas 

check complaint to Mr. Vavrek and did not complain to management 

(exhibit, pgs. 3 and 8). Mr. Fowler did not state that the 

complaint was also made to Mr. Spangler, and at page 4 of his 

prior statement, Mr. Fowler suggests that Mr. Vavrek may have · 

told Mr. McDowell about his complaint. Further, Mr. Fowler's 

prior statement does not even suggest that Mr . Spangler may have 

overheard his complaint to Mr. Vavrek, and it only suggests that 

Mr. Spangler may have overheard Mr. McDowell's alleged disparaging remark about Mr. Fowler. Since there is no evidence that 

Mr. McDowell was present when Mr. Fowler may have first 

appr9ached Mr. Vavrek and Mr. Spangler, any such remark, if made, 

would have been forthcoming at a later time. Mr. Spangler denied 

that he ever heard such a remark. 

After careful review of all of the testimony and evidence, 

including Mr. Spangler's statement, which I find reliable and 

probative, I find that it is more credible and believable than 

the testimony of Mr. Vavrek and Mr . Fowler. Mr. Spangler's 

denial that he ever informed mine management about the source of 

any safety complaints is consistent with MSHA's long standing 

policy that prohibits an inspector from revealing the source of 

any safety complaints. I find no evidence to suggest that 

532 
Mr. Spangler was other than a disinterested party while conducting his inspections, and Mr. Fowler conceded that with respect to 

the prior slope inspection which included Mr. Spangler and 

Mr. Conrad among the inspectors who came to the mine during that 

visit, he had no reason to believe that any of the inspectors may 

have informed management about the source of those complaints. 

Indeed, Mr. Fowler testified that he requested Inspector Conrad 

not to reveal his name, and Mr. Spangler's statement that 

Mr. Conrad did not tell him who had made the telephone complaints 

would seem to indicate that Mr. Conrad maintained the confidentiality of the source of the complaints even from his fellow 

inspector. 

Mr. Parshall's unrebutted and credible testimony reflects 

that when he inquired of Inspector Newhouse as to who may have 

complained about the slope conditions, Mr. Newhouse informed him 

that the source of any complaint is confidential and could not be 

revealed. Further, during the course of MSHA's inquiry into the 

alleged PCB dumping incident, the employees were interviewed in 

private, their names were not solicited or given, and they were 

informed by the inspectors (Newhouse and Spangler) that any 

information given with respect to that incident would be maintained in strict confidence. 

Under all of the aforementioned circumstances, I find it 

difficult to believe that Inspector Spangler would have revealed 

a confidence by identifying Mr. Fowler as the source of the 

complaint in the presence of Mr. McDowell, or informing 

Mr. McDowell directly that Mr. Fowler made the complaint. Such a 

serious breach of confidentiality would have been markedly inconsistent with the inspectors• investigative procedures, and would 

have undoubtedly exposed Mr. Spangler to disciplinary action by 

his superiors. Further, given the different versions of the 

statements purportedly made by Mr. Spangler, as reflected by 

Mr. Vavrek's testimony, and the inconsistent and contradictory 

testimony of Mr. Vavrek, as well as Mr. Fowler, with respect to 

the time frame of the purported meeting when the statements were 

allegedly made by Mr. Spangler, I find Mr. Vavrek and Mr. Fowler 

to be less than credible witnesses, and I do not believe their 

testimony. 

In view of the foregoing, I conclude and find that the 

purported meeting with Mr. McDowell did not take place as testif1ed to by Mr. Vavrek. I find no credible evidence to support 

any conclusion that Mr. Fowler complained to Inspector Spangler 

about the gas check matter, or that Mr. Spangler informed 

Mr. McDowell that Mr. Fowler was the source of the complaint. 

Although Mr. Fowler may have complained to Mr. Vavrek about the 

matter, I find no credible evidence to support any conclusion 

that Mr. Vavrek informed Mr. McDowell about the matter prior 

Mr. Fowler's lay off, or that he informed Mr. McDowell that 

Mr. Fowler was the source of the complaint. 

533 
I find no credible evidence to support any conclusion that 

mine management ever prevented Mr. Fowler .from conducting his 

required examinations. I also find no credible evidence of any 

disparate or hostile treatment of Mr. Fowler by the respondent. 

As a matter of fact, after the conversations with Mr. Parshall 

and Mr. McDowell concerning his long absences and the comments by 

Mr. Stout concerning his work, Mr. Fowler was allowed to resume 

his normal examination duties and the examination records 

(exhibit R-1) reflect that Mr. Fowler examined the shafts and 

slope work areas and made his examination entries, from 

February 18, 1988, to May 17, 1988. Although there is some 

testimony that Mr. McDowell on occasion may have cursed Mr. Bair, 

I find no credible evidence that Mr·. Parshall or Mr. McDowell 

ever cursed Mr. Fowler or exhibited any open hostility towards 

him because of his fire boss duties. 

With regard to Mr. Fowler's complaints about the slope 

conditions, as previously noted, these complaints were made 

2-months prior to Mr. Fowler's lay off on May 23, 1988, and I 

have concluded that the complaints were not communicated to 

Mr. McDowell or to Mr. Parshall, and that they had no knowledge 

that Mr. Fowler was the source of the complaint prior to his lay 

off. With regard to Mr. Fowler's alleged complaint about the gas 

checks, I find no credible evidence to support any conclusion, 

either directly, or by inference, that Mr. Fowler communicated 

his complaint to Mr. McDowell or to Mr. Parshall, or that they 

knew, or had reason to know, prior to the lay off, that 

Mr. Fowler was the source of the complaint. Under these circu~­

stances, I cannot conclude that in making their decision to lay 

off Mr. Fowler, Mr. McDowell or Mr. Parshall were motivated by 

his complaint, or that the lay off decision was made to retaliate 

against Mr. Fowler for making the complaint. In short, I conclude and find that Mr. Fowler has failed to establish a prima 

facie case of illegal discrimination on the part of the respondent, and that his complaint should be dismissed. 

ORDER 

In view of the foregoing findings and conclusions, and on 

the basis of a preponderance of all of the credible testimony and 

evidence adduced in these proceedings, I conclude and find that 

the complainants have failed to establish a violation of section 

105(c) of the Act. Accordingly, their complaints ARE DISMISSED, 

and their claims for relief ARE DENIED. 

/~~/K~ ~eorgeAr. Koutras 

Administrative Law Judge 

534 
Distribution: 

Thomas Whitney Rodd, Esq., 264 High Street, Morgantown, WV 26505 

(Certified Mail) 

Robert L. Ceisler, Esq., CEISLER RICHMAN SMITH, 200 Washington 

Trust Building, Washington, PA 15301 (Certified Mail) 

/fb 

535 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, l Oth FLOOR5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 -

ARCH OF KENTUCKY , INC ., · contestant 

v • . 

SECRETARY OF LABOR , 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ARCH OF KENTUCKY, INC., 

Respondent 

MAR 1'61990 

DECISION 

CONTEST PROCEEDINGS 

Docket No . KENT 89-161- R 

Citation No. 3172128; 4/20/89 

Docket No. KENT 89-163-R 

Citation No. 3172130; 4/20/89 

High Splint No. 2 

Mine ID 15-16084 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 90-39 

A. C. No. 15-16084-03519 

High Splint No. 2 Mine 

Appearances: Edward H. Fitch , Esq., Office of the Solicitor, 

U.S. Department of Labor , Arlington , VA, 

Before: 

for the Secretary; 

Michael T. Heenan , Esq. , Smith Heenan, & Althen, 

Washington , DC , for the Respondent. 

Judge Fauver 

Arch of Kentucky , Inc., ·seeks to vacate two citations, and 

the Secretary of Labor seek s civil penalties for the two 

violations they allege , under § 105(d) the Federal Mine Safety 

and Health Act of 1977 , 30 U.S.C . § 801 et ~· 

The parties hava filed cross- motions for summary decision , 

based upon a stipulated record. 

The citations were issued during the investigation of a 

fatal accident that occurred at Arch ' s High Splint No . 2 Mine on 

April 18 , 1989 . 

536 
The mine produces coal two shifts a day, with maintenance on 

a third shift, five days a week. It employs 77 underground 

employees and three surface employees. 

On April 18, 1989, Maintenance Foreman David L. Funk . and 

his crew were trying to repai~ a continuous mining machine, which 

had broken down on the previous shift. 

At the time of the accident, the foreman and his crew were 

attempting to repair the right side planetary gear box on the 

continuous miner. The repair required removal of the planetary 

gear box, which could not be dropped out of the continuous miner 

without first removing the pinion shaft that extends through the 

planetary. The pinion shaft drives the tram chain sprocket, 

which turns the chain that propels the continuous miner as it 

travels from one place to another underground. · 

Before repairs were started, the continuous miner was taken 

out of production, deenergized, jacked up and blocked. The guard 

that covers the tram chain during normal operations was swung 

open to provide access to the pinion shaft and chain sprocket. 

Work to remove the shaft was first tried by inserting a roof 

bolt into the end of the shaft and trying to hammer the shaft out 

using a 16 lb sledge hammer. The parties have stipulated that 

this effort although unsuccessful was "consistent with 

established maintenance procedure." Another accepted procedure 

"would have been to use a cutting torch to cut the pinion shaft 

and thereby free the planetary gear." However, as stipulated by 

the parties, Mr. Funk decided to avoid a cutting job. Instead, 

he used a method that was "not a maintenance procedure that is 

recommended or otherwise addressed by the manufacturer" and 

"which proved to be completely unsafe... Stipulations, 1{ 13. The 

method he used is described as follows in the MSHA Accident 

Investigation Report (which the parties stipulate "correctly 

states the facts of this case 11 (Stipulations,! 5)): 

Funk decided to try and shear the splines off the shaft 

by rotating the shaft back and forth alternately using the 

tram motor with sprockets and tram chain attached. Funk 

instructed the crew to stand away from the miner in the 

event something went wrong. Funk told the miner operator 

to tram the motor back and forth. After approximately 15 or 

20 times, the tram chain broke, hurling a piece of chain 

(connecting link) approximately 12 feet, striking Funk 

(victim) in the right side of his neck, s~vering an artery, 

causing profuse bleeding from the wound. 

~r. Funk died before reaching the hospital. The MSHA 

Accident Investigation Report also states the following findings 

of "Physical Factors" involved in the accident: 

1. Prior to performing repai~ work on the final 

537 
drive assembly , the electrical power was not removed 

from the control circuit of the Joy 14CM5 continuous 

miner , Serial Number JM 2915. · 

2 . The planetary and transmission sprockets 

were not completely installed on the shafts and 

secured with the retaining plates. The splines 

on the planetary drive shaft were fouled , not allowing 

the sorocket to be fully seated . The tram chain was 

installed. around the sprockets, misaligned by 

approximately one ( 1 ) i nch. 

3 . The planetary shaft was being removed by 

wringing the shaft from the pinion gear using the force 

applied to the sprocket, via the traction motor and 

tram chain . 

4. The resultant stresses sheared a pin from 

the back plate of a connecting link on the Whitney 200H 

roller chain . Part of the connecting link was propelled 

approximately twelve (12) feet to where it struck the 

victim, causing severe trauma to the right side of the 

victim's neck. 

5. The guard covering the tram chain and 

sprockets had not been replaced before energizing the 

traction motor. 

DISCUSSION 

Citation No. 3172128 charges a violation of 30 C.F . R. 

§ 75 . 1725{c), which provides: 

(c) Repairs or maintenance shall not be performed on 

machinery until the power is off . and the machinery is 

blocked against motion , except where machinery motion is 

necessary to make adjustments. 

Citation No. 3172130 charges a violation of§ 75.1722(c) , 

which provides: 

(c) Except when testing the machinery, guards shall 

be securely in place while machinery is being operated. 

Arch contends that the exceptions to both safety standards 

applied . 

It contends that Mr. Funk was using the machinery ' s motion 

to "adjust" the pinion shaft and therefore there was no violation 

of§ 75.1725(c). It contends that the guard was not secured 

because Mr. Funk was "testing" whether his method o£ trying to 

remove the pinion shaft would work and therefore there was no 

violation of§ 75.1722(c). 

538. 
The Secretary contends that Mr. Funk used an unsafe method 

of trying to strip the pinion shaft from the planetary gear and 

such method had nothing to do with "making adjustments" or 

"testing" equipment within the meaning of the exceptions to the 

two safety standards. 

The facts indicate that Mr. Funk tried to take a shortcut 

"which proved to be completely unsafe" (Stipulation, ~ 13). He 

chose a dangerous practice that is not sanctioned either as 

making machine "adjustments" or as "testing" machinery within the 

meaning of§ 75.1725(c) or§ 75.1722(c). A continuous miner is 

not des·igned to shear the splines from the planetary shaft by 

using the torque of the tram motors. Attempting to use it for 

such purpose did not qualify as an "adjustment" or "testing" 

exception to the cited safety standards. 

Accordingly, the stipulated facts establish a violation of 

§ 75.1725(c) as alleged in Citation No. 3172128 and a violation 

of§ 75.1722()c) as alleged in Citation No. 3172130. 

The foreman was highly negligent in endangering himself and 

his crew by using an unsafe and highly dangerous practice. 

Compliance with the cited safety standards would have prevented 

this fatality. The foreman's negligence is· imputed to the mine 

operator. The gravity of each violation was very high. The 

reliable evidence amply sustains the inspector's findings that 

the violations were of a "significant and substantial" nature. 

Considering all the criteria for a civil penalty in§ llO(i) 

of the Act, I find that a penalty of $3,000 is appropriate for 

the violation of§ 75.1725(c) and a penalty of $8,000 is 

appropriate for the violation of§ 75.1722(c). 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction in these proceedings. 

2. The Secretary of Labor is entitled to summary decision 

as a matter of law. 

3. Arch of Kentucky, Inc., violated the safety standards as 

alleged in Citation Nos. 3172128 and 3172130. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Arch of Kentucky, Inc's motion for summary decision is 

DENIED. 

2. The Secretary of Labor's motion for summary decision is 

GRANTED. 

.539 
3. Citations Nos. 3172128 and 3172130 are AFFIRMED . 

4. The contest actions in Docket Nos. KENT 89-161-R and 

KENT 89-163-R are DISMISSED. 

5. Arch of Kentucky, Inc., shall pay the above-assessed 

civil penalty of $11,000 within 30 days of this Decision. 

Distribution: 

IIJ;/J.~ William 7~v~ Fauver 

Administrative Law Judge 

Michael T. Heenan, Esq., William D. Florman, Esq., Smith, Heenan 

& Althen, 1110 Vermont Avenue, N.W., Suite 400, Washington, D.C. 

20005 (Certified Mail) 

Edward H. Fitch, Esq., Office of the Solicitor, u.s. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

iz 

540 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER. CO 80204 

MAR 191990 . 

SECRETARY OF LABOR, 

MINE SAFETY AND ·HEALTH 

ADMINIS'rRATION (MSHA) , 

Petitioner 

v. 

CHANNEL & BASIN RECLAMATION, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 89-16- M 

A. C. No. 04-04780- 05511 

Docket No . WEST 89-17-M 

A.C. No. 04-04780-05512 

Hansen Darn Plant 

DF.CISION 

Appearances: John c. Nangle , Esq., Office of the Solicitor, 

u.s. Department of Labor, Los Angeles, California , 

for Petitioner; 

Richard M. Atkinson, Esq., Ontario , California, 

for Respondent. 

Before: Judge Lasher 

Upon motion for approval of a proposed settlement of the 

22 violations involved in these 2 dockets and the same appearing 

proper and fully supported in the record, the settlement is 

approved and the penalties agreed to by the parties are here 

assessed: 

Proposed Settlement 

Citation Penalty Amount 

03068926 $ 20.00 $ 20.00 

03068933 294.00 20.00 

03073526 500.00 375.00 

03291621 350 . 00 262.00 

03291622 241.00 193.00 

03291623 350.00 262.00 

03291624 20.00 20.00 

03291627 227.00 20 . 00 

03291628 294.00 235 . 00 

03291629 350 . 00 20.00 

03291631 20.00 20.00 

03291632 20.00 20.00 

03291633 20.00 20 . 00 

03291634 350.00 300.00 

03291635 350.00 300 . 00 

03291636 20.00 20 . 00 

541 
03291637 20.00 20.00 

03291638 392.00 355.00 

03291639 294 .00 294.00 

03291641 20 . 00 20.00 

03291642 350.00 350.00 

03291644 840.00 630.00 

Total $5,342 . 00 $3,776.00 

Respondent, if it has not previously done so, is ordered to 

pay to the Secretary of Labor on or before May 10, 1990, the sum 

of $3,776.00. 

Distribution: 

• " _,.; 1 

.1Jfl-4h~ / d · ~,a-;,.f ;f ..-· 

Michael A. Lasher, Jr. 

Administrative Law Judge 

John c. Nangle, Esq., Office of the Solicitor, u.s. Department 

of Labor, Room 3247 Federal Building, 300 North Los Angeles 

Street, Los Angeles, CA 90012 (Certified Mail> 

Richard M. Atkinson, Esq., 1428 South Grove, Suite B, Ontario, 

CA 91761 (Certified Mail) 

/ot 

542 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, l oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

.MAR 19 199.0 

SECRETARY OF LABOR , 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA) , 

on behalf of 

LEONARD E. EDWARDS , 

Compla i nant 

v. 

ROCHESTER & PITTSBURGH 

COAL COMPANY , 

. . 

. . 

Respondent : 

DISCRIMINATION PROCEEDI NG 

Docket No . PENN 90-8-D 

PI TT CD 88-1 7 

Greenwich c oal No. 2 

ORDER OF DISMISSAL 

Before: Judge Melick 

Complainant requests approval to withdraw her /complaint 

in the captioned case a nd the individual Complaina t , Mr . Edwards , has filed h i s consent to such withdr 'al. Under 

the circumstances herein , per on to withdraw ·s g r anted. 

29 C. F . R. § 2700 . 11. This c therefore dism ssed . 

rative Law 

Di stribution: 

Linda M. Henry , Esq., Offi ce of Solicit or, 1 .s. 

Department of Labor, Room 14480 Ga eway Buildirtg , 3535 Market 

Street, Ph i ladelphia , PA 19104 ( ertified Mail> 

Joseph A. Yuhas, Esq ., Mr . William Shaner , Safety Chairman , 

Rochester & Pittsburgh Coal Company , P. O. Box 367 , Ebensburg , 

PA 15931 (Certi fied .Mail) 

nt 

543 

--
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE lAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 191990 

ARCH OF KENTUCKY, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ARCH OF KENTUCKY, INC., 

Respondent 

. . 

. . 

. . 

. . 

CONTEST PROCEEDINGS 

Docket No. KENT 89-176-R 

Order No. 3174493; 5/8/89 

Docket No. KENT 89-177-R 

Citation No. 3174494; 5/8/89 

Docket No. KENT 89-178-R 

Citation No. 3174495; 5/9/89 

: Mine No. 37 . . 

: Mine ID 15-14670 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No . KENT 90-48 

A. C. No. 15-04670-03600 

: Mine No. 37 

DECISION 

Appearances: Tina Gorman, Esq., and Edward Fitch, Esq., Office 

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

Arlington, VA, for the Secretary; 

Before: 

Michael T. Heenan, Esq., and C. Gregory Ruffennach, 

Esq., Smith, Heenan, & Althen, Washington, DC, 

for the Respondent. 

Judge Fauver 

The Company seeks to vacate a withdrawal order and two 

citations issued by the Secretary, and the Secretary seeks civil 

penalties for the two alleged violations, under the Federal Mine 

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

hearing, the Company moved to withdraw its contest of the 

withdrawal order. That motion is granted, and Docket No. KENT 

89-176-R will be dismissed. 

These cases focus on the meaning of the April 20 amendment 

to the Company's roof control plan. The pivotal issue is whether 

544 
the amendment required remote-control shearer operators to 

station themselves outside ·the area between Shields 85 and 104 

when the shearer was cutting in that area. The Secretary 

contends they had to stay outside the area. The Company contends 

they could stand anywhere in the walkway between Shields 85 and 

104. 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the substantial, reliable, 

and probative evidence establishes the following Findings of Fact 

and further findings in the Discussion below: 

FINDINGS OF FACTS 

1. On April 12, 1989, a coal outburst occurred on the 

tailgate side of the 004 Section of the R-9 Longwall Panel at 

Arch of Kentucky's No. 37 Mine. This was the Company's first 

experience with a coal outburst at the the No. 37 Mine. 

The R-9 Longwall Panel 

2. The R-9 Longwall Panel is a standard longwall unit, 

developed by advancing two parallel sets of entries about 500 

feet apart into a block of coal. After the entries penetrated 

approximately 7400 feet, they were connected by a set of 

perpendicular entries in which a longwall mining face was 

established. The key components at the longwall face are a set 

of lon~wall shields, which support the roof while the coal is 

being mined, and a shearing machine (in this case a Mitsui Trojan 

700 Shearer), which moves back and forth across the face to mine 

the coal. 

3. The longwall shields are chock-shields, which have roof 

support legs in the front, called props, and a cover in the back 

to protect from falling gob. Each shield is about 5 feet wide 

and has two sets of props which support a canopy that presses 

against the roof. The area between the front two props and the 

back of the shield serves as a walkway for the longwall crew 

members and permits them to travel along the longwall face with 

overhead protection from the canopy, lateral protection from the 

gob, and partial lateral protection from the face. The shields 

are attached to the pan line (in which the coal conveyer 

operates) by hydraulic cylinders, which pull the shields closer 

to the face and push the pan line closer to the face as mining 

continues. 

4. After the shearer mines a portion of the face, propmen 

advance the shields toward the face. The canopy of each shield 

is lowered slightly from the roof. A positioning cylinder pulls 

the shield toward the face and simultaneously pushes the conveyor 

to the face. After this. repositioning, the canopy is again 

raised and pressed against the roof. The shields on the 004 

545 
Longwall are numbered sequentially from No. 1 at the headgate to 

No. 104 at the tailgate. 

5. The l-ii tsui Trojan 700 Shearer has two cutting wheels, 

either or both of which can be positioned high toward the roof, 

low toward the floor or in between depending on how the seam is 

to be cut. Each cutting wheel has a cowl that suppresses dust. 

6. Depending on the direction the shearer is cutting (i.e. 

toward to the ·headgate or toward to the tailgate), one of the 

shearer wheels will be leading and one will be following. 

Typically, the leading wheel cuts near the roof and the following 

wheel cuts near the floor. Since the shearing machine does not 

turn around, but only moves back and forth across the face, one 

of the cutting wheels is always on the side of the machine closer 

to the headgate. This is called the headgate wheel. The 

opposite wheel is called the tailgate wheel. 

7. The r-ti tsui Trojan 700 Shearer is controlled by two 

operators who usually move along with the shearer as it 

progresses across the face. Each shearer operator controls one 

of the shearer wheels and its cowl. On occasion, propmen serve 

as relief shearer operators. 

8. The shearer can be controlled either by remote control 

or manually. While operating by remote control, the shearer 

operator is able to remain in the walkway behind the props a 

distance of one or many shields from the shearer. While 

operating rnannually, the shearer operator must walk right next to 

the machine, inby the ~alkway. Prior to the coal outburst on 

April 12, 1989, the general procedure was to operate the leading 

shearer \vheel by remote control and to operate the following 

shearer wheel manually. 

The April 12, 1989, Outburst 

9. A coal outburst is not a roof collapse but rather, as 

the term implies, it is a sudden bursting of coal from the face. 

Coal outbursts are typically the result of the squeezing of 

unmined coal between underlying and overlying strata. Such coal 

outbursts are also referred to as "mountain bumps" or "bounces." 

10. Although it is not exactly clear what factors cause 

pressures on the face to increase, there is likely to be an 

increase when the roof over mined areas fails to collapse. This 

leaves more overhead weight on less ~oal support. The longer the 

increased pressure remains on the unmined coal, the greater the 

chance for an outburst at the face. 

11. In this case, sandstone strata overlying part of the 

R-9 Panel was, in retrospect, apparently retarding falls in the 

mined area and thereby increasing the pressures on the face. 

This, coupled with the unyielding sandstone underneath the shale 

546 
floor of the section, created the squeezing ·conqitions at the 

face. 

12. A coal outburst occurred on April 12, 1989. Two miners 

were struck by flying coal. Neither man was seriously injured, 

and no citations were issued. One of the miners, a pro~nan, was 

standing in front of the props near the pan line. The other 

miner, the headgate wheel operator, was in the walkway. 

13. Due to the force of the coal outburst, the Mitsui 

Trojan 700 Shearer was substantially damaged and had to be 

removed from the mine for major rebuilding. Solid steel pieces 

were twisted and bent. The damage was extensive. The cost of 

repairing the shearer and lost production was about $2 1/2 

million. 

Company Response to the Outburst 

14. After the outburst, the Company's longwall safety 

coordinator, Dickie Estep, contacted MSHA and the Kentucky 

Department of Mines and Minerals. The following morning, April 

13, 1989, Bob Blanton, MSHA inspector, informed Dickie Estep that 

the longwall .was under a section 103(k) order. After 

investigating the outburst, MSH~ did not issue any citations and 

the section 103(k) order was terminated. 

15. Following the outburst, mine management began to gather 

information to help the Company formulate procedures to help 

prevent outbursts in the future. The Company contacted the 

Bureau of Mines for technical advice, hired Agapidu & Associates, 

a consulting firm specializing in longwalls, and contacted a 

German expert on longwalls and other mining companies that had 

experience with outbursts,including Midcontinent, UP&L and 

Cottonwood mines. 

MSHA Request For Roof Plan Modifications 

by April 28, 1989 

16. On April 14, 1989, MSHA requested the Company to modify 

its Roof Control Plan to develop "measures to control coal bursts 

in areas where the longwall face is penetrating sandstone rolls." 

Its letter was in accordance with 30 CFR § 75.220, which calls 

for additional measures if unusual hazards are encountered. MSHA 

knew that the Company wanted to resume operation of the longwall 

as soon as possible in order to alleviate pressure on the face. 

The letter requested the Company to subnit plan modifications by 

.i\pril 28, 1989. 

17. After contacting various experts, the Company began to 

formulate a plan to help prevent outbursts and to protect miners 

in the event of another outburst. Dan Stickel, the 

superintendent of the No. 37 Mine, and John Lozier, the longwall 

mining engineer, met to discuss both preventive and protective 

547 
measures. As Superintendent, Dan Stickel, was responsibile for 

final Company decisions affecting the safety of all miners at the 

No. 37 Mine. 

18. Dan Stickel's contemporaneous notes from the above 

meeting outline the specific precautions the Company intended to 

take to prevent another outburst and to protect miners. With 

regard to protecting miners, his notes stated: 

Limit the number of people at the shearer in the 

potential bump area. The operators and propmen will 

be required to operate the machine remotely and a\-vay 

from the machine. Extra precaution will be taken the 

last 100 feet at the tailgate. The last 100 feet of 

mining at . the tailgate will be done by rernote control 

only. Manual operation will not be used. [Tr. 2 at 

199-201. 1 

19. Following the meeting between Stickel and Lozier, 

Lozier drafted a memorandum SWfu~arizing the meeting. The 

memorandum. stated that the Company would 11 limit the number of 

people at the shearer during the cut on the tailgate 11 and not 

allow 11 propmen ••• [to] be in the general area of the shearer." 

Jt. Ex. 9. 

20. In the meantime, Dickie Estep kept MSHA apprised of the 

status of repairs on the shearer and the date the Company 

expected to resume ·rnining. Based on the repair schedule, the 

Company planned to resume mining on April 21 or 22, 1989. The 

Company was anxious to resume mining to relieve pressures on the 

face that were causing it to deteriorate. In this connection, 

MSHA also wanted the Company to start mining to relieve the 

pressures on the face. 

21. Apart from the process for modification and approval of 

the roof control plan, which was not scheduled to be officially 

cotnpleted until sometime after April 28, 1989, it was the 

Company's intention to implement the safety precautions developed · 

by Stickel and Lozier before resuming production. 

The April 20, 1989, Meeting to Discuss 

Company Progress in Developing a Plan 

22. On April 19, 1989, MSHA Roof Control Specialist Gary 

Harris called Dickie Estep to set up a meeting at an MSHA office 

to discuss the type of modifications the Company was considering. 

The Company believed that the meeting, which was scheduled for 

the next day, April 20, 1989, would be the first of several 

meetings. The typical procedure for modifying a roof control 

plan was to meet \.Yi th MSHA several times and exchange ideas. 

With this in mind, and considering that MSHA's letter called for 

submission of modifications by April 28, 1989, the Company 

548 
attended the April 20 meeting without having a written plan ready 

to submit for approval . 

23. The meeting was at an MSHA office. Company 

representatives were Dickie Estep, Dan Stickel , and Mike Lincoln, 

who is a geologist. The MSHA representatives included Roof 

Control Specialist Gary Harris , Supervisor Tom Hooker, and Ken 

Dixon, MSHA Chief of Engineering Services at the District office . 

24. The meeting began , as expected , information and ideas on coal outbursts. relayed his experience with outbursts and 

options to consider for controlling them. 

with an exchange of 

MSHA ' s Ken Dixon 

recommended certain 

25. At this point in the meeting, the Company 

representatives told MSHA that they had developed a list of 

operating procedures to prevent outbursts which they planned to 

implement when they resumed mining. Although the Company 

representatives had developed safety precautions for immediate 

implementation, they explained that they did not have a formal 

plan ready to submit: for approval. At the same time, they 

advised MSHA that they intended to resume mining on either April 

21 or 22 , 1989 . The MSHA representatives replied that to do so 

the Company must submit modifications for approval on t hat day, 

adding that if the Company did not submit a supplemental plan, 

MSHA would reinstate the § 103 (k) order . The Company 

representatives suggested that they return to the mine to develop 

a plan, but· MSHA insisted that they submit a plan immediately if 

they wanted to resume mining as planned . 

26 . Concerned about the increasing pressures and 

deterioration of the longwall face , the Comp·any representatives 

decided to summarize for MSHA the new safety procedures that they 

had developed. The Company ' s planned procedure of operating 

remotely was mentioned, but was not discussed. Afterwards, Mr. 

Dixon told the Co1npany representatives that "those were· the 

things that we were looking for , " and Mr . Dixon and the other 

MSHA officials said they would leave the room to give the Company 

time to draft a plan for submission. 

27 . Dickie Estep , Dan Stickel and Mike Lincoln drafted a 

plan, based on the notes in Dan Stickel's notebook. 

28 . The Company representatives returned to the meeting and 

submitted a Supplemental Roof Control Plan to MSHA . The MSHA 

representatives reviewed the plan, and made one change , which 

clar i.Eied that the plan applied only to the R- 9 Longwall Panel. 

There was no additional discussi on r egarding any other provi sions. MSHA offered to have the plan . typed in letter form addressed from 

the Company to MSHA. This was done , and Dickie Estep signed the 

plan. By letter dated the same day, April 20, 1989 , MSHA 

approved the plan . The approval was tentative and limited to a 

!?eriod of 60 days, during which there was to be an evaluation to 

549 
determine the Supplemental Plan's contriqution to employee 

safety. 

29~ Following the meeting, MSHA's Gary Harris discussed the 

plan with his supervisor, Frank Strunk. There was no discussion 

as to any specifics for remote operations in terms of 

"distances," "feet" or other "measurement." Tr. 1 at 56. 

The Company's April 20, 1989, Supplemental 

Roof Control Plan 

30. The Supplemental Roof Control Plan approved by MSHA was 

as follows: 

April 20, 1989 

Mr. Joseph J. Garcia, District Manager 

Mine Safety & Health Administration 

HC 66, Box 1762 

u.s. 25E. South 

Barbourville, Kentucky 40906 

RE: Arch of Kentucky, Inc., No. 37 Hina, 

I.D . No. 15-04610, Supplement of Roof 

Control Plan coal and rock outburst. 

Dear Sir: 

We request the following procedures be reviewed 

and approved to control potential coal and rock 

bursts on R-9 Longwall Section when such potential 

coal and rock burst conditions are known to exist. 

1. Review. geologist's study on R-9 Longwall Panel to 

identify bump prone areas such as massive sandstone 

roof and mine floor. 

2. Modify operating procedures in potential bump 

areas by: 

A. Minimizing the distance the headgate is in 

front of the tailgate. 

B. Closely monitor the gob overhanging to evaluate 

potential burst/bump conditions. 

c. Monitor face advance rate. Production will 

be used to keep the face advancing. 

D. Limit the number of people at the shearer in 

potential bump area. 

550 
E. The operators and propmen will be required to 

operate the machine remotely from i85 shield to #104 

shield·. 

F. #85 through #104 shields will be advanced as 

soon as the full face web is cut. 

3. A study shall be conducted by the USBM to develop a 

coal and rock burst plan prior to mining on the R-3 Panel. 

If you have any questions call me at 848-5431. 

Sincerely, 

Joe R. Estep 

Implementation of the April 20, 1989, Supplemental Plan 

31. Before mining resumed, the miners on the 004 Section of 

R-9 Longwall Panel were instructed how to operate under the 

procedures of the Supplemental Plan. Foreman Ralph Price 

recorded his instructions on implementing the plan in a 

memorandum. Jt. Ex. 11. He instructed the miners that, "when 

running the shearer at the tail" they would have to "stay in 

shields," . "not to get out in front of shields" and "use the radio 

[control} for turning the headgate cowl." Jt. Stip. 43, Jt. Ex. 

11. The crews on other shifts received similar instructions. On 

April 22, 1989, the 004 Section resumed operations. · 

The May 8, 1989, Coal Outburst 

32. On May 8, 1989, a second coal outburst occurred. The 

outburst was between shields 91 and 101. (As in the case of the 

first outburst, this was on the tailgate side of ~he section.) 

The tailgate operator, Chuck Dudash, was at the No. 99 shield, 

operating the tailgate shearer wheel using remote control. The 

headgate operator, John Thompson, was at the No. 91 shield, 

operating the headgate shearer wheel using remote control. 

Although Thompson was inside the props he was struck by flying 

coal and suffered fractured ribs and a shoulder injury. He was 

nearly buried by flying coal. 

33. After investigating the second outburst, the MSHA 

inspector issued two citations. Citation No. 3174494, issued on 

May a, 1989, alleges a violation of 30 CFR § 75.220, and states 

in part: 

The headgate side shearer operator was not 

operating the shearer remotely from the No. 85 shield. 

The headgate shearer operator was operating the shearer 

551 
on remot·e control; however, he was stationed at the 

No. 91 shield. ~· The approved roof control plan stipulated 

in Item 2.E. that the operators and propmen will be 

required to operate the machine remotely from the No. 85 

shield to No. 104 shield. 

34. Citation No. 3174495, issued on May 9, 1989, also 

alleges a violation of 30 CFR § 75 .220 , and states in part: 

The tailgate side shearer operator was not 

operating the shearer remotely from the No. 85 shield. 

The tailgate shearer operator was operating the shearer 

in possession of the radio control, however, he was 

stationed at the No. 99 shield. The 'approved roof 

control plan stipulates in item 2.E. that the operator 

and prop1nen will be required to operate the machine 

remotely from tne No. 85 shield to the No. 104 shield. 

35. At the hearing, the Secretary moved to amend Citation 

No. 3174495 on the ground that the original intent of the 

citation was to allege a violation for failure to position the 

tailgate operator at shield 104. The Company opposed the motion. 

The motion was granted. As amended, Citation No. 3174495 states, 

in pertinent part: 

The tailgate side shearer operator was not 

operating the shearer remotely from the No. 104 shield. 

The tailgate shearer operator was operating the shearer in 

possession of the radio control, however, he was stationed 

at the No. 99 shield. The approved roof control plan 

stipulates in item 2.E. that the operator and propmen 

will be required to operate the machine remote from the 

No. 85 shield to the No. 104 shield. 

Modification of Supplemental Roof Control Plan 

After the May 8, 1989, Outburst 

36. Following · the May 8, 1989, outburst, MSHA issued an 

imminent danger withdrawal order. In order to resume mining the 

Company modified the plan, with MSHA approval, to add the 

following provision: 

While the shearer is cutting anywhere past the 

Number 85 shield, no employees will be allowed in the area 

except the tailgate shearer operator who will be stationed 

at Shield 103 or 104. The operator will be operating the 

shearer by remote control through this area from the said 

remote locations •••• [Jt. Ex. 15.] 

DISCUSSION WITH FURTHER FINDINGS 

On April 12, 1989, the No. 37 mine experienced a coal 

outburst in which two men were struck rry flying coal. Neither 

552 
man was seriously injured, and no citations were issued. As a 

result of the outburst, MSHA requested Arch to change its roof 

control plan to take into account the potential for further 

outbursts. A meeting was held at the MSHA office in 

Barbourville, Kentucky, on April 20, 1989, at which MSHA and Arch 

representatives discussed proposed changes in the roof control 

plan. A Supplemental Roof Control Plan was submitted to MSHA 

that day and approved tentatively for 60 days. 

A second 011tburst occurred on May 8, 19 89. One man was 

seriously injured. The same day, MSHA investigator James Poyner 

issued an imminent danger order and one citation for violating 

the Supplemental Plan. The following day he issued a second 

citation charging a violation of the Supplemental Plan. 

This case focuses on the meaning of provision 2.E of the 

Supplemental Roof Control Plan, which states: 

The operators and propmen will be required 

to operate the machine remotely from #85 shield to #104 

shield. 

The Secretary contends that this 'provision required the 

·remote control shearer operators to remain outs ide the area 

between Shields 85 and 104 when the shearer was cutting within 

such area. The Company contends that the operators could stand 

anywhere in the walkway between Shields 85 and 104 while 

operating the shearer by remote inside that area. 

An analysis of a written document must begin in the first 

instance with the specific language. Tennessee Valley Authority 

v. Exxon Nuclear Co., Inc., 753 F.2d 493, . 496-97 (6th Cir. 1985) 

(contract); Mallard v. u.s. District Court for Southern District 

of Iowa, 109 s. Ct. 1814, 1818 (1989) (statute); Bradley v. 

Autin, 841 F.2d 1288, 1293 (6th Cir. 1988) (statute). Where the 

language is clear and unambiguous, a court must regard it as 

conclusive and should not look to other aids of construction. 

Tennessee Valley Authority, 753 F. 2d at 496; Bradley 841 F.2d at 

129 3. 

The express language of the Supplemental Plan provides that 

"op~rators and propmen will be required to operate the machine 

remotely from #85 shield to #104 shield." Provision 2.E does not 

state that the machine \otill be operated from remote locations at 

85 and 104 and not in between. Rather, it states that the --

machine will be "operate[d]. • • remotely from #85 shield to 

#104 shield." Thus there is no express requi re1nent for operators 

to station themselves at Shield #85 or at Shield #104, or at any 

other specified location. 

· A written document must be read as a whole; particular 

provisions should not be read in isolatio~. u.s. v. Morton, 104 

S.Ct. 2749, 467 U.S. 823 (1984) (statute); Washington Metro v. 

553 
Mergentime Corp., 626 F.2d 959 (D.C. Cir~ 1980) (contract). 

Also, different provisions of the same document must be read and 

interpreted consistently with each other, avoiding conflicts. 

u.s. v. Stauffer Chemical Co., 684 F.2d 1174 (6th Cir. 1982) 

aff'd 464 u.s. 165 (statute). In this case, provision 2.E of the 

Supplemental Plan must be read in light of the other prov·isions 

of the document. 

Provisioq 2.D of the Supplemental Plan limits the number of 

persons in t ·he potential bump area, that is, between Shields 85 

and 104. The provision specifically states: 

Limit the number of people at the shearer in 

potential bump area. 

The Company's intention, which is expressed in this language, was 

to limit, not to eliminate, nonessential personnel in the bump 

prone area. Tr. 1 at 223, Tr. 2 at 79. The Company believed 

that with fewer people in the area of the shearer, the chance of 

injury was greatly reduced. Tr. 1 at 220, 221. l/ 

Had the Company intended to eliminate persons in the area 

between Shields 85 and 104, the drafters of the plan would have 

used the word "eliminate" instead of "limit... MSHA had the 

authority to insist on the word 11 eliminate" or "exclude," but it 

did not do so. 

The Company's choice of the word "limit" in provision 2.0 

cannot be ignored. Effect must be given to each part of a 

document to avoid making any word or part meaningless or 

superfluous. Reiter v. Sonotone Corp., 99 S.Ct. 2326, 442 u.s. 

330 (1979) (statute); Fulps v. City of Springfield, Tenn., 715 

F.2d 1088 (6th Cir. 1983) (statute). The Secretary's 

interpretation that Section 2.E makes the area between Shields 85 

and 104 a "no-man's land" (Secretary's ~rief p. 10) is contrary 

to the meaning of provision 2.D. If accepted, this would make 

the word "limit" and the entire provision 2.D superfluous and 

meaningless. 

Provision 2.E of the Supplemental Plan was intended to 

improve the safety of miners. Prior to the Supplemental Plan, 

the lead wheel operator would often operate the machine by 

1/ It was the first outburst on April 12, 1989, which prompted 

the Cotnpany to limit the number of people at the shearer in the 

bump prone area. As a result of the first outburst, a propman, 

Larry Cornet, was injured. Propmen are not essential employees 

in the cutting area. The Company believed that by limiting 

nonessential persons from the cutting area, such as propmen, 

mechanics, and visitors, the likelihood of injury in the event of 

a future outburst would be greatly reduced. 

554 
remote, standing in the walk~ay. The following wheel operator 

typically operated the wheel manually, walking immediately along 

side the machine and using the controls on the deck of the 

machine to adjust the wheel whenever it cut too deep or too 

shallow. At the time of the April 12, 1989~ outburst, the 

headgate operator was using the manual controls to control the 

following wheel. · 

After the Supplemental Plan was adopted, both operators were 

required to use the remote control to operate the shearer. 

Because the shearer can receive signals from only one remote 

control device, it was necessary for the shearer operators to 

share the remote control. They would cooperate so that one 

operator could control the wheel of the other according to 

exchanged signals. 

~lthough the April 20 change was intended to reduce the 

likelihood of injury, the Co1npany seriously misjudged the dangers 

involved. Despite being behind the props, the shearer operato~s 

in the walkway in the bump prone area were in peril. 2/ Thus, in 

the May 8 coal outburst, one of them was seriously in]ured and · 

nearly buried in flying coal. 

The Secretary contends that the Company had a duty to avoid 

ambiguity in its roof control plan and to resolve any ambiguity . 

in favor of protecting its miners. She points out that the first 

outburst (April 12) did considerable damage to the longwall 

shearer. The force of th outburst was substantial, severe 

enough to tear up six-incn steel and cover the walkway with 18 

inches of coal. Two miners were in the bump prone area and they 

were both hit by flying coal. The Secretary contends that it was 

not reasonable for the Company to assert that standing within the 

walkway would provide adequate protection from such a potentially 

dangerous condition. 

She argues that the Company's failure to resolve any 

ambiguity it may have discerned in the plan was a significant 

contributing factor to the injury sustained in the second 

outburst. She concludes, "whatever the reasons may be for 

Arch's misinterpretation of the terms of the roof control plan, 

the operator was guilty of a moderate to high degree of 

negligence." Secretary's Brief p. 13. 

']j In a bump protle area, the props do not provide the shearer 

operator~ with adequate protection from flying coal. Each shield 

is appro~imately 5 feet wide. The props or legs are 12 inches in 

diameter. Thus, every five feet of travelway is protected by 

only 2 fee~ of metal. In other words, miners in the walkway have 

only 40% lateral protection from coal flying from the face. 

555 
However, the facts, as outlined in the Findings, show that 

the Company drafters intended to have the ·plan permit remote 

control operators to stay in the walkway between Shields 85 and 

104. (It was not an ambiguity to them.) The language of the 

April 20 plan did not state otherwise, and one of the key 

provisions (2.0) would be meaningless without recognizing the 

Company's intention in provision 2.E. It is true that the 

Company's April 20 plan permitted a dangerous condition to 

continue. The Secretary could have prevented this, but she did 

not do so. She finally corrected it, after a second coal 

outburst and a serious injury, by issuing an imminent danger 

order (which is no longer contested). It was then, and only 

then, that the Company came up with a modification to require 

that no one be permitted in the area between Shields 85 and 104 

while the shearer was cutting in that area. 

The later modification may not be applied retroactively to 

change the meaning of the Supplemental Roof Control Plan of April 

20, 1989. That plan did not require the stationing of shearer 

operators outside the area between Shields 85 and 104. It was 

therefore not a violation of the plan to operate the shearer by 

remote while standing in the walkway between Shields 85 and 104. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction in these proceedings. 

2. The Secretary failed to prove a violation as alleged in 

Citation No. 3174494. 

3. The Secretary failed to prove a violation as alledged in 

Citation No. 3174495. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Citation No. 3174494 and 3174495 are VACATED. 

2. Docket No. KENT 89-176-R is DISMISSED. 

uJ;.L£.~:... -:r-AMVIAWilliam Fauver 

Administrative Law Judge 

556 
Distribution: 

Michael T. Heenan, Esq., and C. Gregory. Ruffennach, Esq., Smith, 

Heenan & Althen, 1110 Vermont Avenue, N.W., Suite 400, 

Washington, D.C. 20005 (Certified Mail) 

Tina Gorman, Esq., Edward Fitch, Esq., Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

iz 

557 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 211990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v . 

GREEN RIVER COAL CO., INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 89-210 

A.C . No. 15-13469-03711 

No. 9 Mine 

DECISION 

Appearances: Thomas A. Grooms, Esq ., Office of the Solicitor, 

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

for the Secretary of Labor (Secretary>; 

B.R. Paxton, Esq., Central City, Kentucky, for 

Green River Coal Co., Inc. (Green River) . 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks a civil penalty for an alleged violation 

of the mandatory safety standard in 30 C.F . R. § 75.511 

promulgated under the Federal Mine Safety and Health Act of 1977 

(the Act) . Pursuant to notice, the case was heard in Owensboro, 

Kentucky, on January 18, 1990 . Allen L. Head testified on behalf 

of the Secretary. Michael McGregor testified on behalf of Green 

River. The parties were given the opportunity to file post 

hearing briefs. Neither party has filed such a brief. I have 

considered the entire record and the contentions of the parties 

in making the following decision. 

FINDINGS OF FACT 

1. At all t i mes pertinent hereto, Green River was the owne r 

and operator of an underground coal mine in Hopkins County, 

Kentucky, known as the No . 9 Mine . 

2. Although the corporate identity did not change, the 

management of the No . 9 Mine changed as of November 15, 1988. 

3. Green River produces approximately one million tons of 

coal per year and has approximately 200 employees. It is a 

relatively large operator. 

558 
4. During the period f r om April 11 , 1987 to November 14, 

1988, 869 paid violations were assessed at the subject mine, of 

which 705 wer e denominated· signtfican·t and substantial. None of 

these violations were of 30 C.F.R. § 75.511 . 

5 . During the period from November 15 , 1988 to April 11 , 

1989 , when the mine was under new management, 123 paid violations 

were assessed , of which 93 were denominated significant and 

substantial. None of these violations were of 30 C.F . R. 

§ 75.511. 

6 . On April 12 , 1989 , on the Number 2 Unit of the subject 

mine , a mechanic and a roof bolter were working on a tr~iling 

cable for a roof bolter machine. The mechanic had cut open a 

permane nt splice in the cable and was checking the cable for a 

fault or ground by inserting the probes of his volt meter into 

the power wire s. 

7. The disconnecting device at the unit power center, was 

not locked out or tagged. The power center was approximately 0 

feet from the trailing cable being worked on , a nd was not visible 

from the cable because two 90 degree corners and a ventilation 

check curtain separated them. The disconnecting device was lying 

on the mine floor in front of the receptacle from which it was 

unplu·gged . 

8. Other disconnecting ·devices and receptacles were in the 

area . These we re attached to two other roof bolting machines. 

9 . The powe r center voltage is 4160 volts; 480 volts goes 

to the roof bolter cabl e. T~is is considered low voltage. 

10 . ~ederal Mine Inspector Allen Head issued a section 

107(a) imminen t dange r closure o r d e r and a section 104(a) 

citation because of the condition described in finding of fact 

No . 7 . 

11 . In the event that someone had inadvertently put the 

powe r on the trailing cable involved , the mechanic could have 

bee n ele ctrocuted or severely shocked. Approximately 16 miners 

work on the section and others come on the section periodically . 

12 . 

violation 

The section foreman was not in the are a whe n the 

was cite d . 

13. The mechanic who , after the order and citation were 

issued , locked out and tagge d the disconnecting devic~ told Green 

Rive c ' s saf•= ty manage r , Michael McGregor , " this isn ' t the fi rst 

mine ~e ve worked in ." The inspector understood that statement 

559 
to mean that the safety manager "was making a big iss~e out of 

not l ocking and tagging out, and also that he [the mechanic) 

probably had a practice of not locking and tagging out ." (R.22l 

McGregor was asked how he interpreted the mechanic's statement 

and he responded: "Largely, the same way Mr. Head took it." 

(R. 26) 

14. Since November 1988, Green River has conducted weekly 

safety meetings with all employees. Separate weekly meetings 

with top management discuss safety matters. Lock out procedures 

are discussed in the weekly safety meetings. The mechanic has an 

electrical certification, and therefore is required to undergo a 

16 hour retraining program annually. 

15. The violation was abated within 3 minutes when the 

mechanic locked out and tagged the disconnecting device. ~lso, 

Green River's safety manager informed him of the company policy. 

The mechanic admitted that he knew of the lock out and tag 

policy. He had ·a lock and tag on his person . The following day , 

a meeting was held with all maintenance personnel, and the 

company policy on locking out and tagging was reiterated. 

REGULATION 

30 C.F.R. § 75 . 511 provides as follows: 

[STATUTORY PROVISION] 

No electrical work shall be performed on low-, medium- , 

or high-voltage distribution circuits or equipment, 

except by a qualified person or by a person trained to 

perform electrical work and to maintain electrical 

equipment under the direct supervision of a qualified 

person . Disconnecting devices shall be locked out and 

suitably tagged by the persons who perform such work, 

except that in cases where locking out is not possible , 

such devices shall be opened and suitably tagged by 

such persons. Locks or tags shall be removed only by 

the persons who installed them or, i f such persons are 

unavailable, by persons authorized by the operator or 

his agent. 

ISSUES 

1. Did Respondent violate the mandatory safety standard 

contained in 30 C. F . R. § 75 .511 by performing electrical work on 

a trailing cable without locking out and tagging the 

disconnecting device to the cable? 

2 . If so, what is the proper penalty Eoc the violation? 

56o 
CONCLUSIONS OF LAW 

I 

Respondent was subject to the provisions of the Act in the 

operation of the subject mine. I have jurisdiction over the 

parties and subject matter of this proceeding. 

II 

Finding of Fact No. 7 establishes a violation of the 

standard in question. Green River does not seriously contest the 

occurrence of a violation . 

III 

The violation was very serious, and could have cesulted in 

electrocution or serious electrical shock to the mechanic or the 

roof bolter, if the power was put .on the cable by the 5ection 

foreman or another miner. The occurrence of such an event is not 

unlikely, when the disconnecting device is not locked out and 

suitably tagged. 

IV 

The violation resulted from Green River's negligence. Even 

though the mechanic had been properly _trained, he had apparently 

been involved in prior violations of the standard and was not 

adeqaately supervised to make certain that he followed the 

regulation . 

v 

Green River's history of prior violations has improved ander 

its new management (45+ violations per month prior to 

November 15, 1988; 24+ violations subsequent to that date). I 

take that i1nprovement into account, but nevertheless consider the ~ntire history shown in Government's Exhibits 4-A and 4-B. Secretary v. · Green River Coal Co., 11 FMSHRC 2036 (1989), 

Commission Revie·"' denied, November 1989, appeal docketed, No. 

89-4133 (oth Cir. December 27, 1989). 

VI 

Considering the above findings and conclusions in the light· of the criteria in section llO<i> of the Act, I conclade that an 

appropciate penalty for the violation is $750. 

561 
ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1 . Order No . 3418284 and Citation No. 3418285 issued 

April 12, 1989, are AFFIRMED. 

2. Respondent Green River shall, within 30 days of the date 

of this decision pay the sum of $750 as a civil penalty for the 

violation found herein. 

Distribution: 

..., ~ ' 

-1-t'.,,t,.v...C. 5 /!~',.:;,.c.{;, -~ t/"-., 

(/ James A. Broderick 

Administrative Law Judge 

Thoma3 A. Grooffis, Esq., u.s. Department of Laboc, Office of the 

Solicitor, Suite B- 201, 2002 Richard Jones Road, Nashville, TN 

37215 (Certified Mail) 

B. R. Paxton, Esq., Paxton & Kusch, P.S.C., Green River Coal Co., 

Inc., 213 E. Broad Street, P.O. Box 655, Central City, KY 42330 

(Certified Mail) 

slk 

562 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE lAW JUDGES 

2 SKYLINE, lOth FLOOR_ 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 22 1990 

SECRETARY OF LA_BOR FOR 

ru\105 HICKS, 

Complainant 

v. 

COBRA MINING, INC., 

JERRY K. LESTER, and 

CARTER MESSER, 

Respondents 

DISCRIMINATION PROCEEDING 

Docket No. VA 89-72-D 

NORT CD 89-18 

DECISION 

Appearances: Glenn M. Loos, Esq., Office of the Solicitor, 

U. S. Department of Labor, Arlington, Virginia, 

for the Secretary; 

Kurt J. Pomrenke, Esq., White, Elliott, & Bundy, 

Bristol, Virginia, for the Respondents. 

Before: Judge Weisberger 

Statement of the Case 

On August 22, 1989, the Secretary, on behalf of Amos Hicks, 

alleged that the Operator and three named individuals violated 

section 105(c)(2) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § Sl5(c)(2) (the Act). · on Se(?tember 19, 1989, 

the Secretary filed an Amended Complaint in which it deleted one 

of the previously named Respondents, Garnett Sutherland, and 

demanded various relief. Respondents filed an Answer on 

September 25, 1989. 

Pursuant to Notice, the case was scheduled for Hearing for 

December 27-28, 1989. On December 22, 1989, in a telephone 

conference call with Counsel for both Parties and the undersigned, 

Respondents' Counsel advised that he was ill and sought an 

adjournment. Counsel for the Secretary did not object. The case 

was rescheduled and subsequently heard ~n Abington, Virginia, on 

January 3, 1990. Amos R. Hicks, David Lee Payne, I~ry Lou Ray, 

and Douglas Wayne Lester testified for the Secretary. Opie Steven 

McKinney, Garnett Sutherland, Danny Osborne, Paul Horn, Carter G. 

Messer, 3nd Jarry Keith Lester testified for Respondents. 

Findings of Fact and Memorandum of Law were filed by Petitioner 

and Respondents on February 28 and March 5, 1990, resoectively. 

Reply Briefs were filed by the Secretary and Responde~t on 

March 15 and 19, 1990, respectively. 

563 
Findings of Fact and Discussion 

I. 

As set forth in Goff v. Youghioqheny & Ohio Coal Company 

8 FMSHRC 1860 (December 19H6), in order to establish a pr~ma 

facie case of discrimination under section 105(c) of the Act, it 

is incumbent for the Secretary to establish, not only that the 

Complainant engaged in protected activity, and that adverse 

action was taken ag~inst him, but that " .•. the adverse action 

complained of was motivated in any part by that activity. 

Pasula, 2 FMSHRC at 2797-2800: Secretary on behalf of 

Robinette v. United Cas.tle Coal Co., 3 ie"'MSHRC 803, 817-18 

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

showing either that no protected activity occurred or that the 

adverse action was not motivated in any part by protected 

activity. Robinette 3 FMSHRC at 818 n. 20. See also Donovan v. 

Stafford Constr. co., 732 F.2d 954, 958-59 (D.C. Cir 1984); 

Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir 1983) (specifically approving the Commission's Pasula-Robinette test)." 

Protected Activities and Adverse Action 

Amos Hicks was employed by Respondents as a shuttle car 

helper for approximately 2 l/2 years until until he was 

discharged May 1989. Prior to his employment by Respondents, he 

worked for Respondents' predecessor for 6 years, 

Hicks indicated that he complained to his shift foreman 

Garnett Sutherland "fairly often" (Tr. 24) that support jacks 

were not being set. Mary Lou Ray, a roof bolter on the same 

section as Hicks, indicated that she heard Hicks "off and on" 

(Tr. 194) complain about jacks not being set. Sutherland indicated that a "few times" Hicks mentioned .that jacks were not set 

<Tr. 250). Hicks also indicated that, in riding the man trip to 

the section, he complained to Sutherland about loose rock on the 

roof.l/ Ray testified that she heard Hicks complain to Sutherland 

about-loose rock 2 to 3 times a week. Sutherland ind~cated that 

Hicks told him about loose rock once or twice, and he responded by 

stopping the man trip and pulling down the loose rock. David Lee 

Payne, who was the mine superintendent until May 12, 1989, indicated that Hicks had complained to him about the roof on several 

occasions. 

!1 Paul Horn, a scoop· operator on Hicks' shift, testified 

th~t he did not recall Hicks' complaining about loose roc~ on the 

top of the ceiling. I find this testimony not sufficient to 

rebut the testimony of Hic~s, Ray, Payne, and Sutherland that 

Hicks did in fact bring to the attention of management, the 

existence of loose rock on the ceiling. 

564 
Hicks further indicated that in the first part of 1989, he 

complained to Sutherland that there were two miners in one split 

of air, and it was so dusty that he could not see. He also 

testified that he complained to Sutherland that there were 

pinners working in the return air, and they were not able to see. 

He told Sutherland that he would not work in those circumstances. 

Hicks also indicated that sometimes he complained to 

Su-therland that a ventilation curtain was hung on the wrong side • . 

Ray corroborated that Hicks had complained about ventilation 

problems. Douglas Wayne Lester, a shuttle car operator with whom 

Hicks worked, testified that he and Hicks complained about dust 

in the air. Sutherland did not rebut Hicks' testimony in this 

regard, and indicated that Hicks had said that he would not work 

in the dusty atmosphere like the pinners did. Payne indicated 

that Hicks did complain to him that he had to run the scoop 

through return air. 

It was Hicks' testimony that approximately 3 to 4 times a 

week, he, along with the miners in the section, would have to 

ride a scoop, rather than a man trip from the section to the mine 

exit. He indicated that the scoop was crowded, there was not 

enough room to lie down, and on one occasion he was ·caught up 

against the roof and thrown out. He also indicated that he 

complained to Payne about this situation. Ray indicated that she 

heard Hicks make the -complaints in this regard on a "consistent 

basis" (Tr. 201). Payne indicated that Hicks had voiced these 

complaints to him and Sutherland in his (Payne's) presence. 

Sutherland, in essence, indicated that Hicks had made complaints 

about riding in the scoop. 

I conclude, as testified to by Hicks, that he did make statements ~o Sutherland concerning loose rock, improper ventilation, 

and improper jack supports. I also find that Hicks complained to 

Payne about roof conditions, and ventilation problems. The 

2vidence also establishes that Hicks complained to Payne and 

Sutherland with regard to riding in the scoop in lieu of the man 

trip. I find that in bringing these matters to the attention of 

management, Hicks was engaged in protected activities. (See, 

Secretary on Behalf or Robinette v. United Castle Coal Co., supra. 

Further, the record before me unequivocally establishes that on 

May 10, 1989, Hicks was fired, and he thus suffered adverse 

action. 

II. 

Motivation 

a. When Safety Complaints Were Made 

Hicks testified on direct examination that he made a complaint to Sutherland aoout safety jacks a week before he was 

fired. Upo~ cross-examination, it was elicited that on 

565 
October 16, 1989, in answers he gave in. response to interrogatories, he had said that he did not know when these complaints 

occurred. In his testimony, he indicated that, with regard to 

when he complained of inadequate jacks "it (the instances when he 

made the complaints) happened at different times all the way 

through" (Tr. 99). (Explanatory phrase added). However, 

Sutherland did not specifically rebut Hicks' testimony with 

regard to having made a complaint about inadequate jacks the waek 

before he was fired. I thus find , on the basis of Hicks' uncontradicted direct testimony , that a week before his discharge, he had 

complained to Sutherland about the failure to use safety jacks. 

The weight of the evidence fails to establish that the 

balance ot Hicks ' complaints were made within close proximity to 

his discharge. Hicks testified that about a month before he was 

fired, he had made complaints to Sutherland about loose rock on 

the roof. He indicated that he again made such a complaint on 

May 8, 2 days betore he was fired, and Sutherland told 11im to 

·have the man trip stopped , and to pull off the rock. However, 

neither Ray nor Lester, who rode the man trip along with Hicks, 

corroborated his testimony that he had made a complaint about the 

loose rock 2 days before he was fired. In this regard , it was 

Sutherland ' s testimony, in essence , that the incident , in which 

the man trap was stopped, and he had Hicks pull down the loose 

rock , occurred 1 month prior to his firing and not a few days 

prior thereto. Hicks indicated , on direct examination , that he 

complained about improper ventilation a week before he was fired. 

However , upon cross- examination it was elicited that in his 

response to i nterrogatories taken on October 16 , he did not say 

that he had made such complaints a week befor~ he was fired. 

Hicks indicated that he made complaints with regard to 

riding the scoop in April or May , but he did not indicate 

specifically when these complaints were made. However, neither 

Ray nor Lester provided any testimony· ~ith regard to the most 

racant tima Hicks made such a complaint prior to the time he was 

fired. su·therland indicated that Hicks had complained several 

months prior to the firing. 

b . Reaction of Respondents' Managers to Hicks ' 

Complaints 

According to Hicks, when he complained about riding the 

scoop, inadequate jacks, and loose rock on the roof , Sutherland 

got mad . Douglas Wayne Lester, a shuttle car operator who worked 

with Hicks, indicated that " sometimes, '' Sutherland got angry 

about tha safety complaints (Tr . 227) . Sutherland did not 

specifically rebut this testimony of Hicks and Lester. 

566 
c. Comolainant ' s Prima Facie Case 

Thus , the record indicates that Hi cks made multiple safety 

complaints and had voiced complaints about inadequate jacks 

week before he was fired . Also , the weight of the evidence 

establishes that Hicks ' foreman, Sutherland , got mad on occasion , 

when presented with Hicks ' complaints. Thus , I conclude that 

there is so~e evidence to support a finding that the firing of 

Hicks by Sutherland was based , in some part , on the safety 

complaints that Hicks had made. 

d . Affirmative Defense 

On May 10, 1989, at approximately 10:00 a . m., Sutherland 

informed Hicks and Lester ch~t they should take lunch . 2; 

According to Hicks, Sutherland returned 20 minutes later and told 

him and Lest~r to return to work. Both Hicks and Sutherland 

indicated that they argued, and that Hicks said to Sutherland 

" kiss my a--. " Sutherland then told Hicks that he was fired . 

Although there is evidence that the miners and Sutherland regularly cursed back and forth , Sutharland indicated that he fired 

Hicks after the latter made the above statement , because he felt 

that Hicks was not joking.~/ The following day Hicks met with 

Payne and Sutherland . According to Payne , who had the authority 

to hire and fire , Sutherland explained that he had fired Hicks 

because he " bad mouthed him" (Sutherl and) (Tr . 148) . In essence , 

Payne indicated that he told Sutherland to make the decision with 

regard to the firing of Hicks. Payne indicated that he talked to 

Jerry Keith Lester, who is a one third owner of Respondent's 

operation, and the latter said that the matter of the firing 

would be left up to him (Payne) . Lester indicated that prior to 

the firing , Sutherland had complained about Hicks 

2; Apparently, it was not unusual for the shuttle operators, 

Lester and Hi cks, to taKe lunch other than the noon nour , due to 

interruptions in the normal mining cycle . 

3; It appears to have been common practice in the mine for 

the miners and Sutherland to curse one another . The only time a 

miner had been disciplined or threatened for cursing or talking 

oack, was on one instance when Ray , in anger , cursed Sutherland. 

Suther land then fired Ray , but rescinded this action upon advice 

of Payne , and Ray did not miss any work . 

Thus, I find that the firing of Hicks by Sutherland for 

cursing was not a pretext as argued by Complainant , inasmuch as 

Sutherland threatened Hicks the same way he had previousty 

threatened Ray . Although Payne advised Sutherland not to fire 

Ray, but supported his decision to fire Hicks, there is no 

evidence to establish that Payne in any way was motivated by 

Hicks ' safety com9laints. Indeed, he concurred in many of these 

complaints. 

567 
getting his buggy late to the face , and that Hicks had ma~e smart 

remarks in the last few months when he was asked to perform some 

tasks. Lester indicated that he had said it was time to do 

something about it, and that he went along with Sutherland's 

decision to fire Hicks. Lester indicated that he did not talk to 

Carter G. Messer , who also has a one third ownership in the 

operation. He said that in his conversations with Payne with 

regard Hicks , Payne had said that Hicks was always clean even 

though he worked in a dirty environment. Payne indicated that 

after the meeting on May 8, 1989, Messer told Hicks that he was 

fired and that "we've got to take a stand somewhere and we'll 

just leave it at that " (Tr . 151). According to Payne, after 

Messer told Hicks he was fired , Messer said that he wanted to get 

~id of Hicks for a long time, but " couldn ' t get anything on him'' 

(Tr. 152). Payne indicated that prior to that time, Messer had 

never said that he wanted to fire Hicks, and indeed indicated 

that the latter was a good buggy man . Messer denied telling 

Payne that he wanted to get rid of Hicks for a long ti~e. He 

indicated that, prior to the firing of Hicks, he did not discuss 

with Lester either Hicks or his work habits. He indicated that 

he supported the decision of Sutherland to fire Hicks as he was 

100 percent behind his f oreman. According to Messer , Sutherland 

never told him that Hicks had made safety complaints. He was 

asked whether he talked to Sutherland with regard to Hicks ' work 

habits, and indicated that Sutherland had told him that it takes 

Hicks a long time to do things. 

I find that at least a week elapsed between Hicks ' complaint 

about jacks and loose rock, and his being fired . It is significant that Hicks did not indicate that Sutherland manifested any 

displeasure or anger at the complaint he (Hicks) had made about 

loose rock on May 8, 2 days before he was fired. There is no 

evidence that Payne , who according to his testimony had the 

responsibility for hiring and firing, ever expressed displeasure 

at Hicks for his having made safety cdmplaints. Also, there is 

no evidence that Lester and Messer, who together own two thirds 

of Respondent's operation, had , prior to the firing of Hicks, any 

knowledge oi the latter's safety complaints. Moreover , due to 

the nature of the words spoken by Hicks to Sutherland, his foraman , and the manner in which they were spoken , I find that a 

valid business reason existed for the firing of Hicks. 

I find that Sutherland found Hicks deserving of being fired 

on May ~0 , for the manner 1n which he talked to him, and that he 

woulj have ficed him for this action in any event . I thus conclude, that Respondanta have established an affirmative defense 

that HicKs would hav~ been fired in any event basad on his 

unprotectea actlvities ~lone . Accordingly, it must be concluded 

that the Cornplai~t is to be dismissed. (See, Secretary on behalf 

of Pasula v. Consolidation Coal Co., 2 FMSHRC 27B6, at 2799-2800 

(October 1980)), rev ' d on other grounds sub . non . Consolidation 

Coal Co., v . Marshall, 663 F Znd 1211 (3rd Cir . 1981)) . 

568 
ORDER 

It is hereby ORDERED that the Complaint of Discrimination 

filed on August 23, 1989, be DISMISSED . 

Distribution: 

~vram 

. ~~~ Weisberger 

Administrative Law Judge 

Glann M. Loos, Esq., Office of the Solicitor, U. S. Department of 

Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail> 

Kurt J. Pomrenke, Esq., Johns. Bundy, Esq., White, Elliott, & 

Bundy, P. o. Box 8400, Bristol, VA 24203-8400(Certified Mail) 

dcp 

569 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARD 

DENVER. CO 80204 

MAR 2 71990 

SECRETARY OF LABO~, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

JACK WINNINGHOFF, 

Complainant 

v . 

BLACK PINE MINING COMPANY, 

Respondent 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEST 89-79-D 

Black Pine Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Cetti 

This proceeding was brought by the Secretary of Labor on 

behalf of Jack Winninghoff, under§ 105(c)(2) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seg., 

for certain corrective relief to undo the effects of alleged 

discrimination against him, and ·for a civil penalty for an 

alleged violation of § 105(c) of the Act. 

The parties have moved for an order approving their prop osed 

settlement, ordering compliance with its terms and for dismissal 

of this proceeding. I have considered the representations and 

documentation submitted and I conclude that the proffered settlement is consistent with the criteria in§§ 105(c) and llO(i) of 

the Act. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The motion for approval of the settlement is GRANTED. 

2. Respondent, Secretary and Complainant shall comply with 

all the terms of the settlement agreement. 

3. The Secretary withdraws her complaint and does not seek 

a civil penalty against respondent for its alleged violation of 

Section 105(c) of the Act. 

570 
4. Respondent shall pay Jack Winninghoff the lump sum of 

$14,000 which sum represents payment of all claims, including 

lost wages. 

5. Subject to full compliance with the agreement, the complaints of the Secretary and Jack Winninghoff will be considered 

withdrawn and this proceeding is DISMISSED with prejudice. 

F. Cetti ~ ~ 

Distribution: 

Tina Gorman, Esq., Office of the Solicitor , u.s. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Ann R. Klee, Esq., Thomas C. Means, Esq., Crowell & Moring, 

1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004-2505 

(Certified Mail) 

Gary W. Callahan, Esq., Black Pine Mining Company, c/o Western 

Gold Exploration and Mining Company, Building 4, Suite 350, 

1536 Cole Boulevard, Golden, CO 80401 (Certified Mail) 

/ot 

571 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

• OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

MAR 2 '7 1990 · 

SECRETARY OF LABO~, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EMERY MINING CORPORATION; 

UTAH POWE~ & LIGHT COMPANY, 

Respondent 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 86-240 

A.C. No. 42-00121-03610 

Deer Creek Mine 

Docket No. WEST 86-243 

A. C. No. 42-01944-03514 

Cottonwood Mine 

Docket No. WEST 86-257 

A.C. No . 42-00080-03570 

Wilberg Mine 

ORDER OF DISMISSAL 

Before: Judge Morris 

The Secretary has moved to withdraw her request for civil 

penalties herein. 

As a grounds therefor the Secretary states the lOth Circuit Court of Appeals has vacated the citations herein. 

The Secretary further notes that the Circuit Court's decision clarifies a point of Mine Act interpretation. Accordingly, 

the Secretary requests that the Court's decision be attached to 

this order of dismissal so the decision may be readily reviewed 

by Mine Act practitioners. 

For the foregoing reasons the following order is appropriate: 

ORDER 

For good cause shown, the Secretary's motions are GRANTED 

and the cases · herein are dismissed. 

Further, a copy of the lOth Circuit Court. of Appeals 

decision is attached to this order of dismissal. 

Law Judge 

572 
PUBLISH 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

UTAH POWER & LIGHT COMPANY, Substituted ) 

for Emery Mining Corporation, )' 

) 

Petitioner, ) 

) 

Fl LED 

United States (')urc c.·f Appeals '_.-f~! } .. ': :. ~ 

FEB 2 6 i9SO 

~OBERT L HOECKER 

Clerk 

v. ) 

) 

SECRETARY OF LABOR, FEDERAL MINE & ) 

Nos. 88-1655 

& 

88-1659 

SAFETY REVIEW COMMISSION, ) 

) 

Responde nts, ) 

) 

UNITED MINE WORKERS OF AMERICA, ) 

) 

Intervenor, ) 

) 

) 

AMERICAN MINING CONGRESS, ) 

) 

Amicus Curiae. ) 

ON PETITION FOR REVIEW OF AN ORDER 

OF THE FEDERAL MINE SAFETY 

AND HEALTH REVIEW COMMISSION 

(Nos. West 86-126-R, 

West 86-131-R, 

West 86-140-R, and 

West 86-141-R) 

Submitted on the briefs: 

John A. Macleod, Thomas c. Means, and Ellen B. Moran, Crowell & 

Moring, Washington, D.C., for Petitioner. 

George R. Salem, Solicitor of Labor, Edward P. Clair, Associate 

Solicitor, Dennis D. Clark, Counsel, Appellate Litigation, and 

Barry F. wisor, Attorney, United States Department of Labor, 

Arlington, Virginia, for Respondent. · 

Michael H. Bolland, and Mary Lu Jordan, Washington, D.C., for 

Intervenor. 

573 
Charles w. Newcom, and Susan K. Grebeldinger, Sherman & Howard 

Denver, Colorado, Edward M. Green, and Mark G. Ellis, America~ 

Mining Congress, Washington, D.C., filed an Amicus Curiae Brief 

for American Mining Congress. 

Before TACHA, BALDOCK, and BRORBY, Circuit Judges. 

PER CURIAM. 

After examining the briefs and appellate record, this pane l 

has determined unanimously that oral argument would not materially 

assist the determination of these appeals. See Fed. R. App . P. 

34(a); lOth Cir. R. 34.1.9. The cases are therefore ordered 

submitted without oral argument. 

These cases present two issues of first impression in this 

circuit: 

1. Whether walkaround rights established in § l03(f) 

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

30 u.s.c. § 813(f), extend to -miners• representatives 

who are not employees of the mine operator? 

2. Whether a miners• representative seeking to 

exercise walkaround rights under S 103(f) of the Act 

must first comply with the requirements of 30 C.F.R., 

Part 40? 

The Federal Mine Safety and Health Review Commission (Commission) 

answered the first question in the affirmative and the second in 

the negative. 

second. 

We affirm on the first issue and reverse on the 

574 
On the morning of April 15, 1986, Vern Boston, a Mine Safety 

and Health Administration (MSHA) inspector, arrived at the Deer 

Creek Mine, an underground coal mine in Utah, to conduct an 

inspection. Deer Creek Mine was owned by Utah Power & Light Co. 

(UPL) and operated by Emery Mining Corporation (Emery). Inspector 

Boston was met at the gates of the mine by Tom Rabbitt, a member 

of the International Health and Safety Department of the United 

Mine Workers of America (UMWA), who introduced himself to the 

inspector and asked to accompany him on the inspection. 

Boston agreed that Rabbitt could accompany him on the 

inspection, and he and Rabbitt entered the premises to get 

clearance for Rabbitt. The mine manager, Earl White, met with 

Rabbitt and told him he could enter the mine pursuant to the 

collective bargaining agreement with the UMWA but for the fact 

that he had not given the twenty-four hour advance notice required 

by Emery. Rabbitt then said he was seeking entrance under 

§ 103(f) of the Act, which provides for walkaround rights.l 

1 Section 103(f) of the Act provides: 

Participation of representatives of operators and 

miners in inspections 

Subject to regulations issued by the Secretary, a 

representative of the operator and a representative authorized by his miners shall be given an opportunity 

to accompany the Secretary or his authorized 

representative during the physical inspection of any coal or other mine made pursuant to the provisions of 

subsection (a) of this section, for the purpose of 

aiding such inspection and to participate in 

pre- or post-inspection conferences held at the mine. 

Where there is no authorized miner representative, the 

Secretary or his authorized representative shall consult 

with a reasonable number of miners concerning matters of 

health and safety in such min~. Such representative of 

(Continued on next page.) 

575 
White, Rabbitt, and Boston discussed the scope of walkaround 

rights under 5 l03(f). White was of the opinion that since 

Rabbitt was not an Emery employee, he had no walkaround rights 

under the Act. Boston disagreed, saying that Rabbitt had 

walkaround rights because he was a member of the UMWA 

International. Boston then wrote White a citation under S l04(a) 

of the Act, 30 u.s.c. 5 814(a), for violating 5 103(f). He gave 

White ten minutes to abate the violation. 

White, fearing that Boston might issue a withdrawal order if 

White did not abate the violation, agreed to let Rabbitt 

participate in the inspectlon, but said he must first sign a 

hazard recognition and waiver of liability form that Emery 

required nonemployees to sign before entering the mine. Rabbitt 

refused to sign ~he form. Boston then called his supervisor, who 

was not familiar with Emery's waiver form. Based on his belief 

that a representative of the UMWA International had an unlimited· 

right of access to a mine under S 103(f), the supervisor 

(Continued from previous page.) miners who is also an employee of the. operator shall 

suffer no loss of pay during the period of his 

participation in the inspection made under this 

subsection. To the extent that the Secretary or 

authorized representative of the Secretary determines 

that more than one representative from each party would 

further aid the inspection, he can permit each party to 

have an equal number of such additional representatives. 

However, only one such representative of miners who is 

an employee of the opeYator shall be entitled to suffer 

no loss of pay during the period of such participation under the provisions of this subsection. Compliance with this subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of this 

chapter. 

576 
instructed Boston to proceed with Rabbitt on the inspection. 

Boston then informed White that his refusal to permit Rabbitt to 

participate · in the inspection unless Rabbitt signed a waiver of I 

liability was .in violation of S l03(f). Boston added a second 

violation of S 103(f) to the ¢riginal citation. 

Thereafter, White agreed to abate the alleged violation by 

allowing Rabbitt to accompany the inspector without signing the 

waiver of liability. The inspection party, consisting of Boston, 

Rabbitt, Mark Larsen, a representative of miners from the safety 

committee, and Terry Jordan and Dixon .Peacock, representatives of 

Emery, then proceeded underground. 

On April 17, 1986, pursuant to S lOS(d) of the Act, 

30 u.s.c. § 8l5(d), Emery filed a notice of contest of the 

citation issued April 15, 1986. Shortly thereafter, the UMWA 

moved to intervene in the proceedings. On April 24, 1986, Emery's 

contract with UPL was terminated and UPL took over the operation 

of its mines, including the Deer Creek Mine. OPL subsequently 

received three more citations from the MSHA for violations of 

S 103(f) similar to Emery's. OPL filed a timely notice of contest 

with respect to each citation. The parties agreed to try the 

citation issued to Emery and to have the administrative law 

judge's (ALJ) ruling on that citation control the disposition of 

the three citations issued to UPL. 

The ALJ held an evidentiary hearing on May 14 and 15, 1986. 

The issues before him were the two under consideration in this 

appeal, as well as a third, concerning whether an operator can 

require a nonemployee representative of miners to sign a waiver of 

577 
liability before exercising walkaround rights. On August 7, 1986, 

the ALJ ruled against Emery on all three - issues. Emery Mining 

Corp., 8 F.M.S.H.R.C. 1192 (1986). 

Thereafter, the Commission granted discretionary review of 

the ALJ's decision.pursuant to 30 u.s.c. S 823(d)(2)(A)(i). After 

briefing and oral arguments, the Commission issued its decision on 

Emery's citation on March 29, 1988. Emery Mining Corp., 10 

F.M.S.H.R.C. ·276 (1988). . The Commission also issued a 

cQnsolidated summary opinion on UPL's three citations the same 

day. Utah Power & Light Co., 10 F.M.S.H.R.C. 302 (1988). The 

Commission affirmed the ALJ on the first two issues and reversed 

him on the third issue concerning the waiver of liability. 

Emery and UPL petitioned this court for review of the 

Commission's decisions pursuant to S 106(a) of the Act, 

30 U.S.C. § 816(a). They challenge the Commission's rulings with 

respect to nonemployee walkaround rights and compliance with the 

requirements of 30 C.F.R., Part 40. We consolidated the petitions 

under the caption Utah Power & Light Co. v. Secretary of Labor. 

Since UPL has been substituted for Emery on appeal, we will refer 

to the arguments of UPL hereinafter. 

I. 

We first address UPL's contention that S l03(f) walkaround 

rights do not extend to nonemployee representatives of miners. In 

reviewing the interpretation of S l03(f) asserted by the Secretary 

of Labor (Secretary) and the Commission, we are mindful of the 

578 
United States Supreme Court's directions in Chevron, U.S.A., Inc. 

v. Natural Resources Defense Council, Inc., 467 u.s. 837 (19e4). 

When a court reviews an agency's construction of 

the statute which it administers, it is confronted with 

two questions. First, always, is the question whether 

Congress has directly spoken to the precise question at 

issue. If the intent Of Congress is clear, that is the 

end of the matter; for the court, as well as the agency, 

must give effect to the unambiguously expressed intent 

of Congress. If, however, the couit determines Congress 

has not directly addressed the precise question at 

issue, the court does not simply impose its own 

construction on the statute, as would be necessary in 

the absence of an administrative interpretation. 

Rather, if the statute is ~ilent or ambiguous with 

respect to the specific issue, the question for the 

court is whether the agency's answer is based on a 

permissible construction of the statute. 

!d. at 842-43 (footnotes omitted). 

We have held that an agency's interpretation of a statute 

entrusted to that agency for administration should be accepted if 

it is a reasonable one, even _if another interpretation may exist 

that is equally reasonable. Jones v. Federal Deposit Ins. Corp., 

748 F.2d 1400, 1405 (lOth Cir. 1984); Brennan v. Occupational 

Safety and Health Comm'n, 513 F.2d 553, 5·54 (lOth Cir. 1975). 

Congress did not speak to the precise issue before us when it 

drafted S 103(f) of the Act. Nonetheless, we, like the 

Commission, find the language of S 103(f) dispositive. See 

Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 u.s. 102, 

108 (1980)("[T]he starting point for interpreting a statute is the 

language of the statute itself. Absent a clearly expressed 

legislative intention to the contrary, that language must 

ordinarily be regarded as · conclusive."); Colorado Property 

. ,-

Acquisitions, Inc. v. United States, No. 87-2564, slip op. at 4 

579 
(lOth Cir. Jan. 24, 1990)("When the meaning of a statute is clear 

from its face, resort to rules of statutory construction or 

legislative intent is unnecessary."). 

The first sentence of S 103(f) provides that "a 

representative authorized by [the operator's) miners shall be 

given an opportunity to accompany the Secretary or his authorized 

representative during the physical inspection of any coal or other 

mine made pursuant to the provisions of subsection (a) of this 

section." This sentence confers upon the miners the right to 

authorize a representative for walkaround purposes without any 

limitation on the employment status of the representative. See 

Council of s. Mountains, Inc. v. Federal Mine Safety and Health 

Review Cornm'n, 751 F. 2d 1418, 1421 n.lB (D.C. Cir. 1985) ("The Mine 

Act, however, merely refers to · 'representatives' and does not 

articulate any distinction between the rights of employee and 

· nonemployee representatives."). 

The third sentence of S 103(f) provides that "[s]uch 

representative of miners who is also an employee of the operator 

shall suffer no loss of pay during the period of his participation 

in the inspection made under this subsection." (Emphasis added . ) 

As noted by the Commission, "also" means "in addition," "as well," 

"besides," and "too." Emery Mining Corp . , 10 F.M.S.B.R.C. at 284 

(quoting Webster's Third ~nt'l Dictionary 62 (Unabridged ed . 

1971)). Put in other words, the third sentence of S 103(f) reads: 

"A representative of miners who, in addition to being a 

representative, is an employee of the operator shall suffer no 

580 
loss of pay during the period of his participation in the 

inspection • " 

By creating a subclass of representatives who are entitled to 

compensation while exercising walkaround rights under S 103(f), 

Congress clearly recognized that some miners' representatives may 

be employees of the operator and some may not. Those who are 

employees are entitled to compensation. Those who are not 

employees may participate in the inspection, but are not entitled 

t9 compensation from the operator under S 103(f) for their 

participation. 

UPL argues that the Commission ignored other reasonable 

interpretations of the third sentence of S 103(f). Specifically, 

UPL contends that the third sentence represents a congressional 

recognition that 

there would be situations in which mine operators might 

consent to walkarounds by non-employee representatives 

of miners, or in which non-employee representatives had 

contractual rights to enter upon mine property for the 

purpose of accompanying inspectors. [Congress) simply 

wanted to be clear that the compensation right under 

S 103(f) did not attach in those circumstances. 

Brief of Petitioner Utah Power & Light Co. at 19-20. 

We are not persuaded by UPL's argument. UPL would have us 

read a limitation into the statute that has no basis in the 

statutory language. Furthermore, if a nonemployee representative · 

could exercise walkaround rights only if the operator so consented 

or the parties' contractual rights so provided, and could not 

exercise walkaround rights under S 103(f), Congress would have no 

reason to clarify that a nonemployee representative is not 

entitled to compensation from the operator under S 103(f). 

581 
UPL as~erts that selected excerpts from the Act's legislative 

history support its theory that Congress did not intend to extend 

walkaround rights to nonemployee representatives. In particular, 

UPL cites to a debate between Senator Javits, who was a sponsor of 

the Senate bill that eventually became the Act, and Senator Helms. 

See 123 Cong. Rec. 20,019-20 (1977). 

While we agree with UPL that the Senators' debate focused on 

.the importance of miners participating in inspections of the mines 

in which they work,2 that focus is explained by the context of the 

• 

Senators' debate. Senator Helms had introduced an amendment that 

would strike the third and fifth sentences of the present 

S 103(f), thereby deleting the provisions concerning compensation 

for employee representatives. Senator Javits opposed the 

amendment. See 123 Cong. Rec. 20,019 (1977). The two Senators, 

therefore, were debating the merits of compensating employee 

representatives. They were not concerned with whether 

2 For instance, Senator Javits remarked : "[G]reater miner 

participation in health and safety matters, we believe, is 

essential in order to increase miner awareness of the safety and 

health problems in the mine " 123 Cong . · Rec. 20,019 

(1977). 

Senator Javits also said: 

If miners are going to accompany inspectors, they are 

going to learn a lot about mine safety, and that will be 

helpful to other employees and to the mine operator. 

In addition, if the worker is along he knows a lot 

about the premises upon which he works and, therefore, 

the inspection can be much more thorough. We want to 

encourage that because we want to avoid, not incur, 

accidents. 

123 Cong. Rec. 20,020 (1977) . 

582 
nonemployees, who would not be compensated by the operator, could 

be miners ' representatives for purposes of walkaround rights. 3 

UPL also argues that the purposes of S l03(f), which include 

encouraging miners to participate in inspections and enhancing 

miners' understanding and awareness of the health and safety 

requirem~nts of the Act, 4 will not be furthered by allowing 

nonemployees to act as miners' representatives under S 103(f). We 

disagree . A congressional desire to increase miners' knowledge 

about health and safety issues does not require the exclusion of 

nonemployees as miners' representatives for walkaround purposes. 

Miners may benefit in a number of ways from nonemployee 

representatives participating in walkarounds. For instance, the 

ALJ in this case found that Rabbitt had held virtually every job 

in a coal mine and had received special training in health and 

safety matters, including seminars sponsored by the MSHA that are 

given to federal inspectors. Furthermore, Rabb i tt had 

investigated "accidents, disasters, fires, and explosions" in 

various mines. Emery Mining Corp . , 8 F .• M.S . H.R.C. at 1186 . These 

findings illustrate that a nonemployee representative may have 

greater expertise in health and safety matters than an employee 

representative. 

3 Senator Helms, himself, appeared to recognize that a 

representative of miners might not be an employee of the operator. 

In arguing for the adoption of his amendment, the Senator said: 

"As written, the act states that the representative of the miners, 

if he 'is also an employee of the operator shall suffer no loss of 

pay as a result of his participation in the inspection.'" 123 

Cong . Rec. 20,019 (1977) (emphasis added). 

4 SeeS. Rep . No. 181, 95th Cong., 1st Sess. 28, 

1977 u.s. Code Cong . & Admin. News 3401, 3428. 

583 

reprinted in 
In addition, if a nonemployee representative has inspected 

other mines, his knowledge of those mines may increase his ability 

to spot problems and to suggest solutions in the mine under 

consideration. Furthermore, a nonemployee representative is not 

subject to the. same pressures that can b~ exerted by an operator 

on an employee representative. Therefore, the underlying purpose.s 

of S 103(f), and the Act in general, can be furthered by allowing 

both employees and nonemployees to act as miners' representatives 

for walkaround purposes. 

UPL contends that statements in an interpretive bulletin 

issued by the Secretary in April of 1978 support its position that 

walkaround rights were not intended to extend to nonemployee 

representatives.s While isolated comments in the bulletin may 

support UPL's position, other comments support the present 

position of the Secretary, that walkaround rights do extend to 

nonemployee representatives. The interpretive bulletin is 

inconclusive on the issue before us. Neither the bulletin nor the 

legislative history convince us that the interpretation accorded 

the statute by the agency is unreasonable or unsupportable. 

Finally, UPL argues that permitting nonemployees to exercise 

walkaround rights under S 103(f} impermissibly infringes on an 

operator's property rights. UPL relies on a number of fourth 

amendment cases which express the United States Supreme Court's 

concern with the infringement of property rights by federal 

inspections. ln particular, OPL cites Donovan v. Dewey, 452 u.s. 

594, 605 (1981), in which the Court held that warrantless 

5 !!! 43 Fed. Reg. 17,546 (1978). 

584 
inspections of mines by federal inspectors under the Federal Mine 

Safety and Health Act are not unreasonable. 

UPL contends that although the Act "establishes a predictable 

and guided federal regulatory presence" so that "the operator of a 

mine 'is not left to wonder about the purposes of the inspector or 

the limits of his task,'" id. at 604 (quoting United States v. 

Biswell, 406 U.S. 311, 316 (1972)), the same cannot be said of a 

nonemployee miners' representative. UPL cautions that "[t]he Mine 

A~t presents an inherent temptation for abuse by non-employee 

union representatives," and cites as an example a case in which 

the UMWA acknowledged that "its designation of walkaround 

representatives 'was made for purposes unrelated to the Act's 

safety objectives and thereby constituted an inappropriate 

exercise of the UMWA's designation right under S 103(f). '" Brief 

of Petitioner Utah Power & Light Co. at 35 n.21 (quoting Nacco 

Mining Co., 6 F.M.S.H.R.C. 2734, 2738 (1984)). 

UPL's argument ignores the fact that, as with a federal 

inspector, the Act clearly spells out the purpose of a miners' 

representative ' s participation in an inspection. Section l03(f) 

provides that an authorized miners' representative shall have the 

opportunity to accompany a federal inspector during the inspection 

of a mine "for the purpose of aiding such inspection." While we 

recognize UPL's concern that walkaround rights may be abused by 

nonemployee representatives, the po~ential for abuse does not 

require a construction of the Act that would exclude nonemployee 

representatives from exercising walkaround rights altogether. The 

585 
solution is for the operator to take action aga i nst individual 

instances of abuse when it discovers themr 

In sum, we conclude that the Secretary ' s and the Commission's 

interpretation of the Act is both reasonable and supportable, and 

we hold that miners may authorize nonemployees to act as their 

representatives under S 103(f) of the Act. 

II. 

The second issue we must address concerns the Commission' s 

holding that "an operator may not refuse a miner's (sic ) 

representative access to a mine for walkaround purposes solel y 

because the representative has not filed identifying information 

under [30 C.F . R. ,J Part 40." Emery Mining Corp~~ 10 F.M.S.H.R .C. 

at 2'79 . 

The regulations set fort h in 30 C.F.R., Part 40 provide as 

follows: 

S 40.1 Definitions. 

As used in this Part 40: 

(a) "Act" means the Federal Mine Safety and Health 

Act of 19'7'7. 

(b) "Representative of miners" ~eans ~ 

(1) Any p~rson or organization which represents 

two or more miners at a coal or other mine for the 

purposes of the Act, and 

(2) "Representatives authorized by the miners " , "miners or their representative", "authorized miner 

representative", and other similar terms as they appear 

in the Act. 

5 40.2 Requirements. 

(a) A representative of miners shall file with the 

Mine Safety and Health Administration District Manager 

for the district in which the mine is located the 

586 
information required by 

Concurrently, a copy of 

provided to the operator 

representative of miners. 

s 40.3 of this part . this information shall be 

of the mine by the 

(b) Miners or their representative organization 

may appoint or designate different persons to represent 

them under various sections of the act relating to 

representatiyes of miners. 

(c) All information filed pursuant to this part shall be maintained by the appropriate Mine Safety and 

Health Administration District Office and shall be made 

available for public inspection. 

S 40.3 Filing procedures. 

(a) The following information shall be filed by a 

representative of miners with the appropriate District 

Manager, with copies to the operators of the affected 

mines. This information shall be kept current: 

(1} The name, address, and telephone number of the 

representative of miners. If the representative is an 

organization, the name, address, and telephone number of 

the organization and the title of the official or 

position, w.ho is to serve as the representative and his 

or her telephone number. 

(2) The name and address of the operator of the 

mine where the represented miners work and the name, 

address, and Mine Safety and Health Administrati.on 

identification number if known, of the mine. 

(3) A copy of the document evidencing the 

designation of the representative of miners. 

(4) · A statement that the person or position named 

as the representative of miners is the representative 

for all purposes of the Act; or if the representative's authority is limited, a statement of the limitation. 

(5) The names, addresses, and telephone numbers, 

of any representative to s~rve in his absence. 

(6) A ~tatement that copies of all information 

filed pursuant to this section have been delivered to 

the operator of the affected mine, prior to or 

concurrently with the filing of this statement . ( 7 )· A statement certifying that all information 

filed is true and correct followed by the signature of 

the representative of miners. 

(b) The representative of miners shall beresponsible for ensuring that the appropriate District 

Manager and operator have received all of the 

information required by this part and informing such 

District Manager and operator of any subsequent changes 

in the information. 

587 
S 40.4 .Posting at mine. 

A copy of the information prqvided the operator 

pursuant to S 40.3 of this part shall be posted upon 

receipt by the operator on the mine bulletin board and 

maintained in a current status. 

S 40.5 Termination of designation as representative of 

ainers. 

(a) A representative of miners who becomes unable 

to comply with the requirements of this part shall file 

a statement with the appropriate District Manager 

terminating his or her designation. (b) · The Mine Safety and Health Administration 

shall terminate and remove from its files all 

designations of representatives of miners which have 

been terminated pursuant to paragraph (a) of this 

section or which are not in compliance with the 

requirements of this part. The Mine Safety and Health 

Administration shall notify the operator of such 

termination. 

The Commission, in holding that Emery could not refuse 

Rabbitt admission to the mine for walkaround purposes just because 

neither he nor his position were listed on the documents filed 

with Emery pursuant to Part 40,6 relied on its holding in 

Consolidation Coal Co., 3 F.M.S.H.R.C. 617 (1981), which it found 

"to represent a sound interpretation of section 103(f) and to 

accurately reflect the Secretary's clearly expressed intent in 

promulgating his Part 40 regulations. " Emery Mining Corp., 10 

F.M.S.H.R. C. at 287. 

6 The information submitted to Emery under Part 40 listed Frank 

Fitzek as the selected representative of miners and listed 

thirteen other people, including Mark Larsen, as selected multiple 

representatives. In the space provided for listing the 

organization, if any, with which the representative is associated, 

the document listed the UMWA and reflected that Frank Fitzek, 

safety chairman, was the representative associated with that 

organization. 

588 
The "Secretary's clearly expressed intent" to which the 

Commission referred, arose fr·om the preamble to the final Part 40 

regulations which stated in part: "However, it should be noted 

that miners and.their representatives do not lose their statutory 

rights under section 103{f} by their failure to file· as 

representatives of miners under this part." 43 Fed . Reg. 29,508 

(1978) . The -Secretary argues on appeal that the foregoing . 

language "is dispositive of the Secretary's intent in promulgating 

tne Part 40 regulations ... Brief for the Secretary of Labor at 26. 

In reviewing the Secretary's interpretation of the Part 40 

~egulations, we are mindful of two rules. First, an agency's 

regulation "is entitled to deference unless it can be said not to 

be a reasoned and supportable interpretation of the Act." 

Whirlpool Corp. v. Marshall, 445 u.s. 1, 11 {1980). Second, "'a 

regulation must be interpreted so as to harmonize with and further 

and not to conflict with the objective of the statute it 

implements. ' " Emery Mining Corp . v. Secretary of Labor, 744 F.2d 

1411, 1414 (lOth Cir. 1984)(quoting Trustees of Ind. Univ. v. 

United States, 618 F.2d 736, 739 {Ct. Cl. 1980}). 

The Part 40 regulations themselves do not make any exception 

for representatives of miners who desire to be authorized 

representatives for S 103(f} purposes. The only place such an 

exception is set forth is in the aforementioned preamble to the 

regulations, which is not -part of the regulations as published in 

the Code of Federal Regulations. Neither the preamble nor the 

Secre:ta·ry 's · interpretive bulletin to which it refers,7 cite any 

7 43 Fed. Reg. 17,546 (1978). 

589 
reasons for. making an exception to the regulations for purposes of 

S l03(f). Likewise, the Secretary, here, gives no explanation for 

such an exception. 

Section 103(f) of the Act provides that "(s]ubject to 

regulations issued by the Secretary, • • • a representative 

authorized by (the] miners shall be given the opportunity to 

accompany the Secretary or his authorized representative during 

the physical inspection of any coal or other mine." (Emphasis 

aqded.) As both the Secretary and the Commission have 

acknowledged, the Part 40 regulations were implemented pursuant to 

the authority delegated to the Secretary in S l03(f) of the Act. 

~Brief for Secretary of Labor at 15-16; Emery Mining Corp., 10 

F.M.S.H.R . C. at 285. On their. face, the regulations apply to all 

representatives of miners for all purposes under the Act. Thus, 

the Secretary's interpretation of the regulations is at odds with 

both the Act and the plain language of the regulations themselves. 

Furthermore, valid reasons exist for requiring compliance 

with the Part 40 regulations for S 103(f) purposes. As Chairman 

Ford pointed out in his dissent below, the information required to 

be filed by Part 40 establishes the identity and bona fides of 

each miners• representative, as well as the scope of his 

authority. See Emery Mining Corp., 10 F.M.S.H.R.C. at 294-95;--

30 C.F.R. 5 40.3. The information must be provided to both the 

MSBA district manager and the operator of the affected mine. 30 

C.F.R. 5 40.3(a). The operator, in turn, is required to post a 

copy of the information filed on the mine bulletin board, and to 

keep the information current. Id. at S 40.4. 

590 
The Secretary has explained the importance of posting the 

Part 40 information on the mine bulletin board as follows: 

The posting of "Re~resentative of Miner" information 

will keep the m1ners abreast of who their 

representatives are, and for what purpose under the act 

their representatives serve. This knowledge will better 

acquaint the miner with MSHA's health and safety 

programs which will further promote an awareness among 

the miners of the importance of health and safety at the 

mine. 

43 Fed. Reg . 29,508, 29,509 (1978). 

The Secretary and the Commission have stressed the importance 

walkaround rights throughout this "litigation, and the 

legislative history of the . Act reflects that Congress, too, 

thought walkaround rights to be important in increasing miner 

awareness and knowledge of health and safety conditions and 

requirements. See s. Rep. No. 181, 95th Cong., 1st Sess. 28, . reprinted in 1977 u.s. Code Cong. ~ Ad. News 3401, 3428; Secretary 

of Labor ex rel. Truex, 8 F.M.S.H.R.C. 1293, 1299 (1986). 

Every miner cannot participate in a federal inspection . 

Therefore, s 103(f) provides that ·miners may authorize 

representatives who will participate in the inspection on their 

behalf. Pursuant to 30 C. F.R. S 40.l(b), any person or 

organization who represents two or more miners is considered a 

"miners' representative." The regulatory scheme contemplates that 

the miners at a mine may have more than one representative for 

walkaround purposes and may have different representatives for 

other purposes under the Act. See id. at S 40.2(b). 

Under such a scheme, it is imperative that both the miners 

and the operator know who the miners' representatives are and the 

591 
scope of their authority. As the Secretary- has said, knowledge on 

the part of the miners of the identity, whereabouts, and scope of 

responsibility of their representatives promotes the purposes of 

the Act. See 43 Fed. Reg. 29,508, 29,509 (1978). Allowing people 

.to act .as representatives of miners under S l03(f) does little to 

further the purposes of the Act unless the miners know who their 

S 103(f) representatives are so that they may communicate with 

them regarding health and safety issues related to the 

inspections. 

Furthermore, since a person need only represent two mi ners to 

qualify as a "miners' representative," compliance with the 

requirements of Part 40 is necessary to ensure that a person who 

attempts to exercise walkaround rights on behalf of miners is in 

fact "authorized" by the miners to do so, as required by S 103(f ) 

of the Act. 

In addition, the Secretary's interpretation of the Part 40 

regulations places the operator in a precarious and untenable 

position. If an operator cannot rely on the Part 40 information 

to determine whether someone is an authorizeQ representative of 

miners for walkaround purposes, he has no settled criteria by 

which to judge an alleged representative's authority. 

As the Secretary bas recognized, an operator's refusal to 

permit an authorized miners' representative to exercise the 

walkaround rights provided in 5 103(f) is a violation of the Act 

for which the operator is subject to a citation under s 104 and a 

civil penalty under 5 lOS of the Act. !!! 43 Fed . Reg. 17,546, 

17,547 (1978). Furthermore, if the operator fails to abate the 

592 
violation of S 103(f), not only will it be subject to additional 

civil penalties for each day of nonabatement, but the inspector 

may issue a withdrawal order pursuant · to S 104(b) of the Act . See 

43 Fed. Reg. 17,546, 17,547 (1978). 

Thus, the consequences of an operator 's refusal to permit an 

authorized miners ' representative to exercise walkaround rights 

under S 103(f) are quite severe . T~is severity requires that an 

operator have a sure and settled method by which to determine who 

is an authorized miners ' rep~esentative for walkaround purposes . 

Under the method adopted by the Commission in Consolidati on 

Coal Co., and reaffirmed below, whether an operator is justified 

in denying a purported miners' representative walkaround rights 

depends on the circumstances of the particular case. See 

Consolidation Coal Co., 3 F.M. S.H.R.C. at 619. If the inspector 

does not agree with the operator's determination that someone is 

not an authorized miners' representative for S 103(f) purposes, as 

happened in the present case, the operator must risk the issuance 

of a citation , the assessment of civil penalties, and the possible 

closure of a portion of the mine before it can get a determination 

from the Commission whether it was justified in refusing to allow 

the purported representative to exercise walkaround rights.8 

8 In contrast, if an operator refuses to allow a federal 

inspector to inspect a mine, the inspector cannot gain immediate 

access. Instead, the Secretary must bring a civil suit against 

the operator to enjoin future refusals of admission. ~ 

30 u.s.c. S 818{a)(l). Thus, the operator is furnished a forum 

prior to the inspection in· which "to show that a specific search 

is outside the federal regulatory authority, or to seek from the 

district court an order accommodating any unusual privacy intere~ts that the mineowner might have." Donovan, 452 u.s. at 

605. 

593 
The interpretation of the Part 40 regulations asserted by the 

Secretary and adopted by the Commission is contrary to the plain 

language of the regulations, fails to further the purposes of the 

Act, and puts the operator in an untenable position. We therefore 

reject the Sec~etary's interpretation and hold that the mandatory 

requirements of the Part 40 regulations apply to miners' 

representatives for § 103(f) purposes. Thus, a miners' 

representative's failure to comply with the regulations entitles 

an operator to refuse the representative access to the mine for 

walkaround purposes. Our holding will not work a great hardship 

on the miners since the requirements of Part 40 are . 

straightforward, and if a miners' representative fails to comply 

with them and, therefore, cannot exercise walkaround rights, · the 

Act requires the federal inspector to "consult with a reasonable 

number of miners concerning matters of health and safety in such 

mine.u 30 U.S . C. § 813(f). 

In the present case, the parties do not dispute that on 

April 15, 1986, Rabbitt was not listed as an authorized miners' 

representative for walkaround purposes on the documents filed with 

Emery pursuant to Part 40. Therefore, Emery did not violate the 

Act by refusing Rabbitt access to the mine for walkaround purposes 

under § 103(f). 

The Commission's 

F.M.S.H . R.C. 276 (1988), 

III. 

decisions in ~E~m~e~r~y~~M~l~·n~i~n~g--~C~o~r~p~ , 

and Utah Power & Light Co., 

10 

10 ' 

F.M.S.H.R.C. 302 (1988), are AFFIRMED in part and REVERSED in 

part. The citations at issue in those cases are hereby VACATED. 

594 
ADMINISTRATIVE LAW JUDGE ORDERS 
ARMANDO 

PHELPS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARD 

DENVER. CO 80204 

March 21, 1990 

M. RIVAS, . . DISCRIMINATION PROCEEDING 

Complainant 

v. . . Docket No • WEST 89-395-DM 

DODGE MORENCI, INC., MD 89-36 

Respondent 

ORDER DENYING MOTION 

Following an on-the-record preliminary hearing on February 6, 

1990, for the special purpose of resolving ~espondent's Motion for 

Summary Decision, counsel for both parties submitted their positions 

by oral argument at the close of hearing in lieu of filing written 

briefs. 

Respondent contends the Complaint should be dismissed since 

Complainant did not file such with MSHA until approximately 174 days 

( T. 52) after he was discharged on September 15, 1988 ( T •. 14) , or some 

31 months beyond the 60-day filing limit provided in Section 105(c) of 

the Mine . Act. 

Complainant presented three witnesses at the hearing to establish that the filing delay resulted from his suffering epilepsy, 

and memory defects, and from the time it took for him to consult 

with attorneys and to investigate his remedies with other agencies 

(T. 12-13). 

Respondent presented no witnesses (T. 49) but claimed both 

general and specific prejudice (T. 54) from the filing delay. Thus 

Respondent contends: 

" •.• there are approximately two dozen employees that 

are listed in Mr. Rivas's three page complaint who either 

participated in alleged harassment of him or observed that 

alleged harassment •••• it is not reasonable for this 

tribunal to assume that all 24, 25, 30 of those employees 

mentioned in there would have the same recollection of 

events two years ago as they would have of events if they 

were permitted to testify to them in a timely manner. 

And with respect to the specific prejudice issue ••• 

it is clear from the testimony that Mr. Rivas gave, and 

that of his mother, that he himself has very specific 

recollection problems. He testified that he has trouble 

remembering things, his memory is not good, that he is 

confused. His mother testified that there are some things 

he remembers and other things that he does not." 

595 

XXX XXX XXX 

.. there has been an inadequate (sic) showing of 

justification. The complainant clearly was aware of the 

Mine Safety Act and his right to assert complaints under 

it as early as February of 1988. He apparently was contacting both ·agencies and attorneys as early as November 

of 1988. And if he has received poor advice from those 

attorneys, from those agencies, that is not obviously 

the fault of the respondent ... 

According to Complainant, Armando M. Rivas, (age 32 with a high 

school education), he made contact with his employer, Phelps Dodge, 

when he met with James Madison to request his job back (T . 15). 

After that he called "several attorneys 11 and several agencies who 

advised him they could do nothing (T. 15, 20). 

Mr. ~ivas, an epilectic, was depressed and had 11 disorder 11 

seizures during the period after his discharge which seizures cause 

him to get confused, jerk, and affect his memory (T. 16). This 

condition worsened in October and November, 1988 (Tr. ). 

In November, 1988, Complainant apparently found out about his 

rights to go to MSHA and file a complaint against his employer 

(T. 35). 

In January or February, 1989, while at the Civil Rights Division 

(be1ieved to be a division of the Arizona Attorney General's Office), 

a call was made in his behalf to MSHA. which subsequently sent him 

complaint forms to be filled out (T. 22-26). Complainant received 

help from a Community Action agency in Safford, Arizona in completing 

the MSHA forms which led to the Complaint (Ex. ~-2> being prepared 

in late February, 1989 (T. 45-48) being filed in early March, 1989 

(T. 23, 27, 48). 

According to Complainant's mother, Maria Meza, Complainant never 

left "the home" . She indicated that Complainant had seizures in 

October, November and December of 19 88, and that his "mind wasn't 

well," (T. 42) and that "he remembers some things, others he doesn't ... 

(T. 44). 

The Commission has held that the 60-day time limit is not jurisdictional and that while the purpose of the 60-day time limit is to 

avoid stale claims, a miner's late filing may be excused on the basis 

of "justifiable circumstances," Joseph w. Herman v. IMCO Services, 

4 FMSHRC 2135 (December 1982). the Mine Act's legislative history 

relevant to the 60-day time limit states: 

596 
While this time-limit is necessary to avoid stale 

claims being brought, it should not be construed 

strictly where the filing of a complaint is delayed 

under justifiable circumstances. Circumstances 

which could warrant the extension of the time-limit 

would include a case where the miner within the 

60-day period brings the complaint to the attention 

of another agency or to his employer, or the miner 

fails to meet the time limit because he is misled 

as to or misunderstands his rights under the Act. 

s. Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), 

reprinted in Senate Subcommittee on Labor, Committee 

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

History of the Federal Mine Safety and Health Act of 

1977, at 674 (1978) (emphasis added). 

Timeliness questions therefore must be resolved on a case-by-case 

basis, taking into account the unique circumstances of each situation. 

Hollis v. Consolidation Coal Company, 6 FMSHRC 21 (1984). 

To prevail, the Respondent mine operator must establish that it 

suffered material legal prejudice which was attributable to the Complainant's delay in filing his complaint. See Secretary of Labor v. 

4-A Coal Company, Inc., 8 FMSHRC 905 (June 1986): Buelke ·v. Thunder 

Basin Coal Company, 11 FMSHRC 238 (February 1989). 

In this matter, the Complainant established the existence of 

a most significant mental handicap affecting both his ability to 

function as well as his memory following his discharge. It also 

appears that following his discharge he made, in the context of his 

condition, reasonable efforts to ascertain his remedies and to obtain 

direction. The delay of 3i months beyond the filing period is not 

sufficient to constitute the basis for creation of a presumption 

of legal prejudice to the operator. Respondent's allegations of 

prejudice, specific and general, are broad an~ speculative and do 

not constitute grounds for a determination that it has suffered 

sufficient material legal prejudice which are attributable to the 

filing delay. ~/ See Nealey v. Transportation Maritime Mexicana, 

S.A., 662 F.2d 1275, 1280-1281 (9th Cir. 1980) 

1/ A weak excuse may suffice if there has been no prejudice: an 

exceeding good one might still do even when there has been some. 

Larios v. Victory Carriers, Inc., 316 F.2d 63~ 67 (2d Cir. 1963). 

597 
Accordingly, Respondent's motion for dismissal of these proceedings is denied. 

Distribution: 

~}{ c:i ,/ ~ ;4~/ /~' Mlcfiael A. Lasher, Jr. 

Administrative Law Judge 

LisaK. York, Esq., 2700 N. Central Avenue, Suite 975, Phoenix, 

AZ 85004 

Armando M. Rivas, Route 1, Box 436, Safford, AZ 88596 

Michael D. Moberly, Esq., Nathan R. Niemuth, Esq., Ryley, Carlock & 

Applewhite, 101 North First Avenue, Suite 2600, Phoenix, AZ 85003 

/ot 

59 8 

tr U.S. GOVERNMENT PRINTING OFFICE: 1990-2 6 1 - 1 0 2 I 2 4 3 0 3