March 1981 

Commission Decisions 

4-11-81 

4-16-81 

4-24-81 

4-24-81 

4-26-81 

Indian Coal Land Co. 

Waukesha Lime & Stone Co. - Halquist Stone Co. 

Old Ben Goal Co. 

Standard-Sign & Signal Co. 

United Mine .Workers of America 

Administrative Law Judge Decisions 

4-04-81 

4-05-81 

4-10-81 

4-11-81 

4-11-81 

4-18-81 

4-18-81 

4-19-81 

4-20-81 

4-20-81 

4-24-81 

4-2'5-81 

4-26-81 

4-27-81 

4-27-81 

4-30-81 

4-30-81 

4-31-81 

4-31-81 

Mettiki Co~l Corp. 

Monterey '.Coal Co. 

Kaiser Cement & Gypsum 

White Pine Copper Division, Copper Range Co. 

Asarco Inc. 

Kentucky Carbon Corp. 

Sweet City Quarries 

El Paso Rock Quarries, Inc. 

Cyprus Industrial Mineral Corp. 

Consolidation Coal Co. 

Zeigler Coal Co. 

Evansville Materials Inc. 

T & W Sand & Gravel Co. 

North American Sand & Gravel co. 

Madison Granite Co. 

Brown Brothers Sand Co. 

Grundy Mining Co., Inc. 

Whitely Developement Corp. 

Mark Segedi, et al 

WEVA 80-5 

VINC 79-66-PM 

VINC 75-83-P 

PIKE 77-57 

WEVA 80-333-R 

YORK 80-125 

HOPE 78-469 

WEST 79-50-M 

LAKE 80-139-M 

WEST 80-303-M 

KENT 80-145-D 

SE 80-49-M 

DENV 79-139-PM 

WEST 80-19-M 

WEVA 80-160-R 

LAKE 80-292-D 

LAKE 80-82-M 

WEST 80-110-M 

LAKE 80-349-M 

WEST:\80-101-M 

BARB 79-312-PM 

BARB 78-168-P 

KENT 79-366-D 'l"\T"t ........ - ,... .... - -

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

605 

606 

608 

613 

617 

Pg. 622 

Pg. 623 

Pg. 625 

Pg. 633 

Pg. 638 

Pg. 640 

Pg. 665 

Pg. 673 

Pg. 676 

Pg. 678 

Pg. 692 

pg. 704 

Pg. 717 

Pg. 723 

Pg. 726 

Pg. 734 

Pg. 744 

:f'g. 7;.~ 

Commission Decisions 

MARCH 

The following cases were Directed for Review during the month of March: 

Secretary of Labor, MSHA v. Indian Coal Land Company, WEVA 80-5; 

(Judge Broderick, Default Dec. February 5, 1981) 

Secretary of Labor, MSHAv. White Pine Copper Company v. United Steel 

Workers of America, LAKE 79-202-M, 80-24-M; (Judge Broderick, February 

19, 1981) 

Review was Denied in the Following Cases during the month of March: 

Ranger Fuel Corporation v. Secretary of Labor, WEVA 79-218-R; (Judge 

Melick, January 28, 1981) 

Magma Copper Company v. Secretary of Labor, MSHA, WEST 79-382-M; (Judge 

Carlson, February 4, 1981) 

Secretary of Labor, MSHA v. Allied Chemical Corporation, HOPE 78-722-P; 

(Judge Koutras, February 5, 1981) 

Secretary of Labor, MSHA and United Steelworkers of America v. Phelps 

Dodge Corporation, WEST 80-134-M; (Judge Merlin, February 12, 1981) 

Richard Neal v. Wayne Boich d/b/a W.B. Coal Company, LAKE 80-I05-D; 

(Judge Laurenson, February 12, 1981) 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March Ii, 1981 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

INDIAN COAL LAND COMPANY, 

Respondent 

Docket No. W-EVA 80-5 

DIRECTION FOR REVIEW AND ORDER 

The Petition for Review filed by the operator is granted. The 

Order of Default dated February 5, 1981 is vacated and the case is 

remanded to the Judge for further proceedings in light of the operator's 

submission to the Commission dated February 25, 1981. 

-,- 

A•. 

" 

E..: Law on, *Commissioner 

Marian Pearlman Nease, Commissioner 

81-3-4 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW. 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 16, 1981 

WAUKESHA LIME AND STONE 

COMPANY, INC., 

Vo 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

HALQUIST STONE COMPANY, INC., 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

: 

Docket No. VINC 79-66-PM 

Docket No. VINC 79-I18-PM 

ORDER 

Further administrative proceedings in these cases are stayed pending 

the decision by the Supreme Court in Marshall v. •, 493 F. 

• 

Supp. 963 

(D. Wis. 1980), appeal filed, 49 USLW 3456 (U.S. Dec. 4, 1980)(No. 80-901), 

prob. •ris. noted sub nom. Donovan v. Dewey, 49 USLW 3531 (U.S. Jan. 26, 

1981), or further order by the Commission. 

Fran;.•• •a•,•m•one 

r 

rian Pea•)i2, Co•issioner 

q•06 81-3-6 
Distribution 

Francis R. Croak, Esq. 

Jan E. Kearnery, Esq. 

Cook & Franke, S.C. 

600 East Mason Street 

Milwaukee, Wisconsin 53202 

Waukesha Lime and Stone Co., Inc. 

P.O. Box 708 

Waukesha, Wisconsin 53187 

Paul Binzak, Esq. 

Kraemer and Binzak, S.C. 

16800 Appleton Avenue 

Menomenee Falls, Wisconsin 53051 

Michael A. McCord, Esq. 

U.S. Dept. of Justice 

Office of the Solicitor 

4015 Wilson Boulevard 

Arlington, Va. 22203 

James A. Broderick 

Chief Administrative Law Judge 

FMSHRC 

1730 K Street, N.W. 

Washington, D.C. 20006 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

VOLD BEN COAL COMPANY, 

Respondent 

WASHINGTON, D.C. 20006 

March 24, 1981 

Docket Nos. VlNC 75-83-P 

VlNC 75-230-P 

IBMA No. 76-86 

DECISION 

This penalty proceeding arises under section 109 of the Federal Coal 

Mine Health and Safety Act of 1969, 30 U.S.C. § 801-960 (1976) (amended 

1977) (the Act). After an evidentiary hearing, the administrative law 

judge dismissed the petition for assessment with regard to four section 

i04(c)(2) orders of withdrawal,l/vacate d four notices of violation and 

dismissed their related penalty proceedings.2/ The Mining Enforcement 

and Safety Administration (MESA) appeal•d.3/-- For the reasons that 

follow, we affirm in part and reverse and r--emand in part.•/ 

Penalty Proceedings Related to Withdrawal Order 

Respondent Old Ben Coal Company moved and MESA agreed to continue 

the penalty proceedings related to four orders of withdrawal because Old 

Ben's contest of those orders had been heard by another judge in review 

proceedings and decisions in those cases were expected. The judge 

reasoned, however, that there could be a considerable time before final 

decision of the orders on review. Therefore, he dismissed the penalty 

proceedings without prejudice to MESA's right to refile if ultimately 

successful in the review proceedings. 

l__/Order No. I-HG, dated February 5, 1974. 

Order No. I-HG, dated February 6, 1974. 

Order No. 2-HG, dated February 6, 1974. 

Order No. I-HG, dated February 13, 1974. 

2/Notice No. I-HG, dated February 6, 1974. 

Notice No. I-HG, dated February 7, 1974. 

Notice No. I-JWD, dated December 12, 1972. 

Notice No. I-BP, dated December 19, 1972. 

3/On March 8, 1978, this case was pending on appeal before the Secretary 

of Interior'sBoard of Mine Operations Appeals under the 1969 Act. This 

appeal is before the Commission for disposition under section 301 of the 

Federal Mine Safety and Health Amendments Act of 1977, 30 U.S.C. § 961 

(Supp. lll 1979). MESA's enforcement responsibilities were transferred 

to the Department of Labor's Mine Safety and Health Administration (MSHA), 

and MSHA is substituted as the petitioner in this appeal. 

•/Because of common questions of law and fact, the appeals as to the orders 

of withdrawal are treated jointly. The notices are treated separately. 

81-3-10 
This Commission has previously considered the advantages and disadvantages of a stay of proceedings rather than a dismissal.Z/ We hold 

that as a matter of policy a stay in the instant circumstances would be 

more appropriate. A stay would relieve the partiesof the task of refiling and would eliminate any potential problems attendent to refiling 

caused by the passage of time necessary to resolve the appeal of the 

underlying order. We believe that any benefit gained by the judge in 

removing the penalty proceedings from his docket does not outweigh 

these considerations. Accordingly, the judge's decision is reversed. 

The petition for assessment of penalties related to the four subject 

orders of withdrawal is reinstated and remanded for further proceedings. 

Notice No. I-HG, 2/6/74 

This notice alleged that float coal dust was deposited on rockdusted surfaces in return air courses for approximately 2,500 feet in 

violation of 30 CFR 75.400. Respondent defended by contending the cited 

area was not an "active working" required by 30 CFR 75.400 6/ and defined 

by section 318(g)(4) of the Act.•/ The judge assumed that no miners 

worked in the area and vacated the notice because MESA failed to carry 

the burden of showing that this accumulation occurred in an "active 

working." 

Without determining whether or not the function alone of a particular 

area in a mine qualifies the area as an active working, the record shows 

that the cited area was required to be inspected at least once a week, 

was traveled as an escape route, and was rock-dusted periodically. We find 

that these uses meet the work and travel requirements of an active working 

under the standard. Kaiser Steel Corp., 3 IBMA 489, 510 (1974); MidContinent Coal & Coke Co., i IBMA 250, 257 (1972). Accordingly, the judge's 

decision is reversed, and remanded for further proceedings. 

Notice No. I-HG, 2/7/74 

This notice alleged that eight open top 5-gallon cans of hydraulic 

fluid were stored in a crosscut off a track entry in violation of 30 CFR 

75.1104.8/ This standard requires that lubricating oil and grease be 

kept in closed metal containers or other no less effective containers. 

Since no evidence was presented that hydraulic fluid was a lubricating 

oil, the judge vacated the notice. 

5/Eastern Associated Coal Corp., 2 FMSHRC 2774, 2777 (October 9, 1980). 

•/30 CFR 75.400 provides: "Coal dust, including float coal dust deposited 

on rock-dusted surfaces, loose coal, and other combustible materials, 

shall be cleaned up and not be permitted to accumulate in active workings, 

or on electric equipment therein." [Emphasis added]. 

•/Section 318(g)(4) of the Act provided: "'Active working' means any 

place in a coal mine where miners are normally required to work or 

travel." 

8/30 CFR 75.1104 provides: "Underground storage places for lubricating 

oil and grease shall be of fireproof construction. Except for specially 

prepared materials approved by the Secretary, lubricating oil and grease 

kept in all underground areas in a coal mine shall be in fireproof closed 

metal containers or other no less effective containers approved by the 

Secretary." [Emphasis supplied]. 

q09 
MESA contends the judge should have taken notice that hydraulic 

fluid was a lubricating oil. However, we find that MESA should have 

presented such evidence to the judge during trial. To allow MESA's 

request of judicial notice first made on appeal would deny Respondent an 

opportunity to rebut whatever probative value such notice afforded. Also 

at the time of the hearing in this matter, MESA itself was on notice of 

an unresolved issued as to whether hydraulic fluid falls within the 

purview of the cited standard. Valley Camp Coal Co., 3 IBMA 176, 183-4 

(1974). In finding the vacation of notice proper, we are holding only 

that, in this case, MESA failed in its burden of proof. The judge's 

decision is affirmed. 

Notice No. I-JWD• 12/12/72 

MESA alleged that Respondent violated 30 CFR 75.316 by failing to 

comply with its ventilation plan. However, the plan itself was not 

available as evidence. Finding that the Respondent refused to stipulate 

the requirements of the plan, the judge vacated this notice. 

While the planWas not available and Respondent would not stipulate 

as to its contents, the MESA inspector, having read and remembered the 

plan, testified as to what the plan provided in relation to the alleged 

non-compliance. His testimony was supported by area practice, and was 

not contradicted by Respondent. Under these defined circumstances, MESA 

was not obligated to produce the relevant part of the plan to support 

this notice. Accordingly, the judge's decision as to this notice is 

reversed, and remanded for further proceedings. 

Notice No. I BP, 12/19/72 

This notice alleged a violation of 30 CFR 75.323 9/ in that neither 

the mine superintendent nor the assistant superintenden--t had countersigned 

the daily reports of the preshift examiner and the assistant mine foreman. 

The judge, finding that the subject regulation placed no time limit for 

the countersigning by the superintendent or his assistant, interpreted 

the regulation to provide a reasonable time for such signing. The judge 

then found that MESA presented no evidence that the time involved here 

was unreasonable and vacated the notice. 

9/30 CFR 75.323 provides: "The mine foreman shall read and countersign 

promptly the daily reports of the preshift examiner and assistant mine 

foreman, and he shall read and countersign promptly the weekly report 

covering the examinations for hazardous conditions. Where such reports 

disclose hazardous conditions, they shall be corrected promptly. If 

such conditions create an imminent danger, the operator shall withdraw 

all persons from, or prevent any person from entering, as the case may 

be, the area affected by such conditions, except those person referred 

to in section 104(d) of the Act, until such danger is abated. The mine 

superintendent or assistant superintendent of the mine shall also read 

and countersign the daily and weekly reports of such persons." 

' 10 
On appeal, MESA contends that the countersigning requirement is .......... 

for the purpose of bringing the reports in question to the superintendent's attention with reasonable dispatch and that a reasonable time 

for such countersigning would be the superintendent's next working shift 

following the execution of the reports. While such may be the desire 

of MESA, the regulation provides no time period for countersigning. In 

fact, this same regulation does expressly require all other signing to 

be done promptly. 

While neither this regulation nor its supporting statutoryprovision iO/ provides a time certain for the countersigning required, both 

provide that all reported hazardous conditions be corrected promptly 

without reliance upon the mine superintendent's or his assistant's 

reading or signing. Accordingly, without sacrificing prompt safety and 

health corrective action, we accept the judge's interpretation allowing 

a reasonable period for such signing and, in the absence of any evidence 

that the period involved here was unreasonable, we affirm the judge. In 

- so doing, we are not condoning indifferent or dilatory practices in the 

reading and signing of these reports. 

In summary, the judge's decision is affirmed with respect to Notices 

No. I-HG, 2/7/74 and No. I-BP, 12/19/72. With respect to Notices No. I-HG, 

2/6/74 and No. I-JWD, 12/12/72, the judge's decision is reversed, the 

notices reinstated and remanded for further proceedings consistent with 

this opinion. With respect to the penalty proceedings related to the 

four withdrawal orders, the judge's decision is reversed, the petition 

for assessment of penalties is reinstated, and the case is remanded for 

further proceedings. 

/ 

A. E./L• son, Commissioner 

 4/ 

Marian Pearlman Nease, Commissioner 

10/30 U.S.C. § 863(v). 
Distribution 

Thomas A. Mascolino, Esq. 

Cynthia L. Attwood, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Edmund J. Moriarity, Esq. 

Old Ben Coal Company 

125 South Wacker Drive 

Chicago, Illinois 60606 

Administrative Law Judge Charles C. Moore, Jr. 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Skyline Center #2 

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

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 24, 1981 

JOSEPH MAYNARD 

v. 

STANDARD SIGN & SIGNAL COMPANY 

Docket No. PIKE 77-57 

l•iA No. 77-48 

DECISION 

This proceeding arises under the Federal Coal Mine Health and 

Safety Act of 1969. 30 U.S.C. §801 et Seq. (1976). The issue is 

whether the administrative law judge erred in dismissing a miner's 

application for review of discharge for failure to state a claim upon 

which relief can be granted. 

In his application and accompanying affidavit Joseph Maynard, an 

assistant mine foreman, alleges that a federal mine inspector issued 

several notices of violation to the company on February 15, 1977. i/ 

Maynard also alleges he was told by the night superintendent to correct 

whatever violations he could and to proceed with the production of coal 

because the second and third shifts would correct the other violations. 

Maynard states that he did as he was told, but that on February 16, 

1977, the mine inspector returned and, finding violations unabated, 

issued orders of withdrawal. When asked by a supervisor why he had not 

corrected the conditions for which the orders were issued Maynard 

responded that he had corrected what he could and thought the third 

shift would correct the rest. He alleges he was then fired because he 

had run coal and had not corrected all of the violations. Maynard 

asserts the discharge violated section ii0 of the 1969 Coal Act. •/ 

1/ The notices cited violations of the company's roof control plan, 

excessive coal dust accumulations, and loose panel board covers on 

buggies. 

2/ Section ll0(b)(1) of the 1969 Coal Act provided: 

No person shall discharge or in any other way discriminate against or cause to be discharged or discriminated against any miner or any authorized representative of miners by reason of the fact that such 

miner or representative (A) has notified the Secretary 

or his authorized representative of any alleged violation 

or danger, (B) has filed, instituted, or caused tO be filed 

or instituted any proceeding under this Act, or (C) has 

testified or is about to testify in any proceeding 

resulting from the administration or enforcement of 

the provisions of this Act. 

q 1 3 

81-3-11 
The company moved to dismiss fDr failure to state a claim upon 

which relief could be granted. The judge granted the motion stating: 

Mr. Maynard ... has not brought himself within the purview of 

section ii0 of the Act. By his own admission, [Maynard] was 

discharged because of his failure to abate violations and the Act 

cannot he construed to protect an employee for his failure to ahate 

violations, even if that failure is the result of instructions by a 

supervisor. If the allegations of the affidavit are true, [Maynard] 

probably has a cause of action somewhere, but it is not in this 

tribunal. 

Following the dismissal Maynard moved for reconsideration arguing, among 

other things, that his application did state a cause of action. He also 

argued that the Secretary was required to conduct an investigation of 

his complaint under the 1969 Coal Act, that he had failed to do so and 

that it was error to dismiss his complaint prior to such an investigation. 

Maynard requested the judge to reopen the proceeding and to order a 

factual investigation by the Secretary of the Interior. 3/ The judge 

denied the motion. The judge stated that he was still of the opinion 

that Maynard's complaint did not state a cause of action and that neither 

the 1969 Coal Act nor the Secretary's regulations required the investigation sought by Maynard. 

The decision was appealed to the Board of Mine Operations Appeals. 

While the matter was pending the Secretary's Deputy Associate Solicitor, 

Division of Mine Health and Safety, sent the Board a letter on July 25, 

1977, expressing the Secretary's willingness to conduct an investigation 

into the facts underlying Maynard's complaint. The Board did not act 

upon this offer, and the matter was transferred to our jurisdiction when 

the Federal Mine Safety and Health Act of 1977 took effect. 30 U.S.C. 

§961(c)(3)(Supp. III 1979). 

We concur in the judge's conclusion that the application for review 

fails to state a claim under the 1969 Coal Act. We agree with the 

judge that even when viewed in the light most favorable to Maynard, the 

allegations in the complaint do not come within the perimeters of the 

activities protected by section ll0(b)(1). 

We also agree that under the 1969 Coal Act the Secretary was not 

required to conduct a prosecutorial-type investigation of discrimination 

complaints. Rather, the procedure established by the Secretary--adversarial adjudication before an administrative law judge, with administrative and judicial review--satisfied the Secretary's responsibilities 

under section ll0(b). 

3--/ Until enactment of the Federal Mine Safety and Health Act of 1977, 

enforcement of the 1969 Coal Act was the responsibility of the Secretary 

of the Interior. His enforcement functions, except those assigned to him 

under section 501 of the 1969 Coal Act and those expressly transferred 

to us, were transferred to the Secretary of Labor when the 1977 Mine 

Act took effect. 30 U.S.C. §961(a) (Supp. III 1979). 
We note, however, that the Secretary's offer to conduct an investigation of Maynard's complaint is yet extant. We are mindful that 

the Secretary's offer represented a change in policy with respect to the 

Secretary's participation in unlawful discrimination and discharge cases 

brought under the 1969 Coal Act, and that Maynard was denied the 

possible benefit of such an investigation through no fault of his own. 

Accordingly, we affirm the judge's dismissal of theapplication for 

review for failure to state a claim upon which relief can be granted. •J 

We remand the case, however, to afford Maynard leave to amend his complaint within 60 days to allege, if he is so able, facts which do state 

a valid claim under section ll0(b). In the intervening period, the 

Secretary may, if he chooses, undertake the factual investigation 

•¢•red in the July 25, 1977 letter. 

Ri chaff• • 'a ••Cqh a irm•/ • 

.... 

A. E. La•?n, lommissioner 

Marian Pea•an Nease, Commissioner 

4/ Maynard's claim that he was entitled to, but denied a "public 

hearing" prior to dismissal of his application is without merit. The 

adjudicatory hearing contemplated by section ll0(b) need not, of course, 

proceed to an evidentiary hearing if prior pleadings and procedures 

establish that one party is entitled by law or undisputed facts to 

prevail on the merits. A "public hearing" in this context is an 

adjudication on the public record. 
Distribution 

L. Thomas Galloway, Esq. 

Center for Law & Social Policy 

1751 N Street, N.W. 

Washington, D.C. 20036 

Michael T. Heenan, Esq. 

David S. Smith, Esq. 

Smith, Heenan, Althen & Zanoli 

iii0 Vermont Ave., N.W. 

Washington, D.C. 20005 

Cynthia L. Attwood, Esq. 

Thomas A. Mascolino, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Charle• C. Moore, Jr. 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Skyline Center #2 

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

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 26, 1981 

CONSOLIDATION COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) : 

and 

UNITED MINE WORKERS OF AMERICA 

(UMWA) 

Docket No. WEVA 80-333-R 

DECISION 

This proceeding was initiated when Consolidation Coal Company 

(Consol) contested an order of withdrawal issued for failure to abate a 

violation of section 103(f) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. §801 et seq. (Supp. III 1979)(the 1977 Mine Act). 

On April 24, 1980, Mine Safety and Health Administration (MSHA) 

inspectors arrived at Consol's mine to conduct an inspection. The 

inspection was requested by the safety committee of the UMWA local. 

The UMWA is the collective bargaining representative of the miners. 

Also present, at the request of the local union safety committee, were 

members of the UMWA International Safety Division, who identified themselves to Consol and the MSHA inspectors as representatives of the 

miners for walkaround purposes under section 103(f). An MSHA inspector 

advised Consol that he wanted the UMWA International safety representatives 

to accompany the MSHA inspection team. Consol's mine safety director 

refused to permit the International representatives to enter the mine, 

on the ground that Consol was not required to admit them because their 

names had not been submitted to MSHA and Consol as "representatives of 

miners" pursuant to the Secretary's regulations in 30 CFR Part 40. i_/ 

MSHA issued a citation, and subsequently an order for failure to 

abate, charging a violation of section 103(f) of the 1977 Mine Act. 

That section provides in part: 

i/ Those regulations require, among other things, that certain information pertaining to representatives of miners be filed with the MSHA 

district manager, with copies to operators of the affected mine. Among 

information required is "the name of the representative" or his "title 

or official position" and "[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." 30 CFR §§40.3(a)(i) and (4). 

q17 81-3-16 
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) .... 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 .... 

Consol contested the citation and order, arguing that a failure of 

representatives to comply with the Part 40 filing regulations per se 

entitles an operator to deny such persons walkaround participation under 

section 103(f). The administrative law judge disagreed, held that a 

violation occurred, and dismissed the contest. For the reasons that 

follow, we affirm the judge. 

Part 40 took effect on July 7, 1978. Those regulations replaced 30 

CFR Part 81 which contained requirements for filing as representatives 

of miners under the 1969 Coal Act. It is undisputed that between July 7, 

1978, and the day it denied entry to the International representatives, 

Consol received nothing filed pursuant to Part 40 which identified the 

International personnel as representatives of the miners. 2/ 

The walkaround provision of section 103(f) begins with the clause 

"subject to regulations issued by the Secretary." On review Consol 

again argues that Part 40 contains such regulations and that the failure 

of the International safety representatives to be identified as "representatives of miners" in a Part 40 filing is a basis, per se, for 

refusing to afford them walkaround participation under section 103(f) of 

the Act. We disagree. 

We have previously recognized the important role section 103(f) 

plays in the overall enforcement scheme of the Act, both in assisting 

inspectors in their inspection tasks and in improving the safety awareness of miners. Magma Copper Co, i FMSHRC 1948 (1979), petition for 

review filed, No. 79-7687 (9th Cir. Dec. 26, 1979). We are not prepared 

to restrict the rights afforded by that section absent a clear indication 

in the statutory language or legislative history of an intent to do so, 

or absent an appropriate limitation imposed by Secretarial regulation. 

2/ The UMWA International had, however, by letter of March 22, 1978, 

advised Consol that the UMWA, its officers and members of its safety 

division would exercise the rights of representatives of miners. This 

letter was filed while Part 81 was still in effect. Because we hold 

that failure to file under Part 40 does not deprive a representative of 

miners of walkaround rights under section 103(f), we need not decide 

whether the Part 81 filing constituted compliance with Part 40. Cf. 43 

Fed. Reg. 29509 (July 7, 1978)(paragraph (6) of preamble to Part 4-O). 

On September 20, 1979, the UMWA local union safety committee submitted 

to Consol a document headed "Employees Who Travel With Inspectors While 

At Mine 20", that listed several mine employees and also stated that 

"(t)he Safety Committee shall have the right to amend or add to this 

list when they wish." This document, which does not list any International personnel, does not mention the Part 40 regulations and was not 

filed with MSHA. 
Neither the statute nor the legislative history indicates that 

......... 

prior identification of miners' representatives is a prerequisite to 

engaging in the section 103(f) walkaround right, and Part 40 on its face 

is silent as tO the intended effects of a failure to file. 3/ The 

preamble to Part 40 does discuss, however, the intended effect of the 

filing regulations on walkaround participation. It states: 

[lit should be noted that miners and their representatives 

do not lose their statutory rights under section 103(f) by 

their failure to file as a representative of miners under 

this part. 

/ 

! 

,43 Fed. Reg. 2950B (July 7, 1978). This statement provides a clear 

indication of t• Secretary's intent in promulgating the filing regulations and is,6ot inconsistent with the language of Part 40. 

/ 

In light/of the above, we hold that failure of a person to file as 

a representative of miners under Part 40 does not per se entitle an 

operator to deny that person walkaround participation under section 

103(f). This is not to say that there may never be circumstances where 

an operator can legitimately refuse walkaround participation to a person 

who failed to comply with Part 40's filing requirements. In a particular situation, absent filing, an operator may in good faith lack a 

reasonable basis for believing that a person is in fact an authorized 

representative of miners. In this case, however, Consol makes no claim 

that it lacked a basis for believing that the U•qA International safety 

division personnel were who they purported to be and were authorized 

miner representatives. Indeed, Consol was well aware of who these 

persons were and why they were at its mine. Accordingly, the decision 

of the judge is affirmed. 

••s•e ji•o•s s i one r 

3/ The Part 40 filing requirements were not promulgated merely to 

identify miners' representatives for section 103(f) purposes. As the 

preamble to Part 40 noted, the Act "requires the Secretary of Labor to 

exercise many of his duties under the Act in cooperation with miners' 

representatives." 43 Fed. Reg. 29508 (July 7, 1978). Filing under Part 

40 serves, among other things, to identify such representatives to the 

Secretary, and to assure such representatives that they will be included 

in the processes contemplated by the Act. See, e.g., sections 101(e), 

103(c), 103(g), 105(a), 105(b), 105(d), 107(b), 107(e), 109(b), 305(b). 
Distribution 

Samuel P. Skeen, Esq. 

Consolidation Coal Company 

1800 Washington Road 

Pittsburgh, PA 15241 

Cynthia Attwood, Esq. 

Stephen Kramer, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Chief Administrative Law Judge James A. Broderick 

FMSHRC 

1730 K Street, N.W. 

Washington, D.C. 20006 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE MAR .4 1981 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

V. 

METTIKI COAL CORPORATION, 

Respondent 

Civil Penalty Proceeding 

Docket No. YORK 80-125 

A/O No. 18-00652-03024V 

Gobblers Knob Mine 

DECISION 

Appearances: Covette Rooney, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480-Gateway Bldg., 3535 Market 

Street, Philadelphia, Pennsylvania, for Petitioner, MSHA; 

Ralph M. Burnett, Esq,, Burnett, Eiswert & Crawford, 

P.A., 500 Thayer Center, Oakland, Maryland, for Respondent, 

Mettiki Coal Corporation. 

Before: Judge Merlin 

The above-captioned case was heard as scheduled on February 3, 

1981. At the conclusion of the inspector's testimony the Solicitor 

moved to withdraw her petition for the assessment of a civil penalty for 

the alleged violation of 30 CFR 75.200. As is set forth in the administrative transcript the Solicitor's motion was well taken. Based upon the 

inspector's testimony the government failed to make a prima facie showing 

that a violation existed. Indeed, any determination of the factual 

circumstances involved could only have been based upon speculation and 

surmise. Accordingly, the Solicitor's motion was granted from the 

bench. 

Upon receipt of the administrative transcript this matter was again 

reviewed and the determination from the bench is hereby AFFIP•D. 

The Solicitor's motion to withdraw the petition is hereby GRANTED 

and this matter is hereby DISMISSED. 

Paul Merlin 

Assistant Chief Administrative Law Judge 

Distribution: 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department of 

Labor, Room 14480-Gateway Bldg., 3535 •rket St., Philadelphia 

PA 19104 (Certified Mail) 

Ralph M. Burnett, Esq., Burnet•, Eiswert & Crawford, P.A., 500 Thayer 

Center, Oakland, • 21550 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE MAR 5 19t)t 

FALLS CHURCH, VIRGINIA 22041 

MONTEREY COAL COMPANY, 

Contestant 

Vo 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

UNITED MINE WORKERS OF 

AMERICA (UMWA), 

Respondents 

: Contests of Citations 

: Docket Nos. HOPE 78-469 

: HOPE 78-470 

: HOPE 78-471 

: HOPE 78-472 

: HOPE 78-473 

: HOPE 78-474 

: HOPE 78-475 

: HOPE 78-476 

: Wayne Mine 

ORDER GRANTING MOTION TO WITHDRAW 

AND DISMISS NOTICE OF CONTESTS 

Statement of the Proceedings 

These consolidated review cases were adjudicated by Judge Franklin P. 

Michels, and he issued his decisions on February 15, 1979. On November 13, 

1979, the Commission reversed and remanded the cases to him for further 

proceedings. Subsequently, Monterey Coal Company filed a petition under 

section 106(a)(1) of the Act with the Fourth Circuit Court of Appeals 

for review of the Commission's decision, and on November 17, 1980, the 

Court dismissed Monterey's petition as premature without prejudice to 

its right to seek further review of the issues raised before the Commission. 

In view of Judge Michels' retirement, the cases were assigned to me 

for further adjudication, and in order to insure the timely adjuciation 

and disposition of the cases, I issued an order on January 13, 1981, 

directing the parties to inform me as to the the following: 

i. The issues that remain to be tried and a time 

frame for thescheduling of any additional hearings 

which may be required. 

o Any additional information or dispositions which may 

be contemplated by the parties so as to enable me to 

timely dispose of the cases. 

On February 18, 1981, in response to my order, contestant filed a 

motion to withdraw its contests on the ground that while its court 

litigation was pending the Secretary promulgated new regulations regarding 
 

imposition of liability on independent contractors for vlolatlons caused 

by them or under their control, 30 C.F.R. Part 45. Given the fact that 

those regulations have resolved the major issue litigated by the 

contestant before the Commission in these dockets, contestant asserts 

that it has no further interest in pursuing these § 105(d) Notice of 

Contest proceedings, and requests that its motion to withdraw these notices 

of contest be granted. 

On February 18, 1981, respondent UMWA filed its response to my order 

and stated that it does not believe that there are any additional facts 

which need to be litigated. Further, the UMWA states that it believes 

that any further adjudication and decision by me in these dockets may 

be made from the present record made before Judge Michels, and that should 

I decide that additional hearings are required, it does not intend to 

put on any additional witnesses or submit any additional documentary 

evidence, but would be willing to submit briefs if they should be required. 

On February 27, 1981, respondent MSHA filed its response to my 

order and stated that it does not opposecontestant's motion to withdraw 

its contests. MSHA asserted that considering the fact that the 

Secretary, Monterey, and the independent contractor, Frontier-Kemper 

Contractors, Inc., have reached a settlement of the civil penalties 

assessed for the violations in questions, and that payment has been made 

for those violations, MSHA does not oppose the contestant's motion to 

withdraw its contests. 

ORDER 

In view of the foregoing, and upon consideration of the arguments 

presented by the parties in response to my order, contestant's motion to 

withdraw its contests is GRANTED, and they are DISMISSED. 

Distribution: 

Timothy M. Biddle, Esq., Crowell & Moring, ii00 Connecticut Ave., NW, 

Washington, DC 20036 (Certified Mail) 

Lawrence W. Moon, Esq., U.S. Department of Labor, Office of the Solicitor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Mary Lu Jordan, Esq., UMWA, 900 15th St., NW, Washington, DC 20005 

(Certified Mail) 

William H. Howe, Esq., Loomis, Owen, Fellman & Howe, 2020 K St., NW, 

Washington, DC 20006 (Certified Mail) 

q24 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333W. COLFAX AVENUE 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTP•TION (MSHA), 

Petitioner, 

VQ 

KAISER CEMENT AND GYPSUM 

CORPORATION, 

Respondent. 

|0 188,! 

CIVIL PENALTY PROCEEDING 

DOCKET NO. •ST 79-50-M 

DOCKET NO. WEST 79-197-M 

A/O NOS. 04-04075-05002 and 

04-04075-05003 

MINE: Permanente Cement Plant 

Appearances: 

Andrea Robinson, Esq. 

Office of the Solicitor 

United States Department of Labor 

For pet itioner 

Cora Lewis, Esq. 

Kaiser Cement Corporation 

800 Lakeside Drive 

Oakland, California 

For respondent 

Before: John A. Carlson 

Administrative Law Judge 

DECISION 

These consolidated cases, tried in San Francisco, California, arose from a 

December, 1978 inspection of respondent's Permanente Cement Plant. The 

petitioner Secretary issued twelve citations'charging violations of various 

mandatory safety standards promulgated under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq.(the "Act"). 
At the outset of the hearing the parties stipulated to several of the facts 

relevant to assessment of appropriate penalties. It was agreed that respondent 

is a large company; that the Permanente operation is large; that its prior 

history of violation is good; and that assessment of the proposed penalties 

would not impair the ability of respondent to remain in business. These 

stipulations were approved and will be considered in assessing penalties where 

violations are affirmed. The parties further stipulated to the Commission's 

jurisdiction to decide these cases. 

The Secretary then moved to dismiss citations 374869, 374870, 374872 and 

374881, representing that further investigation and consultation of counsel with 

enforcement personnel had shown that petitioner lacked sufficient proof to 

establish violation. The motion was orally granted at trial, and that action is 

reaffirmed here. Those citations will be vacated and the attendant proposals 

for assessment of penalty are dismissed. 

Respondent, at the same time, moved under Commission Rule ii to withdraw 

its contest of the penalties proposed for citations 374874, 374876, and 374877. 

Following representations made upon the record concerning the gravity, good 

faith, and abatement elements of these citations, the motion was granted. The 

penalties will be assessed in the amounts proposed by the Secretary. 

Review and discussion of the evidence presented on the remaining five 

citations follows. 

CITATION 374882 -- Unguarded Wall Opening 

On December 19, 1978, inspector Sarja issued a citation for violation of 

the standard at 30 U.S.C. § 56.11-12 which provides: 

Openings above, below, or near travelways 

through which men or materials may fall shall 

be protected by railings, barriers, or covers. 

•ere it is impractical to install such protective devices, adequate warning signals 

shall be installed. 

In the third level of respondent's number 6 mill inspector Sarja noted an 

exterior wall opening, approximately 4 feet wide and 5 feet high. The bottom of 

the opening was approximately 2 feet above floor level, and according to Sarja, 

would allow a worker to drop some 30 feet should he fall into the opening. The 

inspector maintained that anyone servicing the large blower situated on the 

third level would pass by and work close to the opening. These assertions were 

nowheredirectly disputed. 

Respondent limited its defense to testimony that the separator (on which 

most maintenance would be required) was situated much farther from the opening 

than the blower; that the blower itself required a filter change only every 

q26 
other week; and that workers, to get added air, had removed the louvres which 

were intended to cover the opening. 

The evidence establishes violation. The floor in the vicinity of the 

blower served as a travelway to the blower whenever it required filter 

replacement or other maintenance. A misstep by any worker near the blower could 

have resulted in a long fall through the wall opening. 

The matters raised by respondent -- duration of worker exposure and lack 

of direct operator negligence in removal of the louvres -- are relevant to 

penalty determination, but do not bear upon violation. These factors were 

presumably considered by the Secretary in proposing a modest penalty of $90.00 

where an accident, had one occurred, would have been most likely fatal. 

Upon the whole record, including the stipulated penalty elements discussed 

previously, I am convinced that the proposed $90.00 penalty is appropriate. 

This is chiefly so because of the brief and infrequent presence of workers near 

the opening, and the evidence that respondent intended that the opening be 

covered. 

CITATION 374871 - Ball Hill Walkway Guardrail 

On December 12, 1978, inspector J. Sarja issued a citation charging that a 

section of guardrail was missing on an elevated walkway adjacent to the drive 

end of a ball mill. The mandatory standard allegedly violated, 30 C.F.R. § 

56.11-2, provides: 

Crossovers, elevated walkways, elevated ramps, 

and stairways shall be of substantial construction 

provided with handrails, and maintained in good 

condition. Where necessary, toeboards shall be 

provided. 

Inspector Sarja testified that he issued the citation because of a gap in a 

metal guardrail protecting the edges of the elevated walkway leading to the ball 

mill (Tr. 13-16). As the hearing continued, however, considerable controversy 

arose concerning the physical facts. A photograph taken by and introduced 

through Donald Schultz, respondent's regional safety supervisor, contributed 

substantially to that controversy (respondent's exhibit I). Schultz testified 

that he took the photograph at "the time of tile citation" (Tr. 47); and that two 

chains shown hanging at approximate railing height across the walkway were 

"already in place at the time of the inspection" (Tr. 71). 

Sarja, in rebuttal, suggested that a portion of the rail shown in the 

photograph was missing at the time of inspection, and said he could not 

"remember those chains exactly." He also acknowleged that the chain "may have 
been there before" (Tr. 89). At another point the inspector became confused 

between photographs of the ball mill and an alleged unguarded armature which was 

the subject of another citation (Tr.91). 

The question then becomes whether any violation occurred if the entrance to 

the walkway was blocked by chains. I conclude that none did. Careful review of 

the evidence shows that the permanent guardrails did not extend all the way to 

the ball mill; a short open space existed on the left-hand side where the 

walkway meets a small concrete platform. Respondent's witness conceded as much 

(Tr. 42). (In this regard the photograph [respondent's exhibit I] can be 

misleading because a metal portion of the mesh guard over the mill appears to be 

an extension of the guardrail.) 

Respondent's safety supervisor testified without contradiction that the 

walkway had no function except to allow access to the ball mill for repair. No 

repair could take place, he said, unless the large mesh guard was removed, and 

to accomplish this carpenters must build a temporary wooden platform (which 

presumably would have its own perimeter guarding), beyond the rails on the 

walkway. (Tr. 48-49). 

When all the inspector's testimony is considered together, it becomes clear 

that he lacked firm independent recollections of the physical facts. His notes 

on the citation itself were introduced without objection. These, however, 

provide no greater certainty. As originally issued, the citation itself made-no 

mention of either chains or guardrails; instead it refers to a missing section 

of "walkway." As amended two days later, it referred to missing "guardrail." 

The inspector's notes include a drawing showing a removable chain across the 

entrance to the walkway with this notation: "12-20-78 removable chain provided 

here. " 

In view of respondent 's evidence that the chains were present at the time 

of inspection, and the inspector's admitted uncertainty as to that fact, one 

must conclude that the chains were across the walkwayl/. 

i/ 

Respondent's witness used the phrase "in place." This is not as precise as it 

might be since it leaves open a possibility that the chains were attached at one 

end, but not the other. The burden of showing violation is, however, upon the 

Secretary; and given the lack of any credible evidence that the chains were not 

actually hung across the walkway's entrance, we are obliged to assume that they 

were. 

q28 
Inspector Sarja appears to have ultimately accepted the chains as adequate 

abatement, noting in his "subsequent action" on the citation that a removable 

chain was accepted with the "reservation" that when the chain was unfastened 

violation would occur unless workers on the walkway wore safety lines. 

He thus acknowledged, and correctly so, that the chained-off walkway 

presented no actionable present hazard to employees. He further acknowledged 

that methods other than fully extended guardrails could provide adequate 

protection when the chain was down and the walkway was in use. Because there is 

no affirmative evidence, direct or circumstantial, that such additional 

precautions were not taken when the chains were down, no violation is 

established and there can be no penalty. 

CITATION 374875 - Guarding of 4B Finish blill Motor 

On December 12, 1978, inspector Sarja issued a citation for violation of 

the standard at 30 C.F.R. § 56.14-i which provides, as here pertinent, that 

... exposed moving machine parts which may be contacted 

by persons and which may cause injury to persons shall 

be guarded. 

Specifically, the evidence shows that a wedge-shaped opening existed in the 

screen covering the armature of a large drive motor for a finish mill. This ° 

opening, at the edge of a walkway paralleling the motor and enclosed driveshaft, 

was ordinarily barricaded by two chains s•spended at the height of standard 

guardrails (photograph respondent's exhibit 2). Sarja testified, however, that 

at the time of his visit one chain was missing and the other was on the floor 

(Tr. 88). Mr. Schultz admitted that this may have been so (Tr. 72-73). 

The opening, extending from floor to knee height, did expose employees on 

the adjacent walkway to injury from the rotating armature when the chains were 

not in place.2/ Consequently, the standard was violated. 

The chains protected no one when not in place. Respondent chose that 

means of protection; it was therefore respondent's duty to insure that the 

chains were up._/ Otherwise, as the Secretary contends, a screen or other 

guard was necessary. 

2/ The inspector maintained that the unguarded area posed an electrical hazard 

a--s well as a mechanical one. Respondent denied this, contending that the 

armature was insulated. That issue need not be decided. The armature clearly 

posed a threat of mechanical injury and therefore required some form of 

guarding. 

3/The inspector seemed unsure whether chains, when in place, constituted an 

a--dequate protection, and suggested that only a fixed guardrail would suffice 

(Tr. 92-93). The implication appeared to be that chains are not enough because 

they may be removed with ease. That position lacks merit. Under the 

circumstances here the double chain was a barrier substantially as effective as 

a rail. Even a mesh screen could have been removed. 
We now consider penalty. Significant injury, while possible, was not 

likely since the unprotected part of the armature was at knee level. It 

therefore offered little hazard to a passing worker unless he should be 

unfortunate enough to stumble or fall while traversing one short segment of the 

walkway. Even then, he would have to fall in but one of several possible 

directions to strike the armature. 

On the Other hand, the exposed area of the armature was obvious, and 

respondent should have known that the barrier chains were not in place. 

Considering these factors along with tile findings of size, and other 

statutory matters stipulated at the outset of the decision, I determine that a 

civil penalty of $114.00 should be assessed. 

CITATIONS 374883 and 374884 -- Guarding of Electrical Components 

On December 19, 1978, inspector Sarja issued two citations for alleged 

violations of the mandatory electrical standard published at 30 C.F.R. § 

56.12-23. That standard provides: 

Electrical connections and resistor grids that are 

difficult or impractical to insulate shall be guarded 

unless protection is provided by location. 

The inspector was concerned that several direct current generators and a 

number of bus bar panels in an electrical room were unguarded. 

The generators, some located on the floor and some on an elevated platform, 

had openings in their covers which exposed the armatures and brushes. Inspector 

Sarja maintained that these were "connections" and could transmit a lethal 

shock.4/ 

The bus bars, by design uninsulated, carried 480 volts. The inspector 

testified without contradiction that an inadvertent touching of a bar could be 

fatal, and I so find. 

The principal issue presented is •ether, as respondent contends, 

protection was provided by location. 

4/ Respondent 's safety director questioi•ed whether these components were 

"connections" within the meaning of tile standard, and insisted that the armature 

of 240 volt direct current generators did not, in any event, present an 

electrical hazard. Respondent's electricians, he claimed, routinely replaced 

brushes on these units without turning them off (Tr. 62). Because of the 

dispositions ultimately made of these citations, this conflict will not be 

resolved. 

G30 
The generators and the bus bar panels were in an enclosure formed by 

floor-to-ceiling chain link fencing. Entrance to this enclosure, which was 

inside an electrical workshop, could be gained only through one of two chain 

link doors. Beside each was a large sign displaying this notice: "Restricted 

Area, Danger, High Voltage, Qualified Personnel Only." These facts are 

undisputed. The inspector conceded that the doors were latched, and 

respondent's safety director agreed that they were not kept locked. 

Respondent emphasized, however, that the room is within its electrical 

workshop and is used only by electricians (its own employees or those of 

contractors). Its safety director acknowledged that the enclosure is also used 

for some storage. He maintained, however, that the storage use did not 

constitute an invitation for workers other than electricians to enter the 

enclosure since only electrical items were stored there, and no other workers 

would have occasion to be in the building, let alone the enclosure (Tr. 63). 

The evidence makes clear that the bus bars and generators are not the types 

of electrical components which are customarily covered with insulation. No 

evidence dealt with possibilities for individual guarding of the devices. On 

the contrary, the approach taken by witnesses for both parties embodied an 

apparent sense that a fenced enclosure provides an acceptable way of isolating 

workers from unintended contact with such equipment. But the inspector insisted 

that compliance with the standard further requires that the enclosure be locked 

at all times and that only electricians possess keys. Respondent's safety 

director was content that the enclosure, latched gates, and warning signs wer• 

enough. 

I must agree with respondent. The inspector appeared satisfied that 

electricians, cognizant of the hazards inherent in the uninsulated devices, 

could be trusted to work safely within the fence. His real concern was that the 

doors be keptnot only closed but also locked to keep out unauthorized and 

unskilled employees. The evidence persuades me, however, that there was 

virtually no possibility that anyone other than an electrician would enter the 

enclosure. The area contained nothing of concern to anyone except electricians, 

and was clearly marked as a restricted location by fencing and signs.5/_ 

Moreover, and most important, the phrase "protection ... provided by 

location" as used in the standard would scarcely imply to the most prudent and 

safety-conscious mine operator that a lock was essentiaL. Perhaps the 

inspector's insistence on a lock was somehow associated with his understanding 

of another electrical standard, 30 C.F.R. § 56.12-68, which provides: 

Transformer enclosures shall be locked against unauthorized entry. 

That standard lends no support to the Secretary's position. Instead, it 

shows that the draftsmen of the extensive electrical rules had not overlooked 

locks as a precautionary measure. It also shows that they were fully capable 

5/ See photograph, respondents exhibit 3. 

q31 
of articulating a locking requirement where necessary. The enclosure here 

contained no transformers, so far as we know; and it would be palpably unfair to 

engraft a specific iocking requirement onto the cited standard. 

I hold that the phrase "protection ... provided by location," because of 

itsgenerality, must be construed to require only that degree of protection 

reasonably calculated to insure against worker injury under all the 

circumstances. What respondent has done in the present case is sufficient. The 

proposals for penalty will therefore be vacated for failure to prove 

violation. 

ORDER 

Accordingly, it is ORDERED that: 

(I) Citations 374871, 374883 and 374884 are vacated; 

(2) Citation 374875 is affirmed and a penalty of $i14 is assessed 

therefor; and 

(3) Citation 374882 is affirmed and a penalty of $90 is assessed 

therefor. 

It is further ORDERED, pursuant to the motions for withdrawal and dismissal 

granted at the outset of the hearing, that: 

(i) Citations 374869, 374870, 374872 and 374881 and the corresponding 

notices of proposed penalties arevacated and dismissed; 

(2) Respondent's contest of the penalties proposed in connection with 

citations 374874,'374876 and 374877 are withdrawn and that the 

proposed penalties are affirmed as follows: 

Citation 374874 

Citation 374976 

Citation 374877 

$ 38.00 

$150.00 

$ 38.00 

It is finally ORDERED that respondent shall pay the aggregate of $430.00 of 

assessed penalties no later than 30 days from the date of this order. 

•dm n A. Carlson 

inis•trative Law Judge 

Distribution: 

Andrea Robinson, Esq., Office of the Solicitor, United States Department of 

Labor, 11071 Federal Building, 450 Golden Gate Avenue, San Francisco, 

California 94102 

Cora Lewis, Esq., Kaiser Cement Corporation, 300 Lakeside Drive, Oakland, 

California 94612 

6.32 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March ii, 1981 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

V. 

Petitioner 

WHITE PINE COPPER DIVISION, 

COPPER RANGE COMPANY, 

Respondent 

LOCAL 5024, UNITED STEELWORKERS OF 

AMERICA, 

Representative of Miners 

Civil Penalty Proceeding 

Docket No. LAKE 80-139-M 

A.C. No. 20-00371-05019H 

White Pine Mine 

DECISION 

Appearances: Gerald A. Hudson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Detroit, Michigan, for 

Petitioner; 

Ronald E. Greenlee, Esq., Clancey, Hansen, Chilman, 

Graybill & Greenlee, P.C., Ishpeming, Michigan, for 

Respondent; 

Harry Tuggle, Safety and Health Department, United 

Steelworkers of America, Pittsburgh, Pennsylvania, 

for Representative of Miners. 

Before: Chief Administrative Law Judge Broderick 

Statement of the Case 

This is a civil penalty proceeding growing out of the issuance of an 

imminent danger withdrawal order under section 107(a), and a citation under 

section 104(a) of the Act, charging a violation of 30 C.F.R. § 57.3•22 

because a scoop operator worked under loose rock on June 4, 1979. 

A hearing was held on October 23, 1980, in Houghton, Michigan. Witnesses for the Secretary were Bruce Haataja, the Federal inspector who issued 

the citation and order and Benjamin Berno and Gordon Smith, miners and union 

members who accompanied Haataja during the inspection. Witnesses called by 

the company were William Carlson, a supervisory official of the Mine Safety 

633 
and Health Administration, Albert Goodreau, the company's safety engineer, 

Raymond Hicks, foreman of the unit where the violation is alleged to have 

occurred, and Fred Smith, the operator of the scooptram observed by Inspector 

Haataja. The Representative of the Miners did not call any witnesses. 

The parties have submitted briefs stating their positions and, having 

considered them and the evidence adduced at the hearing, I make the following 

decision. 

Regulatory Provision 

Title 30, Code of Federal Resulations, section 57.3-22, reads: 

Miners shall examine and test the back, face, and rib 

of their working places at the beginning of each shift and 

frequently thereafter. Supervisors shall examine the ground 

conditions during daily visits to insure that proper testing 

and ground control practices are being followed. Loose ground 

shall be taken down or adequately supported before any other 

work is done. Ground conditions along haulageways and travelways shall be examined periodically and scaled or supported 

as necessary. 

Issues l/ 

i. On June 4, 1979, at approximately ii a.m., did a scooptram operator work under areas of loose rock in the subject mine as alleged by the 

inspector? 

2. If so, was the condition a violation of 30 C.F.R. § 57.3-22? 

3. If a violation occurred, what is the appropriate penalty? 

Findings of Fact 2/ 

i. On June 4, 1979, at approximately ii a.m., a scooptram operator 

was working under several areas of loose rock in SW30 heading of Unit 93 

in the company's mine. 

2. The size and condition of the loose rock was such that it could 

be reasonably expected to cause death or serious physical harm to miners 

working in the heading. 

•/ The company contends that the 107(a) withdrawal order was improperly 

issued. This case, however, is not a proceeding to review the order but a 

civil penalty proceeding and the issue is whether the violation charged in 

the order/citation occurred. 

2--/ The parties stipulated that the Commission has both subject matter and 

personal jurisdiction in this case. 

,q4 
3. The condition was obvious and should have been noticed by miners 

working in the area. 

4. The company demonstrated ordinary good faith in abating the 

violation. 

5. The company is a large mine operator with a moderate history of 

previous violations. 3/ The civil penalty imposed herein will not affect 

its ability to remain in business. 

Discussion 

The White Pine Mine, located in Ontonagon County, Michigan, is an underground mine from which copper is extracted by the room and pillar method. 

Inspector Haataja testified at the hearing that, as his inspection party 

approached what he was told was the SW28 heading, he observed a scooptram 

backing out of the heading. When the tram had cleared the crosscut, he 

walked toward the face and found three areas of loose rock overhead about 

30 feet inby the crosscut. The inspection party spent more than 15 minutes 

prying down (or "barring") a sizable amount of loose rock. A company representative was not present during this period. In issuing the citation and 

order, the inspector considered the following: A large amount of rock was 

barred, the tram was not equipped with overhead protection, and no bar with 

which loose rock could be trimmed was observed in the vicinity. The inspector's testimony was corroborated by Benjamin Berno and Gordon Smith, who 

actually removed the loose rock. 

The company introduced evidence that no work was being performed in SW28 

heading during the morning of June 4, 1979. The company also argued that the 

tram was not actually observed under the loose rock. However, three witnesses testified to seeing the tram back out of a dead-end heading. When 

they walked down the heading, they saw tracks at the muck pile and evidence 

that part of the muck pile had been removed. The evidence clearly shows that 

the tram was operating under the loose rock. The testimony of Raymond Hicks 

and Fred Smith strongly suggests that the scooptram was actually working in 

SW30 heading during the period in question. Hicks, the unit foreman, claims 

that when he encountered the inspection party at about 11:30 a.m., they were 

in SW29 heading, which contained a small amount of barred loose rock and an 

untouched muck pile. No work was performed in SW28 heading until the afternoon, when it was readied for blasting. 

The significance of this testimony can be gleaned from a description of 

the mining cycle. After the face is blasted with explosives, a pile of 

debris, containing the ore, remains which is called "muck." The next steps, 

roughly, are to inspect all parts of the heading for loose rock, wet the 

muck pile, remove the muck with a scooptram, bolt the roof, drill and prime 

3/ These conclusions are based on a motion for approval of a settlement 

which was filed on June 2, 1980. 
the face and blast again. Therefore, if there is an untouched pile of muck 

at the end of a heading, it is probable that the face has just been blasted 

and the area is about to be checked for loose rock. The company maintains 

that the inspector encountered loose rock in SW29 heading, for which no 

citation could be issued until a miner was scheduled to enter the heading and prepare it for mucking out. Cf. MSHA v. Asarco, Inc., 2 FMSHRC 290, 294 

(April 15, 1980). 

-- 

A consideration of all the evidence persuades me that the loose rock 

observed by the inspector was in SW30 heading, not SW29 or SW28. Haataja 

identified the heading as best as he could under the circumstances. There 

was testimony that not all the headings were clearly marked (Tr. 168). Even 

before the citation and order were reduced to writing, Hicks knew which 

scooptram operator Haataja had observed and where he was working at the time. 

Fred Smith spent the entire morning in SW30 heading, according to company 

records. This was sufficient notice of the location of the alleged violation. The company cannot evade liability because the inspector cited the 

wrong heading number when it was clearly aware of the location which was 

intended. 

The number of the heading is inconsequential; the important facts are 

that a scooptram was observed by three witnesses backing out of a heading in 

which a sizable accumulation of loose, overhead rock was found. This prima 

facie case was never rebutted by the company. Hicks and Fred Smith both 

stated that they had checked their working areas for loose rock, but this 

cannot overcome the eyewitness testimony of Haataja, Berno, and Gordon Smith. 

It is unclear how long the loose rock had been present in the back. The 

condition was obvious and could have been noticed by the tram operator, but 

there is no evidence that a supervisory employee knew or should have known of 

it. Abatement of the condition was rapidly achieved. The gravity of the violation was quite serious since it could have resulted in serious injury. The 

appropriate penalty to be assessed, under all the circumstances, is $2,000. 

Conclusion of Law 

The condition found by Inspector Haataja on June 4, 1979, at the subject 

mine, and described by him at the hearing constituted a violation of 30 C.F.R. 

§ 57.3-22. 

ORDER 

Respondent, White Pine Copper Division, is ORDERED TO PAY the sum of 

$2,000 within 30 days of the date of this order as a civil penalty for the 

violation found herein. 

James A. Broderick 

Chief Administrative Law Judge 
Distribution: By certified mail. 

Ronald E. Greenlee, Esq., Counsel for White Pine Copper Company, 

Clancey, Hansen, Chilman, Graybill & Greenlee, P.C., Peninsula Bank 

Building, Ishpeming, MI 49849 

Gerald A. Hudson, Attorney, Office of the Solicitor, U.S. Department of Labor, 231 West Lafayette, Room 657, Detroit, MI 48226 

Mr. Harry Tuggle, Safety and Health Department, United Steelworkers 

of America, 5 Gateway Center, Pittsburgh, PA 15222 

Assessment Office, MSHA, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

John Cestkowski, President, Local Union 5024, U.S.W.A., Box i01, 

Watersmeet, MI 49969 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Phone (703) 756-6236 

MAR 11 •. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

ASARCO INCORPORATED, 

NORT•4ESTERN MINING DEPT., 

Respondent 

Civil Penalty Proceeding 

Docket No. WEST 80-303-M 

A/O No. 05-00516-05016 

Leadville Unit 

DECISION APPROVING SETTLEMENT 

The proposed assessment for the two alleged violations in this case 

is $930 and the Secretary proposes to settle for $i. For the reasons 

set forth hereinafter, I accept the settlement agreement. 

The assessment sheet (Exh. A) lists two withdrawal orders with the number 333112, but the first order is followed by an A and the second by B. 

The only order in the file is numbered 333112 but appears to allege violations of two standards. 

The charge is that ice and snow builds up on a stairway during the 

winter months and that once a week a miner has to climb the stairs with a 

5 gallon can of oil. This condition, it is alleged, violates both the 

standard requiring a safe access to a working place (30 C.F.R. §57.11-1) 

and the standard requiring that ice and snow be removed or sanded as soon 

as practicable (30 C.F.R. §57.11-16). Somehow the assessment office came 

to the conclusion that even though only one condition existed, the violation 

of section 57.11-16 was more serious than the other and it assessed $190 

more for that violation than it did for the violation of section 57.11-1. 

The Secretary stipulates that this action was erroneous and it agreed to 

vacate "citation listed as No. 333112A." Actually, 333112A was not a 

citation but was derived from an imminent danger order. In a sense it was 

a creation of the assessment office and I'm not sure that imminent danger 

orders can be properly treated in that manner. Nor am I sure that an 

imminent danger order without more can form the basis of a civil penalty 

proceeding. Section 107(a) of the Act, after setting forth the procedures 

for issuing an imminent danger order, states "the issuance of an order 

under this subsection shall not preclude the issuance of a citation under 

section 104 or the proposing of a penalty under section ii0." The implication is that if an inspector thinks that there is a violation of a standard 

as well as an imminent danger, he should also issue a citation. Section 

105(a) of the Act which deals with proposed civil penalties, states that 

such a proposal should be made if "the Secretary issues a citation or order 

under section 104, * * *." There is no mention of an order issued under 

section 107, so I have serious doubts as to the validity of the procedures 

followed in this case. A decision on that Proposition however, should be 

made only after briefs and arguments rather than in a vacuum; so I will confine 

myself to expressing the doubtstated above. 

r 38 
The parties stipulated that Respondent•has an adequate rule and 

policy as to cleaning up ice and snow and salting as soon as practicable, 

and it is obvious from the stipulation that!the Secretary does not 

believe the statement of a former employee that he was not reminded of 

that policy. 

In Secretary of Labor v. CO-OP Mining Company, Docket No. DENV 79- 

I-P (December i0, 1980), 2 FMSHRC Decisions 3475, the Commission stated 

that if a settlement motion indicates that no violation occurred, the 

settlement should not be accepted, but the citation should be vacated and 

the case dismissed. In one of its earlier decisions, however, Secretary 

of Labor v. Wolf Creek Collieries Company, PIKE 78-70-P (March 26, 

1979), in the unpaginated March 1979 issue of FMSHRC Decisions, the 

Commission agreed with former decisions of the Interior Department's 

Board of Mine Operations Appeals to the effect that a withdrawal order 

could not be reviewed in the course of a civil penalty proceeding. I 

think that the Commission should reexamine that proposition, but again 

this does not seem like the appropriate case for that. I could and 

would dismiss the civil penalty suit outright if I was sure that there 

was no violation, but because of the bare possibility that there might 

have been a violation, and that it might be proper to assess a civil 

penalty where no citation or 104 order has been issued, I will accept 

the $i settlement. 

Respondent is therefore ordered to pay to MSHA, within 30 days, a 

civil penalty of $I. 

° 

Charles C. Moore, Jr. 

Administrative Law Judge 

Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 80294 

(Certified Mail) 

Earl K. Madsen, Esq., Bradley, Campbell & Carner, P.C., 1717 

Washington Avenue, Golden, CO 80401 (Certified Mail) 

q3 J 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR I 8 t98• 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MS•&) , 

On behalf of: 

BOBBY GOOSLIN 

Vo 

Complainant 

KENTUCKY CARBON CORPORATION, 

Respondent 

Complaint of Discharge 

Discrimination, or Interference 

Docket No. KENT 80-145-D 

Calloway No. I Mine 

DECISION 

Appearances: William F. Taylor, Esq., Office of the Solicitor, 

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

the Secretary of Labor; 

•ry Lu Jordan, Esq., United Mine Workers of America, 

%•shington D.C., and Bernard Pafunda, Esq., Pikeville, 

Kentucky, for Bobby Gooslin; 

C. Lynch Christian III, Esq., Jackson, Kelly, Holt and 

O'Farrell, Charleston, West Virginia; Timothy Biddle, 

Esq., Crowell and Moring, Washington, D.C.; and Timothy 

Pohl, Esq., Kentucky Carbon Corporation, Charleston, 

West Virginia, for Kentucky Carbon Corporation. 

Before: Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This is a proceeding commenced by the Secretary of Labor, Mine Safety 

and Health Administration (hereinafter MSHA) on behalf of Bobby Gooslin 

alleging that Bobby Gooslin was discharged from his employment at Kentucky 

Carbon Corporation (hereinafter Kentucky Carbon) on October 8, 1979, because 

of activities protected under section I05(c) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 815(c) (hereinafter the Act). Bobby Gooslin 

filed a complaint with MSHA concerning his discharge. Following an investigation by MSHA, on January 18, 1980, MSHA filed an application for temporary 

reinstatement of Bobby Gooslin. That application was granted by Chief 

Administrative Law Judge James A. Broderick on January 22, 1980. Thereafter, 

640 
Kentucky Carbon requested a hearing on the application for temporary reinstatement. A hearing on the application was held in Pikeville, Kentucky, 

on January 30, 1980, before Chief Judge Broderick. Following the hearing, 

Chief Judge Broderick held that the order of temporary reinstatement should 

continue in force until further notice. On March i0, 1980, the Federal Mine 

Safety and Health Review Commission (hereinafter the Commission) granted 

Kentucky Carbon's petition for review of the order of temporary reinstatement and stated, "[t]he order of temporary reinstatement remains in effect 

pending Commission review." To date, the Commission has not ruled on that 

order. 

On February 8, 1980, MSHA filed a complaint of discharge on behalf of 

Bobby Gooslin. Kentucky Carbon's motion to dismiss for failure to state a 

claim upon which relief could be granted was denied on May 5, 1980. Upon 

completion of prehearing requirements, a notice of hearing was issued on 

July i0, 1980, for a hearing on September 15, 1980. On August 18, 1980, 

Thomas M. Piliero, Esq., Office of the Solicitor, U.S. Department of Labor, 

sole counsel for MSP• and Bobby Gooslin, sent me a letter which stated in 

pertinent part: 

In preparation for the hearing scheduled September 15, 

1980, I recently traveled to Pikeville, Kentucky to interview the complainant as well as other potential witnesses 

with knowledge of facts which will be in issue at hearing. 

As a result of that process, I have become firmly convinced 

that a conflict of interest would exist if this office continues to represent •. Gooslin in this matter. 

We do regret that this notification to you, and to the 

Respondent, has come at a time when we are only one month 

from hearing, however it was heretofore our belief that a 

conflict could be avoided. We have concluded, that such a 

conflict does exist, and does warrant the withdrawal of the 

Secretary of Labor from the above-styled matter. We therefore respectfully request that the presiding administrative 

law judge accept this notification as the Secretary's notice 

of withdrawal from the above-styled matter. 

The August 18, 1980, letter from Mr. Piliero also stated that Bobby Gooslin 

would be represented in this matter by counsel from the United Mine Workers 

of America (hereinafter UMbrA). On August 18, 1980, I conducted a telephone 

conference call with Mr. Piliero and C. Lynch Christian III, Esq., counsel 

for Kentucky Carbon. On August 18, 1980, I denied MSHA's motion to withdraw 

and ordered MSHA to show cause why its complaint of discharge should not be 

deemed to be withdrawn and why this matter should not be dismissed. MSHA 

and the UMWA opposed dismissal and Kentucky Carbon favored it. After considering all of the responses to the previous order, on September 8, 1980, 

I again denied MSHA's motion to withdraw. Additionally, I directed counsel 

G41 
for the UMWA to file Bobby Gooslin's consent to representation by the UMbrA, 

directed Mr. Piliero to determine whether he could continue to represent MSHA 

in this matter in light of the alleged conflict of interest, and granted the 

UMWA's unopposed motion for a continuance of the hearing. On September i0, 

1980, Bobby Gooslin consented to representation herein by the UMWA Legal 

Department. On September 16, 1980, Thomas A. Mascolino, Esq., Counsel, 

Office of the Solicitor, U.S. Department of Labor, stated that "despite your 

denial of our motion to withdraw we must respectfully advise you that we will 

not be representing Mr. Gooslin in this matter." Mr. Mascolino's letter went 

on to state that thereafter MSHA would be represented by William F. Taylor, 

Esq. 

On September 23, 1980, Kentucky Carbon filed another motion to dismiss. 

MSHA and Bobby Goosiin opposed the motion. On October 15, 1980, I denied the 

motion to dismiss. On October 20, 1980, Kentucky Carbon moved for reconsideration of my order of October 15, 1980, denying its motion to dismiss. On 

November 5, 1980, I denied the motion for reconsideration. On December 4, 

1980, Kentucky Carbon petitioned the Commission for interlocutory review of 

the order denying the last motion to dismiss and the motion for reconsideration of that order. On December 8, 1980, the Commission denied the petition 

for interlocutory review. 

A hearing on the merits of the Complaint of discharge was held in 

Pikeville, Kentucky, on December 8 through December ii, 1980. At the outset 

of the hearing, Kentucky Carbon objected to MS•A's right to propose a civil 

penalty herein without following the procedures set forth in 30 C.F.R. 

§§ 100.5 and 100.6 and 29 C.F.R. § 2700.25. I sustained Kentucky Carbon's 

objection, severed the civil penalty proposal from the complaint, and remanded 

the civil penalty proceeding to MSHA to begin the civil penalty assessment 

process. Counsel for Bobby Gooslin moved for an order requiring Kentucky 

Carbon to colaply with the temporary reinstatement order by permitting Gooslin 

to return tO work at the mine site rather than being permitted to merely 

receive wages. MSHA and Kentucky Carbon opposed the motion. I denied this 

motion for the following reasons: (i) since the Commission granted the petition for review of the order of temporary reinstatement and further stated 

that the order remained in effect pending Commission review, I did not have 

jurisdiction over the order of temporary reinstatement and (2) the motion 

was not timely. 

At the hearing, MSIIA and Kentucky Carbon made opening statements. Thereafter, Bobby Gooslin moved for a sL•mary decision on the basis of admissions 

contained in Kentucky Carbon's opening statement. The motion, considered to 

be the equivalent of a motion for directed verdict after the opening statement, was denied. MSHA presented no evidence at the hearing. Kentucky Carbon 

renewed its motion to dismiss and the motion was denied. The following witnesses testified on behalf of Bobby Gooslin: Bobby Gooslin, Tommy Coleman, 

Rodney Dale Isom, Jimmy R. Stiltner, Lloyd Johnson, Larry Keith Simpkins, and 

Ernie Justice. The following witnesses testified on behalf of Kentucky 

Carbon: James R. Reynolds, Joe S. Dado, Troy Coleman, James Marshall 

Christian, Aaron H. Hall, Jr., William Meade, Delmar Cook, Fred C. Biliter, 

Billy Jack Fuller, and James C. Hager. 
Upon completion of the testimony at the hearing, MSHA presented a closing 

argument and, thereafter, submitted its written response to questions I raised 

at the conclusion of its closing argument. Bobby Gooslin and Kentucky Carbon 

filed posthearing briefs. 

ISSUES 

i. Whether the complaint should be dismissed where MSHA requested 

permission to withdraw from this proceeding because of a conflict of interest 

between MSHA and Complainant Bobby Gooslin and where MSHA failed to present 

any evidence in support of the complaint at the hearing. 

2. Whether Kentucky Carbon violated section I05(c) of the Act in discharging Complainant Bobby Gooslin and, if so, what relief shall be awarded 

to Complainant. 

APPLICABLE LAW 

Section I05(c) of the Act, 30 U.S.C. § 815(e), provides in pertinent 

part as follows: 

(1) No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the 

statutory rights of any miner, representative of miners or 

applicant for employment in any coal or other mine subject to 

this Actbecause such miner, representative of miners or 

applicant for employment has filed or made a complaint under 

or related to this Act, including a complaint notifying the 

operator or the operator's agent, or the representative of 

the miners at the coal or other mine of an alleged danger or 

safety or health violation in a coal or other mine, or because 

such miner, representative of miners or applicant for employn•ent is the subject of medical evaluations and potential 

transfer under a standard published pursuant to section i01 

or because such miner, representative of miners or applicant 

for employment has instituted or caused to be instituted any 

proceding under or related to this Act or has testified or is 

about to testify in any such proceeding, or because of the 

exercise by such miner, representative of miners or applicant 

for employment on behalf of himself or others of any statutory 

right afforded by this Act. 

(2) Any miner or applicant for employment or representative of miners who believes that he has been discharged, 

interfered with, or otherwise discriminated against byany 

person in violation of this subsection may, within 60 days 

after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such 

complaint, the Secretary shall forward a copy of the complaint to the respondent and shall cause such investigation 
to be made as he deems appropriate. Such investigation shall 

commence within 15 days of the Secretary's receipt of the 

complaint, and if the Secretary finds that such complaint was 

not frivolously brought, the Commission, on an expedited basis 

upon application of the Secretary, shall order the immediate 

reinstatement of the miner pending final order on the complaint. If upon such investigation, the Secretary determines 

that the provisions of this subsection 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 (in accordance with section 554 of title 5, United 

States Code, but without regard to subsection (a)(3) of such 

section) 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. Thecomplaining miner, applicant, 

or representative of miners may present additional evidence 

on his own behalf during any hearing held pursuant to this 

paragraph. 

Section 103(g) of the Act, 30 U.S.C. § 813(g), provides in pertinent 

part: 

(i) Whenever a representative of the miners or a miner 

in the case of a coal or other mine where there is no such 

representative has reasonable grounds to believe that a 

violation of this Act or a mandatory health or safety standard exists, or an imminent danger exists, such miner or 

representative shall have a right to obtain an immediate 

inspection by giving notice to the Secretary or his authorized representative of such violation or danger. Any such 

notice shall be reduced to writing, signed by the representative of the miners or by the miner, and a copy shall be 

provided the operator or his agent no later than at the time 

of inspection, except that the operator or his agent shall 

be notified forthwith if the complaint indicates that an 

imminent danger exists. The name of the person giving such 

notice and the names of individual miners referred to therein 

shall not appear in such copy or notification. Upon receipt 

of such notification, a special inspection shall be made as 

soon as possible to determine if such violation or danger 

exists in accordance with the provisions of this title. If 

G44 
the Secretary determines that a violation or danger does not 

exist, he shall notify the miner or representative of the 

miners in writing of such determination. 

STIPULATIONS 

The parties stipulated the following: 

i. At all times relevant herein, Kentucky Carbon operated the Calloway 

No. i Mine in the production of coal and, accordingly, was an operator as 

defined in section 3(d) of the Act. 

2. Kentucky carbon's Calloway No. i Mine located near Phelps, Kentucky, 

is a "mine" as defined in section 3(h)(1) of the Act. 

3. At all times relevant herein, the Complainant was employed by Kentucky 

Carbon as a "miner" as defined in section 3(g) of the Act. In addition, the 

Complainant was president of the UMWA local and safety committeeman at the 

Calloway No. i Mine. 

4. On October 8, 1979, Complainant was discharged by Kentucky Carbon. 

FINDINGS OF FACT 

I find that the preponderance of the evidence of record establishes the 

following facts: 

Background 

i. Kentucky Carbon is the operator of Calloway No. i (hereinafter the 

mine), an underground coal mine in Phelps, Kentucky. 

2. Bobby Gooslin began his employment at Kentucky Carbon in 1972 and, 

at all times relevant herein, worked as a supply motorman. Prior to the 

time of this dispute, Kentucky Carbon considered Bobby Gooslin to be a good 

employee and no disciplinary action had been taken against him. 

3. At all times relevant herein, Bobby Gooslin was president of U•A 

Local 1416 and a member of the U•A local safety committee at the mine. 

Although Bobby Gooslin was not chairman of the UliWA local safety committee, 

it was the practice of UMWA members and Kentucky Carbon management to deal 

with Bobby Gooslin regarding safety complaints. 

4. On •rch 12, 1979, there was an unauthorized work stoppage or "wildcat" strike at the mine which lasted until March 14, 1979. On March 15, 1979, 

Billy R. Southerland, Division Manager of Kentucky Carbon, issued a memorandum 

to the President of Local Union 1416, members of the mine committee and all 

union employees of Kentucky Carbon stating that unauthorized work stoppages 

or "wildcat" strikes would not be tolerated and further stating as follows: 
You are hereby placed on notice that, in the event an 

unauthorized work stoppage occurs in the future , company 

policy will be as follows: Management will selectively discipline, up to and including discharge, a]significant number 

of employees who participate in future unauthorized work stoppages. Such discipline will be directed first to employees 

who can be identified as agitating or actively giving leadership or support to the stoppage. They may be determined on 

a basis as fundamental as those who first "hang up their 

lights" or those who first leave the work area or the parking 

lot. If such activists cannot be identified, participating 

employees whose record of work attendance or job performance 

is deemed poor will be selected for discipline. It is imperative that you realize you may be disciplined or discharged 

simply by participating in an unauthorized work stoppage. 

The above memorandum was posted on the bulletin board at the mine and all 

miners were aware of it. 

5. On May 7, 1979, Larry K. Simpkins, a shear operator on the longwall 

at Kentucky Carbon's Calloway No. 2 Mine, exercised his individual rights 

under the National Bituminous Coal Wage Agreement of 1978 (hereinafter the 

contract) and withdrew himself from a condition which he believed to be 

abnormally and immediately dangerous. He was assigned other duties on that 

date. On •y 8, 1979, all five U•B•A employees on his crew withdrew themselves 

for the same reason. Eight UMWA employees on another longwall section of the 

same mine withdrew themselves pursuant to the contract. All 13 of the UMWA 

employees involved in this matter were suspended with the intent to discharge 

them. An arbitrator reinstated all 13 employees but found that each of them 

should forfeit 4 days' pay because he found that they came out as a group 

rather than individually. 

6. For a period of time prior to the events leading to the discharge of 

Bobby Gooslin, there was a continuing dispute between Kentucky Carbon and the 

UMWA concerning the proprietyof hauling supplies on mantrips. During the 

week prior to the discharge of Bobby Gooslin, a group of miners visited the 

MSHA office to protest Kentucky Carbon's practice of hauling supplies on the 

mantrips. MSHA Coal Mine Inspector Supervisor Troy Coleman explained MSHA's 

interpretation of the regulations concerning mantrips and hauling supplies. 

The UMWA employees were unhappy with MSHA's interpretation of the law. The 

controversy surrounding the issue of hauling supplies on mantrips continued 

up to the time of Bobby Gooslin's discharge. Bobby Gooslin did not participate in the foregoing dispute. Subsequent to Gooslin's discharge and the 

occurrence of the work stoppage, MSHA conducted an inspection pursuant to 

section 103(g) of the Act concerning this complaint. 

7. At the time of this incident involving Bobby Gooslin, Kentucky Carbon 

contended that the U•A was required to give 24-hours notice to the operator 

before making a safety run or spot inspection except in cases where the UMWA 
alleged the existence of an immediate or imminent danger. At all times relevant herein, the UMWA contended that it was not required to give 24-hours 

notice before making any safety run or spot inspection. Prior to this incident, there were instances when Kentucky Carbon had both allowed and denied 

the UMWA local safety committee the right to make spot safety inspections 

without the required 24-hours notice. 

Events of September 29, 1979 

8. After completing work on the 12:01 a.m. to 8 a.m. shift on 

September 29, 1979, UM•,•A members Tommy Coleman and Rodney Isom stopped at 

Bobby Gooslin's residence on their way home from the mine. Shortly thereafter, they were joined by UMWA safety committeeman J. R. Stiltner. The 

four miners who participated in this discussion contend that Coleman and 

Isom complained about bad roof along the main haulage track and an escapeway which was blocked by water. None of the miners suggested that this was 

an in•ediate or imminent danger. •ley asked Bobby Gooslin to make a UMWA 

safety committee run to check these conditions. All four of the miners who 

participated in this discussion deny that there was any discussion of the 

issue of hauling supplies on the mantrips. 

9. At the conclusion of the meeting, Bobby Gooslin said he would call 

and make arrangements for the safety run. 

i0. Bobby Gooslin took no further action on this matter on September 29, 

1979. 

Events of September 30, 1979 

ii. During the afternoon, Bobby Gooslin called Lacy Ferrell, chairman of 

the local UMWA safety committee, to advise him that he wanted to schedule a 

safety committee spot run or inspection of the mine at the beginning of the 

12:01 a.m. shift on October i, 1979. Lacy Ferrell told Bobby Gooslin to set 

up the run but that Lacy Ferrell would not be present. 

12. Between 3 and 4 p.m., Bobby Gooslin called William Meade, superintendent of the mine, to request postponement of a grievance meeting which had 

been scheduled for the next day. Bobby Gooslin did not mention any intention 

to make a safety run. 

13. Between 3 and 4 p.m., Bobby Gooslin called Joe Dado, a Coal •ne 

Inspection Supervisor in MSHA's Phelps, Kentucky office. Bobby Gooslin claims 

that he requested that Joe Dado send an inspector to the mine at midnight and 

that Gooslin would have a written request pursuant to section 103(g) of the 

Act at that time. Joe Dado testified that Bobby Gooslin complained about the 

fact of hauling supplies on mantrips and other unspecified violations. Joe 

Dado claimed that Gooslin did not request an inspection pursuant to section 

103(g) of the Act but merely wanted to know if MS•A would send an inspector. 
In any event, at this time, it was Dado's understanding that he was not permitted to agree to meet Gooslin at the mine at a specific time and that there 

was no requirement that he send an inspector to the mine until a written 

request for such an inspection had been received. 

14. At approximately 5 p.m., Bobby Gooslin called James Boyd, a UMWA 

district safety inspector, and asked Boyd to meet him at the mine for a safety 

run prior to the 12:01 a.m. shift on October I, 1979. Bobby Gooslin also told 

James Boyd that Gooslin was unable to get an MSHA inspector from the local 

MSHA office and that Boyd should arrange for an MSHA inspector at the time of 

the safety run. 

15. Between 6 and 7 p.m., Doug Fleming, Acting District Manager of MSHA, 

called Joe Dado and Troy Coleman, coal mine inspection supervisors in the 

Phelps, Kentucky MSHA office. Acting District Manager Fleming advised the 

inspection supervisors that he had received a request from James Boyd, UMWA 

district safety inspector, for an inspection of the mine pursuant to section 

103(g) of the Act. Joe Dado questioned whether MSHA could agree to such a 

request in view of the other provisions of the Act which prohibit advance 

notice of MSHA inspections. Joe Dado suggested that Doug Fleming call Troy 

Coleman because the mine was under Coleman's jurisdiction. Troy Coleman also 

discussed the question of advance notice with Doug Fleming and Coleman told 

Fleming that he was going on vacation the next day. No further action was 

taken by MSHA that day. 

16. At approximately 8:45 p.m., Bobby Gooslin called Superintendent 

William Meade's home. He learned that Superintendent Meade had gone to the 

mine because of a roof fall. Thereafter, Bobby Gooslin called Superintendent 

Meade at the mine. Bobby Gooslin said that he had been unable to reach 

Superintendent Louis Simpkins and that Gooslin wanted to make a safety run 

at midnight. Gooslin and Meade also discussed the roof fall which measured 

i0 feet by 8 feet by 18 inches and was expected to take one shift to clean 

up. Superintendent Meade said he would contact Safety Director James Hager 

to make arrangements for the safety run. 

17. At approximately 9:15 p.m., Superintendent Meade called Safety 

Director James Hager at home. Superintendent Meade reported the fact and 

dimensions of the recent roof fall and" also reported Bobby Gooslin's request 

for a safety run at midnight. James Hager told Meade to call Gooslin back 

and tell him that he would not be permitted to make the safety run because 

he had not given 24-hours notice of this request. 

18. At approximately 9:20 p.m., James Hager called MSHA Inspection 

Supervisor Joe Dado to report the roof fall. 

19. At approximately 9:30 p.m., Superintendent Meade called Bobby 

Gooslin to inform him that James Hager had instructed Meade to notify Gooslin 

that he would not be permitted to make the safety run at midnight because he 

had failed to give Kentucky Carbon 24-hours notice. Gooslin responded that 
he did not give a damn whether the company had someone to accompany him or 

not and that he was going to the mine anyway. Gooslin also advised Meade 

that James Boyd, U•#A District Safety Inspector, would be there with Gooslin. 

20. Thereafter, Superintendent Meade called James Hager to report 

Gooslin's response in the above paragraph. Hager instructed Meade to call 

the shift foreman for the 12:01 a.m. shift and instruct him to deny Gooslin 

entry to the mine and tell Gooslin to return at 8 a.m. on October i, 1979, to 

make the run. 

21. At approximately 9:45 p.m., Hager called Fred Fletcher, Personnel 

Manager of the mine, and reported that Bobby Gooslin was going to go to the 

mine to make an inspection even though he had been notified that he would not 

be permitted to make the inspection. James Hager called Fred Fletcher because 

he thought the matter would develop into a personnel problem. 

22. At approximately i0 p.m., Fred Fletcher came to Jame Hager's home to 

discuss the above events. Thereafter, Fred Fletcher called James R. Reynolds, 

Manager, Personnel Services, Carbon Fuel Company, the parent company of 

Kentucky Carbon. Fred Fletcher was concerned about the situation and wanted 

James Reynolds' reaction to these events. 

23. At approximately i0 p.m., Bobby Gooslin called Larry Simpkins, a 

member of the •A local safety committee, and asked him to come to the mine 

for a safety run. 

24. The following events occurred at the mine between ii and 11:45 p.m. 

on September 30, 1979: 

(a) At approximately ii p.m., James Christian, shift foreman of 

the 12:01 a.m., shift, called Superintendent Meade and was informed that 

Bobby Gooslin would be at the mine with a UMWA safety inspector for an 

inspection. Christian was instructed to tell Gooslin that he was not 

allowed to make the inspection because he had not given enough notice and 

that he was to come back at 8 a.m. 

(b) James Boyd and Bobby Gooslin arrived at the parking lot outside the mine office. Several other miners, who were scheduled to work the 

12:01 a.m. shift, were already present in the parking lot. 

(c) Shift Foreman Christian came out of his office and walked over 

to Gooslin and Boyd. Christian told them that he had orders from Superintendent Meade not to allow them underground. James Boyd asked Christian his name 

and then stated that Christian would end up in Federal court. Gooslin stated: 

"I'm going to show the damn Hagers they don't run this place." Bobby Gooslin 

then called Tommy Coleman and Rodney Isom over and had Christian repeat his 

statement denying Gooslin entry to the mine. 

(d) Thereafter, Christian returned to the mine office where he 

called Superintendent Meade to report the preceding conversation. Christian 
then remembered that he had neglected to tell Gooslin to return at 8 a.m. 

again went out to the parking lot and told Gooslin to come back at 8 a.m. 

Christian again returned to his office. 

He 

(e) Thereafter, Gooslin told the miners who were gathered in the 

parking lot that he was '•going off the mountain," Kentucky Carbon did not 

want him to make a safety run, and that they should "be very careful." 

(f) Thereupon, Gooslin and Boyd left the parking lot in their 

vehicles. 

(g) After Boyd and Gooslin left the parking lot, the miners who 

were to work the 12:01 a.m. shift assembled and discussed Kentucky Carbon's 

refusal to allow the safety committee to make a run, the occurrence of the 

roof fall earlier that night, and their complaints about bad roof and a 

blocked escapeway. After some discussion, the miners jointly decided not to 

work. None of the miners voiced a safety complaint to Kentucky Carbon 

management that night. 

25. At some time between 11:45 p.m. and midnight, the miners who were 

to work the 12:01 a.m. shift at the mine got in their vehicles and left the 

mine with their headlights flashing and horns blowing. The miners who were 

about to start work at Calloway No. 2 Mine, on the other side of the valley, 

upon hearing and seeing these events, also left that mine. 

Events Occurring After the Work Stoppage 

26. The unauthorized work stoppage or "wildcat" strike which began on 

the 12:01 a.m. shift on October i, 1979, continued until the 12:01 a.m. shift 

on October 8, 1979. During this time, approximately 350 miners were idled. 

Prior to resuming work on October 8, 1979, the UMWA local safety committee 

inspected the mine and cited more than 80 safety and health violations. 

27. On October i, 1979, Bobby Gooslin was served with a letter from 

Superintendent Meade notifying him that he was "suspended pending an investigation of your involvement preceding and culminating in an unauthorized work 

stoppage on October i, 1979." 

28. On October 2, 1979, Bobby Gooslin was served with a notice which 

stated as follows: 

The Company has concluded that your actions on 

September 30, 1979 were the efficient cause of an unauthorized work stoppage and clearly establish you as a primary 

contributor in the instigation of a work stoppage in violation of the Agreement. 

For this offense, you are hereby suspended with intent 

to discharge effective immediately. 

The memorandum was unsigned and the author is not identified. 
29. On October 8, 1979, Bobby Gooslin was discharged by Kentucky Carbon. 

30. On November i, 1979, arbitrator David T. Kennedy, heard testimony 

on behalf of Bobby Gooslin and Kentucky Carbon concerning Bobby Gooslin's 

grievance under the contract. On November 14, 1979, Arbitrator Kennedy 

denied Bobby Gooslin's grievance and found that his discharge was sustained. 

Arbitrator Kennedy stated in pertinent part: 

The Union stressed the fact that no one who testified 

admitted hearing the Grievant o•der or suggest a work stoppage. It would be an unusual happening if anyone did. The 

initiation of a wildcat strike is not usually a public act. 

The proverbial "wink and nod" are sufficient. In this case, 

actions speak louder than words. Here, there were a number 

of men who came to the mine intending to work. After some 

of them spoke to Gooslin, the homeward movement started and 

spread throughout the operation with a domino effect. It 

may be that when the Grievant came to the mine on Sunday 

night, he did not intend to start a work stoppage, but 

there can be no question that his words or actions after 

his arrival did just that. 

A number of witnesses testified that, although they 

came to the mine intending to work, upon arrival they were 

individually and separately seized with a sudden fear which 

prevented them from entering the mine, so they left. Although 

not one of them used the individual withdrawal provisions of 

the Contract, all professed knowledge of it. They would have 

us believe that their leaving the mine had nothing to do with 

the concerted homeward movement of the other Employees. I do 

not know what explanation the Employees of the other operations would give for not working, but it would be interesting 

to hear. 

We are not required to believe the incredible. In my 

opinion, the evidence in this case leaves not one scintilla 

of doubt in my mind that this Grievant was the efficient 

catalyst of the work stoppage. Consider: The Empioyees 

came to work intending to work; Gooslin arrives on the scene 

and speaks to a few men, everyone goes home. Strikes do not 

erupt spontaneously; they are caused. As I have said and 

attempted to demonstrate, it is not even necessary to consider the Company's evidence to sustain the discharge. The 

Grievant stands convicted by his own testimony and that of 

his fellow workers, and by the facts and circumstances. 

Beyond that, Gooslin was evasive and equivocal in his 

answers to questions propounded to him, and his testimony 

exhibited a hostility to his Employer which contradicted his 

protestations of innocence and his avowals of cooperation. 
31. On January 14, 1980, the Arbitration Review Board denied review of 

Arbitrator Kennedy's award of November 14, 1979. 

DISCUSSION 

I. Whether the Complaint Should Be Dismissed For Want of Prosecution. 

This action was initiated by MSHA upon completion of its investigation 

of Bobby Gooslin's complaint. Initially, MSHA was successful in Obtaining 

an order of temporary reinstatement for Gooslin. Thereafter, the instant 

matter was filed to secure permanent relief. Less than a month before the 

scheduled hearing date for this matter, MSHA requested permission to withdraw 

from this proceeding due to an unspecified "conflict of interest." I denied 

MSHA's request. Thereafter, Kentucky Carbon presented numerous motions to 

dismiss this proceeding for want of prosecution. I denied those motions. 

A. May MSHA withdraw from a complaint of discharge, which it initiated 

pursuant to section i05(c) of the Act, due to a "conflict of interest" with 

the complaining miner? 

The parties are in agreement that there is no precedent for MSHA's 

request to withdraw from this proceeding. Section i05(c)(2) mandates that 

MSHA shall prosecute an action where it determines that an operator has discharged a miner in violation of section i05(c)(i) of the Act. At all times, 

MSHA asserted that Kentucky Carbon violated the above law in its discharge of 

Bobby Gooslin. The only authorities cited by MSHA in support of its request 

to withdraw from this proceeding were court decisions holding that an attorney 

may not represent a party where there is a conflict of interest. These cases 

do not support the proposition that a party - as distinguished from an attorney 

- 

may withdraw from the proceeding. This is especially true in the 

instant case where, by statute, MSHA is the only party which can institute 

proceedings pursuant to section i05(c)(2) of the Act. 

I reaffirm my decision that in an action brought by MSHA pursuant to 

section i05(c)(2) of the Act; MSHA will not be permitted to withdraw from the 

proceeding due to a "conflict of interest" with the complaining miner. My 

reasons are as follows: 

(I) Section i05(c)(2) clearly mandates MSHA to prosecute 

a discharge case where it determines that section I05(c)(i) 

of the Act has been violated; (2) Bobby Gooslin had no right 

to bring his own action for discharge pursuant to section 

i05(c)(3) of the Act because MSHA never determined that this 

section of the Act was not violated; and (3) the law applicable to a conflict of interest specifies instances where an 

attorney shall be precluded from representing a party but 

does not authorize the withdrawal of a necessary party from 

a proceeding. 

652 
B. Where MSHA declines to represent a complaining miner or present any 

evidence on his behalf at hearing, should the complaint be dismissed for 

want of prosecution? 

Pursuant to MSHA's notice that it would not represent Bobby Gooslin and 

the subsequent representation of Gooslin by the UMWA, Kentucky Carbon moved 

to dismiss this action for want of prosecution. It also renewed this motion 

at the hearing after MSHA rested without presenting any evidence. Kentucky 

Carbon maintains that once MSHA rested without presenting any evidence, section i05(c)(2) of the Act does not permit the introduction of any "additional 

evidence" by the complaining miner. Section i05(c)(2) of the Act states that 

"the complaining miner . . . may present additional evidence on his own 

behalf during any hearing held pursuant to this paragraph." Therefore, 

Kentucky Carbon asserts that in the absence of any primary evidence, there 

was nothing to trigger "additional evidence." Since the specific statutory 

language of section i05(c) of the Act does not resolve this matter, I 

examined the legislative history of this section of the Act. Its states: 

If our national mine safety and health program is to be 

truly effective, miners will have to play an active part in 

the enforcement of the Act. The Committee is cognizant that 

if miners are to be encouraged to be active in matters of 

safety and health, they must be protected against any possible 

discrimination which they might suffer as a result of their 

participation. (Emphasis supplied.) 

LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH ACT OF 1977, 

95th Cong., 2d Sess., at 623. 

If Kentucky Carbon's renewed motion to dismiss is granted, it would place 

Bobby Gooslin's claim in limbo. While he could file his own discharge case 

with the Commission, Kentucky Carbon could then challenge it on the basis that 

his claim does not satisfy the statutory language of section i05(c)(3) of the 

Act which requires that MSHA determine that there was no violation of section 

i05(c)(i) of the Act. In any event, it would further delay a resolution of 

this conflict. Moreover, if the complaint of discharge is dismissed, there 

would be a serious question whether the order of temporary reinstatement 

should also be dismissed. 

I have considered all these factors and conclude that section i05(c)(2) 

should be broadly construed to allow Bobby Gooslin's case to go forward even 

though MSHA declined to present any evidence in support of the complaint. 

II. Whether Kentucky Carbon Violated Section i05(c) of the Act. 

A. Setting 

Prior to the occurrence of the incident herein, labor-management relations at the mine were hostile and acrimonious. During the 7 months prior to 

this incident, there was a history of work stoppages, a written statement 
from management threatening to discharge or discipline any miner who was 

involved in an unauthorized work stoppage, the discharge and subsequent 

reinstatement of 13 miners who invoked their individual rights under the contract by refusing to work in an allegedly unsafe area, a continuing dispute 

as to whether the U•#A was required to give management 24-hours notice before 

making safety committee inspections of the mine, and a UMWA-Kentucky Carbon 

dispute, involving MSHA, dealing with the propriety of hauling supplies on 

mantrips. 

None of the parties to this proceeding has covered itself with glory. 

MSHA presented no valid reason for its failure to honor a UMWA request for an 

inspection pursuant to section 103(g) of the Act. Bobby Gooslin presented no 

valid reason for only giving Kentucky Carbon 3 hours notice of his intent to 

make a safety run for a complaint not involving imminent or immediate danger. 

Kentucky Carbon presented no valid reason for its refusal to allow Bobby 

Gooslin and the safety committee to inspect the mine as requested as its 

refusal was based solely upon U•B•A's failure to give 24-hours notice of the 

inspection. 

The UMWA and Kentucky Carbon were on a collision course. To put it 

kindly, MSHA was merely negligent. •ile these events are not directly 

relevant to the issues at hand, they set the stage for the events of 

September 30, 1979, which culminated in the work stoppage and the discharge 

of Bobby Gooslin. 

B. Weight to be Given Arbitrator's Decision. 

As noted in paragraphs 30 and 31 of the Findings of Fact, supra, Bobby 

Gooslin filed a grievance under the contract and that matter was heard and 

decided by arbitrator David T. Kennedy. Arbitrator Kennedy ruled against 

Bobby Gooslin and in favor of Kentucky Carbon. The award, upholding 

Gooslin's discharge, became final when the Arbitration Review Board denied 

review. Kentucky Carbon asserts that substantial weight should be given to 

the arbitrator's decision because it "authoritatively resolve[d] the specific 

factual issue of the reason for Gooslin's discharge." On the other hand, 

Bobby Gooslin asserts that no weight should be given to the arbitrator's 

decision because "the issues are totally inapposite," the evidence was 

different in this proceeding, and the arbitrator failed to consider Bobby 

Gooslin's protected activity pursuant to section i05(c) of the Act. 

Recently in Secretary of Labor o/b/o David Pasula v. Consolidation Coal 

Company, 2 FMS•RC 2786 (October 14, 1980) (hereinafter Pasula), the Commission 

considered the weight, if any, to be accorded the findings of arbitrators. 

The Commission discussed the decision of the Supreme Court in Alexander v. 

Gardner-Denver Co., 414 U.S. 36 (1974) and held as follows: 

We adopt the Gardner-Denver approach to arbitral findings 

in discrimination proceedings under the Act. We believe that 

according weight to the findings of arbitrators may aid the 
Commission's judges in finding facts. A judge faced with a 

credibility problem may find the views of the arbitrator on 

labor practices in the mines, mine customs, or on the "common 

law of the shop" helpful. 

This does not diminish the role of the Commission's 

judges. The hearing before the administrative law judge is 

still de novo and it is the responsibility of the judge to 

render a decision in accordance with his own view of the 

facts, not that of the arbitrator. Arbitral findings, even 

those addressing issues perfectly congruent with those before 

the judge, are not controlling upon the judge. 

As Gardner-Denver indicates, there are several factors 

that must be considered in determining the weight to be 

accorded to arbitral findings: the congruence of the 

statutory and contractual provisions; the degree of procedural fairness in the arbitral forum; the adequacy of the 

record; and the special competence of the particular arbitrator. Arbitral findings may be entitled to great weight 

if the arbitrator gave full consideration to the employee's 

statutory rights; the issue before the judge is solely one of 

fact; the issue was specifically addressed by the parties when 

the case was before the arbitrator; and the issue was decided 

by the arbitrator on the basis of an adequate record. 

Pasula at 2795. 

In Pasula, the Commission concluded "that the judge did not err in 

according little or no weight to the arbitral findings." Ibid. 

I conclude that pursuant to the standard announced in Pasula, supra, the 

findings of the arbitrator are entitled to little or no weight for the 

following reasons: 

i. •e arbitrator never considered Bobby Gooslin's statutory rights 

and protected activity pursuant to section i05(c) of the Act. 

2. The evidence before me in this proceeding is substantially different 

from the evidence presented at the arbitration proceeding in the following 

particulars: (a) the arbitrator was unaware of Gooslin's efforts to obtain 

an MSHA inspection of the mine at the same time he arrived to conduct the 

UMWA safety run. This evidence undermines the arbitrator's adverse finding 

concerning Gooslin's reasons for going to the mine. If Gooslin had been 

successful in obtaining the MSHA inspection, there would have been no 

challenge to the 24-hours notice policy because Kentucky Carbon would have 

been obligated to allow HSHA to inspect its mine without any advance notice 

and the UMWA would have been permitted to designate a representative to 

accompany the MSHA inspector; (b) the testimony of the miners •lo decided not 

to work at the time in question was significantly different at the instant 
hearing thantheir testimony at the arbitration hearing. The arbitrator 

found that their testimony, that each of them decided individually and without consultation with others not to work, was incredible. In the instant 

proceeding, these miners admitted that they discussed Kentucky Carbon's 

refusal to allow the safety committee inspection, the roof fall which 

occurred a few hours earlier, and the alleged problems of bad roof and a 

blocked escapeway. Thereafter, the miners jointly decided not to work; and 

(c) the arbitator was unaware of the fact that less than 5 months before this 

incident, Kentucky Carbon had discharged 13 miners for exercising their 

individual rights under the contract. This evidence undermines the arbitrator's conclusion that: (i) the testimony of the miners who did not work on the 

shift in question was incredible; (2) that Bobby Gooslin "was the efficient 

catalyst of the work stoppage;" and (3) that "the coetract gave the (safety) 

committee full authority to demand that no employee work in that area, as 

provided in Article III (d)(3)." 

Although there are other differences in the records of the arbitration 

proceeding and the instant matter, suffice it to say that based upon the 

test adopted by the Commission in Pasula, I conclude that the findings of 

the arbitrator are entitled to little or no weight in the instant case. 

C. Applicable Case Law and Definition of the Issue 

In Pasula, the Commission analyzed section i05(c) of the Act, the legislative history of that section, and similar anti-retaliation issues arising 

under other Federal statutes. The Commission held as follows: 

We hold that the complainant has established a prima 

facie case of a violation of Section i05(c)(I) if a preponderance of the evidence proves (i) that he engaged in a protected activity, and (2) that the adverse action was 

motivated in any part by the protected activity. On these 

issues the complainant must bear the ultimate burden of persuasion. The employer may affirmatively defend, however, by 

proving by a preponderance of all the evidence that, although 

part of his motive was unlawful, (I) he was also motivated by 

the miner's unprotected activities, and (2) that he would 

have taken adverse action agains t the miner in any event for 

the unprotected activities alone. On these issues, the 

employer must bear the ultimate burden of persuasion. It is 

not sufficient for the employer to show that the miner 

deserved to have been fired for engaging in the unprotected 

activity; if the unprotected conduct did not originally concern the employer enough to have resulted in the same adverse 

action, we will not consider it. The employer must show that 

he did in fact consider the employee deserving of discipline 

for engaging in the unprotected activity alone and that he 

w oul___d have disciplined him in any event. 

Pasula at 2799-2800. 
MSHA and Gooslin assert that Gooslin was discharged by Kentucky Carbon 

in violation of section i05(c) of the Act due to the protected activities in 

connection with a safety complaint. Kentucky Carbon asserts that Gooslin was 

discharged solely for unprotected activity in instigating an unauthorized 

work stoppage and, hence, there is no violation of section i05(c) of the Act. 

In a nutshell, Kentucky Carbon contends that Gooslin instigated the 

unauthorized work stoppage by his presence at the mine and his actions and 

words at that time. While there has been much discussion, some of which was 

initiated by me, concerning the question of whether the instigation of an 

unauthorized work stoppage can ever be protected activitypursuant to section 

i05(c) of the Act, I conclude that there is no reason to reach that issue in 

this proceeding. Similarly, I agree with Kentucky Carbon's contention that 

"the issue whether Gooslin actually did instigate the strike (although relevant in the Wage Agreement arbitration to the question whether Gooslin was 

fired for good cause) is not relevant under section i05(c) which focuses 

simply upon Kentucky Carbon's motivation for the discharge." Posthearing 

Brief of Kentucky Carbon at 20. Kentucky Carbon's conclusion that Gooslin 

was discharged for instigating an unauthorized work stoppage must be analyzed 

by examining the specific, relevant activities of Bobby Gooslin on the night 

of September 30, 1979. Thereafter, a determination must be made whether such 

activity constitutes protected or unprotected activity under section i05(c) 

of the Act. 

D. Did Bobby Gooslin Engage in Protected Activity? 

Bobby Gooslin contends that he engaged in protected activities pursuant 

to section I05(c) of the Act on September 30, 1979, when he called 

Superintendent William Meade and notified him that he intended to make a 

safety inspection of the mine prior to the commencement of the midnight shift 

and, also, when he went to the mine after Ii p.m. for the purposes of conducting the safety inspection. Section i05(c)(i) of the Act sets forth 

certain types of protected activity including, inter alia, filing or making 

a complaint under or related to this Act, including a 

complaint notifying the operator . . . of an alleged danger 

or safety or health violation in a coal or other mine . . 

or because of the exercise by such miner, representative of 

miners . . . on behalf of himself or others of any statutory 

right afforded by this Act. 

At all relevant times herein, Bobby Gooslin was acting in the dual capacities 

of a miner and a representative of miners. Neither the Act nor its legislative history specifies the manner in which complaints to the operator are to 

be made. 

The first issue here is whether Gooslin's call to Superintendent Meade 

falls within the scope of protected activity. Gooslin's call to Meade 

notified him of the intent to make a safety run or inspection. Gooslin also 

notified Meade that he would be accompanied by the U•A District Safety 

Inspector. Kentucky Carbon emphasizes that at no time did Bobby Gooslin ever 
specify the nature of his complaint. While this is true, at no time did any 

of Kentucky Carbon's management personnel ever ask Gooslin about the nature 

of his complaint. I conclude that Gooslin's call to Superintendent Meade 

notified him of the UMWA's intent to conduct a safety run or inspection and 

that such call amounts to "a complaint notifying the operator . . of an 

alleged danger or safety or health violation." Hence, under section i05(c) 

of the Act, I conclude that Gooslin engaged in protected activity in connection with his telephone call to Superintendent Meade. 

The next issue is whether Gooslin's presence at the mine on the night in 

question is also protected activity. Gooslin asserts that as a representative of miners (safety committeeman) he had the "right to enter the property 

to investigate the conditions complained of." Brief of UMWA at 18-19. 

Kentucky Carbon does not challenge Gooslin's right to be present on the mine 

property and concedes that "neither Hager nor Meade gave instructions that 

Gooslin be prohibited from entering the mine site .... 

" Reply Brief of 

Kentucky Carbon at 7. I find that Superintendent Meade's instruction to 

Gooslin not to come to the mine that night is irrelevant in determining the 

scope of protected activity. A mine operator cannot narrow the scope of section I05(c) of tile Act by instructing the miner or representative of miners 

not to come to the mine. Gooslin arrived at tile mine prior to the midnight 

shift to make a complaint to Kentucky Carbon about an alleged danger or 

safety violation. Kentucky Carbon does not contend that it was unaware of 

the fact that Gooslin's presence at the mine was related to his claim concerning a safety problem. Rather, Kentucky Carbon contends that the purported safety problem dealt with hauling supplies on mantrips, a complaint 

already resolved against the UMWA by MSHA, and that any such safety problem 

was merely a pretext on the part of the UM•#A to challenge Kentucky Carbon's 

24-hours notice policy. As to the first contention, it makes no difference, 

under section i05(c), whether Gooslin was concerned about the issue of hauling supplies on mantrips or bad roof conditions. Both areas are the subject 

of MSHA safety regulations and a complaint concerning either one is a protected activity under section I05(c) of the Act. Kentucky Carbon's contention that this purported safety committee inspection was merely a pretext to 

challenge its 24-hours notice policy is rejected. The preponderance of the 

evidence - in particular the concurrent request to MSHA for an inspection 

pursuant to section 103(g) of the Act - establishes that Gooslin was making 

a bona fide safety complaint. 

In this case it is unnecessary to determine whether Gooslin had the 

right to investigate the conditions underlying the safety complaint. I find 

that the language of section i05(c) authorized Gooslin to complain to 

Kentucky Carbon about any alleged danger or safety violation. To that end, 

Gooslin was authorized to go to the mine site. Thus, I find that his presence at the mine site on the night of September 30, 1979, also constituted 

protected activity pursuant to section i05(c) of the Act. 

E. Was Gooslin's Discharge Motivated in Any Part by the Protected Activity? 

In order to determine which evidence is relevant to this issue, it is 

appropriate to begin with the reasons given by Kentucky Carbon for Gooslin's 

(;58 
discharge. James R. Reynolds, Manager, Personnel Services, for Carbon Fuel 

Co., Kentucky Carbon's parent company, testified that he made the decision to 

discharge Gooslin. Mr. Reynolds testified on direct examination as follows: 

Q. As a result of Mr. Fletcher's report what did you do? 

A. On the basis of the facts as they were presented to 

me, there was no question in my mind that Mr. Gooslin was the 

sole, the sole reason - his presence on the hill was the sole 

reason for the illegal work stoppage occurring. 

Q. As a result of Mr. Fletcher's report what action was 

then taken? 

A. I instructed Mr. Fletcher to prepare a suspension 

with intent to discharge slip .... 

(R. 333). 

On cross-examination Mr. Reynolds testified as follows: 

Q. In your conclusion Mr. Gooslin's presence on the hill 

was the sole reason for the work stoppage? 

A. That's right. 

Q. In other words, there's no particular action that you 

are relying on by Mr. Gooslin to support your determination 

that he instigated a work stoppage? 

A. No, l'm relying on the complete set of circumstances. 

That if we had a mine ready to go go work with no labor 

dispute or unrest Mr. Gooslin's appearance on the hill and 

whatever his actions and words were at that time resulted in 

the "wildcat" strike following Mr. Goosin off the hill. 

Q. In other words, the mere fact that Mr. Gooslin 

appeared on the hill would have been sufficient? 

A. I believe Mr. Gooslin's presence on the hill was the 

catalyst for the work stoppage, yes, without question. 

(R. 360-361). 

Kentucky Carbon's superintendent, William Meade, participated in the 

discussions which led to Gooslin's suspension and discharge. Although he 

stated that he did not make the decision to discharge Gooslin, he signed 

the initial suspension of Gooslin on October i, 1979. Superintendent Meade 

testified on cross-examination as follows: 
Q. Mr. Meade, isn't the sole reason that Mr. Gooslin 

was terminated by Kentucky Carbon was because he came out 

to Calloway number i on the night of September 29, 1979 in 

an attempt to make a safety inspection? 

A. That and I think his presence on the hill did 

instigate the unauthorized work stoppage. 

(R. 526). 

The above testimony by Kentucky Carbon management personnel establishes 

clearly that Kentucky Carbon believed that Gooslin's presence at the mine on 

the night in question caused the work stoppage and, thus, motivated Kentucky 

Carbon to discharge him. 

Hence, it is clear that Kentucky Carbon's determination - that Gooslin 

instigated the unauthorized work stoppage - is based, at least in part, upon 

the fact of Gooslin's presence at the mine on the night in question. Since 

I conclude that Gooslin's presence at the mine on the night in question was 

protected activity pursuant to section i05(c) of the Act, it follows that 

Gooslin has established that his discharge, for instigating an unauthorized 

work stoppage, was motivated at least in part by his protected activity. 

•erefore, pursuant to the test set forth in Pasula, supra, I conclude that 

Gooslin has established a prima facie case of a violation of section i05(c)(i) 

of the Act. 

F. Was Gooslin's Discharge Also Motivated By His Unprotected Activities? 

James R. Reynolds, who made the decision to discharge Bobby Gooslin, 

stated that, in addition to Gooslin's presence at the mine on the night in 

question, he also based his decision on Gooslin's "actions and words at that 

time." (R. 361). Kentucky Carbon refers to only one statement made by 

Gooslin that night. After being informed by Shift Foreman James Christian 

that he would not be allowed to make a safety inspection of the mine, Gooslin 

said, "l'm going to show these damned Hagers that they don't run this place." 

(R. 415, 588). Although Gooslin denies making this statement, I find that 

the preponderance of the credible evidence establishes that he made the 

statement. Clearly, this statement does not amount to any form of protected 

activity and must be classified as unprotected activity. 

Kentucky Carbon is unable to identify any specific actions of Gooslin, 

apart from the above statement, on the night in question. It refers, however, 

to "Gooslin's defiant, confrontation-oriented mood .... 

" Posthearing Brief 

of Kentucky Carbon at 21. Such an allegation is insufficient to establish 

any basis for discharge independent of the spoken words. Kentucky Carbon 

then asserts that "the circumstantial evidence in this case demonstrates that 

Gooslin instigated the wildcat strike." Posthearing Brief of Kentucky Carbon 

66O 
at 22. In support of this contention, Kentucky Carbon relies upon the arbitrator's findings. •ile the arbitrator seemed to infer that Gooslin somehow 

signaled the commencement of the work stoppage with a "wink and nod," the 

evidence before me does not support such an inference. It is just as plausible that the work stoppage occurred in the manner described by the miners who 

refused to work on the night in question. They testified that after Kentucky 

Carbon refused to allow the safety inspection, they met and discussed this 

fact, the roof fall earlier that night, complaints concerning bad roof generally, and a blocked escapeway. Thereupon, they jointly decided not to work. 

I conclude that the evidence of record fails to establish that Gooslin 

committed any act, apart from his spoken words as reviewed supra, which constitute unprotected activity motivating his discharge. In light of the hostile and accrimonious relations between the UMWA and Kentucky Carbon at this 

time, I conclude that Gooslin's spoken words as unprotected activity, also 

motivated Kentucky Carbon's decision to discharge him. 

G. Would Kentucky Carbon Have Discharged Gooslin For the Unprotected 

Activity Alone? 

The dispute here is analogous to the dispute in Pasula, where the 

Commission found "that the miner's refusal to work was protected under the 

1977 iline Act." Pasula at 2793. The Commission went on to state, "we will 

assume that Pasula was fired also in part for engaging in the presumably 

unprotected activity of . refusing to permit anyone else to operate the 

machine. There is insufficient evidence to find that Pasula would have been 

fired for engaging only in the unprotected activity." Id. at 2796. The 

Commission concluded that 

The record fails to support Consol's claim that the evidence shows that Pasula's "misdeeds are so obvious that the 

employee would have in any event been disciplined." Indeed, 

part of the misconduct that Consol claims would have caused 

Pasula to be fired in any event . . is conduct that we have 

concluded is protected by the 1977 Mine Act - Pasula's refusal 

to work." Id. at 2801. 

In the instant case, I conclude that Gooslin's presence at the mine on the 

night in question was protected under section I05(c) of the Act. I also conclude that Gooslin was fired because of his protected activity and, in part, 

for his unprotected activity in stating that "I'm going to show these damned 

Pmgers that they don't run this place." Kentucky Carbon contends that Gooslin 

was discharged for instigating an unauthorized work stoppage. However, the 

previously quoted testimony of James R. Reynolds and Superintendent Meade 

clearly establishes that Kentucky Carbon concluded that the unauthorized work 

stoppage was instigated by Gooslin's presence at the mine which was protected 

activity under section i05(c)(I) of the Act. Kentucky Carbon has failed to 

establish that Gooslin would have been discharged for his unprotected activity 

alone. Kentucky Carbon has failed to meet its burden of persuasion on this 

affirmative defense. Bobby Gooslin has sustained his complaint of discharge 

in violation of section i05(c) of the Act. 

661 
H. Award to Complainant. 

Section i05(c)(2) of the Act provides in pertinent part as follows: 

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. 

Accordingly, based upon my conclusion that Bobby Gooslin was discharged 

in violation of section i05(c) of the Act, Kentucky Carbon is ordered to 

rehire and reinstate him to his former position with full seniority rights. 

It should be noted that Kentucky Carbon was previously ordered to reinstate 

him on January 22, 1980. •ile the complaint herein requested an award of 

back pay and other monetary employment benefits, no evidence was presented 

on this matter and, hence, I find that Bobby Gooslin has abandoned this 

claim. 

Pursuant to the legislative history of the Act, Kentucky Carbon also 

shall expunge all references to Gooslin's discharge from his employment 

records, post a copy of this decision and order on all bulletin boards at 

the mine for a consecutive period of 60 days, and shall cease and desist 

from discriminating against or interfering with Bobby Gooslin because of 

activities protected under section i05(c) of the Act. 

CONCLUSIONS OF LAW 

i. At all times relevant to this decision, Complainant Bobby Gooslin 

and Kentucky Carbon were subject to the provisions of the Act. 

2. This administrative law judge has jurisdiction over the parties 

and subject matter of this proceeding. 

3. Where MSHA initiates an action on behalf of a miner or representative of a miners pursuant to section i05(c)(2) of the Act, MSHAmay not 

withdraw from such action because of a "conflict of interest" with the miner 

or representative of miners. 

4. Where, in an action initiated by MSHA on behalf of a miner or representative of miners pursuant to section i05(c)(2) of the Act, MSHA fails to 

present any evidence at hearing but the miner or representative of miners 

stands ready to present evidence, the action will not be dismissed for want 

of prosecution. 

5. On September 30, 1979, Complainant Bobby Gooslin engaged in the 

following activities which are protected under section i05(c) of the Act: 

662 
(a) Telephone call to Superintendent William Meadenotifying 

him that Gooslin, in his capacity as UMWA safety committeeman, intended to 

make a safety committee inspection of the mine at midnight; and 

(b) Gooslin's presence at the mine for the purpose of making 

a safety committee inspection. 

6. Complainant Bobby Gooslin has established that he was discharged 

by Kentucky Carbon on October 8, 1979, because of his protected activities, 

supra, and he wouldnot have been discharged but for such protected activity. 

7. On September 30, 1979, Complainant Bobby Gooslin engaged in the 

following activity which does not constitute protected activity under 

section i05(c) of the Act: After being refused the right to enter and 

inspect the mine by Shift Foreman James Christian, Gooslin said, "I'm going 

to show these damned Pmgers that they don't run this place." 

8. Kentucky Carbon has established that its determination to discharge 

Complainant Bobby Gooslin was also motivated by Complainant's unprotected 

activity as set forth in the preceding conclusion of law, but has failed to 

establish any other unprotected activity of Complainant Bobby Gooslin which 

motivated its determination to discharge him. 

9. Kentucky Carbon has failed to establish that it would have taken 

adverse action against Complainant Bobby Gooslin for the unprotected activity 

alone. 

i0. Complainant Bobby Gooslin was discharged by Kentucky Carbon in 

violation of section i05(c) of the Act. 

ii. Complainant Bobby Gooslin shall be rehired and reinstated to his 

former position at Kentucky Carbon with full seniority rights. 

12. Complainant Bobby Gooslin has failed to establish any claim for 

back pay, interest, or other monetary employment benefits. 

13. Complainant Bobby Gooslin has established his claims requiring that 

this incident be expunged from his employment records, requiring a copy of 

this decision and order be posted on Kentucky Carbon's bulletin boards at the 

mine, and entitling him to an order that Kentucky Carbon cease and desist 

from discriminating against or interfering with him because of activities 

protected under secton i05(c) of the Act. 

14. MSHA failed to follow the procedure concerning proposed assessment 

of a civil penalty as set forth in Commission Rule of Procedure 25, 29 C.F.R. 

§2700.25 and, therefore, the proposed assessment of a civil penalty is 

severed from this proceeding and remanded to MSHA for further proceedings. 
ORDER 

WHEREFORE, IT IS ORDERED that Kentucky Carbon's motion to dismiss for 

want of prosecution is DENIED. 

IT IS FURTHER ORDERED that Complainant's complaint of discharge is 

SUSTAINED and Complainant shall be rehired and reinstated to his prior 

position at Kentucky Carbon with full seniority rights. 

IT IS FURTI•R ORDERED that Kentucky Carbon shall: 

i. Expunge all references to Complainant's discharge from his employment 

records; 

2. Post a copy of this decision and order on all bulletin boards at 

the mine where notices to miners are normally placed and shall keep it posted 

there, unobstructed, for a consecutive period of 60 days; 

3. Cease and desist from discriminating against or interfering with 

Complainant because of activities protected under section i05(c) of the Act. 

IT IS FURTHER ORDERED that the proposal for assessment of a civil penalty 

is SEVERED from this proceeding and REMANDED to MSHA for further administrative proceedings. 

/ 

James A. Laurenson, Judge 

Distribution Certified Mail: 

William F. Taylor, Esq., Office of the Solicitor, U.S. Department of 

Labor, Room 280 U.S. Courthouse, Nashville, TN 37203 

Mary Lu Jordan, Esq., 900 15th St., NW, Washington, DC 20005 

Bernard Pafunda, Esq., P.O. Box 668, Pikeville, KY 41501 

C. Lynch Christian III, Esq., Jackson, Kelly, Holt and O'Farrell, 

P.O. Box 553, Charleston, WV 25322 

Timothy Biddle, Esq., Crowell and Moring, ii00 Connecticut Ave., •#, 

•shington, DC 20036 

W. Timothy Pohl, Esq., Carbon Industries, Inc., Suite 1300, 

One Valley Square, Charleston, WV 25301 

664 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE MAR I 8 |98| 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

SWEET CITY QUARRIES, 

Respondent 

Civil Penalty Proceeding 

Docket No. SE 80-49-M 

A.O. No. 09-00518-05001 

Sweet City Quarry & Mill 

DECISION 

Appearances: Ken S. Welsch, Esq., U.S. Department of Labor, Atlanta, 

Georgia, for the petitioner; Willie Simmons, pro s e, 

Elberton, Georgia, for the respondent. 

Before: Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding initiated by the petitioner 

against the respondent pursuant to section ll0(a) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. 820(a), proposing a civil 

penalty of $40 for one alleged violation of mandatory safety standard 

30 CFR 56.19-128(a). Respondent contested the citation and a hearing 

was held on November 25, 1980, in Athens, Georgia. 

The citation in this case was issued by MSHA Inspector Wayne Hubbard 

on October 23• 1979, and the condition or practice described on the face 

of the citation is as follows: 

There were more than six broken crown wires per lay in 

several lay of the main fall rope on the shift leg hoist. 

The cited mandatory safety standard, section 56.19-128(a), requires 

that "[R]opes shall not be used for hoisting when they have: (a) more 

than six broken wires in any lay;". 

Discussion 

In support of the alleged violation, petitioner presented the testimony 

of Mr. Hubbard, and the respondent presented the testiomny of its quarry 

foreman James Bell. At the conclusion of all of the testimony, I advised 

665 
the parties that based on all of the evidence and testimony, it was my 

initial preliminary finding that petitioner had failed to establish 

that there were in fact six broken wires in any one lay as charged in 

the citation. That finding was reduced in writing on January 29, 1981, 

as a Preliminary Finding and Order, and served on the parties. The 

parties were afforded an opportunity to file exceptions or further arguments 

concerning my finding on the fact of violation, but they declined to do so. 

The basis for my finding that the petitioner had failed to establish 

the fact of violation is detailed in my January 29, 1981, Order, 

copy of which attached hereto, and those findings and conclusions are 

herein incorporate d by reference. 

Conclusion and Order 

In view of the foregoing, I find that petitioner has failed to 

prove a violation of section 56.19-128(a), as charged in Citation No. 

099070, issued on October 23, 1979. Accordingly, the citation is VACATED 

and this proceeding is DISMISSED. 

or A. ou ra/s 

Administrative Law Judge 

Distribution: 

Willie M. Simmons, Sweet City Quarries, Inc., Box 727, Elberton, GA 

30635 (Certified Mail) 

Ken S. Welsch, Esq., U.S. Department Of Labor, Office of the Solicitor, 

1371 Peachtree St., NE, Rm. 330, Atlanta, GA 30309 (Certified Mail) 
ATTACHMENT TO FINAL DECISION/SE 80'49-M 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

January 29, 1981 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

SWEET CITY QUARRIES, 

Respondent 

Civil Penalty Proceeding 

Docket No. SE 80-49-M 

A.O. No. 09-00518-05001 

Sweet City Quarry & Mill 

PRELLMINARY FINDING AND ORDER 

Statement of the Case 

This is a civil penalty proceeding initiated by the petitioner 

against the respondent pursuant to section ll0(a) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. 820(a), proposing a civil 

penalty of $40 for one alleged violation of mandatory safety standard 

30 CFR 56.19-128(a). Respondent contested the citation and a hearing 

was held on November 25, 1980, in Athens, Georgia. At the conclusion 

of the hearing the parties were afforded an opportunity to state whether 

they desired to file any post-hearing proposed findings, conclusions, 

or briefs. Of particular concern to the court was whether or not 

petitioner has established a violation of the cited standard by a 

preponderance of the evidence. Petitioner's counsel stated that he did 

not believe it necessary to file a brief, but stated that he "would like 

to also do a little research and if I do come across something, I 

would like to have the opportunity to offer something" (Tr. 88). 

Respondent, acting pro s_•e, took the position that petitioner had not 

established that there were more than six broken wires in any lay as 

stated in the cited section 30 CFR 56.19-128(a), (Tr. 89). 

I previously advised the parties that I would issue a preliminary 

finding regarding the fact of violation and would then afford them an 

opportunity to take issue with that finding by filing additional arguments. 

The critical issue concerns the interpretation to be placed on the 

regulatory language more than six broken wires in any lay as found in 

the cited section. Although MSHA Inspector Hubbard testified that he 

observed eight broken wires in one of the rope lays and i0 in another, 

the breaks were on the outer visible (crown) areas, and he did not 

determine whether the breaks he observed were in fact the same wire broken 

n•re than once, and the damaged portion of the cable was not cut out and 

667 
examined to make this determination. Although Mr. Hubbard permitted the 

respondent to abate the citation by repositioning the rope on the reel 

so that the damaged portion Was not at the "working end", respondent 

nonetheless purchased and installed a new rope, at a cost of $2100 (Tr. 52). 

Discussion 

The section 104(a) citation, No. 099070, served on the respondent 

on October 23f 1979, by MSHA Inspector Ellis Hubbard, describes the 

condition or practice which the inspector believed violated section 

56.19-128(a) as follows: 

There were more than six broken crown wires per lay 

in several lay of the main fall rope on the shift 

leg hoist. 

The pertinent requirements of section 56.19-128(a) states as follows: 

"Ropes shall not be used for hoisting when they have: (a) more than six 

broken wires in any lay;". 

The parties are in agreement that the rope in question is a 3/4 

inch steel core cable, approximately i000 to 1200 feet long, and the 

alleged defective area encompassed an area of some i0 inches long. As 

for the meaning of the term "lay", The Dictionary of Mining, Mineral, and 

Related Terms, U.S. Department of Interior, 1968 Ed., defines the term 

"lay" in pertinent part as follows: 

The direction, or length, of twist of the wires and 

strands in a rope. The length of lay of wire rope 

is the distance parallel to the axis of the rope in 

which a strand makes one complete turn about the axis 

of the rope. The length of lay of the strand, similarly, 

is the distance in which a wire makes one complete turn 

about the axis of the strand. The pitch or angle of 

helix of the aires or strands of a rope, usually expressed 

by ratio of the diameter of the strand or rope to the 

length required for one complete twist. 

The term "wire rope" is defined at pg. 1241 of the Dictionary in 

pertinent part as follows: 

A rope made of twisted strands of wire. A steel wire 

rope used for winding in shafts and underground haulages. 

Various constructions of wire rope are designated by 

the Dumber of strands in the rope and the number of wires in 

each strand. 

668 
During the course of the hearing, respondent conceded that its mining operation was subject to the Act, and the parties stipulated that respondent is a small operator with no prior history of violations (Tr. 4). Petitioner conceded that respondent abated the citation in good faith (Tr. 81), and based on the testimony of record I made tentative findings that assuming the violation were established, I would find that it resulted from ordinary negligence and that on the basis of the circumstances surrounding the condition of the rope in question, I would likely ultimately find that the citation was nonserious As (Tr. 83-85). for the effect of the initially assessed penalty of $40 on respondent's business, assuming it were affirmed as my penalty in this matter, I 

cannot conclude that it will adversely affect respondent's ability to remain in business. 

Fact of Violation 

The critical remaining question in this case is whether the record 

supports the petitioner's assertion that a violation of the cited standard in fact occurred. Based on my review of the testimony of Inspector Hubbard, my preliminary finding is that petitioner has not established a violation, and I invite counsel's attention to the following testimony as set forth at pgs. 68-71 and 79-81 of the trial 

transcript: 

BY MR. SI•ONS: 

Q. You say that there were six broken wires in a crown? 

A. In a lay. 

Q. How did you determine that there were six broken 

wires? There could have been two wires that was broken 

three wires. There could have been one wire broken six 

times. How do you know that there were six of those wires 

broken in a crown? How can you prove that there were six 

wires broken in a crown? 

A. I'm telling you that I counted eight breaks in 

one lay and ten breaks in one lay. Okay? You're asking 

me how do I know that we might not be talking about two 

or three breaks in the same wire. We could be. 

But generally speaking, when wire goes, it'll go in lines. •lere you find one broken wire and another 

beside of it, you know that's not the same wire. 

Q. We know that's not the same wire. Common sense 

will tell you that it's not the same wire. But the thing being wrapped around, how do you know it's not the same 

wire that's broke six times instead of six wires broken 

in a wrap? 

669 
THE WITNESS: There's no way I can definitely say that 

one of these breaks isn't the same wire broke twice without 

cutting the rope out and actually taking it apart. 

JUDGE KOUTRAS: What if it were six breaks in the same 

wire? 

THE WITNESS: I don't -- I don't know. 

BY JUDGE KOUTRAS: 

Q. Would that be a violation? 

A. That's the way we've interpreted the standard. 

Q. Well, if there's six breaks in one wire, more than 

six breaks in one wire? See, the standard says, "more than 

six broken wires in any lay." So that means six individual 

wires. It doesn't say six breaks in one wire. 

Mr. Welch, how do you interpret that? 

Not only that, I was wondering how the standard writers 

arrived at six broken wires. Why is that such a magical 

figure? •y not five? 

•. WELCH: That I can't answer, but it does say "more 

than six broken wires in any lay" and I think I would have 

to say my interpretation would be different wires. 

JUDGE KOUTRAS: More than six broken wires in any lay, 

to me, means individual wires. 

MR. WELCH: Yes. 

JUDGE KOUTRAS: Mr. Hubbard, did you take any notes at the 

time of the event at all on this thing? 

Did you make any sketches or anything? I assume nobody 

took a picture. 

TIIE WITNESS: I don't have a thing. The only thing I've 

got in my notes -- the only thing I put in my notes at this 

time was more or less the same thing the citation says. 

JUDGE KOUTRAS: There were more than six broken crown 

wires per lay in several -- 

THE WITNESS: Lay of the main rope. 
•. SI•ONS: This is what you say. Do you have any 

proof that there were six or eight wires broken in that 

Crown? 

THE WITNESS: No, but I do nowadays. I take pictures. 

JUDGE KOUTRAS: It says "More than six broken wires in 

any one lay." So that's the troublesome part. 

Do you disagree or agree or what? What would be 

your 

-- if I were to call for briefs in this case, would 

you try to convince me that you've preponderated here 

and that you've established the case by preponderance 

of the evidence? 

•. WELCH: Yes, sir, I'd try to convince you that we'd 

done that. I think strictly speaking it's'a factual view as 

to whether or not there were six broken wires in any one lay. 

The inspector, according to my understanding of his 

testimony, did count more than six broken wires in any one lay. 

The question as to whether or not they were the same 

wire is something that the inspector cannot answer. 

JUDGE KOUTRAS: The $64 question is: is it a question 

that he's called upon to answer before I can affirm the 

citation? Is that part of the burden of proof? 

•. WELCH: Yes, sir, I -- 

JUDGE KOUTRAS: I think the answer would probably have 

to be in the affirmative. 

MR. WELCH: Without researching any cases, I'd have to 

agree with you. 

BY MR. WELCH: 

Q. •en you counted them, where were the broken wires? 

A. The broken wires weren't all in the same strand, but 

still, I can't -- I can't substantiate -- there's only two 

ways without dissecting the rope that you could determine if 

it had six broken wires in one spread. One is that the wires 

were side by side in the same strand or, two, that each one 

was in a different strand. This could be done without taking 

the rope apart; otherwise, there'd be no way. 
Q. Do you recall in your counting any broken wires of 

this particular rope that we're talking about on October 23rd, 

'79, in Sweet City Quarries when you counted them where the 

broken wires were? 

A. They were in different strands but I can't definitely 

say that there were six broken wires. 

MR. SI•ONS: Sir, I think you ought to dismiss this thing 

here. 

ORDER 

In view of the foregoing, the parties are afforded an opportunity, 

within thirty (30) days from the date of this order, to file any further 

arguments concerning my preliminary finding in this matter, and upon 

expiration of this time period, I will proceed to finalize and render 

a final decision in this matter. 

Administrative Law Judge "•' 

Distribution: 

Willie M. Siphons, Sweet City Quarries, Inc., Box 727, Elberton, GA 

30635 (Certified Mail) 

Ken S. Welsch, Esq., U.S. Department of Labor, Office of the Solicitor, 

1371 Peachtree St., NE, Rm. 339, Atlanta, GA 30309 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

V. 

Petitioner 

EL PASO ROCK QUARRIES, Inc., 

Respondent 

Civil Penalty Proceedings 

Docket Nos. DENV 79-139-PM 

A/O No. 41-00046-05001 

Docket No. DENV 79-176-PM 

A/O No. 41-00046-05003 

E1 Paso Quarry & Plant 

DECISION 

Appearances: John H. O'Donnell, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

Ralph W. Scoggins, Esq., E1 Paso, Texas, for Respondent. 

Before: Judge Charles C. Moore, Jr. 

On January 28, 1981, the Commission remanded theabove cases to me for 

further proceedings as to six of the citations which I had vacated and which 

the Commission has reinstated. I have already made findings as to all the 

necessary criteria except negligence and gravity, and in my opinion the 

Commission has already decided that the violations did occur. I have given 

the parties an opportunity to state whether they wanted to present any 

additional evidence and the Secretary has stated that he did not. Respondent 

did not reply to the order. 

Citation No. 159658 

I was of the opinion that the elevated roadway involved in this citation 

was not used for loading, hauling and dumping, and vacatedthe citation. The 

Commission disagreed because explosives were hauled to a blasting site. The 

lack of berms could be hazardous but there is a very low degree of negligence 

because the operator thought, as I did, that the standard did not require 

berms on this type of road. A penalty of $i00 is assessed. 

Citation No. 159665 

In my original decision in this case, I made the following statement 

concerning this citation: 

673 
Citation No. 159665. The allegation is that 30 CFR 

56.9-87 was violated in that the automatic reverse alarm 

was inoperative on one of the company trucks. This was a 

35-ton haulage truck and naturally could do serious damage 

if it were to back over another piece of equipment or a 

miner. But the evidence indicates that all such equipment 

is checked every morning and every night, and whenever the 

vehicle is backed up. The drivers are instructed to take 

any truck to the shop to be fixed by mechanics when a failure 

occurs. In the circumstances, I do not believe that the Act 

requires a mine operator to guarantee that a piece of equipment will not break down. His obligation is to check it 

often and repair it when it does break down and there is no 

proof in this case that the operator did not do just that. 

If the inspector had been able to determine when the horn 

became inoperative and that the mine operator should have 

known of it, a violation would be established. In the 

present circumstances, however, the citation is VACATED. 

A civil penalty is supposed to be a deterrent to future violations. In 

a case such as this, where I believe the Respondent was doing all that could 

be reasonably expected in order to keep the trucks in safe operating condition, I cannot reasonably assess a penalty high enough to be a deterrent. 

But even if I assessed a $i0,000 penalty, it would not prevent horns from 

becoming inoperative, headlights from burning out, windshields from becoming 

cracked, etc. I am assessing a penalty of $i0.00 for this "no fault" 

violation. 

Citation Nos. 159669, 159673, and 159695 

These three citations were issued because toeboards were not attached to 

certain elevated platforms creating a danger to miners below of falling tools 

or equipment. The standard in question (30 C.F.R. 56.11-2) states that 

"Crossovers, elevated walkways, elevated ramps, and stairways shall be of 

substantial construction provided with handrails, and maintained in good 

condition. Where necessary, toeboards shall be provided." 

I interpreted the words "where necessary" in the standard to apply to 

situations where there was a danger of falling from the elevated ramps or 

elevated walkways but the Commission has decided that the standard is also 

intended to protect persons under the platforms. Inasmuch as there was 

equipment or the platforms, and there were no toeboards, a violation was 

established. There was negligence in allowing the condition to exist and I 

think the Hazard involved justifies a civil penalty of $i00 for each of these 

three citations, and I accordingly assess $300 for these citations. 

Citation No. 195691 

The allegation in this citation was that the gate in the fence surrounding an electrical transformer was not locked. The fence had a hole in it big 
enough for someone to walk through (a penalty was assessed for this hole), 

and like Commissioner Backley I fail to see the point in requiring that a 

gate be locked when there is a big hole in the fence. Having the transformer 

inadequately fenced is hazardous, but I can see no additional hazard caused 

by the fact that the gate was not locked. Nor do I find any negligence in 

the circumstances. A penalty of $5 is assessed. 

ORDER 

It is therefore ordered that Respondent pay to MSHA, within 30 days, a 

civil penalty of $415. i/ 

Charles C. Moore, Jr. 

Administrative Law Judge 

Distribution: 

John H. O'Donnell, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Ralph W. Scoggins, Esq., Suite 342, 5959 Gateway West, E1 Paso, TX 

79925 (Certified b•il) 

i/ These assessments are in addition to those contained in my earlier 

decision. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE MAR • o |98• 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

CYPRUS INDUSTRIAL MINERAL 

CORP., 

Respondent 

Civil Penalty Proceeding 

Docket No. WEST 80-19-M 

A.O. No. 24-01431-05001 F 

Bosal No. 1 Claim 

DECISION AND ORDER APPROVING SETTLEMENT 

This is a civil penalty proceeding initiated by the petitioner against 

the respondent through the filing of a proposal for assessment of a 

civil penalty pursuant to section ll0(a) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. 820(a), seeking a civil penalty assessment 

for one alleged violation of mandatory safety standard 30 C.F.R. § 57.3-22. 

Respondent filed a timely answer but this proceeding was subsequently 

stayed by order issued May 27, 1980, pending a decision by the 9th Circuit 

concerning the review of a notice of contest filed by the respondent 

contesting the issuance of the underlying imminent danger order of 

withdrawal issued in this case. By order issued September 3, 1980, the 9th 

Circuit remanded the contest of the withdrawal order to the Commission 

for its review. The Commission Sssued a final order on January i, 1981 

upholding the validity of the § 107(a) imminent danger order, and on 

January 21, 1981, I issued an order to show cause why this civil penalty 

matter should not be scheduled for hearing. Respondent complied by 

submitting a copy of its petition for review filed with the 9th Circuit 

on Februarv 4. 1981. The parties on February 12, 1981 also submitted a 

stipuiaLion and motion to approve a proposed settlement agreement. I 

rejected, without prejudice, this proposed settlement by an order issued 

February 13, 1981 because inter alia, I disagreed with respondent's 

asserted right to a refund based on any favorable outcome for respondent 

with regard to the litigation pending in the 9th Circuit. On March 4, 1981, 

the parties filed an amended stipulation and motion to approve settlement 

agreement, whereby they limited the right to a refund to a decision by 

the 9th Circuit that respondent was inappropriately cited or that the 

Commission had no jurisdiction over the mine in issue. The order, initial 

assessment, and the proposed settlement amount is as follows: 

676 
Order No. Date 30 CFR Standard Assessment Settlement 

342065 8/3/78 57.3-22 $I,000 $ 500 

In support of the proposed settlement the parties have submitted 

arguments and information concerning the six statutory factors found in 

section ll0(i) of the Act. The parties have stipulated that respondent 

operates a noncoal mine and the total hours worked at the controlling 

company are 2,585 and the hours worked at the mine are 160 per year. 

Payment of the proposed penalty will not impair the respondent's ability 

to continue in business. 

In support of a reduced penalty, the parties state prior stipulated 

facts which lessen the degree of negligence on the part of respondent. 

These facts indicate that an independent contractor performed the work 

for which the order was issued, that this man furnished all the manpower, 

equipment and supplies needed to perform the work, and that he exercised 

complete control over the area in which he was working. 

Conclusion 

After careful review and consideration of the pleadings, arguments 

and information of record in support of the motion to approve the proposed 

settlement, I conclude and find that it is reasonable and in the public 

interest. Accordingly, pursuant to 29 C.F.R. 2700.30, the motion is 

GRANTED and the settlement is APPROVED. 

Order 

Respondent IS ORDERED to pay a civil penalty in the settlement 

amount listed above in satisfaction of the order in question, within 

thirty (30) days of the date of this decisionand order, and upon receipt 

of payment by the petitioner, this proceeding is dismissed. In the event 

that respondent prevails on the issue of jurisdiction or in the event 

that the 9th Circuit determines that respondent was inappropriately cited, 

petitioner will refund the $500 penalty to respondent. 

Distribution: 

17d•ni• t rat i v/•e• 

Law Judge 

•' 

Katherine Vigil, Esq., U.S. Department of Labor, Office of the Solicitor, 

1585 Federal Bldg., 1961 Stout St., Denver, CO 80294 (Certified Mail) 

Scott H. Dunham, Esq., O'Melveny & Myers, 611 W. Sixth St., Los Angeles, 

CA 90017 (Certified Mail) 

G77 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 o 188! 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

HINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Vo 

Petitioner 

CONSOLIDATION COAL CO•qY, 

Respondent 

: Notice of Contest 

: Docket No. WEVA 80-160-R 

: Citation No. 633821; 

: November 26, 1979 

: Shoemaker Mine 

: Civil Penalty Proceeding 

: Docket No. WEVA 80-379 

: A/O No. 46-01436-03083 

: Shoemaker Mine 

DECISION 

Appearances: David E. Street, Esq., Office of the Solicitor, U.S. Department 

of Labor, Philadelphia, Pennsylvania, for the Mine Safety and 

Health Administration; 

Ronald S. Cusano, Esq., Rose, Schmidt, Dixon, Hasley, Whyte 

& Hardesty, Pittsburgh, Pennsylvania, for Consolidation Coal 

Company. 

Before: Judge Cook 

I. Procedural Background 

On December 26, 1979, Consolidation Coal Company (Consol) filed a notice 

of contest in Docket No. W-EVA 80-160-R pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (Supp. III 

1979) (1977 Mine Act) to contest Citation No. 633821. The citation was 

issued on November 26, 1979, pursuant to section 104(a) of the 1977 Mine Act 

citing Consol for an alleged violation of mandatory safety standard 30 C.F.R. 

§ 75.301. The citation contains the additional allegation that the cited violation was of such nature as could significantly and substantially contribute 

to the cause and effect of a mine safety or health hazard. Consol's notice 

678 
of contest alleged, inter alia, (i) that the citation failed to cite a condition or practice which constituted a violation of mandatory safety standard 

30 C.F.R. § 75.301; and (2) that no conditions or practices existed in the 

mine which could significantly and substantially contribute to the cause and 

effect of a mine safety or health hazard. 

An answer was filed by the Mine Safety and Health Administration (MSHA) 

on or around January 7, 1980. In its answer, MSHA (i) admitted the issuance 

of the citation and stated that it was properly issued pursuant to section 

104(a) of the 1977 Mine Act; (2) stated that a violation of a mandatory standard occurred; and (3) denied all other allegations contained in the notice 

of contest. Additionally, MSHA requested a continuance pending the filing 

of the associated civil penalty case. The requested continuance was granted 

by an order issued on February 5, 1980. 

On June 23, 1980, MSHA filed a proposal for a penalty in Docket No. •VA 

80-379 pursuant to section ll0(a) of the 1977 Mine Act alleging violations 

of two provisions of the Code of Federal Regulations. The proposal for a 

penalty encompasses Citation No. 633821. Consol's answer was filed on 

July 9, 1980. 

The hearing was held on July 22, 1980, in Washington, Pennsylvania, at 

which time evidence was presented in a consolidated proceeding addressing 

Citation No. 633821. i/ Representatives of both parties were present and 

participated. Exhibit No. M-3 was reserved for the posthearing filing by 

MSHA of a computer printout setting forth Consol's history of previous violations at the Shoemaker •ne for which assessments have been paid during 

the 24 months preceding November 26, 1979. Following the presentation of 

the evidence, a schedule was set for the filing of posthearing briefs and 

proposed findings of fact and conclusions of law. However, the briefing 

schedule was subsequently revised at MSHA's request. 

On August 21, 1980, Petitioner filed a computer printout in Docket No. 

WEVA 80-379 setting forth Consol's history of previous violations at the 

Shoemaker Mine for which assessments have been paid, beginning November 19, 

1977, and ending November 18, 1979. The following stipulation was filed in 

conjunction therewith: 

The parties * * * stipulate that, for the purposes of 

this proceeding, the relevant portion of the attached 

i/ The proposal for a penalty filed in Docket No. •VA 80-379 also enc•npassed Citation No. 633657, November 19, 1979, 30 C.F.R. § 75.303. Citation 

No. 633657 was also the subject matter of the notice of contest proceeding 

in Docket No. WEVA 80-158-R. All matters relating to Citation No. 633657 

were disposed of on July 22, 1980, by the granting of various motions in the 

two cases resulting in the vacation of Citation No. 633657 and the dismissal 

of the proposal for a penalty insofar as it related to such citation. This 

disposition was affirmed by an order issued on September 18, 1980. 
computer printout, program ID: AS45904, is that portion 

pertaining to [Consol's] history of violations at the 

Shoemaker mine during the period November 19, 1977 to 

November 18, 1979. [MSHA] offers the attached printout in 

evidence as Exhibit M-3. [Consol] has no objection to 

reciept [sic] of the printout in evidence for the limited 

purpose set forth above. 

Exhibit •>3 was received in evidence by an order issued on September 23, 

1980. 

Consol and MSHA filed posthearing briefs on September 26, 1980, and 

September 29, 1980, respectively. Consol filed a reply brief on October i0, 

1980. 

II. Violations Charged in Docket No. WEVA 80-379 

Citation No. Date 30 C.F.R. Standard 

633657 11/19/79 75.303 2/ 

633821 11/26/79 75.301 

III. Witnesses and Exhibits 

A. Witnesses 

MSHA called as its witness Federal mine inspector Charles Coffield. 

Consol called as its witness Kit Phares, the regional inspector for the 

Moundsville Operations of Consol's Eastern Division. 

B. Exhibits 

i. MSHA introduced the following exhibits in evidence: 

M-1 is a copy of Citation No. 633821, November 26, 1979, 30 C.F.R. 

§ 75.301, and a copy of the termination thereof. 

M-2 is a copy of the Shoemaker Mine's approved ventilation system 

and methane and dust control plan in effect on November 26, 1979, and submitted for revision on May 9, 1980. 

M-3 is a computer printout setting forth Consol's history of previous violations at the Shoemaker Mine for which assessments have been paid, 

beginning November 19, 1977, and ending November 18, 1979. 

2. Consol introduced the following exhibits in evidence: 

2/ See n. I, supra. 

680 
0-I is a map of the 5 North Face section of the Shoemaker Mine. 

0-2 is a copy of Inspector Coffield's "inspector's statement," MSHA 

Form 7000-4, pertaining to }•i. 

IV. Issues 

A. The following issues are presented in the above-captioned notice of 

contest proceeding: 

i. •lether the condition or practice cited in Citation No. 633821 constitutes a violation of mandatory safety standard 30 C.F.R. § 75.301. 

2. If the condition or practice cited in Citation No. 633821 constitutes 

a violation of mandatory safety standard 30 C.F.R. § 75.301, then whether such 

violation was of such nature as could significantly and substantially contribute to the cause and effect of a mine safety or health hazard. 

B. Two basic issues are involved in the above-captioned civil penalty 

proceeding: (I) did a violation of the Code of Federal Regulations occur, 

and (2) what amount should be assessed as a penalty if a violation is found 

to have occurred? In determining the amount of civil penalty that should be 

assessed for a violation, the law requires that six factors be considered: 

(I) history of previous violations; (2) appropriateness of the penalty to the 

size of the operator's business; (3) whether the operator was negligent; 

(4) effect of the penalty on the operator's ability to continue in business; 

(5) gravity of the violation; and (6) the operator's good faith in attempting 

rapid abatement of the violation. 

V. Opinion and Findings of Fact 

A. Stipulations 

1. The Administrative Law Judge has jurisdiction in the above-captioned 

proceedings (Tr. 5-7). 

2. Consol operates in interstate commerce, and the Shoemaker Mine is 

covered under the 1977 }•ne Act (Tr. 6-7). 

3. Consol is a large operator, and the Shoemaker Mine is a large •ine 

(Tr. 6-7). Specifically, the size of Consol is rated at 44,855,465 tong of 

coal per year, and the size of the Shoemaker Mine is rated at 1,791,721 tons 

of coal per year (Tr. ii). 

4. Consoi abated the violation within the time set uj the inspector 

and it acted in good faith in doing so (Tr. 5-6). 

B. Occurrence of Violation 

Federal mine inspector Charles Coffield issued Citation No. 633821 at 

Consol's Shoemaker Mine during the course of his November 26, 1979, inspection 

681 
(Tr. 15-16). The citation alleges a violation of mandatory safety standard 

30 C.F.R. § 75.301 in that only approximately 4,600 cubic feet of air per 

minute (cfm) was reaching the last open crosscut between the No. 2 and No. 3 

entries of the Five North Face left side section (047) (Exh. M-l). The 

citation alleges a violation of that portion of mandatory safety standard 

30 C.F.R. § 75.301 which requires that "[t]he minimum quantity of air reaching the last open crosscut in any pair or set of developing entries and the 

last open crosscut in any pair or set of developing rooms shall be 9,000 

cubic feet a minute." (See Tr. 61.) 

The briefs filed by the parties present two questions for resolution in 

determining whether a violation occurred. The first question relates to the 

accuracy of the 4,600 cfm air volume measurement obtained by the inspector, 

and to the methods used by the inspector to obtain that air volume measurement. The second question relates to whether the air volume measurement, as 

stated, constituted a violation of the law at the time and location involved. 

The resolution of the first question turns upon Consol's challenge to the 

accuracy of the air velocity measurement used by the inspector in his computations to determine that only approXimately 4,600 cfm of air was reaching the 

last open crosscut between the No. 2 and No. 3 entries of the Five North Face 

left side section. An anemometer was used to make the air velocity measurement. It appears from the record that an accurate air quantity computation, 

based upon an air velocity reading taken with an anemometer, requires the 

following: An approved, calibrated anemometer is used to obtain an air reading. An anemometer correction chart is then used to convert this reading into 

an accurate air velocity measurement. The width and the height of the crosscut are determined, and the three figures are multiplied together to obtain 

an air quantity measurement in terms of cfm. 

Consol's challenge to the accuracy of the 4,600 cfm reading rests solely 

upon the assertion that Inspector Coffield could not state for certain whether 

he had or had not used the anemometer correction chart (Consol's Posthearing 

Brief, pp. 18-19; Consol's Reply Brief, p. 8). Inspector Coffield testified 

on direct examination during MSHA's case-in-chief: (I) that he used an 

approved, calibrated anemometer to take an air velocity reading; (2) that, to 

the best of his recollection, he obtained a reading of 38 feet per minute; 

(3) that he had already taken a width and a height measurement; and (4) that 

he multiplied the three figures together and obtained an air quantity figure 

of slightly less than 4,600 cfm (Tr. 16). Consol's position as to whether 

the inspector did or did not use the correction chart is based upon the 

following testimony elicited from Inspector Coffield on cross-examination 

during MSHA's rebuttal case: 

Q. Mr. Coffield, your anemometer that you used to take 

the readings, is it equipped with a correction chart? 

A. Yes, sir. 

Q. Did you use the correction chart for taking the 

readings on the date in question? 

682 
A. The correction chart, I thinlc -- 

Q. The answer would be yes or no, I think, to that 

question. 

A. I don't know if I can answer it yes or no. 

I will say I looked at -- 

yes, I looked at the 

correction chart. 

Q. You looked at it? 

A. Uh-huh. 

(Tr. 96-97). 

I find that the evidence is sufficient to support a finding that the 

inspector made use of the correction chart. The fact that he looked at the 

chart renders it more probable than not that he made use of the chart in computing air velocity. The record also contains sufficient independent evidence 

to corroborate the accuracy of the 4,600 cfm figure. Mr. Phares testified 

that Inspector Coffield performed a series of computations prior to stating 

that there was only 4,600 cfm reaching the last open crosscut between No. 2 

and No. 3 entries (Tr. 73). Mr. Phares' position on the date of the inspection does not appear to have included any disagreement with the accuracy of 

the inspector's 4,600 cfm reading. It appears that the disagreement was confined to the location where the air velocity measurement was obtained, with 

Mr. Phares contending at the time that the reading should have been taken in 

the last open crosscut between No. i and No. 2 entries (Tr. 69-70). Mr. Phares 

made computations based on an air velocity reading taken in the last open 

crosscut between No. i and No. 2 entries and obtained a 26,000 cfm figure (Tr. 

69-70). Considering the arrangement of the ventilation system, Mr. Phares did 

not consider the difference between his reading and Inspector Coffield's reading to be unusual (Tr. 75). Accordingly, I find that only approximately 

4,600 cfm of air was reaching the last open crosscut between No. 2 and No. 3 

entries. 

Consol's challenge to tile method of measurement centers around the smoke 

tube test performed by Inspector Coffield (Consol's Posthearing Brief, p. 19). 

Consol challenges the test on various grounds. However, the evidence establishes that the results of the smoke tube test did not form a basis for the 

inspector's determination that only approximately 4,600 efm of air per minute 

was reaching the last open crosscut between No. 2 and No. 3 entries. The evidence clearly shows that the smoke tube test was performed after the inspector 

informed i lr. Phares that he had obtained a 4,600 cfm figure using the air 

velocity figure derived from the anemometer reading (Tr. 93-94). Accordingly, 

it is unnecessary to address Consol's challenge to the smoke tube test in order 

to resolve the issues presented herein. 
The second question raised by the parties is whether an air volume 

measurement of 4,600 cfm at the location involved constituted a violation 

of 30 C.F.R. § 75.301. The record establishes the following: 

The Five North Face section of the Shoemaker Mine was a two miner section 

consisting of i0 entries numbered in sequence from left to right (Exh. 0-I, 

Tr. 68-69). Each entry contained a "working face." The type of ventilation 

system in use was described as a split system of ventilation (Tr. 58-59). On 

November 26, 1979, the working face where coal was being extracted, on the 

left side of the Five North Face section, was located in the No. 1 entry (Tr. 

68-69, Point A on Exh. 0-I). The mining plan on the day shift was to advance 

the No. 1 entry a distance of approximately I00 to 120 feet (Tr. 68). None 

of the other entries on the left side of the Five North Face section were to 

be mined during the shift (Tr. 84). _3/ Ventilation was accomplished through 

the use of permanent stoppings, check curtains, regulators and a system of 

fans (Exh. O-i, Tr. 79, 87). 

The ventilation system on the left side of the section was set up as 

follows: Permanent stoppings had been installed in the crosscuts between 

No. 2 and No. 3 entries, up to and including the second crosscut outby the 

last open crosscut (Exh. 0-i). A check curtain (check curtain No. i) had 

been installed in a crosscut between the No. 1 and No. 2 entries. The crosscut containing check curtain No. 1 was located one crosscut outby the last 

open crosscut (Exh. 0-i). An additional check curtain (check curtain No. 2) 

had been installed in the No. 2 entry at a point approximately midway between 

the first crosscut outby the last open crosscut and the second crosscut outby 

the last open crosscut (Exh. 0-i). Under this setup, the left side of the 

section was being ventilated with Nos. 3, 4 and 5 entries, and part of No. 2 

entry, on intake air. The No. 1 entry and the remainder of No. 2 entry were 

on return air (Exh. O-i, Tr. 69). An auxiliary exhaust fan was located in 

the No. 1 entry just outby the point where it intersected with the last open 

crosscut (Exh. 0-i, Tr. 79). According to Mr. Phares, the return air course 

began in the No. 1 entry at the last open crosscut (Tr. 69). 

Check curtain No. 1 was loose in a few places around tile edges, but it 

was basically up and basically sound (Tr. 29, 33-34). Check curtain No. 2 

was almost completely torn down; specifically, approximately two-thirds of 

it had been torn do• and approximately one-third of it remained up (Tr. 29, 

31-33). 4/ 

3/ The five North Face section was a two-miner section. The other miner was 

mining in one of the entries on the right side of the Five North Face section 

(Tr. 89). 

•/ Inspector Coffield and Mr. Phares demonstrated considerable disagreement 

as relates to the condition of the two check curtains. Inspector Coffield 

testified that check curtain No. 1 was loose in a few places around the 

edges, but that it was basically up and basically sound (Tr. 29, 33-34). He 

further testified that check curtain No. 2 was almost completely torn down, 

with approximately two-thirds of it down and the remaining one-third of it 

684 
As noted above, Inspector Coffield measured the volume of air in the 

last open crosscut between No. 2 and No. 3 entries and obtained a measurement 

of 4,600 cfm. Mr. Phares promptly measured the volume of air in the last 

open crosscut between No. i and No. 2 entries and obtained a measurement of 

26,000 cfm. 

MSHA contends that Inspector Coffield took his measurements in the proper 

location, i.e., in the last open crosscut between No. 2 and No. 3 entries. 

MSHA points to the provisions of the approved ventilation system and methane 

and dust control plan in effect on November 26, 1979 (Exh. •2), as designating the line of pillars between No. 2 and No. 3 entries as the line of 

pillars separating the intake and return air courses. Consol disagrees, contending that the measurements were required to be taken in the last open 

crosscut between No. 1 and No. 2 entries because, under the ventilation set up 

in use on November 26, 1979, the line of pillars between the No. i and No. 2 

entries was the line of pillars separating the intake and return air courses. 

Consol maintains that the point at which intake air becomes return air is of 

significance in making this determination, and contends that intake air 

becomes return air only after it has passed over the last active working face. 

Accordingly, Consol argues that the return air course did not begin until the 

air had passed over the last active working face, in this case the face of 

the No. i entry where work was actually in progress. 

Consol's position is not sustainable from two different standpoints. 

First, its position can be maintained only if it relies upon the provisions of 30 C.F.R. § 75.301-3(a). This section of the regulations was 

promulgated by the administrators of the 1969 Coal Act to set forth a place 

they considered adequate to measure the quantity of air which Congress determined was required to reach the last open crosscut. In enacting section 303(b) 

of the 1969 Coal Act, Congress decreed that the minimum quantity of air reaching the last open crosscut in any pair or set of developing entries shall be 

9,000 cfm. Therefore, Congress determined that this quantity of air must 

reach tile last open crosscut where it intersects each developing entry. 

The regulation as to theplace to measure the quantity of air states, 

in part, that "the volume of air shall be measured in the last open crosscut 

fn. 4 (continued) 

up (Tr. 29, 31-33). Mr. Phares testified at one point that Inspector Coffield 

and he came through curtain No. 2, and that he did not recall it being down 

(Tr. 72). Similarly, Mr. Phares testified at another point that he did not 

recall any problem with check curtain No. i or check curtain No. 2 (Tr. 

83-84). 

I accept the inspector's testimony on this point because he affirmatively 

testified as to the condition of the two check curtains. Mr. Phares testimony 

that he did not recall check curtain No. 2 being down is not an affirmative 

statement that the curtain was up. Similarly, his testimony that he did not 

recall any problem with either curtain is not an affirmative statement that no 

problems existed. 
through the line of pillars that separates the intake and return air courses 

of each split." 30 C.F.R. § 75.301-3(a). 

Consol argues that such place of measurement is the place where intake 

air becomes return air and that that place varies such that it occurs at that 

particular working face where mining is actually being done. 

Consol, however, submitted a ventilation plan that was approved by the 

Government wherein it set forth a specific provision that permanent stoppings 

will be maintained to separate intake and return air courses up to and 

including the third connecting crosscut outby the faces. Exhibit 0-I shows 

the places where Consol installed its permanent stoppings. Consol itself 

then designated that line of stoppings as the separation between the intake 

air course and the return air course. 

Consol can hardly now claim that it did not affirmatively determine, 

under its own ventilation plan, the separation between the intake and return 

air courses. This, of course, is between the No. 2 and No. 3 entries. 

Therefore, as a minimum, the air reading must be 9,000 cfm in the crosscut 

between No. 2 and No. 3 entries. 5/ 

There is another reason why Consol's position is not well founded. As 

stated above, the statute in question requires that 9,000 cfm of air reach 

the last open crosscut where it intersects each developing entry. 

Ue know that the quantity of air in the last open crosscut between the 

No. 2 and No. 3 entries was only 4,600 cfm. We also know that the witness 

for Consol stated that in his opinion the quantity of air in the last open 

crosscut between the No. 5 and No. 4 entries and the No. 4 and No. 3 entries 

was possibly less than 4,600 cfm (Tr. 88-89). 

Therefore, Consol's position results in a situation wherein the air 

reaching the last open crosscut in No. 5, No. 4, and No. 3 entries could be 

less than 9,000 cfm and Consol would maintain that this was not a violation 

of law. 

However, this condition would violate the basic intent of the statute 

since 9,000 cfm of air would not be reaching the last open crosscut where 

it intersects the No. 3, No. 4, and NO. 5 entries. Each of these entries 

contains a working face. The temn "working face" is defined as "any place 

in a coal mine in which work of extracting coal from its natural deposit in 

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

5/ The foundation for Consol's argument that a location in the last open 

crosscut between the No. i and No. 2 entries constitued a valid place for 

measurement is further without foundation because Consol has not shown any 

provisions in the ventilation plan which would have authorized any part of 

the No. 2 entry as an intake air course. The only portions of the ventilation 

plan which apply to this situation would indicate that there is no foundation 

for the use of No. 2 entry for intake air. 

686 
•thane is released from all of the working faces in the mining cycle 

even though coal is being extracted from only one of those faces at a given 

time (Tr. 34-37, 91-92). 6/ Therefore, air of that quantity is needed to 

maintain safe conditions •n the entire mining cycle. This is why Congress 

requires that such quantity of air reach the last open crosscut where it 

intersects each of these developing entries. 

The case of Zeigler Coal Company, 3 IBIIA 78, 81 I.D. 173, 1973-1974 CCH 

OSHD par. 17,615 (1974), has been cited. In that case, the Interior Board 

of Mine Operations Appeals (Board) cited 30 C.F.R. § 75.301-3 and indicated 

that the location at which the air volume measurement is to be made, which 

is through the line of pillars separating the intake and return air courses, 

must be determined with reference to the point at which intake air becomes 

return air. 3 IBMA 78 at 83-84. As stated above, in view of the definition 

of "working face", the faces in each entry were working faces. We know that 

intake air was proceeding up to the faces in the No. 5, No. 4, No. 3, and 

No. 2 entries. 

•len the intake air in No. 5 entry reached the No. 5 working face that 

air became return air since it would be carrying methane away from the face 

area (Tr. 34-39, 91-92) whether or not mining was being done at that moment 

in that particular working face in the mining cycle. That return air would 

then be drawn to the left of the section through the last open crosscut by 

the auxiliary fan in the No. i entry. Intake air was also coming up the 

No. 4 and No. 3 and No. 2 entries as shown on Exhibit 0-i. We know that that 

air was intake air at least until it reached the last open crosscut and that 

it was return air as it proceeded to the left of each entry through the last 

open crosscut. 

Consequently, the provisions of 30 C.F.R. § 75.301-3 as to the place of 

air measurement can be applied in the last open crosscut between each entry 

since the air is continuously changing from intake to return air. 

No matter what kinds of arguments are developed as to locations of 

measurements, 7/ it is patently clear that the finding of only 4,600 cfm 

as the measurement of quantity of air obtained in the last open crosscut 

between the No. 2 and No. 3 entries, is clear evidence of a violation of 

30 C.F.R. § 75.301 in that 9,000 cfm of air was not reaching the last open 

crosscut in this set of developing entries. 

Accordingly, it is found that a violation of 30 C.F.R. § 75.301 has 

been established by a preponderance of the evidence. 

6/ Inspector Coffield testified that he had taken methane readings on 

different occasions and had obtained readings of .8 percent, .9 percent and 

possibly 1.2 percent. He further testified that methane has been found in 

excessive quantities even back on tile belt lines (Tr. 35). 

7/ The most logical and effective method would be to set forth definitions 

for the terms "intake air course," "return air course," "intake air," and 

"return air" in Part 75 of Title 30 of the Code of Federal Regulations. 
C. Negligence of the Operator 

The placement and condition of the check curtains was responsible for 

the low air reading obtained by the inspector (Tr. 25, 29, 71, 77-78, 89). 

The parties demonstrated substantial disagreement as to whether the placement of the curtains complied with the applicable portions of the approved 

ventilation system and methane and dust control plan. The drawings on 

page 12 of the plan depict a typical ventilation system applicable to a 

mining cycle utilizing 8 entries and one or two continuous miners. The 

portion of the mine in which the violation occurred had i0 entries. Paragraph 7 on page 9 of the plan states that the "section and face ventilation system (typical for each system of advance and retreat mining) shown 

will vary in the number of entries, entry and crosscut centers, and crosscut angles." 

It appears that the placement of the check curtains did not comply with 

the provisions of the approved ventilation system and methane and dust control plan. Furthermore, the flexibility afforded by paragraph 7 on page 9 

of the plan does not extend so far as to permit the operator to place himself in violation of 30 C.F.R. § 75.301. 

The inspector did not know whether Consol knew that the check curtain 

in the No. 2 entry was down (Tr. 37). However, the testimony of Mr. Phares 

indicates that the placement of the curtains was the responsibility of a 

section foreman (Tr. 79). It can therefore be concluded that Consol knew 

or should have known of the existence of one of the conditions principally 

responsible for the low air reading. Accordingly, it is found that Consol 

demonstrated ordinary negligence. 

D. Gravity of the Violation 

Inspector Coffield testified that the violation was serious because 

methane could accumulate on the left side of the section as a result of the 

reduced ventilation (Tr. 34-35). An accumulation of methane could figure 

prominently in a mine explosion (Tr. 37). Mr. Phares testified that the 

section liberates methane (Tr. 72). According to Inspector Coffield, the 

mine liberates such quantities of methane that excessive quantities have 

been detected on the belt lines (Tr. 35). However, it does not appear that 

Inspector Coffield issued any citations at the time based upon excessive 

quantities of methane (Tr. 54). The section was basically dry (Tr. 35). 

Mr. Phares testified that it was possible that less than 4,600 cfm of 

ventilation was present in the crosscut between No. 3 and No. 4 entries, and 

that it was possible that such ventilation was even progressively lower in 

the crosscut between No. 4 and No. 5 entries (Tr. 88). According to Inspector Coffield, the progressively lower air velocity readings in the last open 

crosscut between No. 3 and No. 4 entries, and No. 4 and No. 5 entries, would 

affect the accumulation of methane. The lower the air readings, the more 

methane would or could accumulate (Tr. 91-92). 

688 
In view of the foregoing, it is found that the violation was serious. 

E. Significant and Substantial Criterion 

The citation contains the allegation that the violation was of such 

nature as could significantly and substantially contribute to the cause and 

effect of a mine safety or health hazard. In Alabama By-Products Corporation, 

7 IB•IA 85, 94, 83 I.D. 574, 1976-1977 CCH OSHD par. 21,298 (1976), the Board 

held that the significant and substantial criterion bars the issuance of citations in "two categories of violations, namely, violations posing no risk of 

injury at all, that is to say, purely technical violations, and violations 

posing a source of any injury which has only a remote or speculative chance 

of coming to fruition." A corollary to this proposition is that a violation 

of a mandatory standard may be significant and substantial "without regard to 

the seriousness or gravity of the injury likely to result from the hazard 

posed by the violation, that is, an inspector need not find a risk of serious 

bodily harm, let alone death." 7 IBMA at 94. 

As noted above, the violation was serious. It was not a purely technical 

violation. Considering the low air volume reading computed by the inspector , 

the mine's level of methane liberation, the potential for methane to accumulate, and the well-recognized explosive properties of methane, it cannot be 

said that the source of injury had only a remote or speculative chance of 

coming to fruition. Accordingly, it is found that the violation was of such 

nature as could significantly and substantially contribute to the cause and 

effect of a mine safety or health hazard. 

F. Good Faith in Attempting Rapid Abatement 

The parties stipulated that Consol abated the violation within the time 

set by Inspector Coffield and that Consol acted in good faith in doing so 

(Tr. 5). Accordingly, it is found that Consol demonstrated good faith in 

attempting rapid abatement. 

G. History of Previous Violations 

Respondent's history of previous violations at the Shoemaker Mine for 

which assessments have been paid, beginning November 19 •, 1977, and ending 

November 18, 1979, is summarized as follows: 

30 C.F.R. Number of Total 

Standard Paid Assessments Amount Paid 

All sections 962 $180,851 

75.301 1 $122 

H. Size of the Operator's Business 

The parties stipulated that Consol is a large operator, and that the 

Shoemaker Mine is a large mine (Tr. 6-7). Specifically, the parties stipulated that size of Consol is rated at 44,855,465 tons of coal per year, and 
the size of the Shoemaker Mine is rated at 1,791,721 tons of coal per year 

(Tr. ii). 

I. Effect of a Civil Penalty on the Operator's Ability to Remain in 

Business 

No evidence was presented to establish that the assessment of a civil 

penalty will affect Consol's ability to remain in business. In Hall Coal 

Company, i IB• 175, 79 I.D. 668, 1971-1973 CCH OSHD par. 15,380 (1972), the 

Board held that evidence relating to the issue as to whether a civil penalty 

will affect the operator's ability to remain in business is within the operator's control, resulting in a rebuttable presumption that the operator's 

ability to continue in business will not be affected by the assessment of a 

civil penalty. Therefore, I find that a penalty otherwise properly assessed 

in Docket No. WEVA 80-379 will not impair Consol's ability to continue in 

business. 

VI. Conclusions of Law 

i. Consolidation Coal Company and its Shoemaker Mine have been subject 

to the provisions of the 1977 •ne Act at all times relevant to these 

proceedings. 

2. Under the 1977 Mine Act, the Administrative Law Judge has jurisdiction over the subject matter of, and the parties to, these proceedings. 

3. Federal mine inspector Charles Coffield was a duly authorized representative of the Secretary of Labor at all times relevant to the issuance of 

Citation No. 633821, November 26, 1979 , 

30 C.F.R. § 75.301. 

4. The violation charged in Citation No. 633821, November 26, 1979, 

30 C.F.R. § 75.301, is found to have occurred as alleged. 

5. The violation charged in Citation No. 633821, November 26, 1979, 

30 C.F.R. § 75.301, was of such nature as could significantly and substantially contribute to the cause and effect of a mine safety or health hazard. 

6. All of the conclusions of law set forth in Part V, supra, are 

reaffirmed and incorporated herein. 

VII. proposed Findings of Fact and Conclusions of Law 

MSHA and Consol filed posthearing briefs. Consol filed a reply brief. 

Such briefs, insofar as they can be considered to have contained proposed 

findings and conclusions, have been considered fully, and except to the 

extent that such findings and conclusions have been expressly or impliedly 

affirmed in this decision, they are rejected on the grounds that they are, 

in whole or in part, contrary to the facts and law or because they are 

immaterial to the decision in these cases. 

690 
Vlll. Penalty Assessed 

Upon consideration of the entire record in these cases and the foregoing 

findings of fact and conclusions of law, I find that the assessment of a 

penalty in Docket No. WEVA 80-379 is warranted as follows: 

Citation No. Date 30 C.F.R. Standard Penalty 

633821 11/26/79 75.301 $600 

ORDER 

Accordingly, IT IS ORDERED that the determination of September 18, 1980, 

affirming the dismissal of the proposal for a penalty in Docket No. WEVA 

80-379 as relates to Citation No. 633657, November 19, 1979, 30 C.F.R. 

§ 75.303 be, and hereby is, REAFFI•4ED. 

IT IS FURTHER ORDERED that the notice of contest in Docket No. WEVA 

80-160-R be, and hereby is, OENIED; and that Citation No. 633821, November 26, 

1979, 30 C.F.R. § 75.301 be, and hereby is, AFFIRmeD. 

IT IS FURTHER ORDERED that Respondent pay a civil penalty in Docket No. 

WEVA 80-379 in the amount of $600 within the next 30 days. 

Distribution: 

•tive Law Judge 

David E. Street, Esq., Office of the Solicitor, U.S. Department of 

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

Philadelphia, PA 19104 (Certified Mail) 

Ronald S. Cusano, Esq., Rose, Schmidt, Dixon, Hasley, Whyte & Hardesty, 

900 Oliver Building, Pittsburgh, PA 15222 (Certified Mail) 

Administrator for Metal and Nonmetal Mine Safety and Health, U.S. 

Department of Labor 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

69.1 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

8 .& MAR !981 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

On behalf of: 

GENE F HAND, 

Ve 

ZEIGLER COAL CO•ANY, 

Complainant 

Respondent 

Complaint of Discharge 

Docket Nos. LAKE 80-292-D 

VINC CD-80-10 

Zeigler No. ii Mine 

Appearances: 

DECISION 

Frederick W. Moncrief, Esq., Office of the Solicitor,, 

U.S. Department of Labor, Arlington, Virginia, for 

Complainant; 

D. Michael Miller, Esq., Alexander, Ebinger, Fisher, 

McAlister & Lawrence, Columbus, Ohio, and J. Halbert 

Woods, Esq., Zeigler Coal Company, Des Plaines, 

lllinois, for Respondent. 

Before: Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This is a proceeding commenced by the Secretary of Labor, Mine Safety and 

Health Administration (hereinafter MSHA) on behalf of Gene F. Hand alleging 

that Gene F. Hand was discharged from his employment at Zeigler Coal Company 

(hereinafter Zeigler) on December 21, 1979, because of activities protected 

under section i05(c) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 815(c) (hereinafter the Act). Gene F. Hand filed a complaint with 

MSHA concerning his discharge On May 19, 1980, following its investigation, 

MSHA filed an application for temporary reinstatement of Gene F. Hand. That 

application was granted by Chief Administrative Law Judge James A. Broderick 

on May 20, 1980. Thereafter, Zeigler requested a hearing on the application, 

which was subsequently held in St. Louis, Missouri, on June 9, 1980, before 

Chief Judge Broderick. Following the hearing, Chief Judge Broderick held on 

June 17, 1980, that the order of temporary reinstatement should continue in 

force until further notice On July 23, 1980, the Federal Mine Safety and 

692 
Health Review Commission (hereinafter Commission) denied Zeigler's petition 

for review of the order of temporary reinstatement. Thereafter, Zeigler 

brought an action seeking injunctive relief in the U.S. District Court for 

the Southern District of Illinois. Zeigler asserted that the foregoing proceedings denied it due process of law. Chief Judge Foreman denied Zeigler's 

motion for injunctive relief. Zeigler Coal Company v. Marshall, 502 F. Supp. 

1326, (S.D. Ill. 1980). 

On June 18, 1980, Complainant filed a complaint of discharge on behalf 

of Gene F. Hand. Upon completion of prehearing requirements, a hearing was 

held in St. Louis, Missouri, on January 13 and 14, 1981. The following witnesses testified on behalf of Gene F. Hand: Charles H. l•rgan, Wendell Davis, 

Gene F. Hand, Shan W. Thomas, and Paul Tisdale. The following witnesses testified on behalf of Zeigler: Raphael C. Colombo, Daniel R. Spinnie, Jack R. 

Thornton, B. Carl Reidelberger, and Robert H. Wallace. 

Upon completion of the testimony at the hearing, Zeigler moved for a 

directed verdict and for temporary relief. The motion for directed verdict 

was denied from the bench. After consideration of the contentions of the 

parties, I denied Zeigler's request for temporary relief on January 29, 1981, 

because I did "not find that the complaint was frivolously brought or that 

MSHA•s finding was arbitrary or capricious." Thereafter, the parties 

submitted briefs and proposed findings of fact and conclusions of law. 

ISSUES 

Whether Complainant Gene F. Hand, a section foreman, is a "miner" 

entitled to the protection of section i05(c) of the Act; and, if so; 

Whether Zeigler violated section i05(c) of the Act in discharging 

Complainant Gene F. Hand, and, if so, what relief shall be awarded to 

Complainant. 

APPLICABLE LAW 

Section i05(c) of the Act, 30 U.S.C. § 815(c), provides in pertinent 

part as follows: 

(i) No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the 

statutory rights of any miner, representative of miners or 

applicant for employment in any coal or other mine subject to 

this Act because such miner, representative of miners or 

applicant for employment has filed or made a complaint under 

or related to this Act, including a complaint notifying the 

operator or the operator's agent, or the representative of 

the miners at the coal or other mine of an alleged danger or 

safety or health violation in a coal or other mine, or 

because such miner, representative of miners or applicant 
for employment is the subject of medical evaluations and 

potential transfer under a standard published pursuant to 

section i01 or because such miner, representative of miners 

or applicant for employment has instituted or caused to be 

instituted any proceeding under or related to this Act or has 

testified or is about to testify in any such proceeding, or 

because of the exercise by such miner, representative of 

miners or applicant for employment on behalf of himself or 

others of any statutory right afforded by this Act. 

(2) Any miner or applicant for employment or representative of miners who believes that he has been discharged, 

interfered with, or otherwise discriminated against by any 

person in violation of this subsection may, within 60 days 

after such violation occurs, file a complaint with the 

Secretary alleging such discrimination. Upon receipt of such 

complaint, the Secretary shall forward a copy of the complaint to the respondent and shall cause such investigation 

to be made as he deems appropriate. Such investigation, 

shall commence within 15 days of the Secretary's receipt of 

the complaint, and if the Secretary finds that such complaint 

was not frivolously brought, the Commission, on an expedited 

basis upon application of the Secretary, shall order the 

immediate reinstatement of the miner pending final order on 

the complaint. If upon such investigation, the Secretary 

determines that the provisions of this subsection 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; (in accordance with 

section 554 of title 5, united States Code, but without 

regard to subsection (a)(3) of such section) 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 this 

paragraph. 

STIPULATIONS 

The parties stipulated the following: 

694 
i. At all relevant times, Zeigler Coal Company operated the No. ii Mine, 

and is an operator as defined in section 3(b) of the Federal Mine Safety and 

Health Act of 1977 (the Act). 

2. The No. ii Mine, located in Randolph County, Illinois, is a mine 

defined in section 3(h)(1) of the Act, the products of which enter or affect 

commerce. 

3. Complainant was employed as an underground section foreman by 

Respondent at its No. ii •,•ne in December of 1979. 

4. Complainant was discharged by Respondent, Zeigler Coal Company, 

on December 21, 1979 -. 

5. Complainant was hired by Respondent on July 9, 1973, and employed 

in its Spartan Mine until its closure in 1979. 

6. Complainant, originally hired as a section foreman, was promoted 

to assistant mine manager on January 13, 1975, and a mine manager on 

March 24, 1975. 

7. Complainant was transferred at his request to the No. ii Mine on 

April 23, 1979, after a short tenure at Respondent's No. 4 Mine. 

FINDINGS OF FACT 

I find that the preponderance of the evidence of record establishes the 

following facts: 

i. Zeigler, at all times relevant to this proceeding, operated the 

No. ii Mine, and Zeigler is an "operator" as defined in section 3(b) of the 

Act. 

2. Zeigler's No. ii Mine is located in Randolph County, Illinois, and 

is a "mine" as defined in section 3(h)(1) of the Act. The products of 

Zeigler No. ii Mine enter and affect commerce. 

3. Gene F. Hand was hired as an underground section foreman by Zeigler 

at its Spartan Mine on July 9, 1973, and was promoted to assistant mine 

manager on January 13, 1975, and mine manager on March 24, 1975. He worked 

at the Spartan No. 2 Mine until it closed on March 17, 1979. 

4. After a short period of work at Zeigler No. 4 Mine, Gene F. Hand 

was transferred, at his request, to Zeigler No. ii Mine on April 23, 1979. 

5. Gene F. Hand was employed as an underground section foreman at the 

No. ii Mine in December 1979. 

6. On December 21, 1979, Gene F. Hand was discharged by Zeigler. 
7. Between June 1979, and December 21, 1979, the date of Hand's discharge, he was the subject of disciplinary action as follows: 

(a) In June 1979, Hand was reprimanded for violating Zeigler's policy 

requiring that accidents be reported on the day they occur. 

(b) During the summer of 1979, Hand was reprimanded after he allegedly 

threatened a member of the United Mine Workers of America (hereinafter UP, A) 

and a formal complaint was lodged against him by the UI.B$A safety committee. 

(c) In August 1979, Hand was reprimanded for failure to adequately 

supervise the extension of a steel air line. 

(d) In August 1979, Hand was suspended for 5 days after he ordered the 

mine manager off his section. Upon Hand's reinstatement, Mine Superintendent 

Robert •llace warned him not to engage in such conduct again. 

(e) In early December 1979, Hand was reprimanded by Superintendent 

i•llace following a dispute between Hand and Chief Electrician •iter Dotson. 

Hand's dispute with Dotson was terminated when General Mine Manager, Carl 

Reidelberger, stepped between them. After the incident with Dotson, 

Superintendent Wallace told Hand that he was "not going to put up with it 

much longer." 

(f) In mid-December 1979, a UMWA safety committeeman complained to 

Superintendent •llace about Hand's conduct, which included losing his 

temper with the miners. Thereafter, Superintendent Wallace again 

reprimanded Hand. 

8. In the weeks prior to December 21, 1979, there had been two major 

roof falls in the No. 3 section or unit of the mine. Following these 

occurrences, Zeigler adopted a revised roof-control plan. 

9. On December 20, 1979, at Hand's request, Superintendent Wallace 

assigned additional roof bolters to Hand's unit to catch up on the roof 

bolting. 

10. On the morning of December 21, 1979, a coal drill operator took 

some torque readings on roof bolts in the No. 3 section and reported the 

results to the UMWA safety committee. 

ii. At this time, Hand also noticed some 4-foot roof bolts which had 

just been installed and Hand believed that these roof bolts did not conform 

to the revised roof-control plan adopted by Zeigler. 

12. Thereafter, Hand checked some roof bolts and found some in compliance and others out of compliance. By ii a.m., he had not checked the 

required number of roof bolts for torque when Superintendent Wallace and 

Zeigler's Chief Mining Engineer, Ray Colombo, arrived on Hand's section. 

Hand informed Superintendent Wallace of the problem concerning the torque 

696 
of the roof bolts; Hand and Wallace thereupon torqued roof bolts together. 

Again, some of the bolts were in compliance and others were not. Wallace 

thereupon criticized Hand for the manner in which he had handled this problem and told him to assign a miner to torquing the roof bolts. Hand did not 

believe that the person suggested by Wallace was qualified to torque roof 

bolts. Hand became excited and argued with Wallace. Hand told Wallace to 

get off his section and that he, Hand, would straighten it out. 

13. When Hand completed his shift on December 21, 1979, he was summoned 

to •llace's office and thereupon discharged for insubordination. 

14. Although Hand contends that there was a violation of federal law 

concerning roof bolting on his unit on December 21, 1979, he did not report 

any such violation in his daily report and the information in his report on 

the torque of roof bolts in his section showed no violation of law. 

DISCUSSION 

I. Whether Gene Hand, a Section Foreman, is a "Miner" Entitled to the 

Protection of Section i05(c) of the Act 

Zeigler contends that "the Review Commission is without jurisdiction 

to consider Hand's claim of discrimination because Hand is not a 'miner' 

within the meaning of section i05(c) of the Act." Zeigler cites no specific 

authority for this contention but argues that in other sections of the Act, 

Congress "drew a distinction between supervisory personnel, such as a 

section foreman, and the 'miners' who work in a mine." 

•ISHA, on behalf of Hand, contends that the definition of "miner" in section 3(g) of the Act "is clear, unambiguous, and no reasonable basis for a 

restrictive interpretation exists." MSHA also relies upon a 1975 decision 

of the Interior Board of Mine Operations Appeals holding that an owner of a 

mine is a miner. Charles T. Sink, 5 IBMA 217, 225, aff'd, 538 F.2d 325 

(4th Cir. 1976). 

Section 3(g) of the Act, 30 U.S.C. § 802(g), defines the term "miner" as 

"any individual working in a coal or other mine." The definition of "miner" 

in the Coal Mine Health and Safety Act of 1969 was as follows: "Any individual 

working in a coal mine." Public Law 91-173, section 3(g) December 30, 1969. 

Thus, for purposes of this matter, the definition of "miner" was not changed 

in the 1977 Act. Under the definition, it is clear that a section foreman 

in a coal mine is a "miner" for purposes of the Act. 

Zeigler's contention, that section foremen, constituting supervisory 

personnel, are excluded from the definition of "miner" for purposes of section 

I05(c) of the Act, is erroneous. Under the 1969 Act, the Interior Board of 

Mine Operations Appeals held that the owner of a mine was also a miner for 

purposes of section 3(g) of that Act. Charles T. Sink, supra at 225. More 

recently, the Third Circuit Court of Appeals held that four brothers who owned 

a mine were also "miners" under the Act. Marshall v. Kraynak, 604 F.2d 231 

697 
(3d Cir. 1979). I also agree with the Third Circuit that the definition of 

"miner" in section 3(g) of the Act "is free from ambiguity." 

I conclude that, at all times relevant herein, Gene F. Hand, a section 

foreman employed by Zeigler, was a "miner" for purposes of section i05(c) of 

the Act. Therefore, I have jurisdiction to decide this matter. 

II. whether Zeigler Violated Section i05(c) of the Act 

Recently, in Secretary of Labor on behalf of David Pasula v. 

Consolidation Coal Company, 2 FMSHRC 2786 (October 14, 1980) (hereinafter 

Pasula), the Commission analyzed section i05(c) of the Act, the legislative 

history of that section, and similar anti-retaliation issues arising under 

other federal statutes. The Commission held as follows: 

• hold that the complainant has established a prima 

facie case of a violation of Section I05(c)(i) if a preponderance of the evidence proves (i) that he engaged in a 

protected activity, and (2) that the adverse action was 

motivated in any part by the protected activity. On these 

issues the complainant must bear the ultimate burden of 

persuasion. The employer may affirmatively defend, however, 

by proving by a preponderance of all the evidence that, 

although part of his motive was unlawful, (i) he was also 

motivated by the miner's unprotected activities, and (2) that 

he would have taken adverse action against the miner in any 

event for the unprotected activities alone. On these issues, 

the employer must bear the ultimate burden of persuasion. It 

is not sufficient for the employer to show that the miner 

deserved to have been fired for engaging in the unprotected 

activity; if the unprotected conduct did not originally concern the employer enough to have resulted in the same adverse 

action, we will not consider it. The employer must show that 

he did in fact consider the employee deserving of discipline 

for engaging in the unprotected activity alone and that he 

would have disciplined him in any event. Id. at 2799-2800. 

Hand contends that he was discharged by Zeigler because of his complaints 

to Superintendent Wallace that the roof in his section "was unsafe and violative of the law" and that he resisted an order from the superintendent to 

assign an unqualified miner to torque roof bolts. Complainant's Posthearing 

Brief at 17. Zeigler asserts the following: (i) Hand failed to establish 

that he engaged in any protected activity at the time of his discharge; 

(2) Hand failed tO establish that a safety complaint was a motivating reason 

for his discharge; (3) Hand was discharged for insubordination - conduct which 

is not protected under the Act; and (4) Zeigler would have discharged Hand for 

his unprotected activity alone. 

698 
A. Did Gene F. Hand Engage in Protected Activity? 

Gene F. Hand contends that he engaged in protected activity when he 

complained to Superintendent Wallace about short roof bolts, inadequate 

torque of roof bolts, and the superintendent's order that an unqualified 

miner be assigned to check the torque of roof bolts. Superintendent Wallace 

testified that, on the day in question, Hand had never told him that any part 

of the section was unsafe. Superintendent Wallace also denied giving an order 

that any particular miner should torque the roof bolts. 

Section i05(c)(i) of the Act sets forth certain types of protected 

activity including, inter alia, filing or making: 

[a] complaint under or related to this Act, including a 

complaint notifying the operator * * * of an alleged danger 

or safety or health violation in a coal or other mine * * * 

or because of the exercise by such miner, representative of 

miners * * * on behalf of himself or others of any statutory 

right afforded by this Act. 

Section i05(c) does not prescribe the manner in which such complaint shall be 

made to the operator. 

The evidence establishes that, in the month prior to this incident, there 

had been serious problems with the roof on Hand's section. Two major roof 

falls had occurred. MSHA reevaluated the roof-control plan and a revised roofcontrol plan had been adopted by Zeigler. According to Hand, production of 

coal in this section had been reduced because of too little roof bolting. At 

Hand's request, Superintendent Wallace assigned additional miners to roof bolt 

this section on the day before this incident. On the day in question, unbeknownst to Hand, a coal drill operator on his crew checked the torque of roof 

bolts and apparently reported a violation to the UltrA safety committee. Other 

miners apparently saw 4-foot roof bolts which had just been installed in violation of the revised roof-control plan. It is unnecessary to examine the 

merits of these complaints, suffice it to say that the miners on Hand's shift 

on the day in question notified him of a safety complaint. When he subsequently relayed these complaints to Superintendent Wallace, he was making a 

"complaint notifying the operator 

* * * of an alleged danger or health violation * *." Such action on Hand's part constitutes protected activity. 

The evidence is less clear concerning Superintendent Wallace's purported 

order to assign, in Hand's opinion, an unqualified person to check the torque 

of roof bolts. However, I find that Superintendent Wallace did discuss with 

Hand the manner in which the torque of roof bolts should be checked. Hand 

disagreed with Wallace's suggestion or order. Under tile broad language of 

section i05(c) of the Act, I also conclude that Hand's disagreement concerning the manner of checking the torque of roof bolts constitutes a safety complaint and, hence, protected activity under section i05(c) of the Act. 
B. Was Hand's Discharge Motivated in Any Part by the Protected Activity? 

An analysis of Zeigler's motivation for discharging Hand on December 21, 

1979, must include an examination of the relevant events that preceded the 

discharge. During the 6 months prior to the discharge, Hand was the subject 

of five reprimands and a 5-day suspension. Of particular importance, is the 

fact that Hand was suspended for 5 days in August 1979, for ordering the mine 

manager off his section. Upon his reinstatement, Hand was warned that this 

conduct would not be tolerated. 

On December 21, 1979, Hand notified Superintendent Wallace of his concern about the torque of roof bolts on his section. Thereafter, Hand and 

l•llace proceeded to check the torque of the bolts. Hand does not allege 

that the roof bolts torqued by him that day were in violation of the law. 

His daily report makes no mention of any problem with roof bolts. Thereafter, 

Hand left Wallace to attend to other problems. •en he returned to •llace, 

a discussion enused about the manner in which roof bolts should be torqued. 

Although the substance of this discussion is disputed, it is clear that Hand 

concluded that Wallace had ordered him to assign an unqualified miner to check 

the torque of the roof bolts. Hand testified as follows: 

At this time I was confused, and I got a little hot. 

And I asked Mr. Wallace, after looking at them four-foot 

bolts--the more I thought of those four-foot bolts after we 

had had this meeting with the federals and everything, and the 

crew was trying to get the run straightened up--after this, I 

got a little nervous and excited over him not getting us to 

proceed with the proper procedure the way the federals wanted 

us to comply with, and I asked him to leave my section. And 

to let me, the man that signed the books, that was responsible 

for that, try to get it straightened up to where we could run 

coal. 

(Tr. 91). 

The testimony of Superintendent Wallace concerning this confrontation was 

as follows: 

So I started back over and here came Gene up to the face, 

and Gene and I and Columbo went to the face out of earshot of 

anybody, anybody else as far as hearing, at which point I told 

Gene, I said, "Gene, it was your responsibility in the first 

place to designate the man to take the torques and report back 

to you, not just anybody, it is up to you to designate a man." 

But I said, "If you quit your bellyaching and start doing 

your job and telling the men what they are supposed to do and 

see that it is being done, either that or quit and get your 

ass out of the mine." Excuse the language. At •lich point 

that is when Mr. Hand blew up. 

700 
He said that he was hired there or sent there by higher 

ups, it was higher ups than me that would have to get rid of 

him. He said, "You can't run a section. That's the reason 

the mine is in the shape it is," and he said, "Just get your 

ass off my section and stay off my section." At which point 

I told him, I said, "Gene, as long as I'm superintendent 

that is my job to come to this mine and see that the jobs are 

being done proper." 

About this time Mike Blair, the shooter, came to the 

mouth of the entrance. He hollered in there and he said that 

the shells were not going off and he was going to have to go 

out to the bench. I told Gene, I said, "Gene, I want you to 

go out there and help the shooters get the shells lined out 

and so we can get some shooting done." He continued to want 

to argue. I said, "Gene, I'm giving you a direct order. Go 

help the shooters get lined out." And that ended our 

conversation. 

(Tr. 288-289). 

Superintendent •llace's reason for discharging Hand was as follows: 

Well, let's say that it popped into my head right when 

he told me to get the hell out of his section, but I did not 

say anything at that time, possibly I done wrong, but as I 

was leaving the section I told Columbo, I said, "I'm going to 

discharge Gene Hand when he gets out of the mine tonight at 

4:00 o'clock." I said, "I suspended him for running the mine 

manager off the section" and I said, "I'm not going to take 

it any longer. This is the last straw." Mr. Columbo said, 

"You done different than me. I would have fired him on the 

spot." 

(Tr. 291). 

Thus, Hand contends that he was discharged for complaining about safety 

both in connection with the length and torque of roof bolts and the assignment 

of an unqualified miner to check the torque. Zeigle r asserts that Hand was 

discharged solely for insubordination in ordering the superintendent off 

the section after a prior suspension for ordering the mine manager off the 

section. 

I conclude that while Hand engaged in protected activity by complaining 

about safety matters, he failed to establish that his discharge was motivated 

in any part by the protected activity. There is no evidence, by way of 

admission or otherwise, that Hand's discharge was motivated by his protected 

activity. Moreover, the circumstances surrounding Hand's discharge do not 

give rise to an inference of unlawful discrimination. Hand was suspended for 

5 days in August 1979, for insubordination in ordering the mine manager off 

. 
his section. He was warned that such conduct would not be tolerated. I 

conclude that Zeigler has established the fact that when, on December 21, 

1979, Hand ordered Superintendent Wallace off the section, it was "the last 

straw." Clearly, Hand's order to Wallace to leave the section was activity 

which is not protected under section I05(c) of the Act. Since Hand's action 

in ordering Superintendent Wallace off the section, in conjunction with Hand's 

prior disciplinary problems at Zeigler, was the motivation for Hand's discharge, Hand failed to carry his burden of persuasion that his discharge was 

motivated in any part by his protected activity. 

Assuming, arguendo, that Hand could establish that his discharge was in 

part motivated by his protected activity, he would, nevertheless, fail to 

prevail in this matter because Zeigler has established that it would have 

discharged him for his unprotected activity alone, that is, his insubordination in ordering the superintendent off the section. I believe that the 

Commission contemplated a situation such as this when it stated: 

On the other hand, the Commission recognizes that it 

would hardly further the statutory purpose to order the 

reinstatement of a miner who would have been discharged for 

lawful reasons alone. It would put a miner who has engaged 

in both protected and unprotected activities in a better 

position than he would have occupied had he done nothing. 

It would require reinstatement even though the record shows 

that the employer would have lawfully assessed the miner as 

unfit for further employment. 

Pasula, supra at 2800. 

I conclude that Hand failed to prove that his discharge was motivated 

in any part by his protected activity and that Zeigler would have discharged 

him for his unprotected activities alone. Therefore, the Complaint of 

Discharge is denied and the Order of Temporary Reinstatement is dissolved. 

CONCLUSIONS OF LAW 

I. At all times relevant to this decision, Complainant Gene F. Hand 

was a miner as defined in the Act and entitled to the protection afforded in 

section I05(c) of the Act. 

2. Zeigler Coal Company is subject to the provisions of the Act. 

3. This administrative law judge has jurisdiction over the parties and 

subject matter of this proceeding. 

4. On December 21, 1979, Complainant Gene Hand engaged in the following 

activity which is protected under section i05(c) of the Act: Complaints to 

Superintendent Robert Wallace concerning the length and torque of the roof 

bolts on his section and the qualification of a miner assigned to che•k the 

torque of roof bolts. 

702 
5. Complainant Gene F. Hand failed to establish that the protected 

activities, supra, motivated, in any part, the decision of Zeigler Coal 

Company to discharge him on December 21, 1979. 

6. Hand's action on December 21, 1979, ordering the mine superintendent 

off his section, constitutes activity which is not protected under section 

105(c) of the Act. 

7. Zeigler Coal Company discharged Gene F. Hand on December 21, 1979, 

following a 6-month history of disciplinary action consisting of five 

reprimands and a 5-day suspension for insubordination, because, despite a 

prior warning, he ordered the mine superintendent off of his section. 

8. Zeigler established that it considered Hand to be deserving of 

discharge for insubordination in ordering the mine superintendent off his 

section on December 21, 1979, since in August 1979, Hand received a 5-day 

suspension for ordering the mine manager off his section and since Zeigler 

would have discharged Hand for his unprotected activities alone. 

9. Zeigler's discharge of Gene F. Hand on December 21, 1979, did not 

violate section i05(c) of the Act. 

i0. Complainant Gene F. Hand's complaint of discharge is denied. 

ii. The Order of Temporary Reinstatement entered in favor of Gene F. 

Hand on May 20, 1980, is hereby dissolved. 

ORDER 

WHEREFORE, IT IS ORDERED that Complainant's Complaint of Discharge is 

OENIED. 

IT IS FURTHER ORDERED that the Order of Temporary Reinstatement of 

Gene F. Hand is DISSOLVED. 

James A. Laurens0n, Judge 

Distribution: 

 J 

Frederick W. Moncrief, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

D. •chael Miller, Esq, Alexander, Ebinger, Fisher, McAlister & 

Lawrence, 17 South High Street, Col•mbus, OH 43215 (Certified Mail) 

J. Halbert Woods, Esq., Zeigler Coal Company, 2700 River Road, 

Des Plains, IL 60018 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE lAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 5 !98 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

V. 

Petitioner 

EVANSVILLE >•TERIALS, INC., 

Respondent 

:, Civil Penalty Proceeding 

: Docket No. LAKE 80-82-M 

: A.O. No. 12-01389-05003 

: Rockport Plant 

DECISION 

Appearances: Rafael Alvarez, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

 Philip E. Balcomb, for Respondent. 

Before: Judge William Fauver 

This proceeding was brought by the Secretary of Labor under section 

ll0(a) of the Federal •ne Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq., for assessment of civil penalties for alleged violations of mandatory safety standards. The case was heard at Evansville, Indiana. Both 

parties were represented by counsel, who have submitted their proposed findings, conclusions, and briefs following receipt of the transcript. 

Having considered the contentions of the parties and the record as a 

whole, I find that the preponderance of the reliable, probative, and substantial evidence establishes the following: 

FINDINGS OF FACT 

i. At all pertinent times, Respondent, Evansville Materials, Inc., 

operated a plant known as the Rockport Plant in Spencer County, Indiana, which 

produced sand, gravel, and limestone for sales in or substantially affecting 

interstate commerce. 

2. Respondent was engaged in dredging material from the Ohio River and 

transporting it to its Rockport Plant alongside the river on barges. Conveyor 

belts carried the material from the shoreline of the river to the plant, where 

the material was classified, washed, and stockpiled for sales. There were 

about six belts at the plant, which varied in length from 20 feet to several 

hundred feet and traveled at a walking pace. The belts were waist-high; however, at the belt direction change points, the belts passed overhead. 

7O4 
The Citation Concerning Safety Glasses 

3. A belt operator traveled the walkways beside the conveyor belts to 

check the flow of material. Dust, sand and gravel particles could be blown 

off the belt by a gust of wind and enter the operator's eyes. However, the 

material was dredged from the river and was usually wet, sothat it was not 

easily blown off the belts. At times, particles of sand and gravel fell from 

the belts that passed overhead or around the tail pulley and, if caught by 

the wind, these could irritate or injure the eyes. Eye injuries were a 

potential risk, butnot actually realized by experience. The preponderance 

of the evidence established that the employees' hardhats with a brim protected them from falling sand and gravel particles so that the potential risk 

was wind-blown particles that might enter an employee's eyes. This risk does 

not appear to have been more severe than the risk of eye injury on an ocean 

beach that could result from sand being blown into someone's eyes by a sudden 

gust of wind. 

4. In and around the plant, Responden t required its employees to wear 

hardhats and impact-resistant glasses. As mentioned, the hardhats came with 

a brim that would protect against injuries to the head, eyes and face from 

falling objects. The required safety glasses were constructed of impactresistant lenses to prevent eye injuries from direct impact but they were not 

equipped with shields to prevent eye injuries from particles entering around 

the lenses (although some employees wore glasses with side shields). 

5. Respondent had difficulty enforcing its safety eyeglass requirement 

because employees often complained that foreign particles collected on the 

front of the lenses and became trapped behind the lenses, interfering with 

vision. 

6. On August 7, 1979, federal inspector Jerry Spruell, accompanied by 

Arnold Mulzer, Jr., one of Respondent's superintendents, inspected the 

Rockport Plant. The inspector was wearing impact-resistant glasses without 

peripheral shields. The inspector observed the plant operator, Steve Davis, 

leaving and entering the control room and traveling underneath belts, on 

walkways across belts, and past tail pulleys. The belts were transporting 

sand. The operator was not wearing glasses and Respondent did not have a 

pair of glasses for him to wear. Other employees were wearing glasses, which 

Inspector Spruell believed to be impact-resistant glasses, but he was not 

sure of this. The glasses worn by the inspector and most employees looked 

very much like ordinary framed eyeglasses, and could not readily be distinguished as having impact-resistant lenses. 

7. During the inspection, there was a slight breeze and some loose material was falling or blowing from the belts. On several occasions, the inspector had to wipe sand from his eyes. This caused a slight eye irritation, but 

not an eye injury. 

8. On August 7, 1979, Inspector Spruell issued Citation No. 367445 to 

Respondent, reading in part: "The plant operator was observed working around 
the tail pulley of the direction switching station without safety glasses. He 

had to pass under other conveyors during his workshift. Sand being conveyed 

was noted falling from these areas." The cited condition was deemed to be 

abated on August 21, 1979, by providing impact-resistant glasses to all 

employees; the glasses did not have peripheral shields. 

9. At the hearing, the inspector testified that there was an additional 

danger of frayed belt pieces striking the eyes, but such a danger was not 

proved by a preponderance of the evidence. 

The Citation Concerning Brakes 

i0. Sized stone, sand, and gravel from the stockpiled areas were dumped 

into customers' trucks with 980-B front-end loaders. The brakes on the loaders 

consisted of (i) an air-activated service (regular) braking system that operated by depressing either of two brake pedals and (2) a spring-activated emergency braking system that activated automatically when air pressure dropped 

below 70 p.s.i, or when a dash-mounted emergency parking brake control valve 

was manually pushed. There were two brake pedals that activated the service 

brakes. The left brake pedal would also neutralize the transmission. 

ii. When the engine was running, an air compressor attached to the 

engine distributed a continuous supply of compressed air to six brake 

chambers. There were four chambers on the front of the loader and two 

slightly larger chambers on the rear of the loader. More braking power was 

required for the front of the loader because it carried more weight when the 

bucket was loaded. 

12. Each brake chamber contained a service brake cylinder and an 

emergency brake cylinder. The service brake cylinder contained a rod 

assembly, a diaphragm and a diaphragm return spring. When either brake pedal 

was depressed, compressed air entered the service brake chamber and forced 

the diaphragm and rod assembly outward to apply the brakes. About 75 p.s.i. 

was required to compress the diaphragm return spring. The emergency brake 

cylinder contained a piston and a spring. When air pressure fell below 

70 p.s.i., a buzzer would sound and a light would flash in the operator's 

compartment and the brakes would automatically lock by the springs releasing 

to push the pistons against the brakes. When the emergency system was activated, the machine would stop in 2 to 3 seconds. 

13. When either the service brakes or the emergency brakes were applied, 

the push rod in the air chamber extended and forced the slack adjustor to 

rotate a camshaft, which forced two brake shoes outward against the brake 

drum. 

14. The manufacturer established a safe range of air pressure (the green 

area on the air pressure gauge) of 77 to 122 p.s.i, and an unsafe range (the 

red range on the air pressure gauge) of air pressure below 70 p.s.i. •en 

air pressure was in the safe range, the pistons in the brake chambers were 
retracted and the emergency springs remained compressed. When air pressure 

entered the unsafe range or when the parking brake was activated, the 

springs would force the pistons to activate the emergency brakes. 

15. The service and emergency braking systems operated independently 

so that a problem affecting one of the braking systems would not prevent the 

other from operating. In normal operation, when the service brakes were 

released, adequate air pressure was maintained in the emergency braking 

system so that the springs remained compressed. When the engine was turned 

on, the air compressor charged the air reservoir and air pressure would 

gradually build. If either brake pedal was depressed before the parking 

brakes were released, a double check valve would prevent simultaneous application of both braking systems. Once the emergency brakes were released, 

compressed air would enter the brake chambers to keep the emergency brakes 

released and to operate the service brake portion of the system. 

16. The air pressure on the diaphragms varied according to how far the 

brake pedal was pushed down. The farther down the pedal was pushed, the 

farther the air valve would open and the more pressure would be applied. 

Normally, the brake pedal was pressed only far enough to activate the brakes. 

17. The emergency system could be tested by pressing the brakes 

repeatedly to bleed the system of air. The pressure gauge would then fall 

into the red range and the emergency springs would force the brakes to apply, 

if the emergency system operated properly. 

18. On August 7, 1979, at about 3 p.m., Inspector Spruell approached the 

loader while it was dumping material into a truck. When he was about 20 feet 

from the loader, the operator applied the brakes and the inspector heard a 

hissing noise, which he believed to be the sound of escaping air. Normally, 

when the brakes were applied there would be a rush of air that lasted about 

i second, accompanied by an air pressure loss of between 5 and I0 p.s.i, as 

air was distributed to the activators. When the service brakes were applied 

with the engine off, the drop in air pressure would be greater because the air 

compressor would not be resupplying the air reservoir. The inspector noticed 

that the sound of escaping air continued as long as the brakes were applied. 

19. The inspector climbed on the loader and asked the operator to apply 

the service brakes again so that he could observe the air pressure gauge. 

When the operator applied the brakes, the inspector observed a drop in air 

pressure. The gauge decreased slightly, but it did not enter the unsafe 

range. The inspector then told the operator to turn off the motor and apply 

the brakes. When the brakes were applied, the inspector heard the sound of 

continuously escaping air and the gauge continued to drop without stopping. 

With the engine turned off, the mechanic, Stanley Dickinson, and the inspector 

crawled under the loader and the inspector observed loose connections at the 

hoses leading to the left rear activator and at the directional valve at the 

front of the loader, and he observed what he believed to be a leak near the 

slack adjuster on the left rear brake. He made these observations with the 

707 
engine off, by having the operator apply the brakes. The mechanic was able to 

tighten the loose connections with a wrench; however, the left rear brake 

cylinder, which the inspector thought to be defective, could not be replaced 

until the following morning. 

20. The loader normally traveled over smooth terrain and a few small 

inclines. It had a maximum speed of 15 mph; however, it rarely traveled that 

fast. The surface at the plant site consisted of loose gravel. The inspector 

did not require the operator to check the capability of the brakes on an 

incline because hebelieved that it would be unsafe to do so. Instead, the 

machine was tested on level ground. The operator traveled 5 to 7 mph, applied 

the brakes, and the brakes worked. The inspector observed no erratic motion 

and heard no squeaks; however, he did hear the sound of escaping air. 

21. On the morning of August 7, before the loader was placed in operation, the mechanic had told the operator that there was a leak on the loader. 

22. On August 7, 1979, Inspector Spruell issued Citation No. 367447 to 

Respondent, reading in part: "The left rear brake on the Cat. 980 loader had 

an air leak. The air seemed to be coming past the slack adjuster rod." On 

August 21, 1979, the cited condition was found to have been abated. 

23. The inspector believed that the brakes had an air leak that created 

a possibility of the machine jerking back and forth and acting erratically if 

the brakes were applied suddenly. The inspector believed that an accident 

could occur if the operator had to stop suddenly in an emergency or if the 

brakes were applied while the loader was on an incline. He also believed 

that the reliability of the emergency braking system was affected by the air 

leak. 

24. The inspector concluded that Respondent knew or should have known of 

the leak because the mechanic told the loader operator that morning that there 

was an air leak and the inspector heard th• sound of hissing air. 

25. Respondent's employees were provided with a copy of rules for the 

safe operation of front-end loaders. Safety meetings were also held. The 

rules required that the machines not be operated unless all safety devices 

were fully operable and all parts were in safe condition. Before moving a 

loader at the start of a shift, the operator was supposed to check the air 

pressure by starting the engine and applying the brakes. 

26. Regular inspections of the loaders were conducted before they were 

placed in operation and extra checks would be made of parts that needed frequent replacement. The loaders were not taken into the shop unless a part 

needed repair or replacement; parts that required frequent replacement were 

watched closely. A company safety procedure required that the operator fill 

out a check-list before the loader was used. The check-list included starting the engine, testing the brakes, observing the air pressure gauge and 

listening for air leaks. 

708 
27. DiapNragms usually required replacement about once every 9 months. 

If a diaphragm was damaged, a hissing sound would be noticed and it would 

gradually grow worse. A small hole in the diaphragm might not be apparent to 

the operator until it became larger and the hissing noise grew louder. With 

a substantial leak, the hissing sound could be heard above the noise of the 

loader when the brakes were applied. Normally, the only way to detect a small 

air leak was to listen; however, if the leak was large, the air pressure gauge 

would bleed down. The operating manual required that all leaks, even if small, 

be sealed immediately. 

28. James Rhodes, a superintendent at the Rockport Plant, was not at the 

plant when the citation was issued on August 7. On his return to the plant 

the following day, Ne picked up a new brake chamber to install on the loader. 

On August 8, 1979, he operated the loader and applied the brakes; however, he 

did not hear any leaks and the brakes operated satisfactorily. With the help 

of William Goffinet, a master mechanic, he removed the brake chamber on the 

left rear wheel, installed the new chamber and disassembled the old chamber 

at the shop. He tested the old chamber in the shop by applying air; however, 

he was unable to find a leak in the cylinder. Rhodes then reassembled the 

cylinder and replaced the new cylinder with the old one and ran the loader 

again for about 2 hours. He observed no leaks and he experienced no problems 

with the brakes. 

DISCUSSION WITH FURTHER FINDINGS 

The Citation Concerning Safety Glasses 

Based on the citation issued on August 7, 1979, the Secretary has 

charged Respondent with a violation of 30 C.F.R. § 56.15-4, which provides: 

"All persons shall wear safety glasses, goggles, or face shields or other 

suitable protective devices when in or around an area of a mine or plant 

where a hazard exists which could cause injury to unprotected eyes." 

The Secretary argues that persons around the belt conveyors were subject 

to a hazard of eye injury from falling or blowing sand and gravel and from 

frayed pieces of belt. 

The Secretary proposes a penalty of $28. 

Respondent's first defense is that the citation issued by Inspector 

Spruell is defective because it fails to list with particularity all the 

potential hazards of not wearing protective eye glasses. Respondent contends 

that the citation refers only to the hazard of falling sand; however, at the 

hearing, the inspector testified that the plant operator was also in danger 

of eye injuries from frayed pieces of conveyor belt. Respondent contends 

that it was prejudiced at the hearing because, had this hazard been alleged 

in the citation, "respondent would have been prepared to conclusively show by 

very substantial and provable evidence that there was no potential for any 

kind of injury from such sources, much less to eyes." 

709 
This defense is rejected. The Act requires only that the nature of the 

violation be described with particularity. Section 104(a) of the Act requires 

that each citation "shall be in writing and shall describe with particularity 

the nature of the violation, including a reference to the provision of the Act, 

standard, rule, regulation, or order alleged to have been violated." The Act 

does not require that the inspector list every possible hazard that the standard was designed to prevent. I find that the Secretary was not estopped from 

trying to show at the hearing the hazards and their potential for occurrence, 

even though they were not included in the citation. Furthermore, Respondent 

could have found through discovery procedures the hazards that the Secretary 

was going to try to prove at the hearing. 

Respondent next argues that the Secretary failed to prove by a preponderance of the evidence that pieces of torn conveyor belts created a hazard 

of striking the eyes of employees. Respondent contends that a belt has never 

torn or snapped as alleged by the Secretary and that no employee has ever 

been injured by the whipping action of a piece of torn belt. I find that the 

Secretary failed to prove by a preponderance of the evidence that a hazard of 

eye injury from a torn belt existed so as to require protective glasses. 

Respondent also argues that no hazard relevant to the safety glasses 

required by the inspector existed at the Rockport Plant. Respondent contends 

that a preponderance of the evidence established that the purpose of wearing 

impact-resistant glasses was to prevent injuries from direct or frontal impact 

and that small particles of sand and gravel blowing or falling from the conveyor belts did not present such a hazard as to require impact-resistant 

glasses. Respondent argues that its employees were protected from falling 

objects, including sand, by wearing hardhats with a brim. 

A mandatory safety standard must be clearly worded and fairly administered so that a reasonably prudent operator can understand and follow it. 

The operator should not be subjected to varying and inconsistent interpretations based on the subjective understanding of different inspectors. Clear 

wording and consistent application of the standard are required to avoid 

unfairness to the mine operator. The Supreme Court has held that the rulemaking procedures in the Administrative Procedure Act were designed to insure 

fairness and should not be supplanted by ad hoc adjudicatory proceedings. 

NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764 (1969). 

In Connally v. General Construction Co., 269 U.S. 385, 391 (1925), the 

Supreme Court said: "[A] statute which either forbids or requires the doing 

of an act i•i terms so vague that men of common intelligence must necessarily 

guess at its meaning and differ as to its application violates the first 

essential of due process of law." This fundamental principle also applies 

to industrial and commercial safety standards that can result in the imposition of civil penalties for their violation. See also: Brennan v. OSHRC, 

505 F.2d 869, 872 (10th Cir. 1974); Diebold, Inc. v. •,{arshall, 585 F.2d 1327, 

1335-1336 (6th Cir. 1978); Longview Refining Co. v. Shore, 554 F.2d 1006, 

1114 (Temp. Emer. Ct. App. 1977), cert. denied, 434 U.S. 836 (1977). In 

Diebold, Inc., the court said: 
Among the myriad applications of the due process clause 

is the fundamental principle that statutes and regulations 

which purport to govern conduct must give an adequate warning 

of what they command or forbid. In our jurisprudence, 

"because we assume that man is free to steer between lawful 

and unlawful conduct, we insist that laws give the person of 

ordinary intelligence a reasonable opportunity to know what 

is prohibited, so that he may act accordingly." Grayned v. 

City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 

33 L. Ed.2d 222 (1972). The principle applies with special 

force to statutes which regulate in the area of First 

Amendment rights , 

but the due process requirement of fundamental fairness is hardly limited to that context. Even a 

regulation which governs purely economic or commercial activities, if its violation can engender penalties, must be so 

framed as to provide a constitutionally adequate warning to 

those whose activities are governed. 

585 F.2d at 1335-1336. 

In determining whether a safety standard satisfies the principles of due 

process, the regulation must be examined "in light of the conduct to which 

it is applied" (Ray Evers Welding Co. v. OSHRC, 625 F.2d 726, 732 (6th Cir. 

1980); United States v. National Dairy Products Corp., 372 U.S. 29, 33 (1963)) 

and must meet the test of "delineat[ing] its reach in words of common understanding" (Cameron v. Johnson, 390 U.S. 611, 616 (1968)). 

•le cited standard requires that "safety glasses, goggles or face shields 

or other suitable devices" be worn by employees in an area of a plant "where a 

hazard exists which could cause injury to unprotected eyes." 

Neither this Commission nor the courts have decided •ether this standard 

meets the notice requirements of due process, i/ However, the courts have 

i/ The cited standard, which was promulgated by MSHA under its rulemaking 

authority, can be contrasted with a similar rule, which was promulgated by 

the Occupational Safety and Health Administration (OS•) to prevent eye 

injuries. Section 1910.133(a)(i) of OSHA's regulations, Title 29, Code of 

Federal Regulations, provides that protective eye and face equipment shall be 

required "where there is a reasonable probability of injury that can be prevented by such equipment." Section 1910.133(a)(i) specifically requires that 

eye protection be provided "where machines or operations present the hazard 

of flying objects, glare, liquids, injurious radiation, or a combination of 

these hazards." Subsection (a)(2) requires that eye protectors provide adequate protection against the particular hazards for which they were designed. 

Subsection (a)(b) further requires that "design, construction, testing, and 

use of devices for eye and face protection" meet the standards of the 

•nerican National Standard for Occupational and Educational Eye and Face 

Protection, Z87-I 1968 (ANSI). 
considered several OSHA safety standards that are similar in language, scope, 

and purpose to the cited standard by requiring the use of personal protective 

equipment "wherever it is necessary" or "where there is an exposure to hazardous conditions * * *." _2/ In considering these general personal protection 

standards, a majority of the circuit courts have applied an objective 

"reasonableness" test of whether a reasonably prudent person familiar with 

the circumstances of the industry would have protected against the hazard. 

Cape & Vineyard Div. v. OSHRC, 512 F.2d 1148, 1152 (ist Cir. 1975); &merican 

Airlines, Inc. v. Secretary of Labor, 578 F.2d 38, 41 (2nd Cir. 1978); 

Voegeie Co. v. OSHRC, 625 F.2d 1075, 1079 (3rd Cir. 1980); Bristol Steel & 

Iron Works, Inc. v. OSHRC, 601 F.2d 717, 723 (4th Cir. 1979); Ray Evers 

Welding Co. v. OSHRC, supra, 625 F.2d at 731-732; Arkansas-Best Freig•nt 

Systems, Inc. v. OSHRC, 529 F.2d 649, 655 (Sth Cir. 1976); Brennan v. SmokeCraft, Inc., 530 F.2d 843, 845 (9th Cir. 1976). The First Circuit explained 

that "knowledge of the existence of a hazardous situation must be determined 

in llgnt of the common experience of an industry, but c,lat ene extent of 

precautions to take against a known hazard is that which a conscientious 

safety expert would take." General Dynamics v. OSHRC, 599 F.2d 453, 464 

(Ist Cir.\,1979). 

The Fifth Circuit, by coutrast, has linked the reasonableness standard 

to the custom and practice of the iadustry. In Ryder Truck Lines, Inc. v. 

Brennan, 497 F.2d 230 (5th Cir. 1974), the court said that the general 

industry safety standard was not unconstitutionally vague as long as it 

"affords a reasonable warning of the proscribed conduct in light of common 

understanding and practices." 497 F.2d at 233; United States v. Petrillo, 

332 U.S. i, 4 (1947). 

In B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1372 (Sth Cir. 1978), 

which involved a citation for failure of an employee to wear a safety belt, 

the Fifth Circuit held that a reasonable insulation industry employer would 

not have required the use of safety belts under the circumstances and that 

the company did all that was required of it. The court found that only one 

of Ii witnesses, the OSHA compliance officer, testified that safety belts 

would have been appropriate under the circumstances and the Secretary of Labor 

introduced no evidence of industry custom. Ibid. The court said that the 

Occupational Safety and Health Review Commission's conclusion that industry 

custom required the use of safety belts under the circumstances was iaaccurate because it was based entirely upon the opinion of people employed by the 

Government without considering the evidence of the people in the industry. 

2/ Section 1910.132(a) of OSHA's regulations, Title 29, Code of Federal 

Regulations, is a genecal industry standard that requires the use of personal 

protective equl•nent "•erever it •s •ecessary by reason of hazards or processes or environment * * * encountered in a manner capable of causing injury 

 * * through physical contact." Section 1926.28(a) is a general standard 

that requires "the wearing of appropriate protective equipment in all operations where there is an exposure to hazardous conditions * * *." 

712 
583 F.2d at 1370. See also, Cotter & Company v. OSHRC, 598 F.2d 911 

(5th Cir. 1979); Power Plant Division, Brown & Root, Inc. v. OSHRC, 590 F.2d 

1363 (5th Cir. 1979). 

The other circuits have not followed the Fifth Circuit in limiting the 

reasonableness standard to the custom and practice of the industry because, 

as the First Circuit explained, an industry practice standard "would allow 

an entire industry to avoid liability by maintaining inadequate safety 

training." General Dynamics, supra, 599 F.2d at 464, accord, Voegele Co., 

supra, 625 F.2d at iO78. The Sixth Circuit said that industry standards and 

customs should not be determinative of reasonableness "because there may be 

instances where a whole industry has been negligent in providing safety 

equipment for its employees." Ray Evers Welding, supra, 625 F.2d at 732. 

In MSHA v. Atlantic Cement Co., YORK 79-I0-M, 2 FMSHRC Decs. 2910 

(October i0, 1980), Commission Judge Melick considered a vagueness charge 

in a civil penalty proceeding involving an alleged violation of a mandatory 

safety standard. He found that the safety standard (30 C.F.R. § 56-9.2) was 

similar to the personal protective equipment standards considered by the 

Fourth Circuit in McLean Trucking Company v. OSHRC, 503 F.2d 8 (4th Cir. 

1974), and the Fifth Circuit in Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 

230 (5th Cir. 1974). Judge Melick said: 

•le regulatory standard cited herein is similar * * * in 

that "the regulation appears to have been draffted •[th as 

much exactitude as possible in light of the myriad conceivable 

situations which could arise and which would be capable of 

causing injury." Also just as in the case of those standards, 

inherent in the standard at bar "is an external and objective 

test, namely, whether or not a reasonable person would recognized [the cited hazard]." McLean, supra at p. i0. The 

"reasonable person" has recently been defined as a "conscientious saffety e•pert seeking to prevent all hazards which are 

reasonably foreseeable." General Dynamics v. OSHRC, 599 F.2d 

453 (Ist Cir. 1979). 

I conclude that the wording of the cited standard meets the notice 

requirements of due process as prescribed ia the abo•e cases. However, I 

conclude that the inspector's application of the standard was arbitrary and 

unreasonable in this case, and that it would be a denial of due process to 

hold this operator liable for failing to provide the safety glasses required 

by the inspector. 

Neither the wording of the standard nor the facts of this case would 

cause a reasonably prudent operator to conclude that the law required 

unshielded impact-resistant lenses to protect the eyes from falling or windblown sand or gravel particles. The glasses worn by the inspector, and 

accepted by him as co•pliance with the standard, would not prevent falling 

and wind-blown sand and gravel from entering the eyes from around the top, 

bottom, and sides of the glasses. Wrap-around goggles, safety glasses with 

718 
peripheral shields, or face shields would have offered better protection from 

the dangers of falling and wind-blown sand and gravel particles, but none of 

these was put in issue either by the inspector's discussion with the operator 

or by the citation he issued. The inspector believed that wearing safety 

glasses without peripheral shields would protect a person's eyes from •[ndblo• sand a•id gravel particles. However, even though the inspector was 

weacing such glasses, he had to wipe particles of sand from his eyes on 

several occasions. 

The evidenceshows that the inspector construed "safety glasses" to 

include the kind he was wearing, i.e., impact-resistant lenses without 

peripheral shields. However, such glasses have not been shown to be "suitable" to protect against the hazard assumed by the inspector and Respondent is 

not charged with failing to provide other types of protective devices, The 

citation alleges a failure to provide "safety glasses" and does not say 

"goggles, or face shields or other suitable protective devices." Respondent 

cannot be held liable for failing to provide unsuitable devLces even though 

an inspector may find them to be suitable. 

In summary, I conclude that, under the wording of the standard and the 

facts of this case, it is arbitrary and unreasonable for the Government to 

charge a safety violation for failing to provide impact-resistant safety 

glasses such as those worn by the inspector. Whether a different kind of 

protection, such as safety glasses with peripheral shields, wrap-around 

goggles, or face shields could and should be required to protect against sand 

and gravel particles at Respondent's plant has not been put in issue by the 

Government and is not decided here. 

The Citation Concerning Brakes 

Based on the citation issued on August 7, 1979, the Secretary has 

charged Respo,•dent with a violation of 30 C.F.R. § 56.9-2, which provides: 

"Eq,lip,uent defects affectLag safety shall be corrected before the equipment 

is used." The basic issue as to this charge is whether there was a leak in 

the braking system that affected the safe operation of the front-end loader. 

The Secretary argues that a preponderance of the evidence shows there 

were leaks in the braking system of the front-end loader; that these leaks 

affected the safe operation of the loader; and that Respondent knew or should 

have known of the leaks before placing the machine in operation. The inspector test[fLed that he could hear the sound of escaping air, that he observed 

loose hose fLtt•ags oa the loader, a•id that the uechanic had told the operator 

on the morning of the inspection that there was an air leak. The inspector 

also observed what he assumed to be a leak near the slack adjuster on the 

left rear brake. 

Tlle Secretary proposes a penalty of $64. 

Respondent argues that the Secretary failed to prove, by a preponderance 

of the evidence, that there was any air leak that affected the safety of the 

714 
loader. Respondent contends that the sound of escaping air heard by Inspector Spruell did not amount to a defect. Respondent argues that the air 

pressure gauge did not drop into the unsafe range and that the operation of 

the loader's brakes was not affected by the air leak. Superintendent Rhodes 

testified that after the citation he tested the brakes and found them to operate satisfactorily. He removed the brake cylinder and examined it at the 

shop and discovered no holes or other defects. He also testified that the 

loader was examined by the operator before being placed in operation, as 

required by the company's rules, and that no brake problems were discovered. 

Respondent also contends that the alleged hazards of the loader jerking 

and swerving were unsupported by the record. The master mechanic, 

Mr. Goffinet, testified that the level of air pressure was distributed evenly 

to all six chambers and that, if pressure dropped below 70 p.s.i., the emergency system would activate evenly on all the wheels. He said that the two 

braking systems operated independently of each other and that a defect in one 

would not affect the reliability of the other. He said that a hole in one of 

the brake chambers might slow the operation of the service brakes; however, 

it would not affect the emergency system and would not cause the machine to 

jerk or swerve if the brakes were applied suddenly in an emergency. 

To prove a violation of the cited standard, the Secretary must show the 

presence of a defect that affected the safety of the machine. I find that an 

audible hissing lasting more than one or two seconds when the brakes were 

applied indicated an abnormal condition in the loader's braking system so as 

to require further investigation before placing the machine in operation. 

•e manufacturer's service manual required that all leaks, even small 

ones, be sealed immediately to avoid rupturing a diaphragm. A damaged diaphragm would produce a hissing noise during operation and, if left unattended, 

it could gradually grow worse or rupture and cause the emergency braking 

system to activate. If the emergency braking system activated unexpectedly, 

its stopping of the vehicle in 2 to 3 seconds could cause the operator to 

lurch forward and injure himself on the dash or steering wheel, cause a whiplash injury, or distract the operator so as to cause an accident involving 

another person, vehicle, or object. 

On the morning of the inspection, the mechanic warned the operator of a 

leak in one of the brake cylinders. Inspector Spruell testified that a hissing sound, which he could hear about 20 feet from the loader while it was in 

operation, caused him to suspect the presence of an air leak in the braking 

system. He testified that the air pressure gauge dropped slightly when the 

brakes were applied and that he found two loose hose connections under the 

loader, which were repaired immediately, and that the audible hissing continued even after the loose fittings were tightened. I credit this testimony 

as to what he observed and heard. 

I conclude that it was a violation to operate the vehicle with the hissing sound found by the inspector, and that under the mandatory safety standard 
Respondent had a duty to detect, examine, and correct the source of the hissing sound before allowing the machine to be put in service. However, considering the evidence that the brakes were effectively stopping • the vehicle 

at the time of the inspection and that the emergency braking system provided 

independent protection, I find that the violation involved a low gravity of 

risk to the vehicle operator. 

CONCLUSIONS OF LAW 

i. The undersigned Judge has jurisdiction over the parties and subject 

matter of the above proceeding. 

2. Petitioner did not meet his burden of proving a violation as 

alleged in Citation No. 367445. 

3. Respondent violated 30 C.F.R. § 56.9-2 by failing to repair an air 

leak on the left rear brake of the front-end loader as alleged in Citation 

No. 367447. Based upon the statutory criteria for assessing a civil penalty 

for a violation of a mandatory standard, Respondent is assessed a penalty of 

$64.00 for this violation. 

ORDER 

WHEREFORE IT IS ORDERED that Evansville Materials, Inc. shall pay the 

Secretary of Labor the above-assessed civil penalty, in the amount of $64.00, 

within 30 days from the date of this decision. 

WILLIAM FAUVER, JUDGE' 

Distribution: 

Rafael Alvarez, Esq., Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 230 S. Dearborn Street, 8 Floor, Chicago, IL 

60604 (Certified Mail) 

Philip E. Balcomb, Esq., Manager, Evansville Materials, Inc., 

P.O. Box 248, Tell City, IN 47586 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Pet it ion er, 

v. 

T & W SAND AND GRAVEL COMPANY, 

Respondent. 

333W. COLFAX AVENUE 

DENVER, COLORADO 80•04 

) 

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z 6 1881 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 80-110-M 

MSHA CASE NO. 05-02331-05002 

Mine: Chatfield Pit 

APPEARANCES : 

DECISION 

Robert J. Lesnick, Esq. 

Office of the Solicitor 

United States oepartment of Labor 

911 Walnut Street - Suite 2106 

Kansas City, Missouri 64106 

For the Petitioner 

Gerald M. Madsen, Esq. 

5601 South Broadway - Suite 200 

Littleton, Colorado 80121 

For the Respondent 

Before: Judge John A. Carlson 

This case, heard under the provisions of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801, et seq. [hereinafter the "Act"], arose 

out of an inspection at respondent's mine near Chatfield, Colorado. After 

receiving a complaint about a loading machine, two representatives of 

petitioner inspected the machine on July 17, 1979, pursuant to § I03(•) of 

the Act. Four citations were issued; only three were actually tried.•/ 

A hearing on the merits was held on December 9, 1980, in Denver, 

Colorado. Neither party submitted briefs, electing instead to rest on 

closing arguments. 

1--7 During the hearing, petitioner moved to withdraw one of the citations, 

n--umber 333028. The citation alleged that the absence of lights on the 

loading machine constituted a violation of 3(• C.F.R. 56.17-1. That 

standard requires: 

"illumination sufficient to provide safe working conditions ... 

in and 

on all surface structures, paths, walkways, stairways, switch panels, 

loading and dumping sites, and work areas. 

To support his motion, petitioner indicated that there was no evidence that 

the vehicle was used under conditions requiring lights. The motion was 

unopposed by respondent and subsequently granted by this Judge (Tr. 36). 

717 
I. Jurisdiction: 

Before reaching the merits, the jurisdiction of this Commission under 

the Commerce Clause of the United States Constitution must be-•ddressed. 

Respondent, by its answer, contends that its "products and operations do not 

enter and/or affect commerce", and that it is therefore not subject to the 

Act. At the hearing, respondent adduced testim6ny that none Of its products 

leave Colorado; that no sales are made outside Colorado; that 99% of 

respondent's customers are located in South Denver; and that in most cases 

the products are picked up by customers rather than delivered (Tr. 71). 

There was testimony, however, that the machinery used at respondent's mine, 

including the machinery cited,, was manufactured in Illinois (Tr. 13). 

At the hearing, this Judge, without formally ruling on thequestion, 

suggested that, in his view, respondent's operation did affect interstate 

commerce (Tr. 91). The weight of judicial authority supports the position 

that virtually any effect on inter-state con•erce is sufficient to bring a 

mining operation within the Commission's jurisdiction. Even where a mine 

operator sells all of its products intra-state, inter-state commerce is 

affected by the disruption of mining activities caused by unsafe or unhealthy working conditions. Marshall v. Bosack, 463 F.Supp. 800, 801 (E.D. 

Pa. 1978); Marshall v. Kilgore, 478 F. Supp. 4 (E. D. Tenn. 1979). 

Specifically, the purchase of equipment produced out of state provides a 

sufficient basis for a finding that the mining operation affects interstate commerce. Secretary of the Interior, United States Department of the 

Interior v. Shingara, 418 F. Supp. 693 (M.D. Pa. 1976). Respondent's 

argument contesting jurisdiction is therefore rejected. 

2. Citation 566091 - - Fume Leaks 

a. Violation 

This citation alleges that respondent, by allowing a front end 

loader2/ to be used while its fumes leaked into the cab, violated 30 

C.F.R. § 56.9-2. That standard provides: 

Mandatory. Equipment defects affecting safety shall 

be corrected before the machinery is used. 

Respondent admits the existence of both an equipment defect and the 

hazards it created•/ (Tr. 17, 22). It argues, however, that the machine 

was not used after the defect was discovered (Tr. 61).•/ 

2/ Respondent maintained two front end loaders on its mine premises: a 

Hough 90-E loader (manufactured by International Harvester) and a Caterpillar 966 loader. The citations in this case concern the Hough loader. 

•/ The testimony of Mr. Lyle Marti, one of the inspectors, indicates that 

the "defects" were leakage of diesel fuel (from the left-bank injector 

cylinder onto the manifold) and exhaust (caused by cracks in the first elbow 

of the left exhaust manifold). 

•/ Respondent's argument confuses the issue by implying that the standard 

requires only that machines, known by the operator to be defective, not be 

used. Indeed counsel asserted in closing argument that T & W could not have 

done more than correct the defect once it was brought to its attention. The 

real issue under 30 C.F.R. § 56-9-2 is whether the machine was in fact defective while being used; the evidence has been evaluated with reference to 

this issue. 

718 
The testimony concerning the issue of use was contradictory. All that 

is clear is that the loader had been taken out of service prior to the 

inspection on July 17, 1979 (Tr. 79). No evidence directly,sh•ws that the 

loader was used while in a defective condition; there is substantial 

evidence, however, which strongly suggests that theHough loader was used 

before its defects were corrected. Respondent's foreman, Willie. Stoops, 

testified that the Hough loader had not been used before an employee 

complained of the fumes; at the same time, however, Stoops stated that the 

employee refused to use the machine because the fumes gave him headaches 

(Tr. 83). Obviously, the employee would have had no basis for such a 

complaint if he had not operated the vehicle on a prior occasion. This 

inference is supported further by testimony of Inspector Marti that the 

complainant had been asked by Stoops to use the 90-E loader, and refused, 

claiming it gave him headaches (Tr. 23). 

• 

Further, there is evidence that Mr. Stoops told Inspector Marti during 

a post-inspection conference that the Hough 90-E loader had been used as a 

back-up for the Cat 966 loader; that when the Cat machine needed repair, 

Stoops had asked people (other than the complainant) to use the Hough loader 

(Tr. 85). This testimony is consiStent with Mr. Marti's earlier statements 

that the Hough loader was easily accessible, could be started with just an 

ignition key, and had not been tagged out of service (Tr. 25-26). 

The preponderance of the evidence does indicate that a defect affecting 

the safety of the Hough loader remained uncorrected while the loader was in 

use. Citation 566091 is therefore affirmed. 

b. Penalty: 

The parties stipulated that respondent is a relatively small operator, 

has an average prior history of violations, and demonstrated good faith in 

abating the violations promptly (Tr. 4, 5).5/ 

The evidence shows that the fume leaks created a moderate hazard. 

Inspector Marti testified that the fumes could cause the driver to become 

dizzy and operate the loader unsafely. As a practical matter, however,the 

operator would probably be able to stop the machine and step down from the 

cab if he felt dizzy. The fumes did increase the risk of an engine fire. 

The potential employee exposure to a fire hazard was moderate. The loader 

operator himself, of course, would be exposed to a risk of fire; possibly a 

truck driver would also have been exposed (Tr. 17, 18). If a fire were to 

break out, the probability of injury to the operator would be significant. 

The evidence also suggests some negligence since respondent's foreman 

acknowledged that the loader was in need of repair (Tr. 17, 22). 

Considering all these factors together, I find that the proposed penalty 

amount of $180.00 is appropriate. 

5/ These factors were taken into account in determining an appropriate 

penalty in connection with citation 333026, where violation was also 

established. 
3. Citation 333026 -- Back-up Alarm: 

 

§ 5 . 

This citation charges that respondent violated 30 C.F.R. • 9-87 

because tile Hough loader used at its mine lacked a back-up alarm. / lqlat 

standard provides: 

Mandatory. Heavy duty mobile equipment shall be provided with audible 

warning devices. When the operator of such equipment has an obstructed 

view to the rear, the equipment shall haveeither an automatic reverse 

signal alarm: which is audible above the surrounding noise level or an 

observer to signal when it is safe to back up. 

The undisputed evidence indicates that the Hough loader did not have a 

back-up alarm, that the operator had an obstructed view to the rear, and 

that observers were not used when the machine was backed up (Tr. 31). 

Respondent argues that the loader was not "heavy equipment" and thus 

was not subject to the standard. Respondent's evidence, however, shows only 

that the loader was small compared to other machines of its type. In 

determining the hazard presented by the absence of a back-up alarm on this 

machine, the relative size of the machine is unimportant. The loader was 

estimated to weigh between fifteen and twenty tons and thus presented a 

significant safety hazard when moving in reverse without an alarm (Tr. 32). 

6/ The citation itself actually alleged a violation of 30 C.F.R. § 56.9-5, 

which concerns operator conduct rather than the condition of a vehicle. 

Petitioner's proposal for penalty, however, incorporates a computerized 

penalty assessment sheet which indicates an alleged violation of 30 C.F.R. 

§ 56.9-87. The pleading does not expressly modify the citation. 

The issue raised by respondent's counsel is whether the computerized 

assessment sheet, incorporated by the proposal for penalty, operates as a 

proper modification of the original citation. Section 104(h) of the Act 

implicitly gives the Secretary power to modify a citation. However, neither 

the Act nor Commission rules set out procedures for modification. The 

interim procedural rule at 29 C.F.R. § 2700.22 (published March I0, 1978) 

only requires that a modified citation or order be challenged within 15 days 

of receipt. 

The reference to 30 C.F.R. § 56.9-87 on the computerized sheet is not 

accurately described as an amendment to a pleading since it accompanies the 

initial pleading. Federal Rule of Civil Procedure 15(a) is therefore 

inapposite; however, 15(b) would allow this Judge, on his own motion, to 

amend the pleadings to conform to the facts pleaded in petitioner's proposal 

and proved at the hearing. The facts alleged in the citation in essence 

charge a violation of 30 C.F.R. § 56.9-87; the computerized assessment sheet 

provided additional notice of that charge; respondent's pleadings and proof 

at hearing reflect no prejudice resulting from the discrepancy. The 

proposal for penalty is therefore amended to charge a violation of 30 C.F.R. 

§ 56.9-87. 
Although few employees were potentially exposed to the hazard, the gravity 

of the hazard was severe (Tr. 33). Accordingly, the proposed penalty of 

$180.00 should be affirmed. 

4. Citation 333027 -- Fire Extinguisher: 

This citation charges respondent with a violation of 30 C.F.R. 

§ 56.4-23, which provides: 

Firefighting equipment which is provided on the 

mine property shall be strategically located, 

readily accessible, plainly marked, properly 

maintained, and inspected periodically. Records 

shall be kept of such inspections. 

The citation was issued because there was no fire extinguisher on the Hough 

loader; since an engine fire could have broken out, an extinguisher, to be 

"strategically located", must have been placed on the vehicle according to 

the inspector (Tr. 52). 

The fact that the Hough loader lacked a fire extinguisher is 

undisputed. Respondent argues, however, that the standard at § 56.4-23 

applies to mine premises generally, and does not impose a specific 

requirement that vehicles be equipped with fire extinguishers. 

In view of a recently promulgated mandatory standard, which does 

specifically require vehicles to be equipped with fire extinguishers, 

respondent's interpretation of § 56.4-23 is, in my opinion, correct. On 

August 17, 1979, the advisory standard at 30 C.F.R. 56.4-39 was revised, 

renumbered and made mandatory as follows: 

56.4-27 Mandatory. Whenever self-propelled mobile 

equipment is used, such equipmentshall be provided with 

a suitable fire extinguisher readily accessible to the 

equipment operator. 

That the standard specifically addresses mobile equipment and was made 

mandatory indicates that it was intended to fill a gap left by the standard 

at § 56.4-23. Both the language and history of § 56.4-27 support 

respondent's interpretation of § 56. 4-23. The citation is therefore 

vacated. 

CONCLUSIONS OF LAW 

The following conclusions of law are based upon findings of fact 

discussed in the body of the decision. 

I. Respondent's mining activities affect commerce and are therefore 

subject to regulation under the Act. 

721 
2. Respondent violated 30 C.F.R. § 56.9-2 as alleged in citation 

566091, and t•e proposed penalty of $180.00 is appropriate. 

3. Respondent Violated 30 C.F.R. § 56.9-87 as alleged by petitioner's 

proposal for penalty, which incorporated citation 333026 by reference and 

which was amended pursuant to Federal Rule of Civil Procedure !5(b). The 

penalty proposed by petitioner, $180.00, is appropriate. 

4. Respondent did not violate 30 C.F.R. § 56.4-23 as charged in 

citation 333027. 

ORDER 

Pursuant to the foregoing, it is ORDERED that the penalty proposals 

made in connectionwith citations 566091 and 333026 are affirmed, and that 

the penalty proposals made in connection with citations 333027 and 333028 

are vacated. It is further ORDERED that respondent pay the sum of $360.00 

within 30 days o• this order. 

/ n•A. Carlso• 

•dministrative Law Judge 

Distribution: 

Robert J. Lesnick, Esq. 

Office of the Solicitor 

United States Department of Labor 

911 Walnut Street - Suite 2106 

Kansas City, Missouri 64106 

Gerald M. Madsen, Esq. 

5601 South Broadway - Suite 200 

Little•on, Colorado 80121 

722 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 ' 

li• 2 7 |98t 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Ve 

Petitioner : 

NORTH AMERICAN SAND & GRAVEL COMPANY, : 

A Corporation, 

Respondent : 

: Civil Penalty Proceeding 

: Docket No. LAKE 80-349-M 

A.O. No. 11-02666-05002 

Mine: North American Pit 

DECISION 

Appearances: Steven A. Walanka, Esq., Office of the Solicitor, 

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

Petitioner; 

Charles W. Barenfanger, Jr., Sandalia, Illinois, 

for Respondent. 

Before: Judge Melick 

A hearing was conducted in this case on February 18, 1981, in St. Louis, 

Missouri, following which I issued a bench decision. That decision, which 

appears below with only nonsubstantive changes, is affirmed at this time. 

This case is before me upon the proposal for assessment 

of civil penalty filed by the Secretary of Labor, Mine Safety 

and Health Administration, under the provisions of section 

ll0(a) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 820(a). The proposal was directed against the 

North American Sand & Gravel Company for allegedly excessive 

noise levels under the health standard at 30 C.F.R. § 56.5-50. 

The issue before me is whether North American violated the 

cited regulation and, if so, the appropriate penalty to be 

assessed for that violation. 

The only citation before me in this case, No. 363033, 

charged North American as follows: 

The noise level around the operator of 

the 966-C Caterpillar front-end loader, Serial 

728 
No. 766J1926, was exposed to [sic] 177 per cent of 

the permissible limit for noise on April 17, 1980, 

the day shift, for an 80-minute exposure. Feasible 

engineering or administrative controls were not 

being used to reduce the front-end loader operator's noise exposure to within those of the table 

in Section 56.5-50(a) in order to eliminate the 

need for hearing protection. 

The essential evidence is basically undisputed in this 

case and I find the testimony of Inspector Aubuchon to be 

completely credible. On April 17, 1980, in the course of a 

regular inspection at the North American Sand & Gravel mine, 

the inspector, following customary procedures in conducting a 

noise inspection, checked the batteries, calibrated, and 

cleared the Dupont dosimeter used in this case. I find that 

the dosimeter in fact calibrated to within accepted norms and, 

indeed, was registering slightly low so that the readings 

obtained therefrom were on the conservative side. 

The inspector thereafter pinned the dosimeter to the 

collar of the front-end loader operator and told the operator to follow his normal work procedures. The results of 

the test are undisputed, that is, that the dosimeter readout at the end of the 8-hour period was 177 percent of the 

permissible noise exposure. That is in excess of "unity" 

in the cited regulation and a prima facie case was therefore established. 

The evidence shows that the front-end loader at issue 

had a history of noise problems and sound-suppressant material had therefore previously been installed. On the date 

of this test, however, a piece of that material, consisting 

of rubber matting, was missing from over the transmission. 

One of the loader operators apparently failed to replace the 

matting following maintenance. The loader operator here was 

wearing personal protection equipment in the form of ear 

muffs or plugs and it was the customary practice of the 

operator to always wear that equipment. I also note that 

there is no medical evidence in this case to indicate that 

any harm would come to an employee as a result of the noise 

exposure under these circumstances, or for that matter even 

over a long period of time when considering that the rubber 

matting was ordinarily in place and when it was in place, 

the noise exposure was within permissible limits. 

I also find a verylow level of negligence in thls case. 

It appears that the violation was the direct result of an 

employee neglecting to replace a piece of noise-suppresslng 

rubber matting after maintenance. Since the mine operator 

724 
does have an obligation to see that excessive noise is 

suppressed I do consider this violation to have been partly 

due to its negligence. 

The condition was certainly abated within a reasonable 

time. The rubber matting was installed the same day as the 

citation. It was of course always available, it was just 

not installed. I have certainly also considered, in reaching 

the amount of penalty, that this operator had only a nominal 

history of violations, that the business size is certainly 

very small, and that the penalty would certainly not affect 

the operator's ability to stay in business. 

Under the circumstances, I consider this violation to be 

only a technical one and I would not assess more than a 

nominal penalty of $5. 

ORDER 

The North American Sand & Gravel Company is hereby ORDERED to pay a penalty of $5 within 30 days of the date of this decision. 

Distribution: 

Steven E. Walanka, Esq., Office of 

Labor, Eighth Floor, 230 South Dearh 

(Certified Mail) 

th 

"Soiii• •U.S. •partmen

•rn of iStreet, Chicago, IL 60604 

Charles W. Barenfanger, Jr., President, North American Sand & Gravel 

Company, Barenfanger, Inc., P.O. Box 190, 1313 North Sunset Drive, 

Sandalia, IL 62471 (Certified Mail) 

725 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 7 188f 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

V. 

MADISON GRANITE COMPANY, 

Petitioner 

Respondent 

Civil Penalty Proceedings 

Docket No. WEST 80-101-M 

A/O No. 02-01510-05003 

Docket No. WEST 80-426-M 

A/O No. 02-01510-05005 

Docket No. WEST 80-485-M 

A/O No. 02-01510-05006 

Docket No. WEST 80-484-M 

A/O No. 02-01510-05007V 

Crushed Granite Operations 

DECISION 

Appearances: •rshall P. Salzman, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, California, 

for Petitioner, MSHA; 

W. T. Elsing, Esq., Phoenix, Arizona, for Respondent, 

Madison Granite Company. 

Before: Judge Merlin 

These cases are petitions for the assessment of civil penalties filed by 

the Government against Madison Granite Company. Pursuant to the agreement of 

counsel, these cases were consolidated for hearing and decision. A hearing 

was held on March 3, 1981. 

Prior to going on the record, the parties agreed to the following stipulations (Tr. 4-5): 

(I) The operator is the owner and operator of the subject mine. 

(2) The operator and the mine are subject to the jurisdiction of the 

Act, and I have jurisdiction of these cases, subject, however, to the filing 

of briefs by the parties on the issue of whether coverage actually exists 

pursuant to the Commerce Clause of the Constitution. I, therefore, reserved 
ruling on thisquestion, and in accordance with the request of the parties, 

afforded them 20 days from the date of the close of the hearing to submit 

briefs on this issue. 

(3) The inspector who issued the subject citations was a duly authorized 

representative of the Secretary, and the operator's witnesses are accepted as 

experts, generally, in mine health and safety. 

(4) True and correct copies of the subject citations and order were properly served upon the operator. 

(5) The imposition of any penalty herein will not affect the operator's 

ability to continue in business. 

(6) All alleged violations were abated in good faith except for the one 

violation where a withdrawal order was issued. 

(7) The operator's history of prior violations is moderate. 

(8) The operator's size is small. 

At the hearing, documentary exhibits were received and witnesses testified 

on behalf of MSHA and the operator (Tr. 6-148). Decisions were rendered from 

the bench setting forth findings, conclusions and determinations with respect 

to each alleged violation. At the close of the hearing, I stated that these 

decisions would not be affirmed until I had considered the parties' briefs 

concerning the issue of whether or not this mine was covered by the Act pursuant to the Commerce Clause of the Constitution. The parties have, however, 

failed to file briefs concerning this issue and have not given any explanation 

for their failure to do so. 

Despite the parties' failure to submit briefs, I have considered the coverage issue and have determined that the operator is properly subject to the 

Act. As the Chief Judge of this Commission has stated, Congress intended to 

exercise its full authority under the Commerce Clause •en it enacted this 

statute. Secretary of Labor v. Cash & Carry Gravel, Inc., LAKE 80-48-M 

(November 13, 1980). In the request for admissions which respondent answered 

and which were made a part of the record by agreement of the parties, respondent stated that the products excavated from the subject facility are sold commercially within the State of Arizona. In Marshall v. Kilgore, 478 F. Supp. 4 

(E.D. Tenn. 1979), the court held that the fact that the defendant's coal was 

sold only intrastate did not insulate it from affecting commerce since its 

mere presence in the intrastate market would affect the supply and price of 

coal in the interstate market. See the decision of Judge Bernstein of this 

Commission in Secretary of Labor v. Rockite Gravel Company, LAKE 80-130-M 

(December 4, 1980) and all the decisions cited therein. Moreover, the 

respondent has admitted that in the performance of excavation, its employees 

handle, use, or otherwise work with machinery and equipment which is manufactured or produced outside the State of Arizona. I believe the purchase 

and utilization of this equipment further supports the determination that the 
operator is covered under the Act. Judge Bernstein specifically considered 

this issue and I adopt his rationale. Therefore, the bench decisions which 

appear hereinafter are hereby affirmed. The bench decisions are as follows: 

Docket No. •ST 80-101-M 

Citation No. 380220 was issued when the inspector found no one at the 

mine trained to give first aid in case of an accident, a violation of 

30 C.F.R. 55.18-10. After hearing testimony from the inspector and the 

operator's assistant to the president, I found that a violation existed. I 

held that the violation was of moderate gravity, accepting the testimony of 

the operator's witness with regard to the proximity of the nearest hospital 

(Tr. 12). Finally, I found the operator negligent, but held that the operator's negligence was mitigated by the fact that this citation had been issued 

during only the second inspection of this operator under the Act. In light 

of the foregoing and particularly bearing in mind the operator's small size, 

I assessed a penalty of $40 (Tr. 13-14). 

Citation No. 379242 was issued when the inspector found that records of 

the continuity and resistance readings of the electrical grounding system were 

not available at the plant, a violation of 30 C.F.R. 55.12-28. After hearing testimony from the inspector, I found that a violation did exist for the 

failure to keep records. I found that this was not a serious violation because 

the witness testified that the citation was issued for a failure to have the 

required records, and not for a failure to perform the required tests (Tr. 16). 

I further found the operator to be guilty of ordinary negligence. In light of 

the foregoing and bearing in mind the operator's small size, I assessed a penalty of $i0 (Tr. 16). 

Docket No. WEST 80-426-M 

Citation No. 383582 was issued when the inspector observed that the 

employee operating the D-8 Caterpillar dozer was being exposed to 764 percent of the permissible limit for noise during his work shift and that feasible 

engineering or administrative controls were not being used to reduce the noise 

level in order to eliminate the need for the use of hearing protection, a violation of 30 C.F.R. 56.5-50(b). After two extensions of the termination due 

date, 104(b) Withdrawal Order No. 382390 was issued because of the operator's 

failure to abate this violation. The inspector who issued the citation testified that he conducted a full-shift noise survey of this dozer and determined 

that the operator of the dozer was being exposed to 764 percent of the permissible noise level (Tr. 20). He testified that most of the noise seemed to be 

coming from the floorboard near the firewall of the dozer, and that the operator of the dozer was wearing an earplug-type of hearing protection (Tr. 22- 

23). MSIi•'s Western District Health Specialist testified that an engineering 

package was available to the operator at a cost of less than $i,000 that would 

result in quite a significant reduction in noise exposure to the operator of 

the dozer, such that the piece of equipment would almost be in compliance 

with the regulation (Tr. 35-36). He testified that excessive noise exposure 

of this type would ultimately result in hearing loss (Tr. 40), and that the 
danger of hearing loss existed even though the dozer operator was wearing 

ear protection (Tr. 40). The supervisory mine inspector of MSHA's Phoenix 

field office testified that he issued the withdrawal order concerning this 

piece of equipment because the plant foreman told him the operator had refused 

to install the necessary controls (Tr. 47). The assistant to the president of 

the operator testified that measures were taken to control the noise problems 

on the dozer (Tr. 49). On cross-examination, he stated that it was "very possible" that these measures were implemented after the withdrawal order for 

failure to abate had been issued (Tr. 51). The testimony from MSHA regarding 

the feasibility of noise controls was uncontradicted. After considering the 

testimony concerning this citation, I found that a violation existed (Tr. 54). 

I found this violation to be serious because of the danger of permanent hearing loss to the operator of the equipment, but that the seriousness of this 

violation was somewhat mitigated by the wearing of ear protection (Tr. 55). 

I further concluded that the operator had failed to abate this violation in 

good faith. The statement by the foreman that he was not using the bulldozer 

does not support the inference that it had been taken out of service. There 

is a substantial difference between a piece of equipment not being used at 

the moment and that same piece of equipment being taken out of service (Tr. 

55). After again taking into account the operator's small size and moderate 

history of previous violations, I assessed a penalty of $350 (Tr. 56). 

Citation No. 383583 was issued when the inspector observed that the operator of the 619C Caterpillar scraper was exposed to 277 percent of the permissible limit for noise during his work shift and that feasible engineering or 

administrative controls were not being used to reduce the noise level, a violation of 30 C.F.R. 56.5-50(b). This violation was terminated without the 

issuance of a withdrawal order when this piece of equipment was permanently 

removed from service. Most of the testimony taken for Citation No. 383582 

concerned this citation as well. In addition, the inspector testified that 

the operator of this piece of equipment was subject to 277 percent of the 

permissible noise level (Tr. 25). MSHA's health specialist testified that 

an engineering package similar to that for the dozer was available for the 

scraper as well, which testimony was uncontradicted (Tr. 38-39). MSHA's supervisory inspector testified that he observed this scraper after the plant foreman told him it had been removed from service and it appeared to him that 

various parts, including tires, had been removed from the scraper and it had 

been retired from service (Tr. 48). For the same reasons set forth concerning 

Citation No. 383582, I found that a violation also existed with regard to the 

scraper. I found this violation to be of moderate gravity because the level 

of noise the equipment operator was exposed to was not as great as it was for 

Citation No. 383582 and because the operator was wearing ear protection. 

Again, taking into account the operator's small size and moderate history 

of violations, I assessed a penalty of $60 (Tr. 56). 

Citation No. 371208 was issued when the inspector observed that a tail 

pulley of a conveyor was not guarded, a violation of 30 C.F.R. 56.14-1. The 

inspector testified that there was a walkway right next to the conveyor which 

allowed people to come in close proximity to the conveyor (Tr. 59). He stated 

that six or seven people worked in the area at a variety of jobs (Tr. 60). He 

further testified that this lack of guarding was in plain view (Tr. 61), and 

729 
stated that on each previous inspection of this plant, the operator had 

received citations for guarding violations (Tr. 64). Based upon this testimony, I found a violation existed. I found the violation was serious and the 

operator negligent. Considering all of the criteria, including the operator's 

small size, I assessed a penalty of $i00 (Tr. 66). 

Citation No. 371217 was issued when the inspector observed another 

unguarded tail pulley, a violation of 30 C.F.R. 56.14-1. The inspector 

testified that there was guarding along the sides of this pulley but not 

behind the pulley, and that what guarding did exist was inadequate in that 

a person could reach around the sides of the guards (Tr. 66-67). He also 

testified that the pulley was located in an area where persons could come 

in contact with it and that it would be very easy to guard these tail 

pulleys (Tr. 67-68). Based upon the testimony, I found a violation existed. 

I found that negligence and gravity were mitigated somewhat by the fact that 

there was some guarding around the sides of the tail pulley. Accordingly, I 

assessed a penalty of $75 (Tr. 73). 

Citation No. 371213 was issued when the inspector observed another 

unguarded tail pulley, a violation of 30 C.F.R. 56.14-1. The inspector 

testified that this pulley was unguarded and was easily accessible to 

persons (Tr. 74). Based upon this testimony, I found a violation existed. 

I found the violation was serious, the operator negligent, and assessed a 

penalty of $i00 (Tr. 75). 

Citation No. 382392 was issued when cue inspector observed that a guard 

was not provided for a portion of the V-belt drive of the sand return conveyor, a violation of 30 C.F.R. 56.14-1. The inspector testified that this 

drive was unguarded and that there was a platform located 6 feet below the 

drive on which people could walk which made the drive accessible to persons 

(Tr. 76). He also testified that because the drive is 6 feet above the platform, a person would have to reach up to contact the belt drive and become 

entangled in it (Tr. 76). Based upon this testimony, I found a violation 

existed. I found the operator negligent, the violation serious, although the 

gravity was mitigated by the belt drive being located 6 feet above the platform, and assessed a penalty of $75 (Tr. 79). 

Citation No. 371219 was issued when the inspector observed that oxygen 

bottles were not secured, a violation of 30 C.F.R. 56.16-5. The inspector 

testified that two full oxygen bottles were not secured since they were not 

chained up (Tr. 84). He stated that the bottles could be tipped over rather 

easily and the caps could be knocked off, which would release the oxygen (Tr. 

84). He testified that the operator should have known about this and secured 

these bottles (Tr, 85). •e assistant to the president of the operator testified that the caps were screwed on the bottles, and it would be very difficult 

for the caps to come off the bottles (Tr. 86). He further testified that 

since the bottles were full they must have just been delivered and the operator simply had not got around to placing them in the rack (Tr. 87). Based 

upon the testimony, I found that a violation had occurred. I found that the 

violation was potentially serious but that the gravity was substantially 
mitigated because the cylinders would have to fall over and the tops come 

off before the cylinders would be "set off." FinallY , 

I accepted the operator's testimony that the two bottles had not been there very long, which 

substantially mitigated the factor of negligence. I assessed a penalty of 

$30 (Tr. 89). 

Citation No. 371220 was issued when the inspector observed a front-end 

loader to be without an operable backup alarm, a violation of 30 C.F.R. 

56.9-2. The inspector testified that a backup alarm was present but was 

inoperable (Tr. 89). The Solicitor stated that the Government had no evidence with regard to how long this had been inoperable and therefore could 

not sustain a charge of a high degree of negligence (Tr. 91). Based upon 

this testimony, I found a violation existed. I found the violation was 

serious, and accepted the Solicitor's representation concerning the degree 

of negligence. Accordingly, I assessed a penalty of $60 (Tr. 91). 

Docket No. WEST 80-484-M 

Order No. 371216 was issued when the inspector observed that a tail pulley 

guard was not provided for the conveyor leading from the shaker screen, a violation of 30 C.F.R. 56.14-1. The inspector testified that this unguarded 

tail pulley was located on ground level where persons could easily contact 

the moving parts (Tr. 80). The inspector stated that the foreman knew this 

condition existed but he had not had the time to correct it (Tr. 81). Based 

upon this testimony, I found a violation occurred. I found that the operator 

was negligent and the violation was serious, and I assessed a penalty of $125 

(Tr. 82). 

Citation No. 371210 was issued when the inspector observed that various 

roadways were without berms, a violation of 30 C.F.R. 56.9-22. This citation concerned three different locations that were alleged to have been without berms. Both the inspector and the operator's assistant to the president 

testified with regard to this citation. The first location was the roadway 

leading to where equipment is refueled. Based upon the inspector's undisputed 

testimony that there was no berm at this location (Tr. 93), I found a violation existed. I found this violation was serious. Based upon the testimony 

of the operator's assistant to the president that there had previously been 

a berm but that a new road had recently been cut and a new berm had not yet 

been installed (Tr. 105), I found the negligence of the operator mitigated. 

At the other two locations, the feed hopper area and the roadway leading to 

the feed hopper, I accepted the testimony of the inspector who was present 

at the time the citation was issued, to the effect that the area in question 

was not an intersection (Tr. 115), and rejected the contrary testimony of the 

operator's witness, who was not present at the time the citation was issued 

(Tr. Ii0). Based upon that testimony, I found a violation existed. I found 

the condition to be serious and the operator negligent. Based upon the foregoing, I assessed a penalty of $250 (Tr. 120). 

Order No. 382391 was issued when the inspector observed a conveyor without emergency stop guards along the rollers of the conveyor, a violation of 

731 
30 C.F.R. 56.9-7. The inspector testified that a travelway existed where 

a person could come in close proximity to the moving conveyor rollers (Tr. 

122). He stated that emergency stops or a handrail had once been in place 

here, but they had deteriorated (Tr. 123). All plant personnel would be 

exposed to this hazard (Tr. 124), since they regularly walked along this 

travelway (Tr. 127-128). Based upon this testimony, I found that a walkway 

existed within the meaning of the standard and that a violation did exist. 

I further found that the operator was negligent and that the violation was 

serious. Based upon the foregoing and the operator's small size and moderate 

history, I assessed a penalty of $i00 (Tr. 129). 

Docket No. WEST 80-485-M 

Citation No. 371211 was issued when the inspector observed that strain 

relief clamps had not been provided for wiring at two locations, a violation 

of 30 C.F.R. 56.12-8. •e inspector testified that the wires leading into 

the motor of the short hopper conveyor were not properly insulated to protect 

the equipment from being energized (Tr. 130). He further testified that this 

condition was visible (Tr. 123). Based upon this uncontradicted testimony, I 

found that a violation existed at both locations. I found that the violation was serious and the operator negligent. I assessed a penalty of $150 

(Tr. 142). 

Citation No. 382393 was issued when the inspector observed that records 

were not kept of daily inspections for conditions which could adversely affect 

safety and health, a violation of 30 C.F.R. 56.18-2(b). Based upon the 

testimony of the inspector, I found a violation existed. I further found the 

operator negligent and this violation to be nonserious. Based upon the foregoing and the operator's small size, I assessed a penalty of $20 (Tr. 144). 

Citation No. 383368 was issued for a failure to maintain a record of tests 

measuring the continuity and resistance of the grounding system, a violation 

of 30 C.F.R. 56.12-28. The inspector testified that the foreman had told 

him that these records should be kept at the main office, but that the last 

safety director had quit and had lost the records (Tr. 144). Based upon the 

inspector's testimony, I found that a violation existed. I found the violation was nonserious and that the operator was negligent. I assessed a penalty 

of $20 (Tr. 148). 

ORDER 

The foregoing bench decisions are hereby AFFIRMED. The operator is 

ORDERED to pay $1,565 within 30 days from the date of this decision. 

,/ 

ssistant Chief Administrative Law Judge 

1 
Distribution: 

Marshall P. Salzman, Esq., Office of the Solicitor, U.S. Department of 

Labor, 11071 Federal Building, 450 Golden Gate Avenue, Box 36017, 

San Francisco, CA 94102 (Certified Mail) 

W. T. Elsing, Esq., 34 West Monroe Street, Suite 202, Phoenix, AZ 85003 

(Certified l•il) 

733 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

 OFFICE OF ADMINISTRATIVE. LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

1981 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

V. 

Petitioner 

BROWN BROTHERS SAND COMPANY, 

Respondent 

 

: 

: Civil Penalty Proceedings 

: Docket No. BARB 79-312-PM 

: A/O No. 09-00265-05001 

Docket No. SE 79-90-M 

A/O No. 09-00265-05002 

 Docket No. SE 80-58-M 

A/O No. 09-00265-05003 

Junction City Mine 

DECISION 

Appearance s : Ken S. Welsch, Esq., Office of the Solicitor, 

U.S. Department of Labor, Atlanta, Georgia, for 

Petitioner; 

Frank J. Jordan, Jr., Esq., Talbotton, Georgia, for 

Respondent. 

Before: Judge Cook 

I. Procedural Background 

Petitions for assessment of civil penalty were filed by the Mine Safety and Health Administration (Petitioner) in the above-captioned cases pursuant to section ll0(a) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et se•. (Supp. III 1979) (1977 Mine Act). The three cases 

allege a total of three violations of various provisions of the Code of 

Federal Regulations. Answers were filed by Brown Brothers Sand Company (Respondent). 

On November 3, 1980 , 

a notice of hearing was issued scheduling the 

above-captioned cases for hearing on the merits beginning at 9:30 a.m., on 

December 16, 1980, in Columbus, Georgia. The hearing was held as scheduled 

with representatives of both parties present and participating. After the 

presentation of the evidence, both parties were accorded the opportunity to 

file posthearing briefs and proposed findings of fact and conclusions of law. 

Counsel for Respondent specifically reserved the right to file a posthearing 

brief. Accordingly, a schedule was set for the filing of posthearing briefs 

and proposed findings of fact and conclusions of law. 

734 
On February 9, 1981, counsel for Respondent filed a written communication 

indicating that neither party wished to file posthearing briefs because the 

issues involved in these cases are factual rather than legal. No briefs were 

filed by either party. 

II. Violations Charged 

A. Docket No. BARB 79-312-PM 

Citation/Order No. 97094, November 20, 1978, 30 C.F.R § 56.12-16. 

B. Docket No. SE 79-90-M 

Citation No. 98528, May i, 1979, 30 C.F.R. § 56.4-2. 

C. Docket No. SE 80-58-M 

Citation No. 98541, November 27, 1979, 30 C.F.R. § 56o12-32. 

III. Witnesses and Exhibits 

A. Witnesses 

Petitioner called as its witnesses Federal mine inspectors Gartsel G. 

Hanrlck, and Ronald J. Grabner. 

Respondent called as its witnesses Steve Brown, a partner and manager; 

Jerry Mathis, the sand pump operator; and Carl Brown, a partner and manager. 

B. Exhibits 

i. Petitioner introduced the following exhibits in evidence: 

M-I is a computer printout compiled by the Directorate of Assessments 

setting forth Respondent's history of previous violations for which assessments have been paid, beginning June 28, 1977, and ending June 27, 1979. 

M-2 is a computer printout compiled by the Directorate of Assessments 

setting forth Respondent's history of previous violations for which assessments have been paid, beginning January 19, 1978, and ending January 18, 1980. 

M-3 contains three photographs pertaining to Citation/Order No. 97094, 

November 20, 1978, 30 C.F.R. § 56.12-16. 

M'4 is the sworn statement of Mr. Steve Brown, dated February 5, 1979, 

pertaining to Citation/Order No. 97094, November 20, 1978, 30 C.F.R. 

§ 56.12-16. 

M-5 is a two-page document containing a copy of Citation No. 98528, 

May I, 1979, 30 C.F.R. § 56.4-2, and a copy of the inspector's statement 

pertaining thereto. 
M-6 is a two-page document containing a copy of Citation No. 98541, 

November 27, 1979, 30 C.F.R. § 56.12-32, and a copy of the inspector's statement pertaining thereto. 

M-7 is a drawing prepared by Federal mine inspector Ronald J. Grabner 

pertaining to Citation No. 98541, November 27, 1979, 30 C.F.R § 56.12-32. 

2. Respondent introduced the following exhibits in evidence: 

0-i is a two-page document containing a copy of Citation/Order 

No. 97094, November 20, 1978, 30 C.F.R. § 56.12-16, and a copy of the 

inspector's statement pertaining thereto. 

0-2 and 0-3 are photographs pertaining to Citation No. 98528, May i, 

1979, 30 C.F.R. § 56.4-2. 

0-4 is a drawing. 

0-5 is a drawing. 

IV. Issues 

Two basic issues are involved in these civil penalty proceedings: (i) 

did a violation of a mandatory safety standard occur, and (2) what amount 

should be assessed as a penalty if a violation is found to have occurred? 

In determining the amount of civil penalty that should be assessed for a 

violation, the law requires that six factors be considered: (i) history of 

previous violations; (2) appropriateness of the penalty to the size of the 

operator's business; (3) whether the operator was negligent; (4) effect of 

the penalty on the operator's ability to continue in business; (5) gravity 

of the violation; and (6) the operator's good faith in attempting rapid 

abatement of the violation. 

V. Opinion and Findings of Fact 

A. Stipulations 

i. Respondent's activities affect commerce within the meaning of the 

1977 Mine Act (Tr. 3, 5-6). 

2. Respondent employs nine employees for one 8- to 10-hour shift, 5 days 

a week (Tr. 3, 5-6). 

3. The Junction City Mine is the only mine owned by Respondent. 

Respondent is not a subsidiary of any other corporation (Tr. 3, 5-6). 

4. Respondent has no history of previous violations cognizable in Docket 

No. BARB 79-312-PM (Tr. 3, 5-6). 

736 
B. Citation/Order No. 97094• November 20, 1978, 30 C.F.R. § 56.12-16 

i. Occurrence of Violation 

Federal mine inspector Gartsel G. Hanrick conducted an inspection of 

Respondent's Junction CityMine on November 20, 1978. At approximately 

2 p.m., he issued Citation No. 97094, a combination 104(a) citation/ 

107(a) withdrawal order, citing Respondent for a violation of mandatory 

safety standard 30 C.F.R. § 56.12-16. The citation/order alleges, in pertinent part, that "men were working on the main dredge sand pump replacing the 

packing without the electric power being locked out" (Exh. 0-i). The cited 

mandatory safety standard provides, in part, that "[p]ower switches shall be 

locked out or other measures taken which shall prevent the [electrically 

powered] equipment from being energized without the knowledge of the 

individuals working on it." 

The evidence presented during the hearing establishes that at least one 

employee was actively engaged in replacing the packing on the main dredge 

sand pump, a piece of electrically powered equipment, when the citation/order 

was issued. The power switch, a knife switch, was located approximately 5 to 

18 feet from the area where the work was being performed. The equipment had 

been deenergized by opening the knife switch, thereby breaking the electrical 

circuit. However, the switch was not locked out and no other measures had 

been taken to prevent the equipment from being energized without the knowledge of the individual or individuals working on it. If the knife switch 

had been thrown upward into the "on" position, the pump would have started. 

The switch was located approximately 36 inches above the floor of the dredge 

(Exh. 0-i, see also Exh. M-4). 

Accordingly it is found that a violation of mandatory safety standard 

30 C.F.R. § 56.12-16 has been established by a preponderance of the evidence. 

2. Negligence of the Operator 

It appears that the repacking operation had to be performed on a weekly 

or monthly basis. However, no lock-out procedure existed at the mine. Pulling three fuse jacks was the only means available for complying with the 

requirements of the mandatory safety standard. The fuse jacks were located 

on a telephone pole located approximately 20 to 30 feet from the dredge. The 

fuse jacks were approximately 15 feet above the ground. Pulling the fuse 

jacks removed all electrical power from the dredge. It can therefore be 

inferred that Respondent had no established procedure for complying with the 

requirements of 30 C.F.R. § 56.12-16. Accordingly, it is found that Respondent demonstrated a high degree of ordinary negligence. 

3. Gravity of the Violation 

The packing gland is a retaining ring that holds the packing in place. 

The four bolts holding the gland in place had been removed, and the packing 

gland had been moved back on the shaft a short distance to a point between 

737 
the pump housing and the pillar support bearing. Two employees were present 

in the work area when the inspection party arrived. One employee was actively 

involved in the repacking job. His left hand was resting on the shaft and 

was holding the packing. A tool, such as a screwdriver or punch, was being 

used to insert the packing material into the opening. The other employee was 

either observing the repacking operation or rendering assistance. The latter 

possibility is considered the more probable. There were no other employees 

on the dredge. 

Had the shaft started to rotate, the packing gland would have rotated 

at a slower rate than the shaft. By holding the packing gland, an employee 

could have prevented the gland from rotating. 

The shaft rotates at a maximum speed of 540 RPMs. In order to reach this 

speed, two switches must be engaged. Engaging the knife switch causes the 

shaft to reach a 300-RPM rate of rotation in 5 seconds. Then, a second switch 

must be engaged to increase rotation to 540 RPMs (Exh. M-4). Injuries could 

have been sustained as a result of hands, clothing or tools contacting 

rotating machine parts. 

The knife switch had been pulled down to the "off" position and was 

parallel to the floor of the dredge. In this position, it projected into the 

walkway which could be used by persons walking on the dredge. Accordingly, 

it can be inferred that it could have beenmoved upward accidentally into an 

"on" position by a passing employee, provided sufficient force was applied. 

All factors considered, I find that the occurrence of the event against 

which the cited standard is directed was improbable. If the event had 

occurred, one employee would have been exposed to a potentially disabling 

injury. Accordingly, I conclude that the violation was moderately serious. 

4. Good Faith in Attempting Rapid Abatement 

The violation was abated immediately by pulling the three power jacks on 

the nearby telephone pole. Accordingly, it is found that Respondent demonstrated good faith in attempting rapid abatement. 

C. Citation No. 98528• May i• 1979, 30 C.F.R. § 56.4-2 

i. Occurrence of Violation 

Federal mine inspector Ronald J. Grabner conducted an inspection at 

Respondent's Junction City Mine on May i, 1979. At approximately 11:45 a.m., 

Inspector Grabner issued Citation No. 98528 citing Respondent for a violation 

of mandatory safety standard 30 C.F.R. § 56.4-2 in that "[t]he no smoking sign 

for the gasoline storage area could not be readily seen as the post it was on 

had been [knocked] down" (Exh. M-5). The mandatory safety standard requires 

that "[s]igns warning against smoking and open flames shall be posted so they 

can be readily seen in areas or places where fire or explosion hazards exist." 

738 
The gasoline storage area referred to in the citation was a refueling 

area located outdoors, and consisted of a 1,000-ga!lon underground fuel tank 

surmounted by an electrically powered gasoline pump. The post to which the 

"No smoking" sign was attached was laying on the ground with the sign face 

down. The sign could not be seen in this position and was therefore not 

readi] -° visible. 

Accordingly, it is found that a violation of mandatory safety standard 

30 C.F.R. § 56.4-2 has been established by a preponderance of the evidence. 

2. Negligence of the Operator 

When the inspection party reached the fuel storage area and discovered 

the violaton, Mr. Jack Spanks, a foreman employed by Respondent, informed 

Inspector Grabner that the sign had been knocked down by a truck on April 30, 

1979. 

Mr. Steve Brown stated that to the best of his knowledge the pole with 

the no smoking sign was up on the day prior to the citation. He stated that 

he had no knowledge of the violation until after the citation was issued and 

that he and Mr. Spanks looked at the site and found big truck tracks near the 

downed pole. They believed that it had been knocked down on the evening of 

April 30, 1979, or in the morning of May i, 1979, the date of the citation. 

The gas pump was not used every day but could be seen from a road passing 

through the property on the way to the pit. In view of the short time during 

which the operators or some of their employees could have seen the violation, 

the negligence is of a minor nature. 

3. Gravity of the Violation 

The outdoor fuel storage area was used by a small number of people to 

refuel vehicles with gasoline. Respondent's customers did not use the 

refueling facility. No one was using the facility when the inspection was 

conducted. 

It is important to bear in mind that the sign was in place and readily 

visible until it was knocked down by a truck on April 30 or May i, 1979. It 

can therefore be inferred that the men who used tile refueling area knew that 

smoking in such area was prohibited, especially considering the small number 

of people employed at the mine. Additionally, there is no indication that 

open flames would have been carried into, or used in, the area. Accordingly, 

I conclude that an occurrence of the event against which the cited standard 

is directed was improbable. However, in the event of an occurrence, an 

explosion resulting in fatal injuries could have occurred. 

Accordingly, it is found that the violation was accompanied by moderate 

gravity. 
4. Good Faith in Attempting Rapid Abatement 

The violation was abated within the time allotted for abatement (Exh. 

M-5). Accordingly, it is found that Respondent demonstrated good faith in 

attempting rapid abatement. 

D. Citation No. 98541• November 27• 1979• 30 C.F.R. § 56.12-32 

i. Occurrence of Violation 

Federal mine inspector Ronald J. Grabner conducted an inspection at 

Respondent's Junction City Mine on November 27, 1979. At approximately 

1:30 p.m., he issued Citation No. 98541 charging Respondent with a violation 

of mandatory safety standard 30 C.F.R. § 56.12-32 in that "[t]he junction box 

cover for the 220 volt electrical motor for the shaker screen was missing" 

(Exh. M-6). The cited mandatory safety standard requires that "[i]nspection 

and cover plates on electrical equipment and junction boxes shall be kept in 

place at all times except during testing and repairs." 

The evidence presented during the hearing is in accord with the statements contained in the citation. Additionally, the evidence establishes that 

no testing or repair work was being performed. 

Accordingly, it is found that a violation of mandatory safety standard 

30 c.F.R. § 56.12-32 has been established by a preponderance of the evidence. 

2. Negligence of the Operator 

The record contains no evidence as to precisely how long the violation 

had been in existence. However, the missing junction box cover was not in 

the area. It can therefore be inferred that the condition had existed for a 

sufficient period of time for Respondent to have discovered it. Accordingly, 

it is found that Respondent demonstrated ordinary negligence. 

3. Gravity of the Violation 

The leads from the motor and the power leads were exposed. It appears 

that the opening was somewhat less than 6 inches long by 4 inches wide. However, due to the location of the junction box, it would have been improbable 

for anyone to achieve contact with the electrical leads (Exh. M-6). The 

occurrence of the event against which the cited standard is directed was 

improbable (Exh. M-6). However, if an individual had achieved contact with 

the exposed 220-volt electrical leads while such leads were energized, a 

fatal injury could have been sustained (Exh. M-6). No emploYees were in the 

area. 

Accordingly, it is found that the violation was accompanied by moderate 

gravity. 
4. Good Faith in Attempting Rapid Abatement 

The violation was abated within the time period allotted for abatement 

(Exh. M-6). Accordingly, it is found that Respondent demonstrated good faith 

in attempting rapid abatement. 

E. Size of the Operator's Business 

The parties stipulated that the Junction City Mine is the only mine owned 

by Respondent, and that Respondent is not a subsidary of any other corporation. 

The parties also stipulated that Respondent employs nine employees for one 

shift of 8 to i0 hours, 5 days a week (Tr. 3, 5-6). 

Accordingly, it is found that Respondent is a small operator. 

F. History of Previous Violations 

The parties stipulated that Respondent has no history of previous violations cognizable in Docket No. BARB 79-312-M (Tr. 3, 5-6). 

As relates to Docket No. SE 79-90-M, Respondent had five violations for 

which assessments have been paid prior to May i, 1979. None were violations 

of 30 C.F.R. § 56.4-2 (Exh. M-l). 

As relates to Docket No. SE 80-58-M, Respondent had seven violations for 

which assessments have been paid prior to November 27, 1979. Four were for 

violations of 30 C.F.R. § 56.12-32 (Exh. M-2). 

G. Effect of a Civil Penalty on the Operator's Ability to Continue in 

Business 

No evidence was presented establishing that the assessment of civil penalties in these cases will adversely affect Respondent's abilityto remain in 

business. In Hall Coal Company, i IBMA 175, 79 I.D. 668, 1971-1973 OSHD 

par. 15,380 (1972), the Commission's predecessor, the Interior Board of Mine 

Operations Appeals, held that evidence relating to whether a penalty will 

affect the ability of the operator to remain in business is within the operator's control, and therefore, there is a presumption that the operator will 

not be so affected. I find, therefore, that penalties otherwise properly 

assessed in these proceedings will not impair Respondent's ability to continue 

in business. 

VI. Conclusions of Law 

i. The Administrative Law Judge has jurisdiction over the subject matter 

of, and the parties to, these proceedings. 

2. Brown Brothers Sand Company and its Junction City Mine have been 

subject to the provisions of the 1977 Mine Act at all times relevant to these 

proceedings. 
3. Federal mine inspectors Gartsel G. Hanrick and Ronald J. Grabner 

were duly authorized representatives of the Secretary of Labor at all times 

relevant to the issuance of the citations at issue in these proceedings. 

4. The three violations charged are found to have occurred as alleged. 

5. All of the conclusions of law set forth in Part V, supra, are 

reaffirmed and incorporated herein. 

VII. Penalties Assessed 

Upon consideration of the entire record in these cases and the foregoing 

findings of fact and conclusions of law, I find that the assessment of penalties is warranted as follows: 

A. Docket No. BARB 79-312-PM 

Citation/Order No. Date 

97094 11/20/78 

B. Docket No. SE 79-90-M 

Citation No. Date 

98528 05/01/79 

C. Docket No. SE 80-58-M 

30 C.F.R. 

Standard Penalty 

56.12-16 $60.00 

30 C.F.R. 

Standard Penalty 

56.4-2 $35.00 

30 C.F.R. 

Citation No. Date Standard Penalty 

98541 11/27/79 56.12-32 $45.00 

ORDER 

Respondent is ORDERED to pay civil penalties totaling $140.00 within 

30 days of the date of this decision. 

•Judge 

742 
Distribution: 

Ken S. Welsch, Esq., Office of the Solicitor, U.S. Department of Labor, 

1371 Peachtree Street, NE., Room 339, Atlanta, GA 30309 (Certified 

Mail) 

Frank J. Jordan, Jr., Esq., P.O. Box 456, Talbotton, GA 31827 

(Certified Mail) 

Administrator for Metal and Nonmetal Mine Safety and Health, 

U.S. Department of Labor 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

743 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 30, 1981 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GRUNDY MINING cOMPANY, INC., 

Respondent 

Civil Penalty Proceeding 

Docket No. BARB 78-168-P 

A.C. No. 40-00524-02016 F 

No. 21 Mine 

ORDER APPROVING SETTLEMENT AND 

DIRECTING PAYMENT 

On March 20, 1981, the Secretary of Labor filed a 

motion for approval of a settlement reached by the parties 

in this case. The violations were originally assessed at 

$i0,000 and the parties propose to settle for $1,500. 

The case arises out of an accident in which a foreman 

at Respondent's mine was fatally injured when his head was 

pinned between an overhanging rib and a tractor he was 

operating. Respondent is a medium-sized operator with an 

average history of prior violations. Prompt corrective 

action was taken to abate the cited condition. 

The parties seem to concede that 30 C.F.R. § 75.202 was 

violated, since there was an overhanging rib involved in the 

accident. They both urge, however, that any causal connection between the violation and the accident is tenuous at 

best. The record shows that the overhanging rib in question 

was neither loose nor in danger of falling. The Secretary, 

in fact, claims that even if the overhanging rib was properly scaled, the accident probably would have occurred 

anyway. 

Any assessment of negligence must take into account 

the foreseeability of harm. Based on this, the negligence 

involved in this case was slight, since the accident which 

occurred was not an easily foreseeable consequence of the 

violation. 

Finally, the history of the case cannot be overlooked. 

In remanding it, the Sixth Circuit Court of Appeals characterized the violation as "technical." The Secretary apparently does not dispute this and therefore feels that prosecution should not continue. In this posture, the difficulties 

of re-trying the case before a new administrative law judge 

surely outweigh the benefits it might provide. I find that 

the negotiated settlement is fully supported by the record 

and thus will approve it. 

744 
Accordingly, the settlement is APPROVED and Respondent 

is ORDERED TO PAY the sum of $1,500 within 30 days of the 

date of this order. 

•/ James A. Broderick 

Chief Administrative Law Judge 

Distribution: By certified mail. 

Thomas S. Kale, Esq., Attorney for Grundy Mining Company, 

Inc., Spears, Moore, Rebman & Williams, 8th Floor, Blue 

Cross Building, Chattanooga, TN 37402 

Paul D. Kelly, Jr., Esq., Attorney for Grundy Mining Company, Inc., Kelly, Leiderman, Cameron, Kelly & Graham, Box 

488, Jasper, TN 37347 

Robert Cohen, Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 

Assessment Office, MSHA, U.S. Department of Labor, 4015 

Wilson Boulevard, Arlington, VA 22203 

Thomas A. Mascolino, Esq., Counsel for Trial Litigation, 

Office of the Solicitor, Division of Mine Safety, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

/BR 3 ! 188f 

ELIAS MOSES, 

V. 

Complainant 

WHITLEY DEVELOPmeNT CORPORATION, 

Respondent 

Complaint of Discharge, 

Discrimination, or Interference 

Docket No. KENT 79-366-D 

Becks Creek Surface Mine 

DECISION 

Appearances: William E. Hensley, Esq., Corbin, Kentucky, for 

Complainant; 

David Patrick, Esq., Harrodsburg, Kentucky, for 

Respondent. 

Before: Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued August 5, 1980, as amended by an 

order issued September 24, 1980, a hearing in the above-entitled proceeding 

was held on November 18, 1980, in Barbourville, Kentucky, under section 

I05(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 815(c)(3). 

Completion of the Record 

At the conclusion of the hearing, I requested that counsel for the parties provide me with supplemental information. It was agreed that the supplemental data would be marked as exhibits and would be received in evidence at 

the time I prepared my decision in this proceeding. The requested materials 

were submitted by counsel and are marked for identification as follows: 

There is marked for identification as Exhibit A a 35-page compilation of 

repair bills pertaining to Caterpillar Tractor Serial No. 66A7485 for the year 

1976. 

There is marked for identification as Exhibit B a seven-page compilation 

of repair bills for Caterpillar Tractor Serial No. 66AI1561 for the year 1977. 

There is marked for identification as Exhibit C a repair bill for Caterpillar Tractor Serial No. 90V2938 for the year 1977. 

There is marked for identification as Exhibit D a 10-page compilation of 

repair bills for Caterpillar Tractor Serial No. 66A7485 for the year 1977. 

746 
There is marked for identification as Exhibit E a 21-page compilation of 

repair bills for Caterpillar Tractor Serial Nos. 90V2938 and 66A7485 for the 

year 1978. 

There is marked for identification as Exhibit F a 34-page compilation 

of repair bills for Caterpillar Tractor Serial Nos. 66AI1561, 66A7485, and 

90V2938 for the year 1979. 

There is marked for identification as Exhibit G a one-page accident 

report regarding the turning over of a D-6 Caterpillar on June 19, 1979, at 

Whitley Development Corporation's Becks Creek Mine. 

There is marked for identification as Exhibit H a one-page copy of payroll data regarding Elias Moses for the period from May 9, 1979, to June 28, 

1979. 

Pursuant to stipulation of counsel, Exhibits A through H are received 

in evidence (Tr. 284). 

Issues 

The evidence in this case raises some novel issues concerning what constitutes violations of section 105(c)(1) of the Act. Those issues are listed 

below: 

(i) Was complainant actually discharged on July 3, 1979? 

(2) Assuming complainant was discharged on July 3, 1979, and assuming 

further that complainant was not engaged in an activity protected under section i05(c)(i) of the Act, can respondent, nevertheless, be found to have 

violated section i05(c)(i) if the evidence supports a Conclusion that respondent discharged complainant because respondent thought complainant had performed an act which is protected by section 105(c)(1) of the Act? 

(3) Is it a violation of section i05(c)(i) of the Act for respondent to 

harass an employee and upset his peace of mind because respondent suspects 

that the employee has performed an act which the employee had a right to perform under the Act but did not perform? 

(4) Assuming that respondent did not discharge complainant as alleged 

in his Complaint, is it a violation of section i05(c)(i) for respondent to 

refuse to allow complainant to continue working when the sole reason for the 

refusal is the fact that complainant filed a complaint under section i05(c) 

of the Act? 

Counsel for both parties waived the filing of briefs (Tr. 285). 

Findings of Fact 

My decision in this proceeding will be based on the findings of fact set 

forth below: 
i. Whitley Development Corporation, the respondent in this proceeding, 

operates two strip mines which are about three-fourths of a mile apart. At 

the present time, the corporation produces about 107,000 tons of coal annually 

and employs a total of approximatelY 37 persons at both job sites and at its 

tipple (Tr. 280-281). The corporation is owned by Pascual White and his wife 

(Tr. 242). 

2. The complainant in this proceeding, Elias Moses, worked for about 

20 years in a steel mill in Ohio. Moses had some time off from the steel mill 

in 1970 and came to Kentucky where he obtained a job working as a laborer for 

Pascual White. When it came time for Moses to return to the steel mill in 

Ohio, he tried to obtain an extension of his leave, but it was refused, so 

he returned to work in the mill for the remainder of the year. The following summer, he returned to Kentucky and eventually worked a total of about 

6 years, or from about 1973 to 1979, as an operator of bulldozers (Tr. 14; 

19). 

3. Moses applied with Pascual White, or Whitley Development Corporation, 

for a job as a dozer operator. After Moses had asked for the job, Ben Bunch, 

an MSHA inspector who is Moses' brother-in-law, asked White to hire Moses. 

Inasmuch as Bunch was the inspector who was assigned by MSHA to inspect 

White's mines, White said that it was expedient to hire Moses (Tr. 27; 243). 

4. White instructed Moses to report for work to Richard McClure who was 

White's mine foreman and mechanic at two strip mines, known as the Red Bird 

job and the Becks Creek job (Tr. 40-41; 184). Moses reported for work on 

Wednesday, May 9, 1979, as instructed, and McClure assigned Moses the job 

of operating a D-9 Caterpillar Tractor at the Becks Creek job. Moses was 

told to prepare a bench for Bob Durham, the shot firer, and to grade the 

roads which were being used by trucks for hauling coal. McClure then left 

the Becks Creek job and traveled to the Red Bird job (Tr. 185). After Moses 

had operated the dozer for about 2 hours, two Kentucky mine inspectors 

appeared at the Becks Creek job. They inspected the Caterpillar dozer Moses 

was operating and found that it had a hole in the fuel tank, that oil was 

dripping onto a hot engine, that the dozer had no brakes, and that the dozer 

was not equipped with a fire extinguisher. The Kentucky inspectors told Moses 

to stop operating the dozer until it had been repaired (Tr. 42-43; 216-217). 

After the Kentucky inspectors stopped Moses from operating the dozer, Moses 

was assigned to assist HcClure in doing some mechanical work (Tr. 219). 

5. On June 19, 1979, after Moses had worked at the Becks Creek job for 

about 6 weeks, Moses heard that a 1>-6 Caterpillar Tractor had been overturned 

by its operator, Andy Raines, who was not injured in the accident (Tr. 8; 56; 

185-186). On June 20, 1979, the day after the D-6 had turned over, Moses was 

operating a dozer and observed a helicopter land at the mine. From his location, Moses could not seewhat the people in the helicopter did, but he saw 

the helicopter leave (Tr. 9; 59). Afterwards, Moses learned that the helicopter had brought MSHA inspectors to the mine site to investigate the overturning of the D-6 Caterpillar (Tr. 59-60). After the inspectors had left, 

McClure asked Moses if he was the person who reported the D-6 accident to 

748 
MSHA (Tr. 60; 187). Moses replied that he had not reported it. Although 

McClure testified that he believed Moses when Moses stated that he had not 

reported the accident (Tr. 187), Moses claims that McClure mentioned the 

reporting of the accident to MSHA on at least two additional occasions (Tr. 

62). Moses claims that McClure accused him of calling his brother-in-law, 

Ben Bunch, who is an MSHA inspector (Tr. i0; 63-64). Moses was incensed 

about being accused of calling the inspectors and stated that he would make 

McClure prove the allegation that Moses had reported the accident to MSHA 

(rr. 64). 

6. At the end of June 1979, all three of respondent's D-9 Caterpillars 

were out of order and one of the D-9 Caterpillars was sent to •ayne Supply 

Company for extensive repairs. The other two D-9's were being repaired also 

and Moses was told that he could remain at home for a few days and that he 

would be called back to work when the dozers had been repaired (Tr. 64; 192). 

7. On July 2, 1979, before the repairs on the D-9's had been completed, 

Moses went to respondent's repair shop and office in Williamsburg, Kentucky, 

to pick up his pay check. Moses went into the repair shop, where respondent's 

owner, Pascual White, was working, and asked White if he had accused Moses of 

reporting the I>-6 accident to MSHA. White stated that he believed Moses had 

reported the accident and exclaimed, "and by God, you did call them" (Tr. 68). 

Moses then told White that he would make White prove that allegation. White 

told Moses that if he did get his brother-in-law, Ben Bunch, the MSHA inspector, White would see to it that Moses did not work around there any more (Tr. 

69). 

8. McClure, White's foreman, was also in the shop at the time. Moses 

felt that White had come so close to firing him, that he believed it necessary to ask McClure if he (Moses) still had a job. McClure told Moses that 

his job was still available when the D-9 had been returned from the supply 

shop (Tr. 188-189). 

9. Dorothy Moses, complainant's wife, was sitting in Moses' truck when 

her husband went to get his check. She became aware of loud voices coming 

from the repair shop, and decided that she should go to the shop and ask her 

husband to come home so as to stop the heated argument which was in progress. 

She testified that when she reached the door of the shop, she heard White say 

to her husband, "You don't work for them damn inspectors; I write your checks" 

(Tr. 170). She heard her husband say that he would make White prove his claim 

that Moses had reported the accident. She further stated that White told Moses 

to "Go ahead and get that damn Ben Bunch" (Tr. 171). Her husband retorted 

that he would go higher than Ben Bunch. In reply to her husband's statement, 

White said, "You'll not work around here no more. I'll see to that" (Tr. 117). 

i0. White's version of his encounter with Moses on July 2 is different 

from Moses' version. White claims that Moses came into the shop and stated 

that he had heard •hat White had accused him of reporting the D-6 accident to 

MSHA. White claims that he told Moses that he did not care what Moses had 

heard (Tr. 250). White also claims that he told Moses, "Look, if I was you, 

749 
l'd run my own business, because you're not even working here today" (Tr. 

251). White denies that he told Moses he would see to it that •ses did not 

work around there any more. White claims that hedid tell Moses "If you want 

to stay around here, run your own damn business" (Tr. 251). McClure, White's 

foreman, who was present in the shop, denies that White said any of the things 

attributed to White by Moses and his wife (Tr. 189; 233). 

ii. Although Moses had been told by McClure on July 2, at t•e time of 

Moses' argument with White in the repair shop, that Moses still had a job 

when the D-9 Caterpillar had been returned to the job site, Moses reported to 

the Becks Creek job for work on July 3 because he still had the feeling that 

White had actually discharged him during the heated conversation in the repair 

shop on July 2 and Moses wanted to find out for certain on July 3 whether he 

still had a job. An employee named Bob Durham was in charge of drilling holes 

and setting off explosives on the morning of July 3. Durham asked McClure to 

assign someone to fill holes with explosives. McClure knew that Moses had performed that kind of work before and claims that he said to Durham that Moses 

was available and ought to make a good man for filling holes. Moses claims 

that McClure looked at him and said that Moses could help Durham fill holes 

because he was not good for anything else. Moses thereupon claims to have 

stated, in effect, that he might not be good for anything else, but that he 

was not a rat who would report accidents to MSHA (Tr. 12; 70). 

12. Both McClure and Moses agree that some profane or other objectionable language was used. Both men also agree that McClure said something to 

the effect that if Moses was not going to work, it would be better for Moses 

to get in his truck and return home. Moses claims that McClure told him to 

get off the hill and Moses also contends that when he stopped to talk to Andy 

Raines and Bob Durham for the purpose of trying to convince them that he had 

not reported the 1>-6 accident to MSHA, McClure told him twice more to get off 

the hill. Both men agree that the entire conversation took place in the 

neighborhood of 7 a.m. (Tr. 12; 75-76; 190-191). 

13. The primary difference between Moses' and McClure's interpretation of 

the comments made on the morning of July 3 is that Moses claims that McClure 

used words which, in Moses' mind, clearly meant that McClure had fired him (Tr. 

103-104). On the other hand, McClure claims that he did not use a term which 

meant that he had discharged Moses and that, in fact, it was not his intention 

to discharge Moses (Tr. 194). McClure claims that if Moses had gone ahead and 

filled holes, Moses would have been allowed to work on July 3 (Tr. 194), but 

that since Moses declined to do the only work available, McClure had no choice 

but to tell Moses to go to the house because there was no work for Moses to do 

until the D-9 had been returned from the repair shop (Tr. 206; 236). 

14. McClure testified that the D-9 was returned from the repair shop 

about Wednesday of the week following Hoses' claimed discharge, that is, 

July ii, and Moses was not called to come back to work because by then 

respondent's management had received a letter stating that Moses had filed 

a complaint alleging that he had been discharged in violation of the Act. 

McClure says that they did not call Moses back to work after learning that 

780 
the complaint had been filed because they just did not follow the "right 

procedures." In fact, McClure stated, "I think we could work something 

out--if he hadn't filed the complaint" (Tr. 241). 

15. After Moses' heated conversation with White on July 2, 1979, about 

the allegations that Moses had reported the I>-6 accident to MSHA, Moses went 

to the home of Kenneth T. Howard, an MSHA supervisor of inspectors, and told 

Howard about his concern over having been charged with reporting the D-6 accident to MSHA (Tr. 61). Moses asked Howard to "clear" his name and Howard 

agreed to make a trip to discuss the matter with White and advise White that 

the D-6 accident was reported to MSHA by a woman whose name would have to be 

kept confidential (Tr. 69; 116). 

16. On the morning of July 3, Howard went to the Becks Creek job to 

report to respondent that Moses was not the person who had reported the D-6 

accident to MSHA. White was out of town and Howard talked to McClure. Howard 

told McClure that Moses had been to his home the night before and had asked 

Howard to "clear" his name about the identity of the person who had reported 

the 1>-6 accident. Howard told McClure that Moses had not reported the accident and Moses feared that he would be discharged that morning when he came 

to work. McClure told Howard that he had already fired Moses. Howard then 

explained to McClure that he might want to discuss the matter with •hite so 

that they could reconsider Moses' discharge in light of the discrimination 

provisions in the Act because Howard was of the opinion that Moses would file 

a discrimination complaint if he should be discharged (Tr. 116-118). 

17. Howard also testified at the hearing that it is contrary to MSHA's 

policy for inspectors to examine mines where the inspector's relatives are 

working and that Inspector Ben Bunch, Moses' brother-in-law, would not have 

been sent to investigate the I>-6 accident with two other inspectors if MSHA 

had known that Bunch's brother-in-law was working at the Becks Creek Mine 

(Tr. 124). 

18. White claims that he soon realized after hiring Moses that Moses 

was not a proficient dozer operator. White then belatedly checked with management at the K-Nab Company, where Moses had previously operated a dozer, and 

learned that Moses was considered to be a "cowboy" on the equipment, that is, 

handled the equipment in a rough manner (Tr. 244). White felt obligated, however, to keep Moses on his payroll, even though Moses allegedly damaged the 

dozers by rough treatment, because White wanted to keep in the good graces of 

Moses' brother-in-law, Ben Bunch, who was an MSHA inspector (Tr. 252; 255). 

Also, White said that he kept Moses as an employee because he hoped to be able 

to switch Moses back to doing manual labor, such as loading holes with explosives, even though he knew he would have to pay Moses the same salary he was 

paying Moses as a dozer operator (Tr. 252; 258; 280). White inconsistently 

stated that it takes 2 or 3 years to learn to operate a dozer properly and 

that although he himself has been operating dozers for 21 years, good dozer 

operators still show him how to do new things with a dozer (Tr. 258). 

19. James Davis appeared as a witness at the hearing in response to a 

subpoena. He now works for Sterling-Garrett Coal Company as a back-dump 
operator, but in May, June, and July 1979, he worked for Pascual White as a 

serviceman on all of the equipment used at all of White's jobs (Tr. 128-129; 

140). Davis said that he saw Moses at least once every day and did not see 

Moses abusing or misusing the equipment (Tr. 131; 145). In Davis' opinion, 

the dozers were old and could be expected to give mechanical problems. Davis 

saw nothing about the equipment malfunctioning which could be attributed to 

Moses' operation of the equipment (Tr. 134; 138). Davis said that about 

2 days after the D-6 accident had occurred, McClure, the foreman, stated 

that he believed that either Davis or Moses had reported the accident to 

MSHA. Davis denied that he had called the inspectors and stated that if he 

were going to call them, he would do so to report the defective brakes on 

the truck which he was driving (Tr. 133). Davis said that sometimes minor 

problems would occur on the dozers, but the mechanic would not be able to 

repair them right away. They would continue to be used and the minor problems would result in major breakdowns from lack of attention (Tr. 146). 

20. Bobby G. Durham, at the time of the hearing in November 1980, was 

working for J. L. White who is Pascual White's brother. Durham appeared as a 

witness in response to a subpoena (Tr. 158). Durham said that he would not 

lie to favor either Moses or Pascual White (Tr. 164). Durham was working for 

Pascual White as a shot firer before and after the time that Moses worked 

for White (Tr. 150; 158). Durham worked with Moses and showed Moses where 

he wanted a bench made just as he does for other operators (Tr. 151). In 

Durham's opinion, Moses was an average dozer operator and Durham did not 

think that Moses was a "cowboy" on the equipment (Tr. 154). Durham said that 

McClure asked him, after the D-6 accident, if Durham thought Moses was telling 

the truth when Moses denied having called the inspectors. Durham told McClure 

that he believed Moses would tell the truth about the matter and that Durham 

believed Moses when he said that he had not reported the accident to MSHA. 

Durham testified that McClure replied to him that he also felt Moses had told 

the truth (Tr. 155). 

21. Durham was present on the morning that McClure told Moses to get off 

the hill and Durham said that he heard McClure tell Moses that once, if not 

twice (Tr. 167). Durham thinks that McClure would have allowed Moses to work 

on July 3 if Moses had been willing to fill holes (Tr. 168). Durham did not 

hear all that was said between Moses and McClure on July 3 and stated that 

there may have been more to their conversation than he was aware of. Although 

Durham did not hear McClure tell Moses not to return, Durham said that McClure 

might have done so (Tr. 160-161). Durham stopped working for Pascual White 

because he was not given the help that he needed. Durham said that men were 

at the mine site who could have helped him fill holes, but they were not 

allowed to do so (Tr. 159). 

The Question of Whether a Discharge Occurred 

Before a determination can be made in this proceeding with respect to 

whether respondent violated section I05(c)(i) of the Act, a decision must 

first be made as to whether Moses was actually discharged by respondent. I 

conclude from the preponderance of the evidence that Moses was discharged. 

Several aspects of the testimony support that finding. 

752 
As indicated in Finding Nos. 2 and 3 above, Moses had worked for Pascual 

White in 1970 as a laborer. Moses thereafter worked for other companies and 

became a bulldozer operator. In 1979, Moses was unemployed and asked White 

for a job as a dozer operator. After Moses had asked for the job, White 

received a request from Moses' brother-in-law, Ben Bunch, who was, and still 

is, an MSHA inspector, to the effect that Bunch would appreciate it if White 

could find a job for Moses. White said that he hired Moses as a dozer operator, without first checking into his ability to operate a dozer, because 

Bunch's duties at that time included inspection of White's mines. 

White's testimony shows that he is generally sensitive to pressures 

brought by MSHA upon the way he conducts his business (Tr. 242; 252; 255; 

260; 270). In such circumstances, there is reason to believe that White 

would have resented the reporting of an accident at his job site to MSHA. 

McClure, White's foreman, admits that he tried to find out the identity of 

the person who reported the D-6 accident to MSHA and that, at least once, he 

asked Moses if he was the person who reported the accident (Finding No. 5, 

supra). McClure also admits having discussed the reporting of the accident 

with another employee named Durham and that he discussed the reporting of the 

accident with White (Tr. 231-232). There can be no doubt, therefore, but that 

White and McClure were very interested in determining the identity of the person who reported the accident. The fact that Moses had been hired because of 

subtle pressure placed upon White by Moses' brother-in-law, who was an MSHA 

inspector, would have been likely to cause White and McClure to suspect Moses 

as the one who had reported the accident although the testimony of Howard, an 

MSHA supervisory inspector, shows beyond all doubt that Moses did not report 

the D-6 accident to MSHA (Finding Nos. 15 and 16, su___•). 

Moses' sensitivity about being accused of reporting the D-6 accident can 

be explained ontwo bases. In the first place, Moses seems to have had a very 

strong desire to be liked by his fellow employees because he went to great 

lengths to convince them that he was not the one who reported the accident to 

MSHA. Moses continually referred in his testimony to his dislike for being 

considered a traitor who would report his employer and fellow employees to 

MSHA (Finding Nos. 5, ii, and 12, supra). Secondly, even if McClure did not 

actually say to Moses that Moses had reported the accident to his brother-inlaw, Moses seems to have been acutely conscious of the relationship and overreacted to the suggestion that he had reported the accident to MSHA. 

White's testimony shows that he was displeased with Moses in a number 

of ways. As indicated above, White said that he had hired Moses because of 

pressure from an MSHA inspector; White found that Moses was, at best, an 

average dozer operator; White suspected Moses as being a person who might 

report violations of safety standards to MSHA; White was disappointed when 

Moses did not follow through with a threat to resign on one occasion (Tr. 

248); and White classified Moses as having the worst attitude toward his 

employer of any person he had hired in his 21 years of experience (Tr. 260). 

In such circumstances, the• is no reason to doubt but that White had made 

it clear to his foreman, McClure, that McClure was free to discharge Moses 

any time that an opportunity presented itself. 

753 
McClure recalls his final words to Moses on July 3, 1979, the date of 

Moses' claimed discharge, to be, "If you're going to work, let's go to work. 

But if not, you'd just as well get in your truck, and go to the house" (Tr. 

236). Moses claims that McClure stated, "Get off the hill; I've got nothing 

for yo•' (Tr. 12). The MSHA supervisory inspector unequivocally stated that 

McClure told him on the morning of July 3 that he had already fired Moses (Tr. 

117). McClure stated at the hearing that he told Howard that he had sent Moses 

"to the house" and that Howard might have interpreted that statement to be 

equivalent to a statement that he had discharged or fired Moses, but that he 

did not intend for Howard to interpret his statement in that manner (Tr. 206). 

Despite McClure's denial of an intention to discharge Moses, it is a fact 

that the phrase "send to the house" is frequently used in the coal fields as 

being equivalent to firing or discharging a person. For example, when Pascual 

White was testifying, he stated that one of his dozer operators once admitted 

to White that he had negligently failed to notice that the dozer was running 

low on oil and, as a result of that negligence, the engine was burned out. 

The dozer operator was aware of the fact that new engines cost a lot of money, 

so he stated to White, "I just forgot to check the oil, Pat. I don't blame 

you if you send me to the house" (Tr. 265). White claims that he told the 

man that he could make whatever decision he wanted to about quitting and the 

man "never did show back up to work" (Tr. 265). 

Howard, the supervisory inspector, who testified that McClure told him on 

July 3, 1979, that he had fired Moses, is not the type of person who jumps to 

unwarranted conclusions. Howard testified that he explained to HcClure the 

provisions in the Act regarding the filing of discrimination complaints and 

Howard stated that McClure said he did not care what Moses filed. It is highly 

unlikely that McClure would have listened to a detailed discussion about the 

filing of discrimination complaints pertaining to unlawful discharges without 

explaining to Howard that Howard had misunderstood him if, in fact, McClure 

had not intended for his remarks to Moses on July 3 to be interpreted as words 

of discharge (Tr. 118). 

I believe that the discussion above shows that the preponderance of the 

evidence supports a finding that Moses was discharged on July 3, 1979, as 

alleged in Moses' Complaint filed in this proceeding. 

The Question of Whether a Violation of Section 105(c)(1) Occurred 

Section i05(c)(i) of the Act reads as follows: 

No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination 

against or otherwise interfere with the exercise of the 

statutory rights of any miner, representative of miners or 

applicant for employment in any coal or other mine subject 

to this Act because such miner, representative of miners or 

applicant for employment has filed or made a complaint under 

or related to this Act, including a complaint notifying the 

754 
operator or the operator's agent, or the representative of 

the miners at the coal or other mine of an alleged danger or 

safety or health violation in a coal or other mine, or because 

such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential 

transfer under a standard published pursuant to section i01 

or because such miner, representative of miners or applicant 

for employment has instituted or caused to be instituted any 

proceeding under or related to this Act or has testified or 

is about to testify in any such proceeding, or because of the 

exercise by such miner, representative of miners or applicant 

for employment on behalf of himself or others of any statutory 

right afforded by this Act. 

The language of section 105(c)(1) shows that an operator may violate that section by discharging, discriminating against, or otherwise interfering with the 

exercise of a miner of his rights under the Act. Section 103(g)(1) of the Act 

provides that a miner may report unsafe conditions to the Secretary (or MSHA). 

Section 103(g)(1) also provides that an immediate inspection of a mine may be 

obtained if a miner believes that a hazard exists at the mine. The section 

further provides that the name of the miner reporting the hazard is not to be 

made available to the operator of the mine. 

The findings of fact in this proceeding, particularly Nos. 15 and 16, 

show that the complainant in this proceeding did not report to MSHA the accident which occurred at respondent's mine on June 19, 1979, but the accident was 

reported to MSHA, and three inspectors came to respondent's mine on June 20 to 

investigate the accident. Complainant in this proceeding not only abstained 

from reporting the accident to MSHA but, in addition to not reporting the acciident, complainant went to the extreme length of asking a supervisory inspector to "clear" his name of the allegation that he was the person who reported 

the accident. Therefore, on first impression, it appears that respondent cannot be found to have violated section i05(c)(I) by having discharged a complainant who was engaged in the protected activity of making a safety-related 

complaint to MSHA. 

If the Complaint in this proceeding could be brushed aside on the basis 

stated above, I would have no difficulty in finding that a violation of section i05(c)(i) was not proven in this proceeding. That sort of easy disposition, however, fails to consider other aspects of section i05(c)(i). As noted 

above, section 103(g)(1) provides that the name of the person who reports a 

safety hazard to MSHA is not to be revealed to the operator. That provision 

means that all miners should be free from harassment by their employers as to 

whether they did or did not report hazards to MSHA. Therefore, it was improper 

for respondent or its agent to ask the complainant if he had reported the 

accident of June 19 to MSHA. Senate Report No. 85-181, 95th Cong., ist Sess. 

May 16, 1977, states at page 35: 

* * * The Committee intends that the scope of the protected 

activities be broadly interpreted by the Secretary, and 
intends it to include not only the filing of complaints 

seeking inspection under Section [103(g)] or the participation in mine inspections under Section [103(f)] but also the 

refusal to work in conditions which are believed to be unsafe 

or unhealthful and the refusal to comply with orders which 

are violative of the Act or any standard promulgated thereunder, or the participation by a miner or his representative 

in any administrative and judicial proceeding under the Act. 

Complainant's foreman agreed in his testimony that he had asked complainant if he had reported the accident to MSHA. Although the foreman claimed to 

have mentioned the report of the accident only once, complainant contends that 

his foreman referred to the reporting of the accident at least three different 

times. Complainant alleges that his foreman made such remarks as, "Oh, he's 

happy now. He called his brother-in-law" (Tr. i0). If reporting of the accident had been mentioned only once, I do not believe that the matter would have 

become as much of an obsession to complainant as it turned out to be. Additionally, two of respondent's other employees testified that respondent's 

foreman asked them if they thought complainant had reported the accident to 

MSHA (Finding Nos. 19 and 20, supra). Therefore, I consider complainant's 

testimony to be more credible than that of the foreman when it comes to the 

number of times that the reporting of the accident was mentioned in complainant's presence (Finding No. 5, supra). 

While it was improper for complainant's brother-in-law, who was an MSHA 

inspector, to ask respondent's owner to hire complainant, it was thereafter 

just as improper for respondent's management to make unwarranted claims about 

complainant's alleged role in the reporting of the accident. 

For the reasons given above, I find that respondent violated section 

105(c)(1) of the Act when it interfered with complainant's right to anonymity 

under the Act with respect to whether he reported the accident of June 19, 

1979, to MSHA. 

Discharse on Suspicion of Reporting Accident 

Other questions wi£h respect to section i05(c)(i) are raised by the facts 

in this case. One of them is whether respondent violated section i05(c)(i) 

when it discharged complainant because it suspected that he had reported the 

accident to MSHA even though, in fact, he had not. Inasmuch as complainant 

lost his job because of arguments pertaining to respondent's persistent attempt 

to implicate him with reporting the accident to MSHA, complainant was discriminated against under section i05(c)(i) by being suspected of reporting the 

accident just as much as he would have been adversely affected if he had 

actually reported the accident. 

While respondent's owner, Pascual White, disavows that he accused complainant of reporting the accident when complainant asked him that question on 

July 2, the evidence, in general, supports Moses' description of the argument 

which developed on that day. If White had said no more than that he didnot 

756 
care what complainant had heard about White's allegations concerning the 

reporting of the accident, it is not likely that the conversation would have 

become as heated as it did. While Dorothy Moses was certainly motivated by 

self-interest in testifying on behalf of her husband, the complainant in this 

proceeding, there is reason to believe that she heard White say to complainant, "You don't work for them damn inspectors. I write your checks" (Tr. 

170). I conclude that White would make such a remark because of his sensitivity about MSHA's attempts to influence his freedom to hire employees and 

carry on his business without MSHA's interference (Tr. 242; 252; 255; 260; 

270). For the same reason, I believe that Dorothy Moses correctly quoted 

White when she claims that White told complainant to "Go ahead and get that 

damn Ben Bunch." Otherwise, there is no reason for complainant to have 

claimed that he told White he would go higher than Ben Bunch in getting 

proof that he had not been the person who reported the accident to MSHA. 

Finally, there is little reason to doubt both complainant's and his wife's 

testimony to the effect that White said that he would see to it that complainant did not work around there any more. If White had not made a remark to that 

effect, there is no reason for complainant to have come away from the argument 

with the feeling that he had been fired, or would be, after he reported to 

work the next morning. White claims that he said to complainant that "If you 

want to stay around here, run your own damn business" (Tr. 251). That remark 

does not fit into the subject matter of the argument. There would have been 

no reason for White to make a remark about complainant's running his own business when complainant had discussed only complainant's business with White, 

namely, an effort to convince White that complainant was not the person who 

reported the accident. 

The references by respondent's foreman to •he reporting of the accident 

had begun to prey on complainant's mind to such an extent, that complainant 

believed it was absolutely essential that he convince his employer that he 

was innocent of the charge that he had reported the accident. An employer 

who was interested in maintaining a harmonious relationship with his employee 

would have wanted to assure his employee that the question of who reported 

the accident had been improperly raised in the first instance and that the 

employer no longer was giving the matter any attention. If White had simply 

told complainant that White believed him when he stated that he had nothing 

to do with reporting the accident, the whole matter would doubtless have been 

laid to rest on July 2. 

I believe that the discussion above shows that respondent improperly discharged complainant in violation of section i05(c)(i) because its management 

believed that complainant had reported the accident to MSHA. 

Failure To Retain Complainant After Complaint Was Filed 

The fourth question that is raised by the facts in this proceeding is 

whether respondent's management violated section i05(c)(i) when it refused to 

retain complainant as an employee after management became aware of the fact 

that complainant had filed a complaint under section i05(c)(i) of the Act. 
Section i05(c)(I) prohibits an employer from discharging an employee because 

the employee has "* * * instituted any proceeding under or related to this 

Act." 

Although I have found in the first instance that respondent's foreman, 

McClure, discharged complainant on July 3, 1979, when he told complainant to 

go to the house, I believe, in the alternative, that if respondent had not 

discharged complainant on July 3, 1979, because of respondent's suspicion 

that complainant had reported an accident to MSHA, respondent's management 

was obligated when it learned of the filing of the complaint on or about 

July 9, 1979, to call complainant back to work and explain that he had mistakenly filed a complaint of discharge under an erroneous impression that 

McClure had discharged him on July 3 when McClure told him to go to the 

house. McClure had no explanation for his failure to retain complainant as 

an employee except that he had become aware of the filing of the complaint 

before the D-9 Caterpillar operated by complainant had been returned from the 

repair shop. In fact, respondent's foreman specifically stated, "I think we 

could work something out--if he hadn't filed the complaint" (Tr. 241; Finding No. 14, supra). 

Even if all of the evidence in this proceeding is interpreted in accordance with respondent's version of the events which occurred before, during, 

and after complainant's period of employment at respondent's mine, the evidence shows unequivocally that complainant was allowed to pass into the category of an unemployed person solely because respondent's management had been 

advised that complainant had filed a discrimination complaint against respondent under section i05(c) of the Act. If respondent's management, as it 

claims, had not actually discharged complainant on July 3, then he was 

entitled to be called back to work on Juiy ii, 1979, when the D-9 Catepillar 

he had been operating was returned to the mine site. Respondent's failure 

to retain complainant as an employee was, therefore, a direct violation of 

the prohibition in section i05(c)(i) that an employer may not discharge an 

employee because he has instituted a proceeding under the Act. 

Reasons Given by Respondent for Discharging Complainant 

Unskilled Operator. Respondent was forced to take alternative positions 

in this proceeding. Respondent's first defense to the Complaint is that it 

did not discharge complainant. Respondent's foreman admitted that complainant had not voluntarily quit or resigned when complainant left the Becks Creek 

job on July 3, 1979 (Tr. 191). It is a fact, however, that respondent had not 

had a job from the time he left the job site on July 3, 1979, up to the time of 

the hearing which was held on November 18, 1980 (Tr. 77). Respondent is able 

to account for complainant's lack of a job only by saying that it just failed 

to call him back after the D-9 he had been operating was returned to the job 

site after being repaired (Tr. 241). 

Respondent had apparently reached the conclusion before the hearing that 

its claim of not having discharged complainant would be rejected. Therefore, 

it gave several reasons for discharging complainant if it were held that 
respondent did discharge complainant. The first and primary reason for discharging complainant was that he was an unskilled operator of a dozer. Respondent's co-owner, Pascual White, said that he would describe complainant as a 

dozer driver rather than a dozer operator. White described a dozer driver as 

a person who could move a dozer around on level ground from one place to 

another, whereas a dozer operator knows what to do and how to do it and knows 

what makes a dozer "tick" (Tr. 245). White said that he should have investigated complainant's ability to operate a dozer before hiring him, but he had 

hired complainant under pressure from complainant's brother-in-law (an MSHA 

inspector) and thathe just did not check into complainant's abilities until 

after he had hired complainant and had realized that complainant was not a 

proficient dozer operator (Tr. 243-244). 

Respondent not only categorized complainant as a poor operator of a dozer, 

but also claimed that complainant was a "cowboy" who was unnecessarily rough on 

the equipment (Tr. 244; 262). Respondent contended that complainant operated 

all three of respondent's D-9 Caterpillar tractors and that he tore all of them 

up so badly that all of them were sometimes in the repair shop simultaneously 

(Tr. 199-202). Respondent claimed that the repairs on its equipment increased 

dramatically during the period that complainant worked for respondent (Tr. 200; 

246). 

In order to check the accuracy of respondent's claims about its repair 

bills, I asked respondent to send me copies of its repair bills on its three 

D-9 Caterpillar tractors for the period of 1976 through 1979 (Tr. 284). 

Respondent's counsel submitted the repair bills as requested and they have 

been identified and received in evidence in the first part of this decision. 

Close examination and tabulation of the data show the following results: 

Cost of Repairs 

Total by 

Caterpillar Serial 

Serial Nos. 1976 1977 1978 1979 Numbers 

66A7485 $15,808 

66AI1561 Not Supplied 

90V2938 Not Supplied 

Total by Years $15,808 

$5,174 $5,075 $ 7,562 $33,619 

4,289 8,161 15,691 28,141 

9 2,288 34,383 36,680 

$9,472 "$15,524 $57,636 i/ $98,440 

When one examines the data set forth above, it should be borne in mind that 

complainant only worked for respondent from May 9 through June 28, 1979. 

i/ The cover letter submitted on December 16, 1980, by respondent's counsel 

with the repair bill states that respondent's counsel added the repair costs 

for 1979 and arrived at a total amount of $80,157.67. I can account for the 

disparity between my figures and those of respondent's attorney only by noting 

that several amounts were shown on the repair bills as credits. I subtracted 

the credits, whereas respondent's attorney may have added the credits. 
Although comPlainant was discharged on July 3, he did not work between the 

dates of June 28 and July 3 because the dozer he was operating was in the 

repair shop from June 28 to July ii. 

It was respondent's contention at the hearing that complainant was so 

rough on the dozers that he kept all three of them torn up all the time. It 

was alleged that in the 8-week period that complainant worked for respondent, 

he caused all three dozers to have to be rebuilt and caused respondent to 

have to spend $54,000 for the repair of the newest Caterpillar with Serial 

No. 90V2938. The repair bills supplied by respondent show that during the 

entire year of 1979, a total of $34,383 was spent in repairing Caterpillar 

No. 90V2938. Since the newest Caterpillar was being used the most, it was 

reasonable for it to require extensive repairs after incurring the small 

amount in repair costs of $9 and $2,288 which had been spent on it in the 

years 1977 and 1978, respectively. 

Another significant aspect of the repairs on the dozers may be seen if 

one examines the total cost of repairs on each dozer for the 3-year period 

involved in the comparative analysis. The repairs on each of the Caterpillars 

totaled very much the same for all the years involved in the study, as may be 

seen by looking at the totals shown in the last column of the tabulation 

above. 

Respondent's foreman, Richard McClure, testified that a Caterpillar engine 

has to be overhauled every 3,000 to 4,000 hours. There are 2,000 working hours 

in a year, assuming the dozers are used 50 weeks each year for 40 hours per 

week. Therefore, the new Caterpillar would have needed to have its engine 

overhauled in 1979 if it had been used rather constantly during the years 1977 

and 1978. McClure also claimed that the engines on two of the dozers had been 

recently rebuilt and should have lasted another 3,000 hours (Tr. 223). Respondent's owner said that the cost of a new engine is $37,000 and the cost of 

rebuilding an engine in respondent's own shop is about $17,000 (Tr. 266). The 

repair bills submitted by respondent fail to show that enough was spent on the 

dozers in 1977 or 1978 or in 1979, prior to the time that complainant began 

working for respondent, to support a claim that the engines on two dozers 

had been rebuilt or replaced shortly before complainant began working for 

respondent. 

The witnesses who were called by complainant's counsel in support of complainant's case both testified that complainant was neither the poorest nor 

best dozer operator they had ever seen. Both of them considered complainant 

to be an average kind of operator and both of them stated that complainant 

was not a "cowboy" on the equipment and that they did not see him abuse the 

equipment (Finding Nos. 19 and 20, supra). 

I conclude that the preponderance of the evidence supports a finding that 

complainant is not so poor an operator of equipment as to justify his discharge 

if that were the only consideration being used to warrant the discharge. 

Abusive Language and Bad Attitude Toward Supervisors. Respondent's owner, 

Pascual White, testified that complainant has the worst attitude toward his 
employer of anyemployee he has ever had work for him during his 21 years of 

experience (Tr. 260). Respondent's foreman, Richard McClure, also made it 

clear that complainant does not take well to constructive criticism (Tr. 220). 

On the day that complainant was discharged, McClure stated that complainant 

called both him and White names which McClure did not wish to state on the 

record (Tr. 190; 206; 236). During his testimony, complainant found it 

necessary to refer to "what you sit on" in lieu of the actual word which he 

used in talking to his foreman (Tr. 12; 70). 

The record, therefore, supports respondent's claim that complainant does 

use rough language in talking with his supervisors. On the other hand, White 

had employed complainant back in 1970 as a laborer and must have known what 

sort of person he was hiring when he reemployed complainant in 1979 (Finding 

No. 2, supra). While the record shows that one of the reasons respondent 

gave for hiring complainant was that complainant's brother-in-law, who is an 

MSHA inspector, asked him to hire complainant, I am unwilling to accept that 

excuse as the sole reason for respondent's hiring complainant a second time. 

One reason for my rejection of the MSHA pressure argument as the reason 

for respondent's hiring of complainant is that White stated that he knew he 

could have a different inspector assigned to inspect his mines if he asked 

MSHA to assign a different inspector because of any bias or prejudice which 

Ben Bunch might display if respondent declined to hire complainant (Tr. 260). 

Additionally, Howard, the MSHA inspector supervisor who testified in this proceeding, stated that MSHA did not assign inspectors to examine mines where 

the inspectors' relatives were working if MSHA had knowledge that that was 

occurring (Finding No. 17, supra). Respondent's owner showed a considerable 

expertise about regulatory agencies and would know how to deal with prejudicial 

inspections if he had declined to hire complainant and had felt that complainant's brother-in-law was thereafter deliberately trying to find violations at 

respondent's mine which would not normally be written apart from retaliation 

for an employer's refusal to hire an inspector's brother-in-law (Tr. 270). 

In view of the fact that complainant had previously worked for respondent 

in 1970, I believe that the record fails to support a finding that complainant 

would have been discharged on account of his use of rough language and his 

attitude toward his employer if the rough language and bad attitude had been 

the only considerations leading up to the discharge. Moreover, much of the 

bad language and poor attitude resulted from respondent's improper attempt to 

find out whether complainant had reported the I>-6 accident to MSHA. 

Relief Sought 

The relief requested in the Complaint is that complainant be reinstated 

to his former job and that he be awarded all back benefits. Exhibit H in this 

proceeding is a copy of the payroll data showing the amoUnt that complainant 

was paid for all hours worked from May 9, 1979, through June 28, 1979. That 

exhibit shows that respondent worked more than 40 hours during some weeks and 

less than 40 hours during other weeks. Since it is not possible to estimate 

the exact number of hours which complainant would have worked had he remained 

76.1 
on respondent's payroll from June 29, 1979, to the present time, I find that 

payment for 40 hours each week is a reasonable accommodatioin for computing 

back pay. Exhibit H also shows that complainant was paid $7.50 per hour, or 

$60 per day. • Deductions were made from his check for ta• andother purposes 

in a total amount of $76.80 for a 40-hour week, leaving an amount of $223.20 

as complainant's net pay for a 40-hour week. 

Interest in the amount of i0 percent should be added to the amount to be 

paid. In order to avoid the difficulty of computing the interest as it accumulates each week, respondent may, if it wishes, elect to assume that the 

full amount of back pay was generated halfway between July 3, 1979, and the 

date of payment and the interest of i0 percent on the total amount may be 

computed for half of the period involved. 

Respondent will also be ordered to reimburse complainant for any medical 

costs he has incurred since July 3, 1979, if those costs would have been 

covered by any hospitalization which would have been applicable to him during 

his employment if he had not been discharged on July 3, 1979. Additionally, 

complainant should be paid any increase in hourly rate to which complainant 

would have been entitled if he had not been discharged. Finally, respondent 

will be instructed to expunge from its files all references to complainant's 

discharge on July 3, 1979. 

Section 105(c)(3) of the Act provides for complainant to be reimbursed 

for attorneys' fees. According to the letter submitted on December 24, 1980, 

by complainant's attorney, no charges would have been made if the Complaint 

had been denied. Complainant's attorney states that he spent between 25 and 

30 hours on this case, including time spent in drafting correspondence, in 

conferences with complainant, his wife, and other persons, in procurement of 

witnesses, and in representing complainant at the hearing. Complainant's 

attorney asks that he be paid $i00 per hour in view of the fact that he would 

have received no payment if complainant had not prevailed. 

The courts normally discount the time spent in conferences by from 20 to 

35 percent (Kiser v. Miller, 364 F. Supp. 1311 (D.D.C. 1973), and Parker v. 

Matthews, 411 F. Supp. 1059 (D.D.C. 1976)). Since complainant's counsel did 

not provide an exact breakdown of time spent in conferences, as opposed to 

difficult work, such as representing complainant at the hearing, I find that 

he should be paid for 25 hours of work instead of 30 hours. The courts have 

also allowed a higher hourly amount than might otherwise be appropriate when 

an attorney has agreed to represent a client for nothing if the client does 

not prevail, on the theory that lawyers will thereby be given an incentive 

to represent persons with little or no income (Torres v. Sachs, 538 F.2d i0 

(2d Cir. 1976)). For the foregoing reasons, I find that complainant's 

attorney should be paid $i00 per hour for 25 hours of work in representing 

complainant in this proceeding. Inasmuch as complainant has not paid any 

attorneys' fees and was not obligated to pay any if he lost his case, my 

order will require respondent to pay the attorneys' fees directly to complainant's counsel. 
WHEREFORE, it is ordered: 

(A) The Complaint of Discharge, Discrimination, or Interference filed 

on September 24, 1979, is granted for the reasons hereinbefore given. 

(B) Respondent shall, within 30 days from the date of this decision, 

carry out the following types of relief: 

(i) Reinstate complainant to his former or equivalent position at 

respondent's mine. 

(2) Pay complainant back wages on the basis of a 40-hour week for 

the period from July3, 1979, to and including the date of payment at the 

rate of $7.50 per hour (or at a higher hourly rate if complainant would have 

received an increase in salary but for his discharge on July 3), less deductions for tax, etc., as shown in Exhibit H in this proceeding. 

(3) Reimburse complainant for any medical or hospital bills which 

complainant may have incurred after July 3, 1979, if such bills would have 

been covered by hospitalization insurance if he had not been discharged. 

(4) Expunge from complainant's personnel records all references 

to his discharge on July 3, 1979. 

(5) Pay to William E. Hensley, Esq., First National Bank & Trust 

Building, Corbin, Kentucky 40701, attorney's fees in the amount of $2,500. 

Richard C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 

Distribution: 

William E. Hensley, Esq., Attorney for Elias Moses, First National Bank 

& Trust Buildng, Corbin, KY 40701 (Certified Mail) 

David Patrick, P.S.C., Attorney for Whitley Development Corporation, 

117 Short Street, P.O. Box 9, Harrodsburg, KY 40330 (Certified Mail) 

Assistant Solicitor, Office of the Solicitor, U.S. Department of Labor, 

4015 Wilson Boulevard, Arlington, VA 22203 

Special Investigation, MSHA, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 

763 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MARK SEGEDI, 

On Behalf of: 

S. J. EZARIK, E. P. AVERY, 

A. ANTANOVICH, E. H. ROSEMIER, JR., : 

M. ZOLDAK, J. OLESKY, C. AVERY, 

W. E. CLARK, L. CASPER, F. PAULISH, : 

A. R. BARKER, A. RUSILKO, B. G. 

MILLER, R. FILBY, C. L. PHILLIPS, 

A. J. SEYKOSKI, JR., D. W. CLARK, 

C. J. ZUKAUCKAS, S. A. JESTAT, T. L. : 

PYSH, J. M. JIBLETS, W. L. BROWN, 

S. T. FORTE, G. J. EVANS, K. R. 

WATKINS, J. J. KURUCZ, M. L. HOYT, 

T. J. SMITH, D. WYTOVICH, R. D. 

STAUFFER, R. T. HARRIS, D. PHILLIPS, : 

F. PABIAN, G. R. WHEELER, C. J. 

ROCCO, T. M. BURGER, C. ZUKAUCKAS, 

R. MULAC, T. P. GRIMES, S. CLARK, 

S. DURKO, JR., L. T. PRUSKI, 

F. PERRI, J. VIARA, W. WHITE, 

N. GURIEL, J. C. FIEM, S. ROBERTSON, : 

C. J. WASHLACK, R. B. TAYLOR, 

J. FIDAZZO, R. L. EMERY, R. A. 

CHANEY, L. T. BIZET, T. TAYLOR• 

F. DI BASILIO, J. ANTANOVICH, 

J. FIDAZZO, S. KOTCHMAN, C. E. 

MONTGOMERY, J. E. CARNATHAM, J. G. 

ZERAMBO, R. S. MARTOS, A. J. MARTOS, : 

C. M. VILCESK, K. E. WILEY, J. J. 

STEPKO, F. V. FEMIA, S. W. 

FERCHINSKY, S. EZARIK, J. S. GLEMBA, : 

T. E. ZGORLISKI, A. R. FIEM, R. L. 

SCICCHITANO, J. STEPKO, R. HOPKINS, : 

P. A. SKIRCHAK, L. N. HRUTKAY, G. C. : 

DENNY, G. BOSTICH, D. L. TIBERIE, 

J. H. ZAMISKA, J. F. PIASECKI, 

R. GATLING, B. F. VISCHIO , 

J. L. 

ANTANOVICH, J. S. KUBOVCIK, N. BOSIC, : 

Application for Review 

of Discrimination 

Docket No. PENN 80-273-D 

Somerset No. 60 Mine 

764 
M. J. REBICH, L. HUEY, J. MOTICHAK, 

E. J. LACOCK, M. POYE, JR., 

E. AMBROSEY, J. R. KENNEDY, J.E. 

PUSKARICH, R. T. RADOS, J. E. 

KARPOFF, K. G. THOMPSON, L. ROSSERO, : 

J. LINNEN, L. DI BASILIO, A. KISKI, : 

E. DERESH, M. TOTH, J. J. DI BASlLIO, : 

R. E. MAIN, J. L. JOHNSON, J. E. 

TIMLIN, H. W. AMBROSY, G. A. DEAN, 

and G. G. MC KETA, 

Complainants : 

V. 

BETHLEHEM MINES CORPORATION, 

Respondent : 

DECISION 

Appearances: Kenneth J. Yablonski, Esq., Yablonski, King, Costello & 

Leckie, Washington, Pennsylvania, for the Complainants; 

Thomas W. Ehrke, Esq., Bethlehem Mines Corporation, 

Bethlehem, Pennsylvania, for the Respondent. 

Before: Judge Cook 

I. Procedural Background 

On June 30, 1980, Mark Segedi, filed a discrimination complaint in the 

above-captioned proceeding on behalf of 148 miners (Complainant s ) alleging 

that Bethlehem Mines Corporation (Respondent) committed acts Of discrimination in violation of section i05(c)(i) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq. (Supp. III 1979) (1977 Mine Act). The 

complaint was filed with the Federal Mine Safety and Health Review Commission 

(Commission) pursuant to section i05(c)(3) of the 1977 Mine Act following a 

determination by the Department of Labor's Mine Safety and Health Admlnistratlon that no violation of section i05(c)(i) had occurred. The discrimination 

complaint states, in part, as follows: 

i. The Federal Mine Safety and Health Review Commission 

(Commission) has jurisdiction over the subject matter of this 

case. 

2. Mark Segedi, (Complainant) is a miner defined in Section 3(g) of the Act and is an elected Safety Committeeman of 

UMWA Local Union 1197. 

3. Exhibit A, attached hereto and made a part hereof, 

contains the names of the complainant miners as defined in 

Section 3(g) of the Act who were present and prepared to work 

on the 7:00 a.m. shift on January 30, 1980. 
4. Somerset Mine #60 is owned by the Bethlehem Mines 

Corporation, Box 143, Eight Four, Pennsylvania. 

5. Somerset Mine #60 is an underground mine operating 

three shifts a day, employing 580 men. 

6. Charles McGlothln [sic] is the superintendent of 

Somerset Mine #60. 

7. Mark Segedi has been delegated by the members of 

UMWA Local Union 1197 aforesaid to act on their behalf in 

filing a Complaint with MSHA. 

8. On January 30, 1980, the aforesaid miners scheduled 

to work the 7:00 a.m. to 4:00 p.m. shift at Somerset Mine #60 

refused to enter the mine because the automatic guard door on 

the Otis elevator failed to close properly and operate in a 

safe manner. 

9. Angelo Giacomantonio, cleaning plant foreman, 

attempted to close the elevator doors manually and thereafter 

use it to lower the miners into the mine but the men refused. 

i0. The miners were then told by mlne management personnel to ride the elevator, walk into the mine by use of the 

slope or go home. 

ii. The men refused to walk into the mine by using the 

slope because it was unsafe in that the handrails were broken 

and there were ice accumulations in the foot paths. 

12. Federal Inspector Cantinl arrived at the mine at 

7:20 a.m. and he was informed by UMWA Local President Lloyd 

Hrutkay of the problem but he refused to make an investigation of the problem and sometime thereafter left the mine 

premises. 

13. At 8:10 a.m. on January 30, 1980, a representative 

of Otis Elevator Company made some repairs to the automatic 

doors and determined that the elevator was safe to use. 

14. At 8:30 a.m. on January 30, 1980, the mine managemerit representatives told the men to enter the mine but also 

advised them that their pay would be docked until 8:30 a.m. 

15. The Safety Committeemen then met with mine management in an effort to resolve the dispute and at i0:00 a.m. 

the men entered the mine. 

" 766 
16. On January 31, 1980, a written complaint was filed 

by the UMWA Safety Committee at the Washington, Pennsylvania 

Field Office of MSHA. 

17. On February I, 1980, Inspector John Poyle made an 

investigation and issued a citation under Part 75.1725(A), 

30 C.F.R. because the mine operator failed to take unsafe 

equipment out of service. 

18. On February 5, 1980, the Federal Subdlstrict office 

personnel concluded that if the shaft guard doors could be 

closed manually there was no violation and the citation was 

vacated. 

19. On March 3, 1980, the district manager received a 

legal opinion from Joseph O. Cook, Adminlstrator for Coal 

Mine Safety and Health concerning 75.1725 which stated that 

to operate the automatic doors manually was a violation. 

20. In February, 1980, Mark Segedi filed a Complaint 

with the Mine Safety and Health Administration on behalf of 

the aforesaid miners scheduled to work on the 7:00 a.m. shift 

on January 30, 1980 against the Bethlehem Mines Corporation 

alleging that the Company had violated Section i05(c) of the 

Act. 

21. On May 30, 1980, the Mine Safety and Health Administration determined that no violation had occurred and in 

a letter dated May 30, 1980, and received June 4, 1980, Mark 

Segedl was advised of the Administration's decision. 

22. The aforesaid miners were discriminated against by 

Bethlehem Mines Corporation because of their refusal to work 

in unsafe and unhealthy conditions. Prior to and at the time 

the Complainants were discriminated against they were engaged 

in protected activity under Section I05(c) of the Act. 

The Complainants' prayer for relief requested: (I) a finding that the 

Complainants were unlawfully discriminated against by the Respondent for 

engaging in activity protected under section i05(c) of the 1977 Mine Act; 

(2) the entry of an order directing the Respondent to pay the Complainants 

full back pay and employment benefits which were lost due to the alleged acts 

of discrimination; (3)an award of interest to be added to all back pay until 

the date such back pay is tendered; (4) the entry of an order requiring that 

the Complainants' employment records be cleared of all unfavorable references 

concerning the activities that occurred on January 30, 1980; (5) the entry of 

an order requiring the Respondent to cease and desist all harassment of the 

Cemplalnants because said harassment has a chilling effect upon the Complainants' contractual and legal right to refuse to work where there aresafety 

and health hazards; and (6) the assessment of an appropriate civil penalty 
for the Respondent's unlawful interference withthe Complainants' exercise of 

rights protected by section i05(c) of the 1977 Mine Act. 

On July 18, 1980, the Respondent filed an answer which states, inpart, 

as follows: 

I. Respondent denies that it committed any acts of discrimination involving the complainants. 

2. Respondent specifically denies that it committed any 

acts of discrimination concerning activities protected under 

the provisions of i05(c)(i) of the Act. 

3. Respondent denies that any "unfavorable references" 

concerning this incident of January 30, 1980 are part of the 

employment records of the listed complainants. 

4. Respondent further denies that any harassment of the 

Complainants by Respondent regarding this incident has ever 

occurred or is occurring. 

5. Respondent states that an investigation of this complaint has been made by a special investigator of the Mine 

Safety and Health Administration and upon a revlew of the 

facts surrounding this incident, MSHA properly determined 

that a violation of Section I05(c) had not occurred. 

6. Respondent denies that all circumstances related to 

this issue entitle the Complainants to any of the relief 

requested by Complainants. 

Respondent, therefore, respectfully requests that all 

requests for relief contained in Complainant's [sic] Appllcationfor Review be denied because they are without merit. 

On August 18, 1980, a notice of hearing was issued scheduling the case 

for hearing on the merits on September 15, 1980, in Washington, Pennsylvania. 

The hearing was held as scheduled with representatives of both parties present 

and participating. 

Various discussions were held on the record between counsel for the parties and the undersigned concerning the precise number of Complainants and 

their names, the number of hours that each Complainant was scheduled to work 

on January 30, 1980, and the precise number of hours of back pay claimed by 

each Complainant. The parties agreed to address these matters by the filing 

of an appropriate stipulation. The stipulation was filed on November 26, 

1980. The requisite information is set forth in an attached document styled 

"complainant status summary," a copy of which is attached to this decision as 

Appendix A. 

768 
Following the presentation of the evidence, a schedule was set for the 

filing of posthearlng briefs and proposed findings of fact and conclusions of 

law. However, difficulties experienced by counsel necessitated a revision 

thereof. Briefs and proposed findings of fact and conclusions of law were 

filed by the Respondent and the Complainants on November 3, 1980, and 

November 13, 1980, respectively. The Respondent and the Complainants filed 

reply briefs on November 26, 1980, and December I, 1980, respectively. 

II. Witnesses and Exhibits 

A. Witnesses 

The Complainants called as their witnesses Lloyd Hrutkay, a mine mechanic 

at the Somerset No. 60 Mine, and president of Local Union No. 1197, District 5, 

United Mine Workers of America; Gary Bostich, a maintenance repairman, or 

mechanic, at the Somerset No. 60 Mine, and a mine committeeman for Local Union 

No. 1197; Harry L. Nicklow, special assistant to the safety director of the 

United Mine Workers of America; and Mark Segedi, a continuous miner operator at the Somerset No. 60 Mine, and a safety committeeman for Local Union 

No. 1197. 

The Respondent called as its witnesses Paul Vancura, an electrical 

engineer employed by the Respondent; Neal Merrifield, the assistant mine 

superintendent at the Somerset No. 60 Mine; and Herbert Sutter, a maintenance 

mechanic employed by the Otis Elevator Company. 

B. Exhibits 

i. The parties introduced the following joint exhibits into evidence: 

J-i is a copy of a BCOA-UMWA Standard Health and Safety Grievance 

Form filed under Article III, Section (1) of the National Bituminous Coal 

Wage Agreement of 1978. 

J-2 is a copy of the National Bituminous Coal Wage Agreement of 

1978. 

J-3 is a copy of a BCOA-UMWA Standard Grievance Form. 

J-4 is a copy of Citation No. 626046, February I, 1980, 30 C.F.R. 

§ 75.1725(a), issued by Federal mine inspector John N. Poyle. 

J-5 is a copy of a February 6, 1980, determination vacating J-4, 

issued by Federal mine inspector Alvin Shade. 

2. The Complainants introduced the following exhibits into evidence: 

U-I is a copy of a letter dated February ii, 1980, from Mr. Harry 

Nicklow to Mr. William Dupree, coal mine inspection supervisor. 

769 
U-2 is a copy of a letter dated April 14, 1980, from Mr. Donald W. 

Huntley, District Manager, Coal Mine Safety and Health District 2, to 

Mr. Harry Nicklow, in reply to U-I. 

U-3 is a copy of a memorandum dated March 3, 1980, for Mr. Donald W. 

Huntley, from Mr. Joseph O. Cook, Administrator for Coal Mine Safety and 

Health, setting forth a legal opinion concerning mandatory safety standard 

30 C.F.R. § 75.1725. 

U-4 is a drawing prepared by Mark Segedl during the course of his 

testimony. 

3. The Respondent did not introduce any exhibits into evidence. 

III. Issues 

i. Whether any or all of the Complainants refused to use the Otis 

automatic elevator at Respondent's Somerset No. 60 Mine on January 30, 1980. 

2. If any or all of the Complainants refused to use the Otis automatic 

elevator at Respondent's Somerset No. 60 Mine on January 30, 1980, then 

whether such refusal was activity protected by section i05(c)(I) of the 1977 

Mine Act. 

3. If any or all of the Complainants refused to use the Otis automatic 

elevator at Respondent's Somerset No. 60 Mine on January 30, 1980, and such 

refusal was activity protected by section i05(c)(I) of the 1977 Mine Act, 

then whether the Respondent discriminated against or otherwise interfered 

with the exercise of the statutory rights of such Complainants in retaliation 

for engaging in such protected activity. 

4. If the Respondent discriminated against or otherwise interfered with 

the exercise of the statutory rights of any or all of the Complainants in 

retaliation for engaging in activity protected by section i05(c)(i) of the 

1977 Mine Act, then what is the appropriate remedy. 

IV. Opinion and Findings of Fact 

A. Stipulations 

i. The parties entered into the following stipulations on September 15, 

1980: 

a. The Administrative Law Judge has jurisdiction in the abovecaptioned proceeding (Tr. 12-14). 

b. Two written grievances related to this section i05(c) complaint 

have been filed by appropriate United Mine Workers of America representatives 

and are currently pending resolution in the grievance procedure (Tr. 13-14). 
c. The Somerset No. 60 Mine employed 606 employees as of January 30, 

1980, and produced 920,575 tons of clean coal in 1979 (Tr. 13-14). 

d. Bethlehem Mines Corporation produced 12,499,402 clean tons of 

coal in 1979 (Tr. 13-14). 

e. The Somerset No. 60 Mine had 158 employees scheduled to work the 

January 30, 1980, day shift (Tr. 13-14). 

f. Mark Segedl properly filed the discrimination complaint in the 

instant case on behalf of all affected miners (Tr. 13-14). 

2. On November 26, 1980, the parties filed the following stipulations 

with respect to the Complainants whose names appear on Exhibit A of the discrimination complaint filed on June 30, 1980: 

a. The attached Complainant Status Summary._i/ accurately reflects 

the regularly scheduled hours and starting times of the complainants on the 

day in question. (The regularly scheduled starting times of ineligible complainants have not been included.) 

b. The attached Complainant Status Summary accurately reflects the 

number of hours the complainants worked and were paid for on the day in 

question. 

c. The attached Complainant Status Summary accurately reflects the 

number of hours for which each of the eligible complainants is seeking pay. 

d. Thirty-six of the complainants are not considered eligible for 

pay in this proceeding, for the reasons listed on the attached Complainant 

Status Summary. Certain of these ineligible complainants who did not work 

as scheduled still received pay from other sources, such as the Personal and 

Sick Leave and Floating Vacation provisions of the collective bargaining 

agreement. Others who did not work received workmen's compensation payments. 

e. The Judge should utilize the Complainant Status Summary and the 

transcript as bases for determining the number of hours, if any, for which 

an eligible complainant is entitled to bepaid. 

f. If it is determined that Respondent is liable for any hours' 

pay to any complainant listed as an eligible complainant in the Complainant 

Status Summary, Respondent will determine the permanent job classification 

held by the complainant on January 30, 1980. Respondent will then multiply 

the standard hourly wage rate for that classification, as set forth in 

Appendix A-Part I of the collective bargaining agreement, by the number of 

hours to which the complainant is entitled, in order to determine the full 

amount of pay due the complainant. 

i/ A copy of the document styled "complainant status summary" is appended 

to this decision as Appendix A. 

771 
B. Discussion 

The activities giving rise to the instant claim of discrimination 

occurred on January 30, 1980, at the Respondent's Somerset No. 60 Mine. The 

affected miner-complalnants were employees at the mine who were scheduled 

to work the day shift. Their regularly scheduled starting times ranged from 

7 a.m. to 8:15 a.m. The facts and surrounding circumstances are set forth 

in the paragraphs below. 

I. Activities Occurring Prior to 7 a.m. 

Mr. Lloyd Hrutkay, a day shift mine mechanic and president of Local Union 

No. 1197, DistrictS, United Mine Workers of America, arrived at the Respondent's Somerset No. 60 Mine at approximately 5:40 a.m. on January 30, 1980 

(Tr. 16-18). Thereafter, he was informed by Mr. Thomas Huddock, the midnight 

shift lampman, that the Otis automatic elevator had "gone down," or malfunctioned, at approximately 3:20 a.m. (Tr. 18, 51). This elevator is used to 

transport the miners to the coal seam (Tr. 17-18). Although Mr. Huddock did 

not explain the nature of the problem (Tr. 38), he did inform Mr. Hrutkay 

that the Otis Elevator Company had been contacted but that the elevator 

repairman had not yet arrived (Tr. 18). 

e 

At approximately 6 a.m., Mr. Paul Vancura, an electrical engineer 

employed by the Respondent, received a telephone call at his home from mine 

management pertaining to an unrelated problem. Mr. Vancura was informed that 

the rotary dump equipment located underground had encountered problems, or 

gone down, several hours earlier. Mr. Vancura was advised to go to the mine 

and investigate the problem (Tr. 134, 136-137). 

Mr. Vancura arrived at the mine at approximately 6:40 a.m. At that time, 

mine management advised Mr. Vancura that he would not be able to go underground because the elevator was not functioning. Specifically, Mr. Vancura 

was informed by mine management that they were having trouble with the outer 

doors at the top level. Mr. Vancura was asked to determine the cause of the 

problem (Tr. 136-137). 

Mr. Vancura proceeded to the elevator and noted that the outer doors were 

open approximately 8 to i0 inches, a condition that would prevent the elevator 

from performing. Certain individuals were instructed to prevent people from 

entering the elevator. Mr. Vancura then proceeded to the elevator machinery 

control room located atop the elevator. There, he found Mr. Joe Forte, the 

chief electrical foreman, and one of the Wilson Shop electricians. The three 

men proceeded to perform a rather thorough examination of the elevator (Tr. 

137-138, 141-143). 

According to Mr. Vancura, the test results indicated that the elevator 

was electrically sound (Tr. 138, 142-143). Following the test, he apprised 

Mr. Neal Merrifield, the assistant mine superintendent, that the sole problem 

with the elevator was a sticky door switch on the outer doors at the top level 

(Tr. 139). The switch, a sill trip switch, is activated when a mechanical 
bar located inside the outer doors falls down to lock the outer doors in a 

closed position (Tr. 143-144). The switch functions as a safety device by 

insuring that the outer doors are completely closed before allowing the 

elevator car to descend, and thus prevents individuals on the top level 

from falling down the elevator shaft (Tr. 85, 145). However, once the 

doors close and the mechanical bar locks the doors, the elevator will 

operate. Once the car leaves the landing, the inside doors will not open 

unless one bends or breaks something (Tr. 257-258). On the day in question, 

the only problem was getting the doors to close. Closing the doors manually 

enabled the switch to operate in a normal fashion (Tr. 145). 

Mr. Vancura and Mr. Forte informed Mr. Merrifield that the elevator was 

not in an unsafe condition (Tr. 156-157). Then, it appears that Mr. Vancura 

proceeded to the change room to prepare to go underground. By the time he 

returned to the elevator, Mr. Forte and the Wilson Shop electrician had 

already proceeded underground by way of the elevator. At approximately 

7:10 a.m., Mr. Vancura boarded the elevator for the trip underground. 

Several attempts were made to close the outer doors manually before such 

doors would remain closed. Once they closed, the elevator transported 

Mr. Vancura to the bottom of the shaft (Tr. 139, 146, 156-157). 

2. Activities Occurring Between 7 a.m. and 9:40 a.m. 

Messrs. Hrutkay, Bostich, and Merrifield were intimately involved in the 

activities occurring between 7 a.m. and 9:40 a.m. The testimony of each of 

these witnesses reflects general agreement as to certain matters. There is 

some disagreement as to certain details which is significant enough to warrant 

summarizing the testimony of each witness separately. The findings of fact 

based on this testimony are set forth in Part IV(B)(2)(d) of this decision. 

The testimony of Mr. Herbert Sutter, the elevator mechanic from the Otis 

Elevator Company who performed the January 30, 1980, elevator repairs, has not 

been summarized separately because most of the matters addressed by Mr. Sutter 

are reflected in, and in h•rmo•y with, the testimony of Mr. Merrifield. 

Findings of fact based on Mr. Sutter's testimony appear in Part IV(B)(2)(d) 

of this decision. 

a. Mr. Hrutkay's Version 

Mr. Hrutkay and his fellow mine mechanics were scheduled to begin work 

at 7 a.m. Mr. Hrutkay apprised his colleagues that the elevator was down 

(Tr. 18, 20). Mr. Hrutkay testified that when he first observed the elevator, Mr. Jack Price, the outside foreman, and Mr. Richard Matthews, a shop 

mechanic, were attempting to close the outer doors by banging them together 

(Tr. 23, 48). The inner doors were closing, but the outer doors were springing open approximately 1 foot each time such outer doors were forced together 

manually (Tr. 23). Mr. Hrutkay observed them perform this operation approximately five or six times, and deduced that the same problem had existed at 

3:20 a.m. (Tr. 24, 37-38). To the best of Mr. Hrutkay's recollection, the 

elevator operated on those occasions when the men succeeded in manually 

closing the outer doors (Tr. 43). 

773 
Then, according to Mr. Hrutkay, at approximately 7:15 a.m., 

Mr. Merrifleld approached and informed the men that the elevator was safe. 

According to Mr. Hrutkay, Mr. Merrifield accorded the men three options at 

that time: (i) either use the elevator to enter the mine, or (2) use the 

slope to walk into the mine, or (3) go home (Tr. 18, 24, 39). Mr. Hrutkay 

and the other men promptly boarded the elevator and the inner doors closed 

(Tr. 24-25, 39). 

Mr. Hrutkay testified that the mine mechanics remained aboard the elevator for approximately 15 minutes while the men on the outside attempted to 

manually close the outer doors. He testified that he heard the outer doors 

bang together approximately five or six times. During this time, the elevator never began Its descent to the bottom of the shaft. Finally, Mr. Gary 

Bostich, a mine committeeman, expressed both a strong desire to get off of 

the elevator and strong reservations about whether the elevator was safe to 

operate (Tr. 24-26, 39-41). The statement was made loud enough for all 

aboard the elevator to hear. The men promptly got off of the elevator (Tr. 

26-27). 

Mr. Hrutkay testified that he and Mr. Bostich then went to see 

Mr. Charles McGlothlin, the mine superintendent (Tr. 27, 47). Mr. Hrutkay 

testified that he wanted to tell Mr. McGlothlin certain things, but that 

Mr. McGlothlin abruptly cut him off, stating: "Lloyd, I want you to understand one thing. You're not going to run this mine." (Tr. 27-29). According to Mr. Hrutkay, Mr. McGlothlin accorded the miners the same three options 

mentioned by Mr. Merrifield, i.e., either use the elevator, or walk the slope 

or go home (Tr. 31). He testified that Mr. Bostich inquired as to whether 

the slope was safe, and that Mr. McGlothlin responded in the affirmative. He 

further testified that Mr. Bostich raised the issue of ice on the slope, and 

that Mr. McGlothlin responded by suggesting that the men carry some sand to 

deal with the problem (Tr. 27-28). At that point, Messrs. Hrutkay and Bostich 

left the mine superintendent's office (Tr. 27-28). 

Mr. Hrutkay testified that he then talked to Federal mine inspector Guido 

Cantini. Inspector Cantini was at the Somerset No. 60 Mine at the time. 

Mr. Hrutkay testified that he informed the inspector that the elevator was 

not operating automatically, and that he requested an inspection. Inspector 

Cantini gave a noncommittal reply and left the mine without inspecting the 

elevator (Tr. 32, Exh. U-2). 

Mr. Hrutkay testified that following his conversation with Inspector 

Cantlni, he returned to the elevator and observed Mr. Sutter performing some 

type of work on it (Tr. 33). However, it appears that Mr. Hrutkay never 

spoke to Mr. Sutter (Tr. 49). 

According to Mr. Hrutkay, at approximately 8:15 a.m., mine management 

stated that the elevator was safe to operate. At the miners' request, 

Mr. Hrutkay took a test ride to determine whether the elevator was safe. 

Everything functioned properly and, upon returning to the surface, he pronounced the elevator safe at approximately 8:15 a.m. or 8:20 a.m. Mr. Hrutkay 

testified that he did not know what Mr. Sutter did to repair the elevator 

(Tr. 33-34, 45-46). 

774 
Then, according to Mr. Hrutkay, he approached Mr. Merrifield and raised 

the pay issue. The gist of Mr. Hrutkay's inquiry was whether the men's time, 

for purposes of pay, would commence at their regularly scheduled starting 

time, •.e., whether the men would be paid for the time period encompassed by 

the safety dispute. Mr. Merrifield replied that the men would be paid "portalto-portal" (Tr. 35). The term "portal-to-portal" refers to Article IV, Section b, Paragraph i, of the National Bituminous Coal Wage Agreement of 1978, 

which provides, in part, that for "all inside Employees a work day of eight 

(8) hours from portal-to-portal * * * is established * * *" (Tr. 46, Exh. 

J-2). The message conveyed was that the men's starting time, for pay purposes, would commence when they boarded the elevator to go underground, and 

that the men would not be paid for the time period encompassed by the safety 

dispute (Tr. 35-36). 

According to Mr. Hrutkay, an uproar ensued when the men learned of 

Mr. Merrifield's determination. Mr. Bostich, acting on instructions from 

Mr. Hrutkay, persuaded the men to go to work and to file a grievance over the 

pay issue. According to Mr. Hrutkay, the union persuaded the men to enter 

the mine at approximately 9:40 a.m. (Tr. 35-36). Mr. Hrutkay testified 

that the pay issue was the only issue that prevented the men from entering 

the mine after he pronounced the elevator safe at approximately 8:15 a.m. 

(Tr. 46). Mr. Hrutkay did not recall any further meetings with mine management aimed at resolving the dispute (Tr. 36). 

b. Mr. Bostich's Version 

Mr. Bostich's version of what occurred that day is generally in accord 

with Mr. Hrutkay's version. The two versions differ as to certain details. 

Mr. B0stich's version is set forth as follows: 

Mr. Bostich testified that he arrived at the elevator at approximately 

7 a.m. on January 30, 1980. The elevator's outer doors were not closing 

completely in that they remained approximately 8 to 12 inches apart. For 

approximately i0 or 15 minutes, the outside foreman and a mechanic attempted 

to manually close the outer doors. Then, the assistant supervisor arrived 

and tinkered with it for awhile in an attempt to close the doors. According 

to Mr. Bostich, Mr. Sutter arrived at approximately 7:30 a.m. (Tr. 55-57). 

Mr. Bostich testified that before Mr. Sutter's arrival, mine management 

told the assembled mine mechanics to board the elevator. It appears from 

Mr. Bostich's testimony that the mine mechanics objected, stating that the 

doors were not closing (Tr. 57). At some point in the exchange, 

Mr. Merrifield accorded the men three options, i.e., either ride the elevator, 

or walk the slope or go home (Tr. 63). 

According to Mr. Bostich, he and the other mine mechanics boarded the 

elevator after Mr. Sutter's arrival. Mr. Bostich testified that this occurred 

between 7:25 a.m. and 7:45 a.m. Once the men boarded, the inner doors closed. 

They could not see what happened to the outer doors. The elevator did not 

move, and the men heard those on the outside bang the outer doors together at 
least six times. The men remained aboard the elevator for approximately 3 or 

4 minutes, at which point Mr. Bostlch expressed a rather strong desire to get 

off of the elevator, stating that he did not believe that the elevator was 

safe. The mine mechanics thereupon got off of the elevator (Tr. 58-59). 

In response to a question from Mr. Merrifield, Mr. Bostich expressed the 

opinion that the elevator was unsafe, and indicated that he would not ride 

the elevator while it was in such condition. At that point, work resumed on 

the elevator (Tr. 59). 

Mr. Bostich testified that after getting off of the elevator, he and 

Mr. Hrutkay went to Mr. McGlothlin and expressed their concerns about the 

elevator. He further testified that they informed Mr. McGlothlin that they 

did not want to ride the elevator until it was fixed properly. According to 

Mr. Bostich, Mr. McGlothlin started to get "a little bit smart-mouthed." 

Mr. Bostlch testified that Mr. McGlothlin told them that if they were not 

going to ride the elevator, then to either walk the slope or go home. At 

that point, Mr. Bostich inquired as to the condition of the slope, and 

specifically asked whether it was safe to use. Mr. Bostich's testimony 

characterizes Mr. McGlothlin's response to the question as angry and somewhat sarcastic. According to Mr. Bostich, Mr. McGlothlin suggested, through 

the use of vulgar language, that he take a bag of sand with him. At that 

point, the meeting adjourned (Tr. 63-64). At approximately i0 a.m., 

Mr. Bostich checked the mine examiner's book and found entries recording 

ice on the slope and a broken handrail (Tr. 65-67). 

Thereafter, at approximately 8:10 a.m., mine management apprised the men 

that the elevator problem had been corrected. Mr. Hrutkay completed his test 

ride at approximately 8:20 a.m. and pronounced the elevator safe to ride. 

Then, either Mr. Dickson or Mr. Error stood on a bench and addressed the men, 

stating they were going to perform mostly "dead work" underground because the 

rotary dump had gone down on the midnight shift. It appears from the tenor 

of Mr. Bostich's testimony that the speaker ended his presentation on a handclapping high note by stating: "How about let's go down and do our work." 

According to Mr. Bostich, the consensus amongst the miners was to go to work 

because the elevator was safe to ride (Tr. 67-69). 

The next thing Mr. Bostich heard was Mr. Merrifield's statement that the 

men would not be paid for the time they had already spent at the mine, that 

their time would start when they boarded the elevator to go underground. The 

miners were angered by the decision, and Messrs. Bostich and Hrutkay returned 

to Mr. McGlothlin's office to discuss the matter. They apprised Mr. McGlothlin 

of Mr. Merrifield's decision, and notified him of a provision in the collective bargaining agreement which they interpreted as entitling the men to 

reporting pay for the time already spent at the mine. Mr. McGlothlin affirmed 

Mr. Merrifield's determination, and stated that the decision was final (Tr. 

69-70). According to Mr. Bostich, the issue as to ice on the slope was not 

discussed during this meeting (Tr. 92). Messrs. Hrutkay and Bostich left the 

office, and it was decided that Mr. Bostich would apprise the men of the decision regarding pay. 

776 
The miners greeted the news with a chorus of boos and hisses. Mr. Bostich 

informed the men that the collective bargaining agreement required them to 

work under protest and to file a grievance over the pay issue. Mr. Bostich 

testified that it required "some time" to explain things to the men. Finally, 

the men boarded the elevator at approximately 9:40 a.m. to enter the mine (Tr. 

70). 

c. Mr. Merrifield's Version 

Mr. Merrifield's version of the events is set forth as follows: 

Mr. Merrifield testified that shortly after 7 a.m., he observed that the 

mine mechanics were still on the surface. He inquired of them as to why they 

had not gone to work. He testified that in response to the question, the 

mine mechanics stated that there was a problem with the elevator, that they 

felt it was unsafe, and that they were not going to use the elevator (Tr. 

157). Mr. Merrifield further testified that he thereupon informed the mine 

mechanics that Messrs. Vancura and Forte had inspected the elevator and had 

concluded that a problem with a relay switch was preventing the outer doors 

from making contact; that the outer doors were a safety feature; that the 

elevator would not operate unless the outer doors made contact; that it was 

necessary to close the outer doors manually in order to make the elevator 

operate; and that once the outer doors were closed, the elevator would operate normally (Tr. 157-158, 210). It is significant to note, however, that 

notwithstanding this statement, mine managementwas not entirely certain at 

that point in time as to the precise nature or extent of the problem. 

Mr. Merrifield testified at a later point in his testimony that although a 

determination had been made that theswitch was the cause of the problem, 

mine management did not really know what the problem was (Tr. 171-172). 

Following the explanation, Mr. Merrifield requested the mine mechanics to 

go to work but they refused (Tr. 158). 

Approximately 15 minutes later, the mine dispatcher and the slope motorman presented themselves at the elevator, and Mr. Merrifield requested them 

togo to work. Both men complied by boarding the elevator. The doors were 

closed manually and the elevator transported the two men underground (Tr. 

158). 

Thereafter, the motormen scheduled to begin work at 7:45 a.m. refused to 

enter the elevator. Mr. Merrifield testified that he explained the situation 

to them, that he requested them to go to work, and that they refused. Subsequent thereto, he addressed the men who were scheduled to begin work at 

8 a.m., explained the problem to them and requested them to go to work (Tr. 

159). 

Mr. Merrifield testified that Mr. Sutter arrived at approximately 

7:30 a.m. or 7:45 a.m. Mr. Merrifield explained the problem to Mr. Sutter, 

and requested that he examine the elevator, diagnose the difficulty, and 

determine whether the elevator was safe to operate (Tr. 159). 

777 
According to Mr. Merrifield, some of the mine mechanics entered the 

elevator at approximately 7:45 a.m. Two unsuccessful attempts were made to 

close the doors manually. Then, the men got off of the elevator and claimed 

that it was unsafe to operate. They refused to ride it (Tr. 161). 

When Mr. Sutter completed his inspection, he informed Mr. Merrifield 

that the problem was in the sill trip switch and that the elevator was safe 

to use. However, Mr. Sutter was unsure as to how much tlme would be required 

to determine precisely what was wrong with the switch. Mr. Merrifield 

inquired as to whether he could use the elevator to transport the men underground and then turn the elevator over to him for repairs. Mr. Sutter 

responded in the affirmative (Tr. 159-160). 

Then, at approximately 8:15 a.m., Mr. Merrifield addressed the miners• 

telling them that Messrs. Vancura, Forte and Sutter had inspected the elevator, that the problem was in the sill trip switch, and that the three men had 

determined that the elevator was safe to operate. The men still refused to 

ride the elevator. Mr. Merrifield thereupon instructed the men that only 

underground work was available, a•d accorded them three options, i.e., either 

ride the elevator, or walk the slope or go home. Then, Mr. Mike Error, the 

mine foreman, addressed the men, telling them that the elevator was safe to 

ride, and that the rotary dump was down. He requested the men to go to work, 

and the miners began to move towardthe elevator. As some of the miners 

started to enter the elevator, someone asked Mr. Merrifield about pay. 

Mr. Merrifield responded that in accordance with both the collective bargaining agreement and company policy, the men would be paid "portal-to-portal." 

The miners thereupon decided against entering the elevator, and began arguing 

and talking amongst themselves (Tr. 160-162). 

Mr. Merrifield testified that at that point he reached the conclusion 

that the miners were refusing to work, because none of them were going to 

enter the elevator, and because none of them wanted to walk the slope. He 

thereupon took the elevator out of service and turned it over to Mr. Sutter 

for repairs (Tr. 162). 

Mr. Merrifield testified that he proceeded to Mr. McGlothlin's office, 

and explained the matter to him. Shortly thereafter, Messrs. Hrutkay and 

Bostich entered the office accompanied by other members of the local union. 

They asked Mr. McGlothlin whether he was going to pay them from the time 

their shift started. Mr. McGlothlin apprised them of company policy and 

affirmed Mr. Merrifield's determination. Later, during the same meeting, 

the issue was raised as to whether the slope was safe. Messrs. Merrifield 

and McGlothlin responded that the area had been examined during the preshift 

examination and that no unsafe conditions had been reported. Based on that 

report, the men were told that the slope was safe to enter. Mr. Merrifield 

testified that the subject of possible ice on the slope was raised, that the 

fireboss book indicated that the slope was safe, and that it was suggested 

that the men take sand with them (Tr. 163-164). 

The employees used the elevator to enter the mine at approximately 

9:40 a.m. (Tr. 164). 
d. Findings Based on the Three Versions 

Messrs. Hrutkay and Bostich and their fellow mine mechanics arrived at 

the elevator at approximately 7 a.m. on January 30, 1980. They observed 

Mr. Jack Price, the outside foreman, and Mr. Richard Matthews, a shop 

mechanic, attempting to manually close the outer doorsby banging them 

together. With each attempt, the doors would spring open approximately 8 

to 12 inches. There was no problem with the inside doors. Mr. Hrutkay 

appears to have inferred that this was the same problem that had existed at 

3:20 a.m. Additionally, Mr. Hrutkay knew that the elevator repairman had not 

yet arrived to correct the problem. 

Mr. Merrifield, after observing that the mine mechanics had not gone 

underground, approached them and inquired as to why they were still on the 

surface. The mine mechanics stated that there was a problem with the elevator, that they felt it was unsafe, and that they were not going to use the 

elevator. Mr. Merrifield thereupon explained that Messrs. Vancura and Forte 

had inspected the elevator and had concluded that a problem with a relay 

switch was preventing the outer doors from making contact; that the outer 

doors were a safety feature; that the elevator would not operate unless the 

outer doors made contact; that it was necessary to close the outer doors 

manually; and that once the outer doors were closed, the elevator would operate normally. He thereupon requested the men to board the elevator and go to 

work. However, it is significant to note that at that point in time mine 

management was not entirely certain as to the precise nature and extent of 

the problem. Mr. Merrifield accorded the mine mechanics three options, •.•., 

either ride •he elevator, or walk the slope or go home. The mine mechanics 

boarded the elevator, and the inside doors closed. They heard the men on the 

outside make several attempts to close the outer doors by banging such doors 

together. After approximately 3 or 4 minutes, Mr. Bostich expressed a rather 

strong desire to get off of the elevator, stating that he did not believe the 

elevator was safe. The statement was made loud enough for all aboard the 

elevator to hear. The men got off of the elevator. Then, in response to a 

question, Mr. Bostich told Mr. Merrifield that, in his opinion, the elevator 

was unsafe, and stated that he would not ride the elevator while it was in 

such condition. 

Messrs. Hrutkay and Bostich thereupon proceeded to Mr. McGlothlin's 

office and explained the problem. Mr. McGlothlin took the same approach as 

Mr. Merrifield and told them to either use the elevator, or walk the slope or 

go home. Mr. Bostich thereupon asked Mr. McGlothlin whether the slope was 

safe to use and specifically raised the issue of ice on the slope. 

Mr. McGlothlin, through the use of a rather explicit vulgarity, advised 

Mr. Bostich to carry a bag of sand. The entries in the mine examiner's 

book recorded the presence of ice on the slope and a broken handrail. 

Messrs. Hrutkay and Bostich thereupon left Mr. McGlothlin's office. 

Then, Mr. Hrutkay approached Inspector Cantini, advised him that the 

elevator was not operating, and requested an inspection. Inspector Cantini 

gave a rather noncommittal reply, and left the property without inspecting 

the elevator. 

779 
At various times between approximately 7:30 a.m. and 8 a.m., 

Mr. Merrifield addressed other groups of miners as they reported to the 

elevator to begin work. It appears that Mr. Merrifield informed all of 

these groups of the determination made by Messrs. Forte and Vancura. All 

refused to board the elevator, except the mine dispatcher and the slope 

motorman. 

At some point in time between 7:15 (Tr. 261) and 7:30 a.m., Mr. Sutter 

arrived at the mine to attend to the elevator problem. Mr. Merrifield 

explained the problem andthe findings of Messrs. Forte and Vancura, and 

requested an examination of the elevator, a diagnosis of the problem, and a 

determination as to whether the elevator was safe to operate. Upon completing the examination, Mr. Sutter informed Mr. Merrifield that the problem was 

in the sill trip switch and that it would be safe to use the elevator. However, Mr. Sutter was uncertain as to the amount of time that would be required 

to determine precisely what was wrong with the switch. Mr. Merrifield 

inquired as to whether he could use the elevator to transport the men underground and then turn the elevator over to him for repairs. Mr. Sutter 

responded in the affirmative. It should be noted that the elevator was an 

important part of the escapeway system for the three sections on the left side 

of the mine (Tr. 220-224). 

At approximately 8:10 or 8:15, mine management apprised the miners that 

the elevator was safe to operate. Mr. Hrutkay, acting pursuant to the request 

of the miners, took a test ride to determine whether the elevator was safe. 

Everything functioned properly during the test ride, and• upon returning to 

the surface, Mr. Hrutkay pronounced the elevator safe. At approximately 

8:15 a.m., the miners headed toward the elevator for the trip underground. 

At that point, Mr. Hrutkay raised the pay issue with Mr. Merrifield. 

Mr. Merrifield stated that the men would not be paid for the time they had 

already spent at the mine. The miners were angered by the decision and all 

movement in the direction of the elevator ceased. Mr. Merrifield reached the 

conclusion that the miners were refusing to work and that they were not going 

to use the elevator. Accordingly, he removed it from service and turned it 

over to llr. Sutter for repairs. 

Mr. Merrifield went to the mine superintendent's office and explained the 

matter to Mr. McGlothlin. Shortly thereafter, Messrs. Hrutkay and Bostich, 

accompanied by other members of the local union, entered Mr. McGlothlin's 

office to discuss the matter with him. They told Mr. McGlothlin about 

Mr. Merrifield's decision, and notified him of a provision in the collective 

bargaining agreement which they interpreted as entitling the men to reporting 

pay for the time already spent at the mine. Mr. McGlothlin then apprised the 

men of company policy, affirmed Mr. Merrifield's determination, and stated 

that the decision was final. It is possible, although unlikely, that the 

issue of ice on the slope was raised again during this meeting. 

After Messrs. Hrutkay and Bostich left the superintendent's office, they 

decided that Mr. Bostich would inform the miners of the decision regarding 

pay. 

780 
The miners greeted the news with a chorus of boos and hisses. The miners 

were told that the provisions of the collective bargaining agreement required 

them to work under protest and to file a grievance over the pay issue. It 

required "some time" to explain things to the men. Finally, the men boarded 

the elevator at approximately 9:40 a.m. to enter the mine. The elevator 

repairs had been completed at approximately 8:45 a.m. (Tr. 262-263). •/ 

The pay issue was the sole issue that prevented the men from entering the 

mine at 8:15 a.m. 

3. Safety Concerns 

Mr. Hrutkay was a mine mechanic with 12 years of experience in repairing 

the electrical components of mechanical equipment, such as locomotives (Tr. 

16, 50-51). It appears that he had no experience as relates to performing 

repair work on the elevator (Tr. 29). 

Mr. Hrutkay was concerned that banging the doors together manually would 

have an adverse effect on the automatic switches. His experience gained from 

2/ On January 31, 1980, the Mine Safety and Health Administration's 

Washington, Pennsylvania, field office received a written complaint from the 

mine safety committee regarding the elevator (Exh. U-2). During the ensuing 

MSHA investigation on February i, 1980, Federal mine inspector John Poyle 

issued Citation No. 626046 alleging a violation of mandatorx safety standard 

30 C.F.R. § 75.1725(a) in that "the outside doors on the Anderson shaft 

elevator were not working properly for the 8 a.m. shift on January 30, 1980, 

in that the outside doors had to be closed manually. This elevator is used 

as portal for men entering and exiting the mine" (Exh. J-4). On February 6, 

1980, the citation was vacated by Federal mine inspector Alvin Shade, acting 

on instructions from the subdistrict manager, based upon MSHA's determination 

that the condition did not violate mandatory safety standard 30 C.F.R. 

§ 75.1725(a) (Exhs. J-5, U-2). AM arch 3, 1980, memorandum from Joseph O. 

Cook, Administrator for Coal Mine Safety and Health, to Donald W. Huntley, 

District Manager, sets forth a subsequent legal opinion concerning 30 C.F.R. 

§ 75.1725 (Exh. U-3). MSHA's opinion on the matter is set forth in Exhibit 

U-3 as follows: 

"Section 75.1725 states in part that: 

"a) Mobile and stationary machinery and equipment shall be maintained in 

safe operating condition and machinery or equipment in unsafe condition shall 

be removed from service immediately." 

"In our view, the elevator doors in question were designed and installed 

to operate automatically. If the operator wishes to manually operate landing 

doors, the elevator should be refitted with this type of door. However, if 

they order automatic doors, they should be maintained inthat condition. The 

failure to do so, and to not remove from service until a knowledgeable person 

had determined the exact cause of the malfunction and corrected it, or determined that the malfunction would not detract from the safe operation of the 

elevator, would constitute a violation of Section 75.1725." 

781 
working with other types of equipment indicated that the banging could knock 

the arc chutes, wires and coils off the contactors. He was also concerned 

about the possibility of the elevator descending uncontrolled to the bottom 

of the shaft (Tr• 30-31). However, it is significant to note that Mr. Hrutkay 

did not express any of these concerns to Inspector Cantini when making the 

inspection request (Tr. 44-45, 47-48). 

Mr. Bostich's duties as a mine mechanic required him to perform mechanical 

work on electrical equipment. At least some of this equipment was designed to 

operate automatically , 

as opposed to manually. Mr. Bostich had been trained 

to remove automatic equipment from service when it failed to operate properly. 

When an electrical component malfunctions, it can prevent equipment designed 

to operate automatically from operating automatically. When the components 

burn out, the equipment is ordinarily "down" (Tr. 60-62). 

Mr. Bostich was not concerned about an uncontrolled descent. Rather, he 

feared that the malfunction in the circuitry might cause the elevator to 

become stuck in the shaft and trap those aboard it (Tr. 60, 87). Additionally, he feared the possibility of a fire generated by an electrical arc 

(Tr. 100-101). 

In the past, manual operation of the elevator had been accomplished 

through a procedure different than the one used on the morning of January 30, 

1980. On January 30, 1980, the inner doors were closed first and then the 

outer doors were closed. The procedure used in the past was exactly the 

opposite. In the past, the elevator operator closed the outer doors manually 

from inside the elevator and then closed the inner doors (Tr. 99-100). 

Mr. Sutter, a trained elevator mechanic, used a similar technique on 

January 30, 1980 (Tr. 256). 

4. Condition of the Slope 

A joint union/company inspection party examined the slope after 9:40 a.m. 

Mr. Mark Segedi, a continuous miner operator and a member of the mine safety 

committee, and Messrs. Bostich and Merrifield were members of the inspection 

party (Tr. 71, 124, 164-166). 

The slope was angled at 17 degrees, and was approximately 1,200 to 

1,500 feet in length (Tr. 74, 91, 166). A conveyor belt, hoist equipment and 

a staircase were located in the slope. 

The conveyor belt was located on the lefthand side of the slope and was 

used to transport coal out of the mine (Tr. 72). The hoist was located on 

the righthand side of the slope and was used to transport supplies into the 

mine. An engine-powered, surface-mounted cable hoist caused the hoist cars 

to ascend or descend through the slope on a railroad track (Tr. 72, 75-76). 

The concrete staircase was located between the conveyor belt and the 

hoist equipment. The steps were approximately 14 to 15 inches wide and had 

6- to 8-inch risers (Tr. 73, 232). Steel girders, or "I" beams, were located 
to the right of the staircase. The girders were spaced approximately 3 to 

5 feet apart and were numbered for identification. A handrail was located 

on the righthand side of the steps. The handrail was bolted to the girders 

(Tr. 72, 74-76, 91). 

The inspection party encountered a patch of ice on the steps which 

extended from approximately 141 girder to 152 girder. This location was at 

the approximate midpoint of the slope. The patch of ice was approximately 

15 feet in length. The thickness of the ice varied from approximately i inch 

to approximately 4 inches. The handrail was broken at that location and, 

accordingly, it was necessary to negotiate the patch of ice without the 

assistance of a handrail. It required a substantial degree of caution to 

successfully negotiate the patch of ice (Tr. 78-79, 91, 102-103, 125-127, 

164-165, 233). 

The combination of ice and a broken handrail indicates that the danger of 

falling was great. The slope did not afford a safe means of access to the 

mine for a large contingent of men. If one man had fallen on the ice, he could 

have caused some or all of the men in front of him to fall in domino sequence. 

5. Governing Legal Standard and Application of the Law to the Facts 

The question presented in this case is whether the Complainants were 

deprived of earnings in retaliation for engaging in activity protected by 

section i05(c)(i) of the 1977 Mine Act. The protected activity alleged is 

a refusal to work under unsafe or unhealthful conditions. 

Section i05(c)(i) of the 1977 Mine Act provides that: 

No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination 

against or otherwise interfere with the exercise of the 

statutory rights of any miner, representative of miners or 

applicant for employment in any coal or other mine subject 

to this Act because such miner, representative of miners or 

applicant for employment has filed or made a complaint under 

or related to this Act, including a complaint notifying the 

operator or the operator's agent, or the representative of 

the miners at the coal or other mine of an alleged danger or 

safety or health violation in a coal or other mine, or 

because such miner, representative of miners or applicant for 

employment is the subject of medical evaluations and potential 

transfer under a standard published pursuant to section i01 

or because such miner, representative of miners or applicant 

for employment has instituted or caused to be instituted any 

proceeding under or related to this Act or has testified or 

is about to testify in any such proceeding, or because of the 

exercise by such miner, representative of miners or applicant 

for employment on behalf of himself or others of any statutory right afforded by this Act. 

783 
In Secretary of Labor ex rel. David Pasula v. Consolidation Coal Company, 2 FMSHRC 2786, 2 BNA MSHC 1001, i980 CCH OSHD par. 24,878 (1980), the Federal 

Mine Safety and Health Review Commission (Commission) held that section 

i05(c)(i) of the 1977 Mine Act accords a miner the right to refuse to work 

under conditions which he believes, in good faith, to be unsafe or unhealthful. The Commission's Pasula decision has not "definitely set all the contours of the right to refuse to work." 2 FMSHRC at 2793. However, it appears that some objective evidence supporting a conclusion that a threat to health 

or safety existed is necessary before it can be determined that the miner 

has proved a condition believed, in good faith, to be unsafe or unhealthful, and thus be able to rely upon such reason as a foundation for the refusal 

to work. 2 FMSHRC at 2793-2794. 

As relates to the burden of proof, the Commission held in Pasula that: 

[T]he complainant has established a prima facie case of a violation of section i05(c)(i) if a preponderance of the evidence 

proves (i) that he engaged in a protected activity, and (2) 

that the adverse action was motivated in any part by the protected activity. On these issues, the complainant must bear 

the ultimate burden of persuasion. The employer may affirmatively defend, however, by proving by a preponderance of all 

the evidence that, although part of his motive was unlawful, 

(I) he was also motivated by the miner's unprotected activities, and (2) that he would have taken adverse action against 

the miner in any event for the unprotected activities alone. 

On these issues, the employer must bear the ultimate burden 

of persuasion. It is not sufficient for the employer to show 

that the miner deserved to have been fired for engaging in 

the unprotected activity; if the unprotected conduct did not 

originally concern the employer enough to have resulted in the 

same adverse action, we will not consider it. The employer 

must show that he did in fact consider the employee deserving 

of discipline for engaging in the unprotected activity alone 

and that he would have disciplined him in any event. 

[Emphasis in•riginal.] 

2 FMSHRC at 2799-2800. 

At the outset, one critical point should be noted. The testimony of 

Messrs. Sutter and Vancura proves that the elevator was safe to operate. 

Neither the defect existing on January 30, 1980, nor closing the outside 

doors manually constituted an unsafe condition. However, the fact that the 

elevator was actually saf• to use does not mean that the miners engaged in 

unprotected activity when they refused to use it. The right to refuse to 

work accorded by section i05(c)(i) of the 1977 Mine Act is not geared to 

whether the condition is in fact unsafe, but to whether the miner believes, in good faith, that the condition is unsafe. 

784 
A preponderance of the evidence establishes that the Complainants who 

were scheduled to begin work at 7 a.m., 7:45 a.m. and 8 a.m., engaged in 

protected activity on the morning of January 30, 1980, but that such protected activity ceased at approximately 8:15 a.m. Various arguments have 

been raised as to the existence of the slope as an alternate means of access 

to the mine. These arguments are rejected because the slope did not afford 

safe access to the mine for a large body of men. 

The discrimination complaint will be dismissed as relates to those Complainants whose regularly scheduled starting time was 8:15 a.m. because the 

record fails to show that such Complainants engaged in activity on January 30, 

1980, protected by section i05(c)(i) of the 1977 Mine Act. Therefore, the 

discussion set forth in the following paragraphs will be confined to those 

Complainants whose regularly scheduled starting times were 7 a.m., 7:45 a.m. 

and 8 a.m. 

As relates to the time period between 7 a.m. and 8:15 a.m., the record 

discloses that the Complainants scheduled tO begin work between 7 a.m. and 

8 a.m. refused to use the elevator for safety reasons. This activity was 

protected activity within the meaning of section i05(c)(i) because some 

objective evidence existed to support a good faith belief on their part that 

the elevator was unsafe. The objective evidence consisted of: (i) the failure of the elevator's outer doors to function normally; (2) the violent 

manner in which company personnel were attempting to manually close the outer 

doors; (3) the repeated, violent efforts needed to successfully close the 

outer doors manually; and (4) the Respondent's unexplained departure from the 

method used in the past when it had been necessary to close the outer doors 

manually. 

The Respondent concedes that protected activity occurred in the form of 

Messrs. Hrutkay and Bostlch notifying Mr. Merrifield of their concern about 

the elevator. However, Respondent appears to argue that the subsequent 

refusal to work was not protected activity because mine management had discovered and investigated the problem prior to 7 a.m. and, as a result, had 

determined that the elevator was safe. According to Respondent, 

Mr. Merrifield gave a reasonable response to Messrs. Hrutkay's and Bostich's 

protected activity by relaying to them the results of Mr. Vancura's investigation. According to the Respondent, the activities occurring subsequent 

thereto were unprotected (Respondent's Posthearlng Brief, pp. 10-12; 

Respondent's Reply Brief, pp. 6-7). 

I disagree with the Respondent's position because, in effect, it penalizes the miners for refusing to accept management's evaluation of the 

safety hazard. A miner is not required to accept his supervisor's evaluation 

of the danger. Phillips v. Interior Board of Mine Operations Appeals, 

500 F.2d 772 (D.C. Cir. 1974). In fact, the record reveals that the so-called 

"reasonable response" from mine management was anything but reasonable. 

Mr. Merrifleld was attempting to persuade the miners to use the elevator and 

attempting to persuade them that it was safe to do so at a point in time 

785 
when, by his own admission, mine management did not know the precise nature 

and extent of the problem. The miners acted prudently by not substituting Mr. 

Merrifield's judgment for their own judgement. 

The Respondent argues, in the alternative, that if protected activity did not cease when Mr. Merrifield explained the results of Mr. Vancura's 

investigation to Messrs. Hrutkay and Bostich, then it definitely ceased when 

Mr. Hrutkay apprised InsPector Cantini of the problem and Inspector Cantini 

took no action. 3/ According to the Respondent, Inspector Cantini's failure 

to investigate the complaint constituted, in effect, his determination that 

the elevator's condition neither violated a mandatory safety standard nor 

constituted an imminent danger. Therefore, according to the Respondent, 

there was no needfor the statutory protection regarding Mr. Hrutkay's complaint to continue (Respondent's Posthearing Brief, pp. 11-12; Respondent's 

Reply Brief, p. 7). 

The Respondent's interpretation of the legal consequences of the inspec- tor's inaction falls squarely within the realm of the ludicrous. Accordingly, the Respondent's interpretation is rejected. 

Additionally, the Respondent contends that the miners' safety concerns 

were unreasonable. In support of its position, the Respondent points to the 

fact that the slope motorman and the dispatcher used the elevator despite the 

door problem, and to the fact that all of the miners were ready to use the 

elevator at 8:15 a.m. in spite of the fact that no repairs had yet been 

made (Respondent's Posthearing Brief, p. 12).• However, these considerations 

do not establish that the miners' belief was unreasonable as relates to 

whether the elevator was safe. The fact that the dispatcher and the slope 

motorman used the elevator to enter the min• standing alone, raises an 

ambiguity. Although it could be interpreted as tending to support the Respon- dent's position, it could also be interpreted as either poor judgment or as 

3/ The Complainants characterize Inspector Cantini's actions as improper. 

However, Exhibit U-2, a copy of a letter from Mr. Donald W. Huntley, District 

Manager, Coal Mine Safety and Health District 2, to Mr. Harry W. Nicklow, 

offers the following explanation for Inspector Cantini's actions: 

"Inspector Cantini arrived at the mine about 7:20 a.m. He was informed 

by mine management that the shaft guard door was being closed manually by an 

assigned person. Cantini went into the lamp house and observed the door 

being closed manually and persons being transported in and out of the mine. 

While dressing and preparing for the inspection, he was informed of the same 

condition by Lloyd Hrutkay, President, U.M.W.A. Local Union 1197. Cantini 

told him he had observed the shaft guard door being closed manually, but did 

not give a conclusive response. While proceeding through the lamp house 

toward the shaft entrance to start his inspection, he heard mine management 

inform the workmen that they were to ride the elevator, walk the slope, or go home. At that point, Cantini called his supervisor, informed him a labor dis-- 

pute had occurred, and was instructed to leave the property in accordance with 

instructions in the Coal •ne Inspectors Manual." 

786 
a decision to simply remain silent in order to avoid a confrontatlon wlth 

management. Similarly, the fact that the miners were willing to use the elevator at 8:15 a.m. is not dlsposltive. It had been pronounced safe by 

Mr. Hrutkay after his test ride and it appears that the miners thought it had 

been repaired. 

As relates to the second element of the Complainants' prima facie case, 

the evidence clearly shows that the determination to deny pay for the time 

period prior to 8:15 a.m. was motivated by the Complainants' protected 

activity. Mine management clearly knew, as demonstrated by Mr. Merrifield's 

testimony, that the miners had refused to use the elevator for safety reasons. The decision with respect to pay was motivated by the safety dispute, 

and, to an extent, was apparently intended to penalize the miners for refusing 

to accept management's appraisal of the danger. Under the circumstances, it 

is immaterial that the Respondent elected to justify its actions by reliance on 

the "portal-to-portal" pay provisions of the collective bargaining agreement 

and on company policy. 

In view of the foregoing, Pasula requires the mine operator to affirmatively defend by showing that he was motivated by the miners' unprotected 

activities, and that he would have taken adverse action against the miners 

in any event for the unprotected activities alone. The Respondent has not 

shown that unprotected activities were involved in its decision to deny pay. 

In fact, no unprotected activities occurred between 7 a.m. and 8:15 a.m. 

The decisionto deny pay was motivated solely by protected activity. 

The activities occurring after 8:15 a.m. were not protected by section 

i05(c)(I) of the 1977 Mine Act. The refusal to work under conditions 

believed, in good faith, to be unsafe ended at 8:15 a.m. when Mr. Hrutkay 

pronounced the elevator safe and the men began to move toward the elevator 

with the intent to use it. When the pay issue was raised, all movement 

toward the elevator ceased. Even Mr. Hrutkay testified that the pay issue 

was the only thing that prevented the men from entering the mine at 8:15 a.m. 

The Complainants who were scheduled to begin work at 7 a.m, 7:45 a.m. 

and 8 a.m., however, seek a remedy for the time period between 8:15 a.m. and 

9:40 a.m. by claiming that such time was lost as a result of the Respondent's 

retaliatory or discriminatory action. The Complainants contend that the 

delay was caused by the Respondent's pay announcement and that such delay 

could have been avoided if the Respondent had used reasonable restraint. 

Additionally, the Complainants contend that the elevator was out of service 

until 9:40 a.m. (Complainants' Posthearing Brief, p. 14; Complainants' Reply 

Brief, pp. 8-9). 

I disagree with the contention that such considerations entitle the Complainants to a remedy covering the time period from 8:15 a.m. to 9:40 a.m. 

Section i05(c)(I) authorizes a refusal to work under conditions believed, in 

good faith, to be unsafe or unhealthful. It does not authorize a refusal to 

work over a pay dispute. Therefore, according the Complainants a remedy for 
the time period encompassed by the pay dispute would do violence to the provision set forth in the statute for securing redress for violations of section i05(c)(i). Such self-help remedies are not encompassed by the statute. 

If a miner suffers discrimination, then section i05(c) accords him a remedy 

and a lawful means to secure it. 

Furthermore, one additional consideration is noteworthy. The work stoppage over the pay issue occurred immediately following the refusal to work 

under conditions believed, in good faith, to be unsafe. The timing of these 

two events is attributable entirely to chance. The pay dispute would not 

have arisen at 8:15 a.m. had Mr. Hrutkay not posed, and Mr. Merrlfleld not 

answered, the question concerning pay at that precise point in time. Under 

other circumstances, the miners might not have learned of the company's 

decision until they received their pay checks several days later. Their 

rights should be the same in both instances. Section i05(c)(i) would not 

authorize a work stoppage in the latter case, and therefore should not be 

construed to authorize it in the former. 

In view of the foregoing, I conclude that the Complainants scheduled to 

begin work at 7 a.m., 7:45 a.m. and 8 a.m. engaged in activity protected by 

section i05(c)(i) between their regularly scheduled starting times and 

8:15 a.m. on January 30, 1980. I further conclude that the Respondent discriminated against such Complainants in violation of section i05(c)(I) by 

denying them pay for the time period between their regularly scheduled starting times and 8:15 a.m. 4/ 

V. Conclusions of Law 

i. The Administrative Law Judge has jurisdiction over the subject matter 

of, and the parties to, this proceeding. 

2. Bethlehem Mines Corporation and its Somerset No. 60 Mine have been 

subject to the provisions of the 1977 Mine Act at all times relevant to this 

proceeding. 

4/ The Complainants prayed for the assessment of an appropriate civil penalty for the Respondent's violation of section i05(c) of the 1977 Mine Act. 

This request will be denied for two reasons. 

First, the proceeding was filed solely pursuant to section i05(c)(3) of 

the 1977 Mine Act. Civil penalty proceedings before the Commission must be 

filed pursuant to section ii0 of the 1977 Mine Act. Accordingly, it must be 

concluded that the Commission's authority to assess civil penalties has not 

been properly invoked. 

Second, the provisions of sections 105(a), i05(c)(3), 105(d), ll0(a), 

and llO(k), collectively indicate that the 1977 Mine Act requires civil penalties to be proposed by the Secretary of Labor. Commission jurisdiction 

attaches in penalty matters when the operator has notified the Secretary of 

Labor that it intends to contest the Secretary's penalty assessment. Since 

these steps have not been followed in this case, the assessment of a civil 

penalty by the Commission would be premature at this stage. 

788 
3. The Mine Safety and Health Administration conducted an investigation 

of the dispute which is the subject matter of this case and concluded that a 

violation of section 105(c) of the 1977 Mine Act had not occurred. 

4. Mark Segedi properly filed the discrimination complaint in this case 

with the Federal Mine Safety and Health Review Commission on behalf of all 

affected miners. 

5. The Complainants scheduled to begin work at 7 a.m., 7:45 a.m. and 

8 a.m. engaged in activity protected by section i05(c)(i) of the 1977 Mine 

Act on January 30, 1980, commencing at their regularly scheduled starting 

times and ending at 8:15 a.m. 

6. The Complainants scheduled to begin work at 7 a.m., 7:45 a.m. and 

8 a.m. engaged in activity unprotected by section i05(c)(i) of the 1977 Mine 

Act on January 30, 1980, from 8:15 a.m. to 9:40 a.m. 

7. The Respondent discriminated against the Complainants scheduled to 

begin work at 7 a.m., 7:45 a.m. and 8 a.m. by denying them pay from their 

regularly scheduled starting times to 8:15 a.m. 

8. The Complainants scheduled to begin work at 8:15 a.m. did not engage 

in activity protected by section i05(c)(i) of the 1977 Mine Act on 

January 30, 1980. 

9. All of the conclusions of law set forth in Part IV, supra, are 

reaffirmed and incorporated herein. 

Vl. Proposed Findings of Fact and Conclusions of Law 

The parties filed the posthearing submissions identified in Part I, supra. 

Such submissions, insofar as they can be considered to have contained proposed 

findings and conclusions, have been considered fully, and except to the extent 

that such findings and conclusions have been expressly or impliedly affirmed 

in this decision, they are rejected on the ground that they are, in whole or 

inpart, contrary to the facts and law or because they are immaterial to the 

decision in this case. 

ORDER 

A. IT IS ORDERED that the above-captioned proceeding be, and hereby 

is, DIS•SSED as to those Complainants who were scheduled to begin work at 

8:15 a.m. on January 30, 1980. Such Complainants are identified as B. G. 

Miller; R. Filby; D. W. Clark; C. J. Zukauckas; S. A. Jestat; T. L. Pysh; 

R. T. Harris; D. Phillips; G. R. Wheeler; C. J . Rocco; S. Durko, Jr.; L. T. 

Pruski; J. R. Kennedy; R. T. Rados; J. E. Karpoff; M. Toth; J. E. Timlin; 

H. W. Ambrosy; G. A. Dean; and G. S. McKeta. 

B. IT IS FURTHER ORDERED that Respondent (I) immediately determine the 

permanent job classification held by the following Complainants on January 30, 

789 
1980, and (2)multiply the standard hourly wage rate for that classification, 

as set forth in Appendix A, Part I, of the collective bargaining agreement, by 

the number of hours of back pay to which each respective Complainant is 

entitled: 

Regularly Scheduled Hours of 

Starting Time; Back Pay 

Complainant January 30, 1980 Due 

S. J. Ezarik 8:00 a.m. .25 

E. P. Avery 8:00 a.m. .25 

A. Antanovich 8:00 a.m. .25 

E. H. Rosemier, Jr. 8:00 a.m. .25 

M. Zoldak 8:00 a.m. .25 

J, Olesky 8:00 a.m. .25 

C. Avery 8:00 a.m. .25 

W. E. Clark 8:00 a.m. .25 

L. Casper 8:00 a.m. .25 

F. Paulish 8:00 a.m. .25 

A. R. Barker 8:00 a.m. .25 

A. Rusilko 8:00 a.m. .25 

C. L. Phillips 8:00 a.m. .25 

A. J. Seykoski, Jr. 8:00 a.m. .25 

J. M. Jiblets 8:00 a.m. .25 

W. L. Brown 8:00 a.m. .25 

S. T. Forte 8:00 a.m. .25 

G. J. Evans 8:00 a.m. .25 

K. R. Watkins 7:45 a.m. .50 

J. J. Kurucz 8:00 a.m. .25 

M. L. Hoyt 8:00 a.m. .25 

T. J . Smith 8:00 a.m. .25 

D. Wytovich 7:45 a.m. .50 

R. D. Stauffer 8:00 a.m. .25 

F. Pabian 7:45 a.m. .50 

T. M. Burger 8:00 a.m. .25 

C. Zukauckas 8:00 a.m. .25 

R. Mulac 8:00 a.m. .25 

T. P. Grimes 8:00 a.m. .25 

S. Clark 8:00 a.m. .25 

F. Perri 8:00 a.m. .25 

J. Viara 8:00 a.m. .25 

W. White 7:45 a.m. .50 

N. Guriel 7:45 a.m. .50 

J. C. Fiem 7:45 a.m. .50 

S. Robertson 7:45 a.m. .50 

C. J. Washlack 7:45 a.m. .50 

R. B. Taylor 7:45 a.m. .50 

J. Fidazzo 7:45 a.m. .50 

R. L. Emery 7:45 a.m. .50 

R. A. Chaney 7:45 a.m. .50 
L. T. Bizet 

T. Taylor 

F. DiBa silio 

J. Antanovich 

J. Fidazzo 

S. Kotchman 

C. E. Montgomery 

J. E. Carnatham 

J. G. Zerambo 

R. S. Martos 

A. J. Martos 

C. M. Vilcesk 

K. E. Wiley 

J. J. Stepko 

F. V. Femia 

S. W. Perchinsky 

S. Ezarik 

J. S. Glemba 

T. E. Zgorliski 

A. R. Fiem 

R. L. Sciechitano 

J. Stepko 

R. Hopkins 

P. A. Skirchak 

L. N. Hrutkay 

G. C. Denny 

G. Bostich 

D. L. Tiberie 

J. H. Zamiska 

J. F. Piasecki 

R. Ga tling 

B. F. Vischio 

J. L. Antanovich 

J. S. Kubovcik 

N. Bosick 

M. J. Rebich 

L. Huey 

J. Motichak 

E. J. Lacock 

M. Poye, Jr. 

E. Ambrosey 

J. E. Puskarich 

K. G. Thompson 

L. Rossero 

J. Linnen 

L. DiBasilio 

A. Ki ski 

E. Deresh 

J. J. DiBasilio 

R. E. Main 

J. L. Johnson 

7:45 a.m. 

7:45 a.m. 

7:45 a.m. 

7:45 a.m. 

7:45 a.m. 

8:00 a.m. 

7:00 a.m. 

8:00 a.m. 

8"00 a.m. 

7:00 a.m. 

8:00 a.m. 

7 "00 a.m. 

7:00 a.m. 

7:00 a.m. 

8 : O0 a.m. 

7 "00 a.m. 

7:00 a.m. 

7:00 a.m. 

7 O0 a.m. 

7:00 a.m. 

7:00 a.m. 

7:00 a.m. 

7:00 a.m. 

7:00 a.m. 

7:00 a.m. 

7:00 a.m. 

7 : O0 a.m. 

7 -00 a.m. 

8:00 a.m. 

7:45 a.m. 

8:00 a.m. 

7:45 a.m. 

8:00 a.m. 

8"00 a.m. 

8:00 a.m. 

8:00 a.m. 

8:00 a.m. 

8:00 a.m. 

8:00 a.m. 

8:00 a.m. 

8:00 a.m. 

8:00 a.m. 

8:00 a.m. 

8:00 a.m. 

8:00 a.m. 

8:00 a.m. 

8:00 a.m. 

8 "00 a.m. 

8:00 a.m. 

8:00 a.m. 

8:00 a.m. 

.50 

.50 

.50 

.50 

.50 

.25 

1.25 

.25 

.25 

1.25 

.25 

1.25 

1.25 

1.25 

.25 

1.25 

1.25 

1.25 

1.25 

1.25 

1.25 

1.25 

1.25 

1.25 

1.25 

1.25 

1.25 

1.25 

.25 

.50 

.25 

.50 

.25 

.25 

.25 

.25 

.25 

.25 

.25 

.25 

.25 

.25 

.25 

.25 

.25 

.25 

.25 

.25 

.25 

.25 

.25 

791 
C. IT IS FURTHER ORDERED that the Complainants identified in Part B of 

this order, be and hereby are, awarded interest at the rate of 6 percent per 

annum on their•respective back pay awards, Commencing on the day following the day upon which • such pay 

• 

was due in 1980, and ending on the day when such 

back pay award is actually paid. 

D. IT IS FURTHER ORDERED that •the Respondent pay the back pay and 

interest awarded herein within the next 30 days. 

E. IT IS FURTHEK ORDERED that theRespondent clear the employment records of the Complainants identified in Part B of this order of all 

unfavorable references, if any, concerning the activities that occurred prior 

to 8:15 a.m. on January 30, 1980.• 

F. IT IS FURTHER ORDERED that Respondent refrain from discriminating against or interfering with the Complainants identified in Part B of this 

order because o/ any activities which are protected under section i05(c) of 

the 1977 Mine Act. 

G. IT IS FURTHER ORDERED that Respondent reimburse the Complainants 

identified in Part B of this order for all costs and 

expenses, including 

attorney's fees, reasonably incurred in connection with this proceeding. 

Counsel for the parties are directed to confer and attempt to agree as to 

the amount of such costs and expenses. If they are unable to agree, the 

Complainants identified in Part B of this order will, within 60 days from 

the date of this decision, file an itemized statement of costs and expenses. 

Thereafter the Administrative Law Judge will, after affording the parties an 

opportunity to be heard, determine the amount of reimbursable costs and 

expenses to be recovered by the Complainants identified in Part B of this 

order. For this purpose, I retain jurisdiction of this proceeding. 

H. IT IS FURTHER ORDERED that the Respondent within 15 days from the 

date of this order, post a copy of this decision and order on all bulletin 

boards at the mine where notices to miners are normally placed and shall keep it posted there, unobstructedand protected from the elements and from 

unauthorized removal, for a consecutive period of 60 days. 

/ 2Fohn F. Cook 

" 

JAdminlstrative Law Judge 

792 
Distribution: 

Kenneth J. Yablonski, Esq., Yablonski, King, Costello & Leckie, 

500 Washington Trust Building, Washington, PA 15301 (Certified Mail) 

Thomas W. Ehrke, Esq., Senior Industrial Relations Attorney-Coal, 

Bethlehem Mines Corporation, Room 1871, Martins Tower, Bethlehem, 

PA 18016 (Certified Mail) 

Harrison B. Combs, Jr., Esq., United Mine Workers of America, 900 15th 

Street, NW., Washington, DC 20005 (Certified Mail) 

Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Certified Mail) 

Administrator for Metal and Nonmetal Mine Safety and Health, U.S. Department of Labor 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

793 .- 
IIECK 

UM.•ER 

503 

510 

76 

349 

655 

72 

87 

132 

152 

674 

4•9 

112 

114 

273 

62 ; 

35 

598 

611 

21 

36 

78 

89 

• 

lot 

NAME 

m 

Mayernlk M. 

Ezarik J. S. 

Avery P. E. 

anovich Ant A. 

Jr. Rosemler, H. E. 

Zoldak M. 

Olesky. 

J. 

Avery C, 

Clark E. W. 

Casper L. 

Paullsh F. 

Thompson H. J. 

Barker R. A. 

Rusilko A. 

Pape F. W. 

Nonack D. P. 

Wytovich M. 

Rosena A. W. 

Vahaly 

J. 

-Miller G. B. 

Scott E. 

Filby R. 

Phillips L. C. 

Jr. Seykoski, 

J. A. 

STATUS COMPLAINANT 

SUMMARY 

'80 30, Jan. 

30, 

Jan. REGI•JAItLY 

' 

80 

OF AMOUNT WOI•(ED HOURS SClIEDULED 

HOURS FOR PAID AND HOURS REQUESTED 

8 

- 

None 0 

8 

(RSST-8AM) 

6 i. 6.4 

8 

" 

.4 i 6.6 

8 

" 

1.4 6.6 

8 

" 

1.4 6.6 

8 

" 

1.6 6.4 

8 

" 

4 i. 6.6 

8 

" 

1.4 6.6 

8 

" 

1.6 6.4 

8 

" 

1.4 6.6 

8 

" 

1.4 6.6 

None I0 - i0 

8 1.4 6.6 (RSST-8AM) 

8 

"" 

4 i. 6.6 

None 8.5 8.5 

None 8.5 

- 8 

None 8.5 

- 8 

None 8 - 8 

None 8.5 

- 8 

8 4 i. 6 6, (RSST-8:15AM) 

8 None 0 

- 

1.4 6.6 (RSST-8:15AM) 8 

8 1.4 6.6 (RSST-SAM) 

8 

" 

1.4 6 •. 

3rd : KI,.T 

ist 

2nd 

(RSST

INEL

Abse

Wor

Work

Work

Worke

Work

Work

Work
c.iicz 

Elt il :'1U;4 

123 

129 

16o 

279 

280 :. 

322ii 

3-45 

352 

402 

434 

435 

436 

4381 

439 

444 

1,/•6 

474 

498 

664 

137 

171 

235 

3•t 

392 

NAME 

Johnson D. 

Clark W. D. 

Jr. Cursi, A. 

Zukauckas J. C. 

A. S. 

Jestat 

Pysh L. T. 

JibleCs M. J, 

Brown L. W. 

Forte T. S. 

Evans J. o. 

Watkins R. K. 

Kurucz J. J. 

HoyC L. M. 

Smith J, T. 

Wyto•ich D." 

 Stauffer D. R. 

Conner L. Wo 

Harris T. R. 

Philllps D. 

Pabian F. 

Zaharsky F. M. 

Wheeler R. G. 

Rocco J. C. 

Burger M. T. 

Zukauckas C. 

Mulac R, 

-2- 

'80 30, Jan. 

REGLq,ARLY 30, Jan. 

' 

80 

WOIU(ED IIOURS $CIIEDULED 

FOR PAID AND HOURS 

0 8- 

8 

(RSST-8:I5AM) 

6.6 

6.6 8- 

8 

(RSST-8 

= 15AM) 

6.6 

8 

" 6.6 

8 

" 6.6 

8 

(RSST-8AM) 

6.6 

8 

" 6.6 

8 

" 

6.9 

8 

" 

6.6 

6.9 (RSST-7:45AM) 8 

8 (RSST-8AM) 6.9 

8 

" 6.6 

8 

" 

6.4 

7.3 (RSST-7:45AM) 8 

6.6 (RSST-8AM) 8 

0 8- 

6.5 15AM) (RSST-8: 8 

8 

" 

6.6 

8 6.9 45AM) (RSST-7: 

0 8.5- 

7.3 (RSST-8:15AM) 8 

8 

" 

7.3 

6.9 (RSST-8AM) 8.5 

8.5 

" 

6.9 

8.5 

" 

6.9 

OF AVOUNT 

REQUESTED. HOURS 

None 

1.4 

None 

1.4 

1.4 

1.4 

1.4 

1.4 

1.1 

1.4 

1.1 

1.1 

1.4 

1.6 

.7 

1.4 

None 

1.5 

1.4 

1.1 

None 

.7 

.7 

1.6 

1.6 

1.6 

Workm

Volun

Person

went 

Float

went 
=IIECK 

:;U:.•I•I,;R 

477 

513 

630 

668 

28). 

42 

431- 

504 

50 

57 

73 

82 

 117 

1.31 

188 

h: 

: 4,75 

$XX 

521 

l0 

31 

". 124 

628° 

121 

.•to 

L. 

NAME 

Grimes P. T. 

Error P. 

Clark S, 

• 

Stachowicz S. 

Merashoff M. R. 

Jr. Durko, S. 

Pruskl T." L. 

Perri F. 

Viara J, 

Royster D. 

White W. 

Guriel N. 

Fiem C. J. 

Robertson S. 

Washlack J. C. 

Jr. Mox, S. 

Taylor B. R. 

F£dazzo J. 

: 

J..Stein F. 

Emery 

L. R. 

Chaney A, 

B£zet T. 

Taylor T. 

DiBasilio F. 

Ancanovich J.. 

Ercegovich A.. 

-3- 

'80 30, Jan. 

I{ECULARLY' 30, Jan. 

' 

80 

WORKED flOURS SCIIEDULED 

FOR PAID AND flOURS 

6.9 (RSST-8AM) 8.5 

0 8.5 

6.9 (RSST-SAM) 8,5 

0 8.5 

8.5 9..0 

6.6 (RSST-8:15AM) 8 

8 

" 

6.6 

6.4 (RSST-8AM) 8 

8 

" 

6.4 

0 8- 

7,8 (RSST-7-45AM) 8.5 

8.5 

" 

6.9 

8.5 

" 

7.8 

8.5 

" 

6.9 

8.5 

" 

6.9 

0 8- 

7.8 (RSST-7:45AM) 8.5 

8.5 

" 

7.8 

8;5 

- 0 

6.9 4.SAM) (RSST-7: 8 

8.5 

" 

6.9 

8.5 

" 

6.9 

8.5 

" 

g, 

6. 

8.5 

" 

6.9 

8.5 

" 

6.9 

0 8- 

OF AHOUNT 

REQUESTED. 

HOURS 

1.6 

None 

1.6 

None 

None 

1.4 

1.4 

1.6 

1.6 

None 

.7 

1.6 

.7 

1.6 

1.6 

None 

.7 

.7 

None 

I,I 

1.6 

1.6 

1.6 

1.6 

1.6 

None 

Floa

went 

Abse

dispu

Abse

disp

Person

went 

Abse

d£up

Person

wenth
•: 

6•5.9..-.. 

660 

23 

z•5 

46 

-• 

.u:• 

219 

-286 

303 

31o 

34Q 

364 

369 

387 

401 

4oL 

406 

427 

45.5 

457 

500 

509 

h5 

5"27 

NAMF, 

':Fidazzo J, 

E. C. -Montgomery 

Carnathan E. J.. 

Z'arambo I•. J. 

Hartos S. R. 

'HartOs J. A. 

Vilcesk M. G. 

Wiley 

:E. K. 

Stepko 

J. J. 

Femia V. F. 

Perchlnsky W. $. 

Ezarik, S. 

Glemba S, J. 

Zgorllskl E. T. 

Fiem R. A. 

SCicchi•ano L. R. 

Stepko 

J. 

Hopkins R. 

Skirchak A. P. 

Hrutkay N. L. 

Denny C. G. 

Bostich G. 

•iberie L. D. 

'80 30, Jan. 

'80 30, Jan, r£EGULARLY 

WORKED flOURS SCIlEDULED 

FOK PAID AND llOUIIS 

AM):6.:4 (RSST-7:45 :8 

8 6.'4 (RSST-8AM) 

_ 8.•5 

:8 

' 

(RSST-7AM) 

;8 (RSST-8AM) 

8 

: 

. 

" 

"•., II: 

' 

.. 

(RSST-7AM) 8 

:(RSST-8AM) 8 

(RSST-7AM) 8 

8 

8 

(RSST-8AM) 8 

(RSST-7AM) 8 

8 

II 

8 

8 

8 

I! 

. 

8 

8 

8 

8 

8 

8 

8 

8 

" 

0 

9•0 

5.9 

7.5 

6.• 

5.9 

6.6 

6,6 

5.4 

5.4 

6.4 

7.9 

5.4 

6.9 

5.4 

5.4 

7.9 

7.9 

5.4 

5.4 

5.9 

6.9 

5.4 

5.4 

OF AMOUNT 

HOURS R]"q•':STED 

1.6 

•5 

1.6 

None 

None 

2.1 

.s 

1.6 

2.1 

1.4 

1.4 

2.6 

2.6 

1.6 

.i 

2.6 

i,i 

2.6 

2.6 

.i 

.i 

2.6 

2.6 

2.1 

1.1 

2.6 

2.6 

 

..... 

•i. 

•! :- 
:;U;{I•ER 

299 

331 

377 

407 

606 

638 

6"• 

25 

65 

86 

107 

163 

189 

522 

654 

699 

263 

 441 

502 

60 

143 

253 

297 

'432 

472, 

NAHE 

Kados F. D. 

Zamiska H. J. 

Piaseckl F. J. 

Gatling K. 

Vischio F. B. 

Antanovich L. J. 

Kuboveik S. J. 

Rankl A. 

Bosick N. 

Rebich J. M. 

Huey L. 

Levers D. 

Hotichak J. 

Lacock J. E. 

Poye,,Jr. M. 

Dreyer D. 

Ambrosey E. 

Kennedy R. J. 

Puskarich E. J. 

Rados T. R. 

Pasqualiucci T. 

Phillips S. 

Karpoff E. J. 

Cecil H. T. 

Dranzo A. R. 

Merashoff J., W. 

Thompson K.•G. 

-5- 

'80 30, Jan. 

30, 

Jan. REGULARLY '80 

WORKED }fOURS SCHEDULED 

FOR PAID AND IIOURS 

8 

(RSST-8AM) 

9.0 

8 6.6 

', 

8 

(RSST-7:45AM) 

6.4 

8 

(RSST-8AM) 

6.6 

8 

45AM) : (RSST-7 

6.4 

8 

(RSST-8AM) 

6.'6 

8 6.6 

,, 

8.5 8,- 

8 6.6 (RSST-8AH) 

8 

" 

6.6 

8 

" 6.6 

0 8- 

8 6.6 (RSST-8AM) 

8 

" 

6.6 

8 

" 

6.6 

0 8- 

8 

(RSST-8AM) 

6.4 

8 

(RSST-8:15AM) 

6.6 

8 

(RSST-8AM) 

6.6 

8 

(RSST-8:ISAM) 

6.6 

9,5 8- 

8.0 8- 

8.5 (RSST-8:ISAM) 

6.0 

0 8- 

0 8- 

0 8- 

6.5 (RSST-8AM) 8 

OF AMOUNT 

REQUESTED HOURS 

None 

1.4 

1.6 

1.4 

1.6 

1.4 

1,4 

None 

1.4 

1.4 

1.4 

None 

1.4 

1.4 

1.4 

None 

1.6 

1.4 

1.4 

1.4 

None 

None 

2.5 

W

A

None 

w

Absent; 

- 

dispute 

w

Absent; 

- None 

dispute 

None 

Personal 

_ 

home went 

1.5 
ClIE•K 

NU::BER 

645 

676 

157 

161 

128 

173 

172 

I05 

i15 

164 

14 

187 

191 

80 

267 

176 

 

260 

-6- 

'80 30, Jan. 

30, Jan. ULAId,Y REC, 

' 

80 

OF A•IOUNT WORKED }fOURS SCIIEDLU•ED 

HOURS FOR PAID AND HOURS NAME REQUESTED 

5 i. 6.5 (RSST-8AM) 8 Rossero L. 

8 Linnen J. 

" 

1.5 6.5 

8 Dean W. None 8.5 

- 

None 8.5 

- 8.5 Black D. G. 

6.9 (RSST-8AM) 8 DiBasillo L. i.i 

8 Kiski A. 

" 

i.i 6.9 

4 i. 6.6 15AM) : (RSST-8 8 Deresh E. 

8 Toth M. 

" 

1.4 6.6 

1.6 6.4 (RSST-8AM) 8 DiBasillo J. J. 

8 Maln E. R. 

" 

1.6 6.4 

8 Johnson L. J. 

" 

1.6 6.4 

8 Prepski E. J. 

- None 8.0 

R. 

• 

8 Boothe A. 

- None 8.5 

5 i. 6.5 (RSST-8:ISAM) 8 Timlln E. J. 

8 Franklin W. N. 

- None 0 

None 0 

- 8 Jr. Thompson, H. J. 

1.4 6.6 (RSST-8:ISAM) 8 Ambrosy W. H. 

8 Dean A. G. 

" 

1.4 6.6 

8 McKeta S. G. 

" 

1.4 6.6 

A
,FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

•" 

i : 333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

V. 

Petitioner, 

MAGMA COPPER COMPANY, 

Respondent. 

CIVIL PENALTY PROCEEDING 

DOCKET NO. •ST 79-79-M 

) A/O No. 02-00151-05009 

) DOCKET NO. •ST 79-158-M 

) A/O No. 02-00842-05007 

) DOCKET NO. WEST 79-351-M 

) A/O No. 02-01391-05004 

) DOCKET NO. WEST 79-382-M 

) A/O No. 02-00151-05011 

) DOCKET NO. DENV 79-485-PM 

) A/O 02-00151-05008 

) 

) MINE: SAN •NUEL 

) 

ORDER OF CORRECTION 

After issuing his decision in the above captioned cases, the 

undersigned Judge became aware of a clerical discrepancy between the body 

of the decision, and the conclusions and order. Sothat the conclusions 

and order conform to the body of the decision, the following corrections 

are made: 

i) The first sentence on page fourteen (14) should read: 

"Respondent violated 30 C.F.R. § 57.12-16 as alleged in 

Citation 377071." 

2) On page fourteen (14), above the heading, "Docket Number 

WEST 79-351," is inserted a heading, "Docket number WEST 

79-79-M." Under that heading an entry reading "Citation 

Number 377071: $50.00" is inserted. The total for that 

docket number should also be $50.00. 

3) On page fifteen (15), on the last line of the order, 

the total assessed penalty is corrected to be $342.00 

instead of $292.00. 

Decision Dated: February 4, 1981 

Volume 3, Number 2 

Pg. 345 

800 
Additionally, on page fourteen (14), the second line ,ruder the 

sub-heading "Docket Number WEST 79-158-M" is corrected to read "Citation 

Number 376969 $225.00." 

hn A. Carlson 

ministrative Law Judge 

Distribution: 

Alan M. Raznick, Esq. 

Office of the Solicitor 

United States Department of Labor 

11071 Federal Building 

450 Golden Gate AVenue 

San Francisco, California 94102 

N. Doublas Grimwood, Esq. 

Twitty, Sievwright & Mills 

1700 Towne House Tower 

100 West Claredon 

Phoenix, Arizona 85013 

Dated: March 6, 1981 

*U s GOVERNI4ENT PRZNT|NG OFFICE: |gqBl 341-638/4153 

801