DECEMBER 1993 

COMMISSION DECISIONS AND ORDERS 

12-06-93 

12-09-93 

12-13-93 

secretary Labor on behalf of Loy Peters 

v. Thunder Basin Coal Company 

Air Products and Chemicals, Inc. 

et al. 

WEST 93-652-D 

PENN 91-1488-R 

12 16-93 

12-17-93 

Donald Guess and Paul Shirel, employed 

by Pyro Mining Company KENT 91-1340 

WEVA 92-783 

Shepherd 

United States Steel Mining Company 

Secretary Labor on behalf of Danny 

v. Sovereign Mining Company 

12-21-93 Martinka Coal Company 

12-22-93 

12-22-93 

Harold Mitchell, employed by H B & B 

Equipment Company 

Vincent Braithwaite v. Tri-Star Mining 

.ADMINISTRATIVE LAW JUDGE DECISIONS 

12-07-93 

12-08 93 

12-08 93 

12 08 93 

12-09-93 

12-16-93 

12-1.7-93 

1.2-20-93 

12-21-93 

12 30-93 

1.2-30-93 

Materials Delivery 

USWA on behalf of Ronald Shane Bird v. 

General Chemical Company 

Thomas P. Gates v. Gouverneur Talc Co. 

Manalapan Mining Company 

Sec. Labor on behalf of Herbert Collins 

v. J & S Collieries, Inc. 

Slade Vanover v. Shamrock Coal Company 

Jamieson Company 

Consolidation Coal Company 

Benevento Sand and Gravel 

Peabody Coal Company 

sec. Labor on behalf of Carroll Johnson 

and UMWA v. Jim V.1al ter Resources 

.ADMINISTRATIVE LAW JUDGE ORDERS 

12-21 93 Sagniaw Mining Company 

KENT 94-69-D 

WEVA 93-45-R 

VA 92 1.80 

WEVA 91-2050-D 

VA 93-69-M 

WEST 92-596-DM 

YORK 93-135-DM 

KENT 93-666 

KENT 93-910-D 

KENT 93-359-D 

WEST 92-314-M 

WEVA 92-873-R 

YORK 93-138-M 

KENT 93-369 

SE 93-182-D 

LAKE 93-165 

Pg. 2425 

Pg. 2428 

Pg. 2440 

Pg. 2445 

Pg. 2450 

Pg. 2452 

Pg. 2458 

Pg. 2460 

Pg. 2467 

Pg. 2475 

Pg. 2494 

Pg. 2499 

Pg. 2502 

Pg. 2505 

Pg. 2549 

Pg. 2558 

Pg. 2569 

Pg. 2578 

2588 

Pg. 2602 

DECEMBER 1993 

Review was granted in the followins case during the month of December; 

Secretary of Labor on behalf of Danny Shepherd v. Sovereign Mining Company/ 

Docket No. KENT 94-69-D. (Judge Feldman/ November 18 1 1993.) 

Secretary of Labor, MSHA v. Harold Mitchell, employed by H B & B Equipment 

Company, Docket No. VA 92-180. (Chief Judge Merlin, Default Decision of May 

20, 1993 -unpublished.) 

Secretary of Labor, MSHA v. Fort Scott Fertilizer-Culler, Inc., et al., Docket 

No. CENT 92-334-M and CENT 93-117-M. (Judge Feldman, November 18, 1993.) 

There were no cases filed in which review was denied. 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

on behalf of LOY PETERS, 

DONALD GREGORY, and 

DARRYL ANDERSON, 

Complainants 

v. 

THUNDER BASIN COAL COH.PANY, 

Respondent 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 6, 1993 

DECISION 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. WEST 93-652-D 

In this discrimination proceeding arising under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("the Mine Act"), 

Thunder Basin Coal Col!lpany ("respondent") has filed a petition for 

discretionary review of Administrative Law Judge Arthur J. Amchan's November 

2, 1993, order of temporary reinstatement, issued pursuant to Commission 

Procedural Rule 45, 58 Fed. Reg. 12158 (March 3, 1993), to be codified at 29 

C.P.R. § 2700.45 (1993). We grant respondent's petition for discretionary 

review and, for the reasons that follow, affirm the judge's order requiring 

the temporary reinstatement of Loy Peters, Donald Gregory, and Darryl Anderson 

("complainants"). 

Complainants were employed at respondent's Black Thunder mine as 

technicians-welders when they were laid off on July 8, 1993. On August 31, 

1993, complainants jointly filed a discrimination complaint with the Secretary 

of Labor ("Secretary") pursuant to Section 105(c)(2) of the Mine Act, alleging 

illegal discharge. Following an investigation, the Secretary determined that 

the discrimination complaint filed by the miners was not frivolous and on 

September 24, 1993, filed an application for temporary reinstatement. The 

Secretary alleged that each of the complainants was illegally discharged in 

retaliation for exercising specified statutory rights protected under the Mine 

Act. Respondent contended that the termination of the three complainants 

occurred as a result of a legitimate business decision to reduce its work 

force at the Black Thunder Mine by 34 miners. On October 20 and 21, 1993, an 

evidentiary~hearing on the application was held. On November 2, 1993, the 

judge issued his decision, concluding that the complaint of illegal discharge 

filed by the three miners was not frivolous. 

2425 
After conducting an extensive evidentiary hearing consisting of 

testimony from seven witnesses and the admission into evidence of 50 exhibits, 

the judge evaluated the evidence as to each individual complainant and 

concluded, "[T]he Secretary has met his burden in establishing that the 

discrimination complaints of Loy Peters, Darryl Anderson, and Donald Gregory 

alleging retaliatory discharge on July 8, 1993 are 'not frivolous.'" Slip 

op. at 12 

As the Commission has previously stated, "The scope of a temporary 

reinstatement hearing is narrow, being limited to a determination by the judge 

as to whether a miner's discrimination complaint is frivolously brought." 

Secretary of Labor o.b.o. Price and Vacha v. Jim Walter Resources, Inc., 9 

FMSHRC 1305, 1306 (August 1987), aff'd, Jim Walter Resources. Inc. v. fMSHRC, 

920 F.2d 738 (11th Cir. 1990). That is the only issue before us. We have 

carefully reviewed the record, the petition for discretionary review, and the 

Secretary's response thereto, and conclude that the judge's determination that 

the complaint of the three miners is not frivolous is supported by substantial 

evidence and is consistent with applicable law. 

Respondent has additionally applied for a stay of the order of temporary 

reinstatement. Upon review of the application, and the Secretary's response 

in opposition thereto, we deny the application for a stay. We note, however, 

that respondent's alternative request that the complainants be economically 

reinstated has been accepted by the individual complainants. Secretary's 

Response in Opposition to Petition for Discretionary Review and Application to 

Stay Order at 25 n.l5. 

Accordingly, the judge's order requiring the temporary reinstatement of 

Loy Peters, Donald Gregory, and Darryl Anderson is affirmed. 

Arlene Holeri,Chairlllail 

L. Clair Nelson, Commissioner 

2426 
Distribution 

Colleen Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Laura Beverage, Esq. 

Jackson & Kelly 

1660 Lincoln Street 

Denver, CO 80264 

Administrative Law Judge Arthur J. Amchan 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

2427 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 9, 1993 

AIR PRODUCTS AND CHEMICALS, INC. 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Docket No. PENN 91-1488-R 

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

DECISION 

BY: Backley and Nelson, Commissioners1 

This contest proceeding arises under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"). It 

involves a citation alleging a violation of section 103(a) of the Mine Act 

issued to Air Products and Chemicals, Inc. ("Air Products") after it denied an 

inspector of the Department of Labor's Mine Safety and Health Administration 

("MSHA") entry to its Cambria Co-Generation Facility ("Cambria") . 2 Administrative Law Judge Gary Melick vacated the citation. 13 FMSHRC 1657 (October 

199l)(ALJ). He concluded that, although MSHA had statutory jurisdiction over 

coal handling portions of the Cambria operation, MSHA had failed to displace 

the enforcement authority of the Department of Labor's Occupational Safety and 

Health Administration ("OSHA"). 13 FMSHRC at 1661-63. The Commission granted 

cross-petitions for discretionary review of the judge's decision filed by the 

Secretary of Labor and Air Products. For the reasons discussed below, we 

affirm the judge's decision in part and reverse in part. 

1 Commissioners Backley and Nelson join in this op1n1on to reverse the 

judge's determination that Air Products and Chemicals, Inc. did not violate 

section 103(a) of the Mine Act, 30 U.S.C. § 813(a). Commissioner Doyle, writing 

separately, concurs in result with Commissioners Backley and Nelson. Chairman 

Holen, dissenting, would vacate the citation alleging a violation of section 

103(a) and affirm in result the judge's decision. 

2 Section 103(a) of the Act provides in pertinent part that "any authorized 

representative of the Secretary ... shall have a right of entry to, upon, or 

through any coal or other mine." 30 U.S.C. § 813(a). 

2428 
I. 

Factual and Procedural Background 

Cambria uses bituminous coal refuse and "run-of-mine" coal to produce 

electricity and steam. 3 13 FMSHRC at 1658, The coal refuse, provided by RNS 

Services, Inc. ( "RNS") , is delivered by truck to Cambria. 4 The refuse is 

deposited into a hopper, where it passes through a grizzly, which separates 

and removes over-sized material. Id. The refuse is transferred, stored, and 

then conveyed to a Bradford breaker, which breaks and screens the material in 

a rotating drum. Id. The material is further screened, sized, crushed, and 

stored until it is fed into combustion boilers. Id. The run-of-mine coal is 

delivered by truck to a hopper, then transferred, and stored. Id. That 

material also is screened, sized, crushed, and stored until it is burned. 13 

FMSHRC at 1658-59. 

On August 2, 1989, during the initial stages of Cambria's construction, 

MSHA Subdistrict Manager Tim Thompson met with Air Products officials to 

determine whether the facility was subject to Mine Act jurisdiction. 13 

FMSHRC at 1659. Air Products indicated that the refuse supplier would perform 

coal processing at its mine before the refuse was transported to Cambria, and 

that Air Products would only customize the refuse by sizing and crushing it to 

the particular specifications required by its boiler. Id. Thompson advised 

Air Products that Cambria would not fall within MSHA's jurisdiction. Id. 

Air Products completed construction of the facility and trained its 

employees in accordance with OSHA specifications and regulations. 13 FMSHRC 

at 1659-60. In August 1990, OSHA conducted a routine inspection of the entire 

plant and issued citations. 13 FMSHRC at 1660. 

In September 1990, MSHA discovered that RNS would not be performing 

onsite processing but that processing would take place only at Cambria. 13 

FMSHRC at 1659. Subdistrict Manager Thompson telephoned Terry Lane, a 

regional administrator for OSHA, explaining his belief that MSHA had 

jurisdiction over the Cambria coal handling facilities and inviting Lane to 

attend a meeting on October 31 to discuss Mine Act jurisdiction. 13 FMSHRC at 

1659; Tr. 125. Thompson testified that Lane stated that he would not attend, 

but that someone from OSHA's Pittsburgh office might attend. 13 FMSHRC at 

1659; Tr. 125. No OSHA representatives were present at the meeting, and MSHA 

did not further contact OSHA. 13 FMSHRC at 1659. 

During the October meeting, Thompson and Air Products officials 

discussed the fact that RNS was not screening or sizing the coal before 

delivering it to Cambria and that Air Products had acquired and was using a 

Bradford breaker. Tr. 84-85, 104-05, 148-49. Thompson advised Air Products 

3 Refuse is material rejected in initial coal processing. Tr. 62, 102. 

"Run-of-mine" coal is coal that has not been processed. Tr. 74. 

4 MSHA asserts jurisdiction over RNS and its independent contractors. Tr. 

64-65, 73-74. 

2429 
that Cambria's coal handling facilities were subject to Mine Act jurisdiction. 

13 FMSHRC at 1659. MSHA officials subsequently examined the coal handling 

facilities at Cambria, and again met with Air Products, confirming MSHA's 

asserted jurisdiction. Tr. 85-86. 

In April 1991, the Associate Solicitor of Labor concluded in a written 

opinion that certain of Cambria's coal handling facilities fell within Mine 

Act coverage. S. Exh. 4; Tr. 90. On May 24, 1991, during a compliance 

assistance visit at the Cambria plant, MSHA Inspector Gerry Boring discussed 

the Solicitor's opinion with an Air Products official. Tr. 92. On September 

5, 1991, upon returning to the facility to conduct a routine inspection, 

Inspector Boring was denied entry and, accordingly, issued a citation alleging 

a violation of section 103(a) of the Mine Act. Tr. 46-47. The citation was 

terminated after the plant manager allowed him entry. 5 S. Exh. 1; Tr. 47. 

Air Products subsequently contested the citation, and an expedited hearing was 

held before Judge Melick. 

The judge found that some areas in the Cambria plant were subject to 

Mine Act jurisdiction since they contained "structures," "equipment," and 

"machinery" used in the "work of preparing the coal", as that phrase is 

defined in section 3(i) of the Mine Act, 30 U.S.C. § 802(i). 13 FMSHRC at 

1661. The judge vacated the citation, however, because he determined that 

MSHA's inspection of the Cambria facility did not reflect "a reasoned 

resolution of the jurisdictional question by the Secretary and her agencies" 

but, rather, "resulted from an ad hoc unilateral assertion of jurisdiction by 

MSHA." 13 FMSHRC at 1663 (citations omitted). 

II. 

Disposition of Issues 

A. Mine Act Jurisdiction 

Air Products argues that the judge erred in finding the Cambria facility 

a "mine" subject to the Mine Act, because although it engages in some of the 

activities listed in section 3(i) of the Act as the "work of preparing the 

coal," its preparation activities are not those usually performed by a coal 

mine operator. A.P. Br. at 5, 12. Air Products states that it does not 

prepare coal for resale but, rather, as the ultimate consumer, handles coal 

merely to consume it generating electricity. A.P. Br. at 9. 

Section 4 of the Mine Act, 30 U.S.C. § 803, provides that each "coal or 

other mine" affecting commerce is subject to the Mine Act. Section 3(h)(l) of 

the Mine Act, 30 U.S.C. § 802(h)(l), broadly defines "coal or other mine" as 

including "facilities, equipment [and] machines ... used in ... the work of 

preparing coal .... " The term "work of preparing the coal," as defined in 

section 3(i) of the Act includes "breaking, crushing, sizing [and] storage" of 

coal, and "such. other work of preparing ... coal as is usually done by the 

5 Boring issued additional citations, contests of which have been stayed 

pending disposition of this case. Tr. 48; A.P. Post-Arg. Br. at 5 n.l. 

2430 
operator of [a) coal mine." 

In Westwood Energy Properties, 11 FMSHRC 2408 (December 1989), the 

Commission concluded that a culm bank operation, in which culm (anthracite 

coal mining waste) was screened and crushed to the specifications required by 

Westwood's electric generation facility, was subject to Mine Act jurisdiction. 

11 FMSHRC at 2412-15. The Commission explained that Westwood, which performed 

some of the processes enumerated in section 3(i) of the Mine Act, engaged in 

the work of preparing coal that is usually done by a coal mine operator. 11 

FMSHRC at 2414-15. The Commission rejected Westwood's "ultimate consumer" 

argument that its facility was not subject to Mine Act jurisdiction because 

Westwood did not prepare coal for resale but, rather, for its own consumption. 

!d. 

The Commission applied similar reasoning in Pennsylvania Electric Co., 

11 FMSHRC 1875, 1879-82 (October 1989) ("Penelec"), concluding that conveyor 

head drives used to transport coal at an electric generation facility were 

subject to Mine Act jurisdiction. The United States Court of Appeals for the 

Third Circuit affirmed this determination, stating that "the delivery of coal 

from a mine to a processing station via a conveyor constitutes coal 

preparation 'usually done by the operator of a coal mine.'" Pennsylvania 

Electric Co. v. FMSHRC, 969 F.2d 1501, 1503 (3d Cir. 1992). 

Here, it is undisputed that Air Products engages at Cambria in some of 

the coal preparation activities enumerated in section 3(i) of the Mine Act, 

namely, breaking, crushing, sizing, and storing coal. A.P. Br. at 12; S. Br. 

at 10. In addition, both parties acknowledge that such activities are 

essentially similar in nature to those conducted at the Westwood facility. 

A.P. Br. at 21 & n.9, 32 n.l6; S. Reply Br. at 8-9. 6 Consistent with 

Westwood, we conclude that Air Products, which performs some of the coal 

preparation activities listed in section 3(i) of the Mine Act, engages in the 

work of preparing coal that is usually done by a coal mine operator. 7 This 

holding is also consistent with the Third Circuit's Pennsylvania Electric 

decision, in that the Cambria coal handling structures, equipment, and 

machinery, like Penelec's conveyor head drives, perform functions necessary in 

the "work of preparing the coal" before the coal is transferred to the boiler 

building to produce energy. We therefore affirm the judge's finding that 

Cambria's coal handling facilities are subject to Mine Act jurisdiction. 

6 Air Products does not dispute the judge's statement that: 

Air Products acknowledges that the nature of the 

facility herein is essentially indistinguishable from 

the nature of the facility found by the Commission in 

Westwood ... to be within Mine Act jurisdiction. 

13 FMSHRC at 1661. 

7 For the same reasons set forth in Westwood and Penelec, we reject Air 

Products's ultimate consumer defense. See Westwood, 11 FMSHRC at 2415; Penelec, 

11 FMSHRC at 1881. 

2431 
B. Preemption 

With respect to whether MSHA properly exercised its statutory enforcement authority sufficient to preempt OSHA's enforcement authority at Cambria, 

we note that the Secretary, through MSHA, has promulgated regulations in 30 

C.F.R. Part 77 (surface coal mines). Inspector Boring issued citations 

alleging violations of Part 77 as covering the working conditions at Cambria's 

coal handling facilities. 8 A.P. Post-Arg. Br. at 6-7; see Pennsylvania 

Electric, 969 F.2d at 1504, applying Columbia Gas v. Marshall, 636 F.2d 913, 

915-16 (3d Cir. 1980). Although these citations are not presently before us 

(n.5, supra), there is nothing in the record to persuade us that the cited 

surface coal regulations in Part 77 may not colorably be applied to Cambria's 

coal handling facilities. In addition, it is noteworthy that before Inspector 

Boring issued the citations alleging violations of Part 77 and the access 

citation, Air Products had been provided adequate notice, through meetings 

with MSHA and a compliance assistance visit, that MSHA would be asserting Mine 

Act jurisdiction over those areas of Cambria listed in the Solicitor's opinion 

as subject to Mine Act jurisdiction. See Westwood, 11 FMSHRC at 2416; 

Penelec, 11 FMSHRC at 1883. In these circumstances, we reverse the judge's 

conclusion that MSHA had not properly asserted its jurisdiction. 

C. Violation 

As to the issue of violation before us, the relevant factual record and 

applicable legal principles are sufficiently clear for resolution on review 

without the necessity of a remand. The evidence is undisputed that Air 

Products denied Inspector Boring entry based upon its belief that the Cambria 

facility was not subject to the Mine Act. Tr. 46. Section 103(a) of the Act 

(n.2 supra) grants authorized representatives of the Secretary a right of 

entry into all mines for the purpose of performing inspections. See, ~. 

Calvin Black Enterprises, 7 FMSHRC 1151, 1156 (August 1985); United States 

Steel Corp., 6 FMSHRC 1423, 1430-31 (June 1984); see generally Donovan v, 

Dewey, 452 U.S. 594, 598-606 (1981). Given our conclusions above, Air 

Products violated section 103(a) by denying Inspector Boring entry. 

Accordingly, we reverse the judge's determination that Air Products did not 

violate section 103(a), and we affirm the citation. 

8 Under section 4(b)(l) of the Occupational Safety and Health Act (the 

"OSHAct"), 29 U.S.C. § 653(b)(l), OSHA standards apply to working conditions 

unless another federal agency exercises its statutory authority in a manner 

preempting OSHA coverage. See Penelec, 11 FMSHRC at 1878-79. In Pennsylvania 

Electric, the Third Circuit stated that OSHA preemption analysis requires the 

application of a two-part test: 

(1) [whether] a regulation was promulgated by a ... 

federal agency other than OSHA; and (2) whether the 

regulation promulgated covers the specific "working 

conditions" at issue. 

969 F.2d at 1504, citing Columbia Gas v. Marshall, 636 F.2d 913, 915-16 (3d Cir. 

1980). 

2432 
Finally, we find it appropriate to reiterate our concern, expressed in 

detail in Penelec, 11 FMSHRC at 1885, and Westwood, 11 FMSHRC at 2418-19, that 

the Secretary continues to avoid resolving disputes with operators regarding 

dual regulation by OSHA and MSHA at electric generation facilities without 

implementation of the procedures set forth in the Department of Labor's MSHAOSHA Interagency Agreement, 44 Fed. Reg. 22827 (April 17, 1989), amended 48 

Fed. Reg. 7521 (February 22, 1983)("Interagency Agreement"). Conflicting 

indications of enforcement authority by the Secretary, through MSHA and OSHA, 

may create confusion, compromise safety, and result in higher costs of 

production as operators readapt their facilities to comply with competing 

regulations. Such confusion may increase upon promulgation of final safety 

standards by OSHA applicable to the operation and maintenance of electric 

power generation facilities. 9 Implementation of the Interagency Agreement 

procedures would resolve such jurisdictional confusion in an expeditious and 

effective manner, and we strongly urge the Secretary to follow such a course 

of action. 

9 OSHA has published proposed safety standards relating to electric power 

generation facilities. 54 Fed. Reg. 4974-5024 (January 31, 1989). The proposed 

standards have not yet been published as final rules. 

2433 
III. 

Conclusion 

For the reasons discussed above, we affirm the judge's determination as 

to jurisdiction, but reverse his determination that Air Products did not 

violate section l03(a) of the Mine Act. Accordingly, the citation is 

affirmed. 

Richard V. Backle~ 

L. Clair Nelson, Commissioner 

2434 
Commissioner Doyle, concurring: 

I am constrained to concur in the determination that the operations of 

Air Products and Chemicals, Inc. ("Air Products") fall within the jurisdiction 

of the Mine Safety and Health Administration ("MSHA") and to reverse the 

judge's decision, which vacated the citation because there was no evidence of 

a reasoned resolution of the jurisdictional question between MSHA and the 

Occupational Safety an.d Health Administration ("OSHA"). 

In Pennsylvania Electric Co. v. FMSHRC, 969 F.2d 1501 (3d Cir. 1992), 

the Court concluded that each of the activities listed in section 3(i) of the 

Federal Mine Safety and Health Act of 1977 ("Mine Act"), 30 U.S.C. § 802(i) 

( 1988) , as part of the "work of preparing the coal," wherever and by whomever 

performed and irrespective of the nature of the operation, subjects anyone 

performing that activity to the jurisdiction of the Mine Act, if MSHA has 

promulgated a regulation governing the working conditions at issue. 969 F.2d 

at 1503. 1 

It would appear that, under the Third Circuit's decision, the activities 

initially contemplated by Air Products (sizing and crushing coal) would also 

have subjected it to Mine Act jurisdiction, although, as found by the 

administrative law judge, MSHA advised Air Products that those activities 

would not bring it under the Mine Act. 13 FMSHRC 1657, 1659 (October 1991). 2 

1 Stroh v. Director, OWCP, 810 F.2d 61 (3d Cir. 1987), which 

noted that delivery both to the ultimate consumer of a finished product and to 

one purchasing and processing raw coal for its own consumption would fall 

outside Mine Act coverage. 810 F.2d at 64. In Pennsylvania Electric, the 

Court chose not to treat Pennsylvania Electric Company ("Penelec") as one 

purchasing and processing coal for its own consumption. Rather, it treated 

·the process facility, located "within [Penelec' s] electri.c generating 

plant" (969 F.2d at 1502), as a separate entity from Penelec's "energy 

producing fac " at 1504 (emphasis added). 

2 If MSHA has jurisdiction, it does not have the discretion to waive it 

as to some entities, as it did in settling the factually similar Westwood 

Ener~y Properties, 11 FMSHRC 2408 (December 1989). MSHA agreed not to 

exercise jurisdiction over Westwood while simultaneously claiming that the 

settlement agreement "[did] not constitute a change in policy by the Secretary 

regarding jurisdiction over other similar operations." Secretary's Motion to 

Approve Settlement and to Dismiss in Westwood at 2. The Secretary, in 

attempting to reconcile his inconsistent actions, relies on cases such as 

Heckler v. Chaney, 470 U.S. 821 (1985), which deal with an agency's decision 

not to exercise enforcement authority committed to its discretion. Sec. Br. at 

10-15. Those cases involve not only a different legal issue .(prosecutorial 

discretion vs. waiver of jurisdiction) but a different factual situation as 

well. Under the Mine Act, enforcement is not left to MSHA's discretion. 

Section 103(a) requires the agency to inspect all surface mines in their 

entirety at least twice each year. 30 U.S.C. § 813(a)(l988). 

2435 
In any event, given the breadth of the Third Circuit's holding. the 

judge must be reversed and the citation affirmed. 

2436 
Chairman Holen, dissenting: 

I respectfully dissent. Applying Judge Mansmann's analysis in her 

dissent in Pennsylvania Electric Co. v. FMSHRC, 969 F.2d 1501, 1506-17 (3d 

Cir. 1992), I would vacate the citation against Air Products and affirm the 

judge's decision in result. 

As Judge Mansmann observed, the operator of an electrical generating 

facility is not an operator of a coal mine, as that term is commonly 

understood. 969 F.2d at 1509. Further, if a coal consumer becomes a coal 

preparation facility within the meaning of section 3(h)(l) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 802(h)(l)(l988)("Mine Act"), by 

engaging in any of the activities listed in section 3(i), 30 U.S.C. § 802(i), 

the Mine Act potentially reaches every end user of coal. 969 F.2d at 1509-10. 

Such a broad interpretation is ultimately at odds with the legislative history 

of the Mine Act, which is directed to safety and health problems associated 

with mining activity. Id. at 1510. Judge Mansmann also reasoned that the 

Third Circuit's decisions applying section 3(h)(l) of the Mine Act to the 

Black Lung Benefits Act, 30 U.S.C. § 901 et seq. (1988), do not support 

coverage of ultimate consumers of coal, including those who prepare coal for 

their own use. at 1510-12 & u.S. Finally, she could find no basis for 

the preemption of jurisdiction of the Occupational Safety and Health 

Administration ("OSHA") by the Mine Safety and Health Administration ("MSHA"), 

in light of inconsistent and equivocal exercise of regulatory authority by 

MSHA. at 1513-17. Accordingly, Judge Mansmann concluded that the coal 

conveying activity at issue was part of the process of electrical power 

generation, rather than coal preparation. Id. at 1517. 

I also note that, although the Commission's op1n1on states that its 

holdings are consistent with Pennsylvania Electric (slip op. at 4), the 

opinion in fact contradicts the Third Circuit's reasoning in Pennsylvania 

The Third Circuit found plain the language of sections 3(h)(l) and 

3(i) of the 11ine Act, which define "coal or other mine" and "work of preparing 

the coal." 969 F.2d at 1503-04. The Commission apparently does not find that 

statutory language to be plain. It relies on Commission case precedents in 

Westwood Energy Properties, 11 FMSHRC 2408 (December 1989), and in 

Pennsylvania Electric Co., 11 FMSHRC 1875 (October 1989)("Penelec"). Slip op. 

at 4. Neither Commission case cited based its reasoning on the plain language 

of the relevant statutory language; both cases set forth interpretations of 

that language, citing in turn earlier Commission precedent in Oliver M. Elam. 

Jr .. Co., 4 FMSHRC 5 (January 1982). Westwood Energy Properties, 11 FMSHRC at 

2414; 11 FMSHRC at 1880-81. The Third Circuit's holding admitted no 

"nature of the operation test" as set forth in Elam nor any limitation on 

jurisdiction by MSHA over persons or facilities engaged in coal preparation, 

other than a regulation in place that covers the specific working conditions 

at issue. 969 F.2d at 1503-04. 

The Commission's op1n1on is further at variance with Pennsylvania 

Electric in that it examines, and finds adequate, the advance notice that MSHA 

provided to the operator before it asserted jurisdiction over the Cambria Cogeneration Facility ("Cambria"). Slip op. at 5. The Third Circuit's holding 

admitted no such examination of MSHA's enforcement actions: 

2437 
[T]he plain language of§ 4(b)(l) [of the Occupational 

Safety and Health Act, 29 U.S.C. § 653(b)(l)(l988)] 

indicates that the enforcement history surrounding a 

regulation is not relevant to the issue of whether 

another agency preempts OSHA. 

969 F.2d at 1505. 

I share my colleagues' concern that indications of conflicting safety 

enforcement authority by the Secretary of Labor through MSHA and OSHA create 

confusion, compromise safety and reduce productivity, as shifting policies 

force operators to modify facilities and work processes. 1 Slip op. at 6. 

Results of the Third Circuit's expansion of MSHA's jurisdictional reach 

in Pennsylvania Electric remain to be seen. The Third Circuit's decision in 

effect requires MSHA to inspect all facilities performing any of the coal 

preparation activities listed under section 3(i) of the Mine Act. MSHA may 

comply with that decision by increasing the variety and the number of 

facilities it inspects, pursuant to the inspection requirement of section 

103(a) of the Mine Act, 30 U.S.C. § 813(a). Alternatively, MSHA may attempt 

to continue its policy of exercising its jurisdiction selectively, as 

exemplified by its assertion of jurisdiction over Cambria and its agreement 

not to assert jurisdiction over the admittedly similar Westwood facility (see 

slip op. at 4 n.6; Westwood Energy Properties, 12 FMSHRC 1625, 1626 (August 

1990)(ALJ)). Unfortunately, the record in this case contains no suggestion 

that a reasoned resolution of overlapping safety enforcement schemes within 

the Department of Labor may be forthcoming. 

Arlene Holen, Chairman 

1 Counsel for the Secretary attempted to allay the Commission's concern, 

expressed at oral argument, and stated, "this case serves as a public notice 

of the Secretary's policy regarding enforcement over coal preparation 

facilities." Oral Arg. Tr. at 54. Counsel acknowledged, however, in 

Response to the Commission's Request for Information, that confusion will 

likely continue: 

If an operator is uncertain as to which agency's standards will 

apply to its operations, of course, it can eliminate any risk of 

noncompliance by complying with the stricter of the two standards 

where compliance with one standard automatically accomplishes 

compliance with both standards - or, where it does not, by 

complying with both standards directly. In the alternative -- and 

obviously more practical -- an operator who is uncertain as to 

which agency's standards will apply to its operations can simply 

approach MSHA and OSHA and ask. Indeed, an operator planning to 

construct a new facility can approach MSHA and OSHA and ask for 

clarification before it even constructs the facility. 

S. Response at 3. At Cambria, early discussions did not forestall confusion. 

2438 
Distribution 

Susan E. Long, 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

R. Henry Hoare, Esq. 

Buchanan Ingersoll 

600 Grant Street 

USX Tower, 57th Floor 

Pittsburgh, PA 15219 

Administrative Law Judge Gary Helick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

2439 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

DONALD GUESS, employed by 

PYRO MINING COMPANY 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PAUL SHIREL, employed by 

PYRO MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 13, 1993 

Docket No. KENT 91-1340 

Docket No. KENT 92-73 

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

DECISION 

BY THE COMMISSION: 

In these civil penalty proceedings arlslng under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act" or 

"Act"), the issue is whether employees of a partnership comprised of corporate 

partners may be subject to individual liability under section llO(c) of the 

Mine Act, 30 U.S.C. § 820(c). 1 The Secretary of Labor proposed the 

1 Section llO(c) provides, in part: 

Whenever a corporate operator violates a mandatory 

health or safety standard ... , any director, officer,or 

agent of such corporation who knowingly authorized, 

ordered, or carried out such violation, ... shall be 

subject to the same civil penalties, fines, and 

(continued ... ) 

2440 
assessment of civil penalties against Donald Guess and Paul Shirel for their 

alleged conduct in knowingly authorizing, ordering, or carrying out violations 

of mandatory safety standards by their employer, Pyro Mining Company ( "Pyro") . 

Administrative Law Judge Gary Melick dismissed the proceedings against Guess 

and Shirel on the grounds that section llO(c) applies only to agents of 

corporations and that Pyro was a partnership at the time of the violations. 

14 FMSHRC 1826 (November 1992)(ALJ). For the following reasons, we affirm the 

judge's decision. 

I. 

Factual and Procedural Background 

Pyro was a general partnership comprised of two corporations, which 

operated the William Station Mine, where Guess and Shirel were employed as the 

mine's maintenance foreman and production manager, respectively. Stips. 1, 8-

9 at Tr. 11-13; S. Br. at 13. In September and December 1991, the Secret~ry 

filed petitions proposing assessment of civil penalties against Guess and 

Shirel alleging they had knowingly authorized, ordered, or carried out Pyro's 

violations of mandatory safety standards at the mine. The cases were 

consolidated for proceedings before Judge Melick. Guess and Shirel filed 

motions for summary decision, asserting that Pyro was not a corporation at the 

time of the violations and that, accordingly, they were not subject to 

liability under section llO(c). 

Judge Melick granted respondents' motions for summary decision. He 

noted that, although the Secretary had stated in the civil penalty proposals 

that Guess and Shirel were acting as agents of a corporate operator at the 

time of their allegedly violative conduct, the undisputed evidence showed that 

Pyro was a partnership, not a corporation. 14 FMSHRC at 1827. The judge 

concluded that section llO(c) of the Act unambiguously provides for individual 

liability only against agents of corporations. 14 FMSHRG at 1828. 

Accordingly, he dismissed the proceedings. 14 FMSHRC at 1827, 1828. The 

Commission the Secretary's petition for discretionary review of the 

judge's dismissal. 

II. 

Disposition of Issues 

The Secretary argues that the judge's literal interpretation of section 

llO(c) of the Act thwarts the purpose of that provision and the Mine Act's 

overall purpose of protecting miners. He contends that Congress enacted the 

prov~s~on to reach individuals in large corporate operations, who would 

otherwise be immune, in order to hold those individuals personally liable for 

1 ( ••• continued) 

imprisonment that may be imposed upon a person under 

subsections (a) and (d) of this section. 

30 U.S.G. § 820(c). Section llO(c) was carried over without significant change 

from section 109(c) of the Federal Coal Mine Health and Safety Act of 1969, 30 

U.S.C. § 801 et seq. (1976)(amended 1977)("Coal Act"). 

2441 
decisions resulting in violations of mandatory safety or health standards. 

The Secretary argues that Pyro is a large operator and, because Pyro's 

partners are corporations, no individual associated with Pyro is ultimately 

responsible for the partnership's liabilities. In addition, the Secretary 

contends that the judge's literal interpretation of the provision leads to the 

anomalous result that an operator structured as a single corporation would 

constitute a corporate operator within the meaning of section llO(c), while an 

operator comprised of two corporations would not. In response, Guess and 

Shire! maintain that the language of section llO(c) of the Act unambiguously 

restricts individual liability to certain individuals associated with 

corporate operators, and that the judge correctly dismissed the civil penalty 

proceedings brought against them. 

The first inquiry in statutory construction is "whether Congress has 

directly spoken to the precise question at issue." Chevron U.S .A., Inc. v. 

Natural Resources Defense Council. Inc., 467 U.S. 837, 842 (1984). If a 

statute is clear and unambiguous, effect must be given to its language. 

Chevron, 467 U.S. at 842-43. Deference to an agency's interpretation of the 

statute may not be applied "to alter.the clearly expressed intent of 

Congress." K Mart Corp. v. Cartier. Inc., 486 U.S. 281, 291 (1988)(citations 

omitted). Traditional tools of construction, including examination of a 

statute's text and legislative history, may be employed to determine whether 

"Congress had an intention on the precise question at issue," which must be 

given effect. Coal Employment Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 

1989)(citations omitted). The examination to determine whether there is such 

a clear Congressional intent is commonly referred to as a "Chevron I" 

analysis. Id. 2 

Section llO(c) of the Act provides that whenever "a corporate operator 

violates a mandatory health or safety standard ... any director, officer, or 

agent of such corporation who knowingly authorized, ordered, or carried out 

such violation, ... shall be subject to the same civil penalties, fines, and 

imprisonment that may be imposed upon a person under subsections (a) and (d)." 

(Emphasis added.) The phrase "corporate operator" is followed by the phrase 

"of corporation" (emphasis added), and thus plainly refers to operators 

that are corporations. Therefore, on its face, section llO(c) of the Mine Act 

provides for individual liability only against agents of operators that are 

corporations. 

The legislative history of section llO(c) reveals no intention that the 

section itself should apply to persons other than those associated with 

corporate operators. Rather, by its terms, section llO(c) subjects specified 

corporate employees to the "same civil penalties, fines, and imprisonment" to 

which others are subjected under sections llO(a) and (d). (Emphasis added.) 

The legislative history of section llO(c) of the Mine Act, and its 

predecessor, section 109(c) of the Coal Act, manifests a Congressional intent 

2 If a statute is ambiguous or silent on a 

inquiry, a "Chevron II" analysis, is required to 

interpretation of the statute is a reasonable one. 

F. 2d at 1131. 

2442 

point in question, a second 

determine whether an agency 

Coal Employment Project, 889 
to proceed individually against persons employed by corporate operators "to 

assure that the decision-makers responsible for illegal acts of corporate 

operators would also be held personally liable for violations." Richardson v, 

Secretary of Labor, 689 F.2d 632, 633 (6th Cir. 1982), aff'g, Kenny 

Richardson, 3 FMSHRC 8 (January 1981), cert. denied, 461 U.S. 928 

(1983)(emphasis added). See also H.R. Rep. No. 563, 9lst Cong., 1st Sess. 11-

12 (1969), reprinted in Senate Subcommittee on Labor, Committee on Labor and 

Public Welfare, 94th Congress, 1st Sess., Part I Legislative History of the 

Federal Coal Mine Health and Safety Act of 1969, at 1041-42 (1975). Section 

llO(c) must be applied in accordance with its unambiguous language. 

We reject the Secretary's contention that the judge's literal 

interpretation of the provision thwarts its purpose and leads to an anomalous 

result. Section llO(c) is one part of a broader provision of the Mine Act 

that addresses the assessment of penalties against individuals and operators. 

We note that in Kenny Richardson the Secretary argued that Congress's decision 

to limit liability under section llO(c) to directors, officers and agents of 

corporate operators had a rational basis. 3 FMSHRC at 26-27. 

Accordingly, we hold that section llO(c) of the Mine Act provides for 

individual liability of agents of corporate operators only. Because the 

evidence is undisputed that Pyro was a partnership, and not a corporation, we 

affirm the judge's decision dismissing the civil penalty proceedings against 

Guess and Shirel. 

III. 

Conclusion 

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

z,~ Arlene Holen, Cha1rman 

.-0 /} 

c£~~~-v/:1~~-~ ·Richard V. Backley, CommiSSidher 

, / I /~·. . "---;·c· , //--:-(.(_.,., ___ ...__ "-' c t_ ·~ __ ,.,_, .·..._ 

L. Clair Nelson, Commissioner 

2443 
Distribution 

Colleen A. Geraghty, 

Office of the Solicitor 

U.S. Department of Labo~ 

4015 Wilson Blvd. 

Arlington, VA 22203 

Flem Gordon, Esq. 

Gordon & Gordon, P.S.C. 

P.O. Box 1305 

Madisonville, KY 42431 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Realth Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

2444 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 16, 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket No. WEVA 92-783 

UNITED STATES STEEL MINING 

COMPANY, INC. 

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

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding, arising under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), 

presents two issues: whether United States Steel Mining Company, Inc. ("U.S. 

Steel") violated a transportation safeguard issued under 30 C.F.R. § 75.14031 

and whether that violation was of a significant and substantiol ("S&S") 

nature. 2 Commission Administrative Law Judge William Fauver concluded that 

U.S. ~teel violated the safeguard and that the violation was S&S. 15 FMSHRC 

452 (March 1993)(ALJ). U.S. Steel filed a petition for discretionary review 

with the Commission, challenging whether the safeguard was valid and whether 

the judge erred in determining that the alleged violation was S&S. For the 

reasons that follow, we affirm the judge's conclusion that U.S. Steel violated 

t:he safeguard and remand the S&S issue for further consideration. 

I. 

Factual Background and Procedural History 

On May 23, 1989, James Bowman, an inspector with the Department of 

Labor's Mine Safety and Health Administration ("MSHA") conducted a regular 

1 Section 75.1403, entitled "Other safeguards," provides: 

Other safeguards adequate, in the judgment of an 

authorized representative of the Secretary, to minimize 

hazards with respect to transportation of men and 

materials shall be provided. 

2 The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C. 

§ 814(d)(l), which distinguishes as more serious in nature any violation that 

"could significantly and substantially contribute to the cause and effect of a 

... mine safety or health hazard." 

2445 
inspection of U.S. Steel's Gary No. 50 Mine in West Virginia. Inspector 

Bowman observed that the trolley poles of two vehicles frequently disengaged 

from the trolley wire as they traveled along the track entry. 15 FMSHRC at 

452; Tr. 12-13. The disconnection caused the vehicles to de-energize. The 

inspector determined that the problem was caused by "kinks, bends and twists 

in the wire and by an excessive distance between the track and the trolley 

wire." 15 FMSHRC at 452. 

As a result, Bowman issued safeguard notice No. 3238838, which provided: 

The trolley wire was inadequately installed in 6-B and 

6-C sections in that the wire gauge3 was much wider 

than the track. Kinks, bends, and twists were present 

in the trolley wire, causing the trolley pole to deenergize on numerous occasions. The wire gauge is so 

wide that anti-pole swing devices can not be used at 

several locations along the 6-B and 6-C track entries 

by Jeep No. 97 and personnel carrier No. 33. 

This is Notice to Provide Safeguard. All 

trolley wire shall be installed within a gauge where 

anti-swing4 devices can be used on all equipment and 

installed without excessive kinks, bends, and twists 

that de-energize track equipment while traveling along 

the track within reason. 

15 FMSHRC at 454 (footnotes added); Ex. P-3. 

On February 4, 1992, MSHA Inspector Earl Cook inspected the mine. The 

trolley pole of the track-mounted jeep in which he traveled disengaged and 

caused the jeep to lose power 15 times. Inspector Cook determined that the 

causes of the trolley pole disconnections were kinks in the wire and a wide 

gauge between the track and wire. He issued a citation to U.S. Steel for 

violation of the safeguard. U.S. Steel contested the violation and proposed 

penalty. A hearing was held on October 14, 1992. 

The judge determined that the safeguard was valid because it was "based 

on an evaluation of the specific conditions at the mine and the determination 

that such conditions created a transportation hazard in need of correction." 

15 FMSHRC at 455 citing Southern Ohio Coal Co., 14 FMSHRC 1, 13 (January 

1992). The judge concluded that the safeguard provided U.S. Steel "with 

3 Inspector Bowman testified that the gauge meant the horizontal distance 

between the trolley wire and the rail. Tr. 27. 

4 Anti-swing devices restrict the movement of trolley poles to prevent 

injury to passengers. Tr. 26. Inspector Bowman testified that, when such a 

device is in place, "it allows the pole a certain range to work side-by-side to 

stay on the trolley wire. If the trolley wire is outside a certain gauge, then 

the anti-swinging device causes the trolley pole to come off the wire .... " Tr. 

13. 

2446 
sufficient notice of the nature of the hazard"; disconnection of trolley poles 

due to severe kinks in the wire and excessive distance between the wire and 

the track. 15 FMSHRC at 455-56. The judge also concluded that the safeguard 

specified "the conduct required of the operator to remedy such hazard": 

installation of the trolley wire a proper distance from the track and without 

kinks or twists. Id. The judge found that the cited conditions violated the 

safeguard because the trolley pole disconnected at five locations where the 

distance from the track to the trolley wire was too wide, and at ten other 

locations where there were kinks. Id. 

The judge applied a "substantial possibility" test of injury in reaching 

his conclusion that the violation was S&S. He determined that an "[a]nalysis 

of the statutory language and the Commission's decisions indicates that the 

test of an S&S violation is a practical and realistic question whether the 

violation presents a substantial possibility of resulting in injury or 

disease .... " Id. (emphasis in original). The judge assessed a $690 penalty 

for the violation. Id. at 457. 

II. 

Disposition 

A. Violation of the Safeguard 

U.S. Steel argues that the safeguard was invalid because it failed to 

provide fair notice of what was required or prohibited. U.S. Steel asserts 

that the terms "excessive" and "within reason" were interpreted incorrectly by 

the judge, and that a finding of violation under the safeguard would require 

numerous occurrences of pole disconnection because of kinks and distance 

between the trolley wire and the track. The Secretary contends that the 

safeguard provided adequate notice to U.S. Steel to install trolley wire 

within a certain distance of the trolley track and to correct kinks, bends or 

·twists that cause the pole to separate from the wire. 

The Commission has held that "a safeguard notice must identify with 

specificity the nature of the hazard at which it is directed and the conduct 

required of the operator to remedy such hazard." Southern Ohio Coal Co. , 7 

FMSHRC 509, 512 (April 1985). The Commission has further stated that its 

approach toward interpretation of the safeguard provisions of the Act 

strikes an appropriate balance between the Secretary's authority to 

require ... safeguards and the operator's right to notice of the conduct 

required of him" and that "the safety of miners is best advanced by an 

interpretative approach that ensures that the hazard of concern to the 

inspector is fully understood by the operator, thereby enabling the operator 

to secure prompt and complete abatement." Id. 

The language of the safeguard provides that the hazard to be eliminated 

is too great a distance between the track and the wire and the presence of 

kinks, bends or twists that would cause the trolley pole to disengage. Thus, 

the safeguard notice addressed the very hazard that was the subject of the 

citation. It specifically identified trolley pole disengagement due to kinks 

in the wire or to horizontal distance between the track and the wire. Those 

2447 
conditions served as the basis for the citation. 

As the judge concluded, the language of the safeguard indicates that 

"excessive" kinks distort the wire to a degree that would cause the trolley 

pole to disengage during travel. The phrase "within reason" does not suggest, 

as U.S. Steel asserts, that the safeguard is violated only when there are an 

unreasonable number of disconnects of the trolley pole. We agree with the 

judge that the phrase "within reason" refers to "traveling" and references 

traveling at a reasonable speed. Moreover, the evidence establishes that the 

trolley pole disconnected at ten locations because of kinks in the wire and at 

five locations because of the distance between the track and the wire. 

Fifteen disconnections during one trip would constitute a violation of the 

safeguard, even under U.S. Steel's interpretation. Thus, we conclude that 

U.S. Steel was given fair notice of what was required by the safeguard and 

that the safeguard was violated by the cited conditions. 

B. Whether the Violation Was S&S 

A violation is properly designated S&S "if, based upon the particular 

facts surrounding that violation, there exists a reasonable likelihood that 

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

serious nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 

(April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum, the Secretary of Labor must prove: 

(1) the underlying violation of a mandatory safety 

standard; ... (2) a discrete safety hazard-- that is, 

a measure of danger to safety -- contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a 

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), 

aff'g 9 FMSHRC 2015, 2021 (December 1987)(approving Mathies criteria). The 

Commission has held that the third element of the Mathies formula "requires 

that the Secretary establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there is an injury." U.S. 

Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984)(emphasis in original). 

Contrary to Commission precedent, the judge applied a "substantial 

possibility" test to establish the third element of Mathies. 15 FMSHRC at 

456. In Energy West Mining Co., 15 FMSHRC 1836, 1839 (September 1993), the 

Commission held that "the ... substantial possibility analysis does not lend 

itself to review under the third Mathies standard." Therefore, we conclude 

that the judge erred by applying a substantial possibility test, and we remand 

this case to the judge for proper application of the third Mathies element, 

i.e., whether there was a reasonable likelihood that the hazard contributed to 

would result in an injury. 

2448 
III. 

Conclusion 

For the foregoing reasons, we affirm the judge's ruling that U.S. Steel 

violated the safeguard. We also vacate the judge's S&S determination and 

remand for further analysis pursuant to the Mathies standard. 

Distribution 

Colleen A. Geraghty. Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Billy M. Tennant, Esq. 

U.S. Steel Mining Company 

600 Grant Street 

Room 1580 

Pittsburgh, PA 15219 

L. Clair Nelson, Commissioner 

Administrative Law Judge William Fauver 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church~ Virginia 22041 

2449 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 17, 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), on behalf 

of DANNY SHEPHERD 

v. Docket No. KENT 94-69-D 

SOVEREIGN MINING COMPANY 

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

BY THE COMMISSION: 

On November 18, 1993, Administrative Law Judge Jerold Feldman concluded 

that the discrimination complaint of Danny Shepherd was not frivolously 

brought and, accordingly, ordered Shepherd's immediate.reinstatement. 

On December 3, 1993, the Secretary filed with the Commission, a motion 

to compel compliance with the judge's order of temporary reinstatement or, 

alternatively, to remand the matter to the administrative law judge. In the 

motion, the Secretary stated that the complainant was laid off by Sovereign 

Mining Company ("Sovereign") on November 19, 1993, the day after the judge's 

order was issued. The Secretary asserts that Shepherd should not have been 

laid off and that, by its action, Sovereign was circumventing the temporary 

reinstatement order. 

On December 13, 1993, Sovereign filed a response to the Secretary's 

motion, denying the assertions made by the Secretary regarding Shepherd's 

layoff. Both Sovereign and the Secretary state that remanding this matter to 

the judge would be an appropriate way to dispose of the issues raised in the 

motion and the response. 

2450 
The judge's jurisdiction in this matter terminated with the issuance of 

his order of temporary reinstatement on November 18. Commission Procedural 

Rule 69(b), 58 Fed. Reg. 12171 (March 3, 1993), to be codified at 29 C.F.R. 

§ 2700.69(b)(l993). Accordingly, we remand this matter to Judge Feldman to 

resolve the issues raised by Secretary's motion and Sovereign's response. See 

Black Dragon Mining Company, 15 FMSHRC 2110, 2111 (October 1993). 

Distribution: 

Forest E. Cook, Esq. 

Cook Law Offices 

118 Hays Street 

P.O. Box 909 

~Tiitesburg, KY 41858 

Carl C. Charneski, Esq. 

J.S. Department of Labor 

Office of the Solicitor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Tony Oppegard, Esq. 

Mine Safety Project of 

the Appalachian Research 

& Defense Fund of Kentucky, Inc. 

630 Mexwelton Count 

Lexington, KY 40508 

Administrative Law Judge Jerold Feldman 

Federal Mine Safety and Health 

Review Commission 

Office of the Administrative Law Judge 

2 Skyline, lOth floor 

5203 Leesburg Pike 

Falls Church, VA 22041 

Arlene Holen, Chairman 

c~/)uL Richard V. Backley, Commissioner\:/ 

/L 

I / 

i 

L. Clair Nelson, Commissioner · 

2451 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 21, 1993 

MARTINKA COAL COMPANY 

v. Docket Nos. WEVA 93-45-R 

WEVA 93-46-R 

SECRETARY OF LABOR 

MINE SAFETY & HEALTH 

ADMINISTRATION (MSHA) 

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

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arising under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801, et seq. (1988)("Mine Act" or "Act"), 

presents the issue of whether two withdrawal orders were validly issued to 

Martinka Coal Company ("Martinka") under section 104(b) of the Mine Act, 30 

U.S.C. § 814(b). 1 Administrative Law Judge Avram Weisberger upheld the 

withdrawal orders. 15 FMSHRC 99 (January 1993)(ALJ). The Commission granted 

Martinka's petition for discretionary review, which challenged the judge's 

findings. For the reasons that follow, we affirm the judge's decision. 

1 Section 104(b) of the Mine Act states, in pertinent part: 

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

other mine, an authorized representative of the 

Secretary finds (1) that a violation described in a 

citation issued pursuant to subsection (a) of this 

section has not been totally abated within the period 

of time as originally fixed therein or as subsequently 

extended, and (2) that the period of time for the 

abatement should not be further extended, he shall 

determine the extent of the area affected by the 

violation and shall promptly issue an order requiring 

the operator of such mine or his agent to immediately 

cause all persons ... to be withdrawn from, and to be 

prohibited from entering, such area until an 

authorized representative of the Secretary determines 

that such violation has been abated. 

2452 
I. 

Factual and Procedural Background 

On October 21, 1992, Inspector Robert Blair of the Department of Labor's 

Mine Safety and Health Administration ("MSHA") inspected the No. 4 Flyte Belt 

Line ("belt line") at Martinka's Tygart River Mine. He observed accumulations 

of coal and coal dust mixed with water under the belt line. He determined 

that, in some places, belt rollers were running in dry coal accumulations. He 

also observed haystack-shaped accumulations of loose coal under the belt. The 

inspector determined that the violative conditions existed along the entire 

5,200 foot length of the belt line. He issued a citation alleging a violation 

of 30 C.F.R. § 75.400 for these accumulations. 2 

Inspector Blair also observed that several belt rollers were stuck or 

frozen, that bottom belt rollers were missing for a distance of about 100 

feet, and that the belt was rubbing against the structure that supports its 

rollers. Inspector Blair issued a citation alleging a violation of section 

75.1725(a) for these conditions. 3 

Daniel Conaway, the mine's safety manager, advised Inspector Blair that 

it would take Martinka several days to abate the violations. The inspector 

allowed Martinka five days, including a weekend, for abatement. 

On Monday October 26, Inspector Blair returned to the mine and, 

accompanied by John Metz, the mine manager, and David Kincell, the miners' 

representative, inspected the belt line. The belt was operating and carrying 

coal. Inspector Blair determined that some of the accumulations he had 

observed on October 21 were still present along the belt. Specifically, he 

found combustible materials under the belt tail piece and in several other 

places under the belt line. Accordingly, he issued a section 104(b) order of 

withdrawal. 

Inspector Blair also determined that some of the other safety problems 

he had cited on October 21 continued to exist. Specifically, he observed 

frozen rollers at the tail piece, frozen or missing rollers at several other 

places, and the belt rubbing against the supporting structure. As a 

2 

3 

Section 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. 

Section 75.1725(a) provides: 

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. 

2453 
consequence, he issued a second section 104(b) order of withdrawal. Martinka 

contested both section 104(b) orders, but did not contest the underlying 

citations. 

The judge upheld both orders. He concluded that the inspector acted 

reasonably in not extending the period of time for abatement of the 

violations. 15 FMSHRC at 101-02. 

With respect to the order based on coal accumulations, the judge found 

that the Secretary established a prima facie case that at least some of the 

violative conditions described in the citation had not been totally abated by 

October 26. 15 FMSHRC at 104-05. He further found that Martinka's evidence 

had not rebutted the Secretary's evidence that the accumulations had not been 

completely removed. 15 FMSHRC at 105-06. 

With respect to the order regarding the belt rollers, the judge 

determined that the Secretary established a prima facie case that some of the 

cited rollers were still frozen or missing on October 26. 14 FMSHRC at 106-

07. He found that Martinka had not offered any specific evidence to rebut the 

Secretary's evidence. 15 FMSHRC at 107. He determined that, while Martinka 

may have replaced some of the frozen or missing rollers cited by the 

inspector, it had not replaced or repaired all of them. Id. 

II. 

Disposition 

On review, Martinka contends that the inspector should have extended the 

abatement time because it had made diligent, good faith abatement efforts. 

Martinka maintains that it devoted 40 man-shifts to abating the violations and 

had applied 60 tons of rock dust. It contends that it totally abated the coal 

accumulation violation and that all that remained on October 26 was 

incombustible muck. It also contends that it totally abated the belt roller 

violation, but that some of the violative conditions reoccurred on October 26. 

Martinka argues that neither its conduct in response to the citations nor any 

hazards justified the issuance of withdrawal orders. The Secretary contends 

that substantial evidence supports the judge's finding that the violations had 

not been totally abated at the time the orders were issued. He contends 

further that the judge correctly determined that the inspector had acted 

reasonably in not extending the abatement time. 

In Mid-Continent Resources, Inc., 11 FMSHRG 505 (April 1989), the 

Commission established the following analytical framework for the adjudication 

of section 104(b) orders: 

[W]hen the validity of a section 104(b) is challenged 

by an operator, it is the Secretary, as proponent of 

the order, who bears the burden of proving that the 

violation described in the underlyin~ citation has not 

been abated within the time period originally fixed or 

as subsequently extended. We hold, therefore, that 

the Secretary establishes a prima facie case that a 

section 104(b) order is valid by proving by a 

2454 
preponderance of the evidence that the violation 

described in the underlying section 104(a) citation 

existed at the time the section 104(b) withdrawal 

order was issued. The operator may rebut the prima 

facie case by showing, for example, that the violative 

condition described in the section 104(a) citation had 

been abated within the time period fixed in the 

citation, but had recurred. 

Id. at 509 (emphasis in original). 

A. Abatement of § 75.400 violation 

It is undisputed that Martinka attempted to clean up at least some of 

the accumulations cited by the inspector. The judge, however, credited the 

testimony of Blair and Kincell that not all the accumulations had been 

removed. 

Substantial evidence supports the judge's findings 4 . Both Blair and 

Kincell testified that dry accumulations were present under the tail piece on 

October 26. Inspector Blair testified that these accumulations had not been 

deposited recently because they were dull in appearance. He also testified 

that there were accumulations of hard packed coal dust on the belt structure 

under the top center rollers. Finally, he testified that Martinka had 

flattened out some of the accumulations and covered them with rock dust and 

that some haystack accumulations remained. As noted by the judge, the 

inspector's contemporaneous notes support his testimony. 

Martinka argues that the high moisture content of the accumulations 

rendered them incapable of combustion by any ignition source that was present. 

The Commission has held that a "construction of the standard that excludes 

loose coal that is wet or that allows accumulations of loose coal mixed with 

noncombustible materials, defeats Congress' intent to remove fuel sources from 

mines and permits potentially dangerous conditions to exist." Black Diamond 

Coal Mining Co., 7 FMSHRC 1117, 1121 (August 1985). Inspector Blair testified 

that the wet accumulations could dry out. Moreover, the judge found that the 

accumulations observed by Blair and Kincell at the tail piece on October 26 

were dry. 15 FMSHRC at 103-04. Thus, substantial evidence supports the 

judge's finding that "at least some of the violative conditions described in 

the 104(a) citation ... existed at the time the 104(b) order was issued." 15 

FMSHRC at 105. 

Martinka contends that its alleged failure to abate did not create a 

safety hazard because air ventilating the belt is coursed directly into the 

4 The Commission is bound by the substantial evidence test when 

reviewing an administrative law judge's factual determinations. 30 U.S.C. § 

823(d)(2)(A)(ii)(I). "Substantial evidence" means "such relevant evidence as 

a reasonable mind might accept as adequate to support [the judge's] 

conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 

1989), quoting Consolidation Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). 

2455 
return airway, and not, as Inspector Blair testified, into the working 

sections. It maintains that the degree of the hazard created by the failure 

to abate should be the most important factor in determining whether the 

abatement time should be extended. Martinka argues that the judge erred in 

relying on Inspector Blair's testimony to find that a fire in the area could 

send smoke into the working sections and trap miners working inby the fire. 

15 FMSHRC at 102. 

The record supports the judge's finding that combustible materials 

created a fire hazard along the belt line, even if the hazard was not as great 

as Inspector Blair believed. While the degree of the hazard is a relevant 

factor, it is not the sole factor to be considered. Thus, the record supports 

the judge's finding that Inspector Blair acted reasonably in determining that 

the time for abatement should not be extended. 

B. Abatement of § 75.1725(a) violation 

Martinka argues that it had abated the conditions observed by Inspector 

Blair on October 21 and that any violations found on October 26 were the 

result of a recurrence of the cited condition. Martinka points to Mine 

Manager Metz's testimony that, when he personally inspected the belt line on 

October 23, all rollers were in operating condition. Metz also testified that 

many of the rollers that Inspector Blair thought were frozen on October 26 

were, in fact, operational. He stated that these rollers were simply not 

being turned by the moving belt at the time of the inspection. 

Substantial evidence supports the judge's findings. The judge credited 

the testimony of Blair and Kincell that some of the violative conditions cited 

on October 21 continued to exist on October 26. 15 FMSHRC at 107-08. 

Inspector Blair testified that, when he returned to the mine on October 26, 

two rollers near the tail piece that had been frozen on October 21 were still 

frozen. In addition, the inspector observed that many of the missing bottom 

rollers were still missing on October 26. As a consequence, the belt was 

still rubbing against the belt structure, although at a different place. 

The judge determined that Metz's testimony concerning the replacement or 

repair of rollers was too vague to rebut the testimony from Blair and Kincell 

that some of the violative conditions continued to exist on October 26. Id. 

He concluded that Martinka failed to demonstrate that the violative conditions 

described in the section 104(a) citation had been abated within the required 

time but had recurred. 

Martinka argues that it had substantially abated the violation by 

October 26 as a result of its diligent, good faith efforts and, thus, that the 

inspector's failure to grant an extension was unreasonable. Martinka says 

that it replaced 15 to 18 belt rollers after being cited, but was required to 

replace only two additional rollers to terminate the withdrawal order. The 

judge concluded that the presence of combustible accumulations and ignition 

sources, such as frozen rollers and the belt rubbing against the belt 

structure, created a hazard on October 26. 15 FMSHRC at 102. Substantial 

evidence also supports the judge's finding that Inspector Blair acted 

reasonably in determining that the abatement time should not be extended. 

2456 
III. 

Conclusion 

For the foregoing reasons, we affirm the judge's decision. 

Distribution 

Colleen A. Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Thomas L. Clarke, Esq. 

Martinka Coal Company 

800 Laidley Tower 

P.O. Box 1233 

Charleston, WV 25324 

Arlene Holen, Chairman 

~~~~~~~~~~~ Richard V. Backley, Commissioner 

L. Clair Nelson, Commissioner 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

2457 

/ 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

HAROLD MITCHELL, Employed by 

H B & B EQUIPMENT COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 22, 1993 

Docket No. VA 92-180 

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

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988). On May 20, 1993, Chief 

Administrative Law Judge Paul Merlin issued an Order of Default to Harold 

Mitchell, employed by H B & B Equipment Company, for failing to answer the 

proposal for assessment of civil penalty filed by the Secretary of Labor or 

the judge's February 24, 1993, Order to Show Cause. The judge assessed a 

civil penalty of $2,000. For the reasons that follow, we vacate the default 

order and remand this case for further proceedings. 

In a letter to the judge dated May 26, 1993, counsel for Harold Mitchell 

asserted that Mitchell had responded to the judge's show cause order in a 

letter to the Commission dated March 18, 1993. Counsel attached a copy of 

Mitchell's March 18 letter and, on th~ basis of that response, sought relief 

from the default order. 

The judge's jurisdiction over this case terminated when his decision was 

issued on May 20, 1993. Commission Procedural Rule 69(b), 58 Fed. Reg. 12171 

(March 3, 1993), to be codified at 29 C.F.R. § 2700.69(b)(1993). Due to 

clerical oversight, the Commission did not act on the May 26 letter within the 

required statutory period for considering requests for discretionary review. 

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

its issuance. 30 U.S.C. § 823(d)(l). 

Relief from a final Commission judgment or order on the basis of 

inadvertence, mistake, surprise or excusable neglect is available to a party 

under Fed. R. Civ. P. 60(b)(l). 29 C.F.R. § 2700.1(b)(Federal Rules of Civil 

Procedure apply 11 so far as practicable 11 in the absence of applicable 

2458 
Commission rules). Lloyd Logging. Inc., 13 FMSHRC 781, 782 (May 1991). In 

the interest of justice, we reopen this proceeding and deem the May 26 letter 

to be a Petition for Discretionary Review, which we grant. 

On the basis of the present record, we are unable to evaluate the merits 

of Mitchell's position. We remand the matter to the judge, who shall 

determine whether default is warranted. See Hickory Coal Co., 12 FMSHRC 1201, 

1202 (June 1990). 

For the reasons set forth above, we reopen this matter, vacate the 

judge's default order and remand this matter for further proceedings. 

Distribution: 

Edward H. Fitch, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, VA 22203 

Harold Mitchell 

Route 2, Box 450B 

Honaker, VA 24260 

Dennis E. Jones; Esq. 

One Flannagan Avenue 

P.O. Box 1237 

Lebanon, VA 24266 

Richard V. Backley, Commissioner 

L. Clair Nelson, Commissioner 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety and Health 

Review Commission 

1730 K Street, N.W., Suite 642 

Washington, D.C. 20006 

2459 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

VINCENT BRAITHWAITE 

v. 

TRI-STAR MINING 

1730 K STREET NV(, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 22, 1993 

Docket No. WEVA 91-2050-D 

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

DECISION 

BY THE COMMISSION: 

This is a discrimination proceeding arising under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or 

"Act"), brought by Vincent Braithwaite against Tri-Star Mining ("Tri-Star"), 

pursuant to section 105(c)(3) of the Act, 30 U.S.C. § 815(c)(3). 1 

Administrative Law Judge William Fauver awarded damages to Braithwaite after 

concluding that Tri-Star had unlawfully discharged him because he refused to 

operate a piece of equipment that Braithwaite believed he was unqualified to 

operate. 14 FMSHRC 1460 (August 1992)(ALJ); 14 FMSHRC 2001 (December 1992) 

1Section 105(c) provides, in pertinent part: 

(1) No person shall discharge or in any manner discriminate against ... 

any miner ... because such miner ... has filed or made 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 

(3) Within 90 days of the receipt of a complaint ... the 

Secretary shall notify, in writing, the miner ... of his 

determination whether a violation has occurred. If the Secretary, 

upon investigation, determines that the provisions of this 

subsection have not been violated, the complainant shall have the 

right, within 30 days of notice of the Secretary's determination, 

to file an action in his own behalf before the Commission, 

charging discrimination or interference in violation of paragraph 

(1). 

2460 
(ALJ). The Commission granted Tri-Star's petition for discretionary review, 

which challenged the legal and factual basis for the judge's determination of 

liability and damages. For the reasons stated below, we reverse the judge's 

decision and dismiss the complaint. 

I. 

Factual and Procedural Background 

A. Factual Background 

Tri Star operates a surface mine employing 27 miners, approximately six 

of whom are designated as heavy equipment operators. On July 24, 1989, TriStar hired Braithwaite as a heavy equipment operator. At that time, 

Braithwaite initialed Form 5000-23 of the Department of Labor's Mine Safety 

and Health Administration ("MSHA"), indicating that he was either qualified to 

operate, or had been trained to operate, eight specified pieces of equipment. 

Braithwaite's foreman, Ray Tighe, placed his initials beside Braithwaite's, 

and Mine Superintendent George Beneer signed the form. At the time he 

initialed the form, Braithwaite had limited experience in operating only two 

pieces of equipment. One was a Cline coal haulage truck, which he 

subsequently drove on a regular basis for Tri-Star, and the other was an FB 35 

loader. 14 FMSHRC at 1460-61. 

On September 25, 1990, Foreman Tighe asked Braithwaite to operate the 

Euclid R-120 (the "R-120" or the "Uke"), a large 50-ton dump truck used for 

hauling overburden. 14 FMSHRC at 1461. The R-120, larger than the Cline 

truck Braithwaite regularly drove, was frequently operated on uneven ground 

and rocked from side to side. Tri-Star had provided training on the R-120 to 

Braithwaite, which consisted of his riding beside an experienced driver and 

then driving the R-120 with the experienced driver beside him. 14 FMSHRC at 

1462. Following that training, Braithwaite had driven the R-120 in active 

operations for three or four days. ld.; Tr. 27. 

Braithwaite refused Tighe's September 25 order to drive the R-120, 

stating that he was "uncomfortable" driving it. Tighe sent Braithwaite to the 

mine office to talk to Mine Superintendent Beener. Braithwaite told Beener 

that he was "uncomfortable" operating the R-120. While Braithwaite was in 

Beener's office, Foreman Tighe requested a driver for the Cline truck and one 

for the R-120. Beener sent Braithwaite back to the mine site to run the Cline 

or, if it was not running, to assist the mechanic in working on it. 14 FMSHRC 

at 1461, 1464. 2 

When Braithwaite returned to the mine site, Tighe inquired as to what 

had happened at the meeting with Beener. Braithwaite reported to Tighe that 

Beener had told him, "[Y]ou do not have to run a Euclid, ... we will keep you 

2The judge referred to Braithwaite's meeting with Mine Superintendent 

Beener and Braithwaite's subsequent conversation with Tighe as occurring on 

September 24, 1990. 14 FMSHRC at 1464. However, both events occurred after 

Braithwaite's work refusal on September 25, apparently on the same day. See 

Tr. 17-18, 122. 

2461 
on a Cline." Tr. 126. Tighe checked with Beener, who said he had told 

Braithwaite, "[W]e would try and keep him on the Cline if he felt 

uncomfortable with the Uke but there would be times that he would have to run 

the Euclid." Tr. 124-25. Tighe did not tell Braithwaite about his 

conversation with Beener. 14 FMSHRC at 1464. On two occasions after 

September 25, Braithwaite was asked to operate the R-120 and he did so for a 

total of two hours. Id. at 1462. 

On September 27, 1990, two days after his conversation with Beener, 

Braithwaite again initialed MSHA Form 5000-23, indicating that he was 

qualified to operate or had been trained to operate eleven pieces of 

equipment, including the Euclid R-120. Jt. Ex. 2. On April 2, 1991, Foreman 

Tighe told Braithwaite to park the Cline and "to run the Uke because there was 

no more coal to haul with the Cline." Tr. 69. Braithwaite responded that he 

felt "uncomfortable" operating the R-120 and that he "had already talked to 

Mr. Beener about it." Tr. 30. Braithwaite did not mention safety or request 

additional training on the R-120. Tighe told Braithwaite to turn over the 

maintenance records for the Cline and "hit the road." Tr. 29. Braithwaite 

understood Tighe to mean that he was fired and left the mine without speaking 

further to Tighe or Beener. 14 FMSHRC at 1463. 

B. Procedural Background 

Following his discharge, Braithwaite obtained copies of his MSHA 5000-23 

forms and complained to MSHA that the forms had been falsified. MSHA 

conducted an investigation into these allegations, pursuant to section 103(g) 

of the Mine Act, 30 U.S.C. § 814(g), but found no basis for them. 

Subsequently, Braithwaite filed a discrimination complaint with MSHA, under 

section l05(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2). Following its 

investigation, MSHA notified Braithwaite that it found no violation. 

Braithwaite filed a complaint against Tri-Star on his own behalf, pursuant to 

section 105(c)(3), 30 U.S.C. § 815(c)(3), and a hearing was held on April 29, 

1992. 

In his August 24, 1992, decision on liability, the judge concluded that 

Tri Star discharged Braithwaite for refusing to operate the R-120, which he 

believed he was not qualified to operate. The judge found that Braithwaite's 

experience on the R-120 was limited. In his view, Braithwaite properly 

communicated a safety concern when he told the foreman, on September 25, 1990, 

that he did not feel comfortable operating the R-120 and when he told the mine 

superintendent how he felt about operating the R-120. 14 FMSHRC at 1462, 

1464. 

The judge further found that, after speaking with Beener, Foreman Tighe 

had an obligation to tell Braithwaite that Beener had said that Braithwaite 

would be required to operate the R-120 or lose his job. 14 FMSHRC at 1464. 

The judge concluded that, if the foreman had received such instructions, he 

had a duty to address Braithwaite's safety concern and offer further training 

on the R-120. According to the judge, Tighe, by remaining silent, left 

Braithwaite in the position of believing he had been relieved by Beener of the 

duty to operate the R-120. at 1464 1465. 

2462 
The judge found that, when Braithwaite again refused to operate the R120 on April 2, 1991, Tighe did not properly address Braithwaite's safety 

concern by correcting Braithwaite's belief that he had been relieved of 

responsibility to drive the R-120. The judge found that, if Tighe had done 

so, Braithwaite could have requested more training on the R-120 in order to 

keep his job, and that such a request would itself have been a protected work 

refusal in light of the limited training he had received. 14 FMSHRC at 1463, 

1466. 

On December 1, 1992, the judge issued his second decision, awarding 

damages and also denying Tri-Star's motion for reconsideration, which was 

based on the decision and evidence in Braithwaite's state unemployment 

compensation proceeding. 14 FMSHRC 2001. 

II. 

Disposition of Issues 

Tri-Star argues that certain of the judge's findings are contrary to 

findings in the MSHA investigations of Braithwaite's section 103(g) and 

discrimination complaints, including MSHA's conclusion that training had been 

conducted properly. Tri-Star further argues that Braithwaite walked off the 

job on April 2, did not communicate a valid safety complaint to Tighe, and 

could not have communicated one, given his training and experience on the R120. Tri-Star also raises a number of issues concerning the judge's award of 

damages. In response to Tri-Star's petition for review, Braithwaite submitted 

a statement with attachments addressing several of Tri-Star's factual contentions. 

The principles governing analysis of a discrimination case under the 

Mine Act are well settled. A miner establishes a prima facie case of 

prohibited discrimination by proving that he engaged in protected activity and 

that the adverse action complained of was motivated in any part by that 

activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 

2786, 2797-800 (October 1980), rev'd on other grounds, sub nom. Consolidation 

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

Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The 

operator may rebut the prima facie case by showing either that no protected 

activity occurred or that the adverse action was in no part motivated by 

protected activity. Pasula, 2 FMSHRC at 2799-800. If the operator cannot 

rebut the prima facie case in this manner, it nevertheless may defend 

affirmatively by proving that it also was motivated by the miner's unprotected 

activity and would have taken the adverse action in any event for the 

unprotected activity alone. 2 FMSHRC at 2800; Robinette, 3 FMSHRC at 

817-18; see also Eastern Assoc. Coal Corp. v. United Castle Coal Co., 813 F.2d 

639, 642 (4th Cir. 1987). 

A miner's refusal to perform work is protected under the Mine Act if it 

is based upon a reasonable, good faith belief that the work involves a hazard. 

Robinette, 3 FMSHRC at 808-12; Conatser v. Red Flame Coal Co., ll FMSHRC 12, 

17 (Jan. 1989); see also Simpson v. FMSHRC, 842 F.2d 453, 458 (D.C. Cir. 

1988). The Commission has held: "Proper communication of a perceived hazard 

is an integral component of a protected work refusal, and responsibility for 

2463 
the communication of a belief in a hazard underlying a work refusal lies with 

the miner." Conatser, 11 FMSHRC at 17, citing Dillard Smith v. Reco, Inc., 9 

FMSHRC 992, 995-96 (June 1987). "[T]he communication requirement is intended 

to avoid situations in which the operator at the time of a refusal is forced 

to divine the miner's motivations for refusing work." Smith, 9 FMSHRC at 995. 

The miner's failure to communicate his safety concern denies the operator an 

opportunity to address the perceived danger and, if permitted, would have the 

effect of requiring the Commission to presume that the operator would have 

done nothing to address the miner's concern. Id. Thus, a failure to meet the 

communication requirement may strip a work refusal of its protection under the 

Act. Finally, the Commission has held that the "communication of a safety 

concern 'must be evaluated not only in terms of the specific words used, but 

also in terms of the circumstances within which the words are used .... 1 " 

Conatser, 11 FMSHRC at 17, quoting Secretary on behalf of Hogan and Ventura v. 

Emerald Mines Corp., 8 FMSHRC 1066, 1074 (July 1986), aff'd mem., 829 F.2d 31 

(3d Cir. 1987). 

The key issue here is whether Braithwaite made an adequate safety 

communication. The judge found that, on September 25, 1990, Braithwaite 

communicated to Tri-Star a safety concern that was adequate, "indicating that 

he did not feel properly trained or qualified to operate the R-120 truck 

safely." 14 FMSHRC at 1464. However, the record reflects only that 

Braithwaite was "uncomfortable" driving the R-120 and that he told Beener how 

he "felt." Tr. 18, 121-23. Braithwaite's testimony as to what he actually 

told Tighe and Beener on September 25 does not go beyond these statements. 

Although Braithwaite explained at the hearing that he felt "uncomfortable" 

running the R-120 because of its large size, that he "wasn't trained much on 

it," and that he was concerned about the safety of other workers (Tr. 18, 122-

23), we discern nothing in the record to indicate that Tighe had reason to 

know that Braithwaite's discomfort was more than a personal preference not to 

operate the R-120 (see Tr. 18, 25, 33). Further, Braithwaite testified that 

he never requested additional training on the R-120. Tr. 121. Thus, 

Braithwaite's communication was inadequate to establish a protected work 

refusal. 

Further, after Braithwaite's refusal to drive the R-120 on September 25, 

1990, Braithwaite drove it on two occasions. On September 27, he initialed 

MSHA Form 5000-23, indicating that he was qualified to operate the R-120. 3 

14 FMSHRC at 1462. Six months later, on April 2, 1991, when Foreman Tighe 

asked Braithwaite to run the R-120 because there was no work for the Cline 

truck, Braithwaite again responded that he was "uncomfortable" operating it 

and refused to do so. Again, there is no evidence to indicate that Tighe had 

3The judge relied on an MSHA interview statement from the MSHA 

investigator who assisted in investigating Braithwaite's discrimination 

complaint to establish that Braithwaite could not have been properly trained 

on the equipment listed on the form. 14 FMSHRC at 1462. The investigator's 

statement, however, does not address Braithwaite's training on specific 

equipment. MSHA's investigation concluded, moreover, that "training was done 

properly" at Tri-Star and that Braithwaite was "properly trained in the 

operation of the Euclid dump truck." Resp. Ex. 1, pp. 9, 10. 

2464 
reason to know that Braithwaite had a safety concern or that his discomfort 

was anything more than a personal preference. 

In Conatser, the Commission reviewed communication of a work refusal 

factually similar to Braithwaite's. There, the Commission determined that a 

miner's statement was, in context, ambiguous. 11 FMSHRC at 17. The fact that 

the miner had driven the truck on seven prior occasions vitiated the adequacy 

and clarity of the communication. Id. Here, the record is similarly lacking 

in an unambiguous safety communication from Braithwaite on April 2. 

Accordingly, we conclude that, as a matter of law, Braithwaite's statements 

were insufficient communication of a safety concern to protect his refusal to 

work. 

In his decision, the judge shifted the communication burden from 

Braithwaite to Tri-Star. The judge concluded that Foreman Tighe was obliged 

to tell Braithwaite, who alleged Beener had relieved him of any duty to 

operate the R-120, 4 that he would be required to operate the R-120 or lose 

his job. 14 FMSHRC at 1464. As noted in Conatser, "responsibility for the 

communication ... lies with the miner." 11 FMSHRC at 17. Nothing in the 

record suggests that communicating safety concerns to Tighe would have been 

futile. Compare Simpson v, FMSHRC, 842 F.2d 453, 459-61 (D.C. Cir. 1988). 

We conclude that Braithwaite's work refusal did not include the required 

safety communication and therefore, as a matter of law on this record, was 

unprotected. 5 See Smith, 9 FMSHRC at 995-96. 

4Braithwaite's stated belief that he had been relieved of his 

responsibility to operate the R-120 was not based on anything Beener said. 

Tr. 18, 121-24, 129, 139. Braithwaite testified that, after he told 

Beener how he felt, Beener "walked around, scratched his head ... shut the 

door, a couple of minutes later he come [sic] out and said go to job six, run 

[the] Cline." Tr. 123. Furthermore, as Braithwaite testified, no other heavy 

equipment operator was excused from operating a particular piece of equipment. 

Tr. 138-39. 

5Given our disposition of this case based on the inadequacy of 

Braithwaite's safety communication, we need not reach the reasonableness or 

good faith of his belief that he was not adequately trained or qualified to 

operate the R-120.. Dillard Smith v. Reco. Inc., 9 FMSHRC at 996 n.*. We 

also need not reach Tri-Star's additional arguments, including issues relating 

to the judge's award of damages. 

2465 
III. 

Conclusion 

For the foregoing reasons, the judge's decision is reversed, and his 

orders are vacated. 

Distribution: 

Thomas G. , Esq. 

Eddy & Osterman 

820 Grant Building 

Pittsburgh, PA 15219 

Vincent E. Braithwaite 

53 West Harrison St. 

Piedmont, h~ 26750 

Arlene Holen, Chairman 

L. 

Administrative Law Judge William Fauver 

Federal Mine 

5203 Leesburg Pike 

Suite 1000 

Falls Church, VA 

and Health Review Commission 

22041 

2466 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 7 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. VA 93-69-M 

Petitioner A.C. No. 44-06731-05501 

v. 

Darden Pit 

MATERIALS DELIVERY, 

Respondent 

Appearances: 

Before: 

DECISION 

Javier I. Romanach, Esq., Office of the Solicitor, 

u. s. Department of Labor, Arlington, Virginia, 

for Petitioner; 

V. Cassel Adamson, Jr., Esq., Adamson & Adamson, 

Richmond, Virginia, for Respondent. 

Judge Amchan 

This case is before me upon a petition for civil penalties 

filed by the Secretary of Labor pursuant to § 105(d) of the 

Federal Mine Safety and Health Act of 1977 1 30 U.S.C. § 801 et. 

seg.v for seven alleged violations of mine safety standards. 

This matter was heard in Emporia, Virginia on October 5, 1993. 

After considering the record before me, I have assessed civil 

penalties of $1,044 1 the same amount proposed by the Secretary. 

NOTIFICATION OF COMMENCEMENT OF OPERATIONS 

On January 20, 1993, MSHA Inspector Charles E. Rines 

conducted a workplace inspection of a pit in Southampton County, 

South of Franklinu Virginia, at which Respondent was extracting 

sand and gravel for use in its concrete plants {Tr. 18-21). 

Rines was on his way to a different site when he noticed the 

activity at Respondent's Darden pit {Tr. 97-98). From 

conversations with State of Virginia inspectors he was aware that 

mining activity was about to start at the site but did not know 

that such activity had commenced until he drove by the site on 

January 20 (Tr. 19). 

2467 
Rines determined that Respondent had not notified MSHA as to 

commencement of their mining operations at the Darden pit 

(Tr. 23-25). He, therefore, issued to Respondent Citation 

No. 4083517 alleging a violation of 30 C.F.R. § 56.1000 

(Tr. 21-25). This regulation requires that: 

The owner, operator, or person in charge of any 

metal and nonmetal mine shall notify the nearest 

Mine Safety and Health Administration and Metal 

and Nonmetal Safety and Health Subdistrict Office 

before starting operations, of the approximate or 

actual date mine operation will commence. The 

notification shall include the mine name, mailing 

address, person in charge, and whether operations 

will be continuous or intermittent. 

In writing the citation (Exh. P-2), Rines characterized 

Respondent's negligence as "high" due to the fact that he had 

issued a citation for violation of the same requirement to 

Respondent on June 22, 1992, at a pit in King William County, 

Virginia (Exh. P-2b, Tr. 29-37). In June 1992, Rines had 

discussed the notification requirement with Pat Kenny, who was 

Respondent's foreman at both the King William site and at the 

Darden pit 1 his supervisor, Gene Sneed, and company president, 

Richard Rose (Tr. 31-37). 

THE FRONT-END LOADERS 

While Rines was at the Darden pit, Respondent was removing 

material with a dragline and was using two front-end loaders to 

move the material to an area where it was separated into sand and 

gravel and loaded onto trucks for delivery to its cement plants 

(Tr. 20~21 " On one of the loaders, serial number 75A2808u 

neither the horn nor the reverse signal alarm was working 

(Tro 39, 79) o Rines spoke to operator of the loader, who told 

him that both had been inoperative for 2 to 3 days 

(Tr. 42 8 o) • 

The wheels of this loader were approximately 6 feet high and 

the operator 2 s vision was obstructed for a distance of 17 feet to 

his rear (Tr. 44-45). Two employees of Respondent and two truck 

drivers employed by a contractor were walking back and forth from 

the pit on the same roadway used by the loaders 

(Tr. 43) o Respondent did not use an observer to signal the 

driver when it was safe to back up. 1 

1

There is no direct evidence as to whether there was a 

signalman or not. Nevertheless, I infer from the record that 

there was no signalman. Mr. Rines' testimony as to the danger of 

employees being run over when the loaders were operated in 

reverse would make no sense if Respondent was using such an 

2468 
Inspector Rines issued Citation No. 4083518 alleging a 

"significant and substantial" violation of 30 C.F.R. 

§ 56.14132(a) for the use of the loader with an inoperative 

reverse signal alarm (Tr. 36-39, Exh. P-3). That standard 

requires that: 

Manually-operated horns or other audible warning 

devices provided on self-propelled mobile equipment 

as a safety feature shall be maintained in functional 

condition. 

The inspector opined that an injury or fatality was 

"reasonably likely" due to the presence of the blind spot to the 

operator's rear, the presence of employees in the area of the 

vehicle, and the ambient noise level at the pit, which he 

believed would make it unlikely that employees would notice the 

loader backing up (Tr. 48-50). He characterized Respondent's 

negligence as "high" due to t:tle fact that it had been cited for 

the identical violation on the same machine during his inspection 

of Respondent's worksite in King William County in June 1992 

(Exh. P-3a, Tr. 50-53). 

Respondent also received Citation No. 4033522, alleging 

another violation of 30 C.F.R. § 14132(a) on account of the 

inoperative horn on the same vehicle, and Citation No. 4033521 

because of an inoperative horn on the other front-end loader, 

serial number 75A2786 (Tr. 68-82). With regard to the latter 

vehicle, Rines was told that the horn had not been working for 

approximately 2 weeks {Tr. 70-71). 

Rines characterized these violations as "significant and 

substantialfvu because he believed that an accident was reasonably 

likely--given the proximity of employees to the vehicle and the 

limited visibility of the operator to the front of the vehicle 

(Tr. 71-72). He characterized Respondent's negligence as "high" 

given the fact that the horns on both the loaders did not work, 

and hadnqt been working for a while when he arrived on the site 

(Tr. 76-83). In assessing the degree of negligence, Mr. Rines 

also considered the fact that Respondent 1 s foreman, Pat Kenny, 

was also the supervisor on Respondentns worksite that he 

inspected in June (Tr. 76). 

Footnote 1 continued 

observer. Moreover, Respondent has not contended that it used an 

observer and clearly was relying on the reverse signal alarm to 

warn employees who might venture behind the loader (Respondent's 

Answers to Interrogatories, Answers 2, 4, and 8). 

2469 
UNSECURED COMPRESSED GAS CYLINDERS 

During his inspection, Mr. Rines observed five compressed 

gas cylinders lying on the ground (Tr. 55). Three were oxygen 

cylinders; two were acetylene cylinders (Tr. 55). A barrel with 

a fire inside was 5 to 7 feet from two of the cylinders and the 

others were within 2 feet of a roadway traveled by the front end 

loaders (Tr. 55). Two of the cylinders were later used to cut 

metal (Tr. 113). 

Four employees were observed in the area where the cylinders 

were laying and Mr. Rines was concerned that the proximity of the 

cylinders to the fire could cause an explosion and that they were 

subject to damage by the front-end loaders and could become 

projectiles (Tr. 56-59). The inspector issued Respondent 

Citation No. 4083519, which alleged a "significant and 

substantial" violation of 30 C.F.R. § 56.16005. That regulation 

requires that, "Compressed and liquid gas cylinders shall be 

secured in a safe manner. 11 Mr. Rines deemed Respondent's 

negligence to be "high" as it had been issued a citation for the 

same hazardous condition in June, 1992 (Exhibit P-4a, Tr. 60-61). 

TOILETS 

Inspector Rines also determined that no toilet facilities 

were provided for the four employees at the mine site (Tr. 65). 

He, therefore, issued Citation No. 4083520, which alleged a 

violation of 30 C.F.R. § 56.20008. That regulation provides 

that, "Toilet facilities shall be provided at locations that are 

compatible with the mine operations and that are readily 

accessible to mine personnel." A citation for the same violation 

was issued to Respondent at the King William county site in June 

1992 (Exhibit P-5a ~ Tr. 65-66). 

TBE RAISED BUCKET 

On January 21; 1993; Inspector Rines observed the operator 

of one of Respondentus front-end loaders; leave his vehicle with 

the bucket loaded and in a raised position (Tr. 83-86). The 

operator walked behind the vehicle, which was on a 6 percent 

gradev with its front-end higher than its rear, to talk to his 

foremanu Pat Kennyv and superintendent Gene Sneed (Tr. 83-86, 

116) 0 

The inspector was concerned that the stress placed upon the 

parking brake by the raised and loaded bucket could cause the 

parking brake to fail, or that it could cause the rupture of 

hydraulic hoses (Tr. 87-89). Rines issued Respondent Citation 

No. 4083523 alleging a "significant and substantial" violation of 

30 C.F.R. § 56.14206(b). That standard requires that: 

When mobile equipment is unattended or not in use, 

2470 
dippers, buckets and scraper blades shall be lowered 

to the ground. . . 

ISSUES 

At hearing, Respondent appeared to dispute the proposition 

that it was engaged in interstate commerce, although it admitted 

that it was subject to the Act in responding to the Secretary's 

request for admissions. In any event, it is clear that 

Respondent's operations "affect commerce" and, thus, it is 

covered by the Federal Mine Safety and Health Act. 

Respondent uses vehicles manufactured in interstate commerce 

and, therefore, its operations affect commerce on this basis 

alone (Tr. 141). Island Construction co., Inc., 11 FMSHRC 2448 

(ALJ December 1989). Moreover, Respondent's pit, which is 

located within 10 miles of the North carolina/Virginia state line 

(Tr. 21), does compete with out-of-state sources of sand and 

gravel, which Respondent might have to use if it did not operate 

the Darden pit. Its activities at the Darden pit thus "affect 

commerce" on this basis as well. Marshall v. Bosack, 463 F. Supp. 

800 (DC Pa 1978); Godwin v. OSHRC, 540 F.2d 1013 (9th Cir., 

197 6) . 

The only witness presented by Respondent was John Boston, 

its Financial Manager, who was not on the Darden site the day of 

Mr. Rines' inspection and has no experience in mining other than 

in its financial aspects (Tr. 131-136). Mr. Boston testified 

that Respondent was unable to get a copy of Volume 30 of the Code 

of Federal Regulations (CFR) for 10 months after its June 1992 

MSHA inspection (Tr. 132). 

I do not consider the unavailability of the CFR to be an 

ameliorating factor in assessing the penalties in this case. 

Respondent was cited for four of the seven violations found in 

this case during the prior inspection in King William County. 

Respondentv thusv had been specifically told of the requirement 

for the reverse signal alarm, toilets, notification of MSHA, and 

the securing of its gas cylinders. Respondent should have been 

aware of the need to keep the horns on the front-end loaders in 

operable condition from its conversations with Rines about the 

back-up alarm in June, 1992. Additionally, it is only a matter 

of common sense that, if a vehicle has a horn, it compromises 

safety to some extent if it doesn't work. 

As to the raised and loaded bucket, it appears that Rines 

considered Respondent's previous lack of knowledge of the 

regulation in rating its negligence as "moderate" as opposed to 

"high" as he did for the violations for which Respondent had been 

cited before (Tr. 90-91). Moreover, MSHA's Office of Assessments 

also treated this violation differently in proposing a lower 

penalty. 

2471 
Respondent also suggests that consideration be given to the 

fact that Pat Kenny, its foreman at the Darden Pit and at the 

King William county site, was fired subsequent to this inspection 

(Tr. 134). However, it is unclear what role, if any, the MSHA 

citations played in Mr. Kenny's discharge and, in any event, his 

conduct is imputable to Respondent for penalty assessment 

purposes Nacco Mining Co., 3 FMSHRC 848, 850 (April 1981). 

With regard to its front end loader 75A2808, Respondent 

contends that Citations Nos. 4083518 (inoperative back-up alarm) 

and 4083522 (inoperable horn) are duplicative (Tr. 135). The 

standard states that manually-operated horns or other audible 

warning devices provided as a safety feature shall be maintained 

in functional condition. Respondent contends that the standard 

should be read to require only that the horn or the back-up alarm 

be functional not both. I conclude that the literal meaning of 

the standard is not necessarily that given to it by Respondent, 

and I reject such a reading a,s being completely at odds with the 

purposes of the Act. 

An interpretation of the standard more in keeping with the 

Act is that horns and/or other audible warning devices that are 

on the vehicle must be maintained in functional condition. The 

horn and the back-up alarm are designed to address different 

hazards. The horn is provided primarily to warn employees who 

the operator sees in front or to the side of the vehicle, and to 

warn employees when the operator is going to move. The back-up 

alarm is designed to account for the operator's restricted vision 

to the rear, and operates automatically so as to warn employees 

who the operator may not be able to see. The devices are not 

duplicative and thus separate civil penalties are appropriately 

assessed when both devices on one machine are not working. 2 

Inspector Rines characterized the inoperable horns, back-up 

alarm, the unsecured cylinders, and the raised bucket as 

nsignificant and substantial" violations. The Commission has 

held that to establish a "significant and substantial" violation 

the Secretary must show~ (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazard 

contributed to by the violation; (3) a reasonable likelihood that 

the hazard contributed to will result in an injury; and (4) a 

reasonable likelihood that the injury in question will be of a 

reasonably serious nature Mathies Coal Company, 6 FMSHRC 1 

(January 1984). The determination of whether a violation is 

"S&S" is not limited to conditions at the time the violation is 

2

A penalty for an inoperable back-up alarm may be 

inappropriate in situations in which the employer is providing an 

observer to signal when it is safe to back up pursuant to 

30 c.F.R. § 56.14132(b}, but that is not the situation presented 

in the instant case. 

2472 
observed but includes consideration of continued normal mining 

operations U. s. Steel Mining Co., Inc., 6 FMSHRC 1573 

(July 1984). 

There is no controversy regarding the first two elements of 

the "S&S" criteria with regard to any of the five violations at 

issue. Respondent's witnesses Boston takes issue with Mr. Rines' 

opinion that it is reasonably likely that one would be killed if 

struck by a front-end loader operating in soft sand. As 

Mr. Rines has expertise, by virtue of his experience in mining 

and the safety field in particular, I credit his opinion over 

that of Mr. Boston and find that the Secretary has satisfied 

criteria number 4 of the "S&S" test. 

As to criteria number 3, I also credit Mr. Rines and 

conclude that in the normal course of mining operations, if 

front-end loaders operate without horns and orjback-up alarms; if 

gas cylinders are not properly secured; and if operators leave 

their loaders unattended with the bucket raised, it is reasonably 

likely that each of these conditions will sooner or later cause 

injury to a miner. Therefore, I conclude that all five citations 

were properly cited as "significant and substantial" violations 

of the Act. 

ORDER 

conclusions and Penalty Assessment 

Section 110(i) of the Act requires the Commission to 

consider six factors in assessing civil penalties; the operator's 

history of previous violations, the appropriateness of such 

penalty to the size of Respondent 0 s businessu the negligence of 

the mine operatorp the effect of the penalties on the operator 9 s 

ability to remain in business, the gravity of the violations and 

the good faith of Respondent in attempting to achieve rapid 

compliance with the Act. 

Respondent has admitted that payment of the proposed penalty 

not affect its ability to stay in business (Response to 

Secretary 0 s Request for Admissions# 6). Certainly Respondent 

qualifies as a small operator, as it extracts material for use 

primari in its cement operations. Respondent demonstrated good 

faith in correcting the violations promptly after the January 20, 

1993 inspection. 

Nevertheless, the gravity of the violations and the 

negligence of the Respondent, particularly with regard to those 

violations for which it had been previously cited, warrants a 

penalty in the range of that proposed by the Secretary. I, 

therefore, assess the following penalties: 

2473 
Citation 4083517 $50 

Citation 4083518 $204 

citation 4083519 $204 

Citation 4083520 $50 

Citation 4083521 $204 

Citation 4083522 $204 

Citation 4083523 $128 

Respondent is hereby directed to pay civil penalties in the 

amount of $1,044 within 30 days of this decision. 

~r~ Administrative Law Judge 

Distribution: 

Javier I. Romanach, Esq., Office of the Solicitor, u. s. 

Department of Labor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 

22203 (Certified Mail) 

V. Cassel Adamsonu Jr., Esq. 1 Adamson & Adamson, Crozet House, 

00 East Main or Richmond 1 VA 23219-2168 (Certified Mail) 

f 

2474 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5267/FAX (303) 844-5268 

DEC 81993 

UNITED STEELWORKERS OF 

AMERICA on behalf of 

RONALD SHANE BIRD, 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. WEST 92-596-DM 

RM MD 92-06 

v. General Chemical Mine 

GENERAL CHEMICAL COMPANY, 

Respondent 

. . 

. . 

Appearances: 

Beforeg 

DECISION 

Harry Tuggle, Safety and Health Specialist, United 

steelworkers of America, Pittsburgh, Pennsylvania, 

for Complainant; 

Matthew R. McNulty III, Esq., Bradley R. Cahoon, 

Esq. 1 VANCOTT, BAGLEY, CORNWALL & McCARTHY, Salt 

Lake Cityu Utahu 

for Respondent. 

Judge Lasher 

This proceeding arises under Section 105(c) (3) of the Federal Mine Safety and Health Act of 1977u 30 u.s.c. § 801, et seq. 

(1982) (herein nthe Act 9'). Complainant's initial complaint with 

the Labor Department's Mine Safety and Health Administration 

(MSHA) under Section 105(c) (2) of the Act was dismissed. 

Complainant Bird contends that he was the subject of adverse 

action in the form of reprimands and reassignments to different 

crews after making a safety complaint on February 17, 1992, 1 in 

the form of a .work refusal. 

Although Complainant suffered no economic loss (T. 27), Complainant seeks a remedy in the form of expungement of records reflecting reprimands, including records of a "hearing" into the 

Certain exhibits, specifically Exhibits c-1, c-2, and C-3, mistakenly 

show this date as 2-18-92. 

24 75 
matter, together with an order requiring the Respondent to cease 

and desist from reassigning complainant to different crews and an 

order returning Complainant to work on a bore miner rather than 

on a continuous miner (T. 26-29, 31, 32, 34). 

Respondent concedes that.Complainant made a safety complaint 

and that such was communicated to management. Respondent denies, 

however, that the reprimands and reassignments of Complainant 

were related to his safety complaint, contending that its actions 

were justified since Complainant refused a direct order from his 

supervisor, Foreman Danny Williams, and because Complainant Bird 

is a frequent complainer, has a personality problem with Williams, was accused of racial and sexual harassment by another 

employee, was a poor bore miner operator, and actually requested 

one of the reassignments. 

After review of the record, exhibits, and arguments and 

briefs of the parties, the position of Respondent is found meritorious. Accordingly, its proposed findings and conclusions are, 

as modified, adopted. 

FINDINGS 

on February 17, 1992, the 31-year old complainant was operating a bore miner 2 at Respondent's underground trona mine located near Green River, Wyoming (T. 34, 37-40; Ct. Ex. 1). A 

member of United Steelworkers of America, Local 15320, Complainant has been employed at the mine for 14 years (T. 34-36). 

On the day in question! Complainant Bird was working with D 

crew consisting of himself and three other crew members: Corey 

Lovelessu mechanic; Tom Smith, FTC operator; and Doug Williamson, 

roof-bolter operator (T. 41). His foreman was Daniel R. "Danny" 

Williams. 

Before commencing worku Williams held a safety meeting with 

n1s crew concerning barring down and bolting procedures. {T. 

107-108u 256). Following the safety meeting, as is required by 

MSHA regulation~ Williams entered the room the crew planned to 

mine and noted that the right side of the room was cut six to 

eight inches high. The left side of the room was cut "on seam" 

(T. 257, 313-314). The bore miner operator working prior to 

Williams' shift made this uneven cut. He had apparently failed 

to keep his miner level (T. 257), and the seam was rolling to the 

right {T. 314). Based on his 21 years of experience in underground mini~g, more mining experience than any of the other crew 

members, Williams considered this cut to be safe and was making 

2 He is also trained to operate a continuous miner (T. 37-38), and was 

so employed at the time of hearing (T. 34). 

2476 
plans to insure the safety of his crew (T. 260, 265). Bird entered the room and drove the miner to the face. Walking on the 

right side of the room until they reached the face, Smith and 

Williamson followed the miner (T. 258). 

While Williams was setting up the cut at the end of the 

room, Bird left his machine, and came back to talk to him and 

brought to Williams' attention that the room was unsafe (T. 41, 

53). Bird asked Williams if he had s~en the condition of the 

room. Williams responded he had and that it was "cut a little 

high." Williams and Bird then went together to look at the highcut area (T. 258). contrary to Bird's testimony (T. 52-53, 113-

114), the area was 100 feet from the front of the room and 65 

feet back from the face (T. 258, 374). As previously noted, the 

left side of the arch was cut on seam, but the right side of the 

arch was cut six to eight inches high (T. 259, 374, 311, 329). 

Williams instructed Bird to bardown a loose area on the right 

side of the arch (T. 259, 374). Bird barred down a chunk six to 

eight feet long and two feet square (T. 52, 289). Trona remained 

in the curl on both sides at the area Bird barred down. Contrary 

to Mr. Bird's testimony, the cut was not made into the oil shale 

(T. 329). 

After Bird barred out the loose material, he walked to the 

face, and Williams thought he was going to return to work. As 

Williams walked back to the laser at the end of the room, Bird, 

without further discussion or permission, began to back the miner 

out of the room (T. 261). Williams went to the face and asked 

Williamson what was happening. Williamson said, "I guess we are 

moving out of here. uo Williams then walked up to B and asked 

him what he was doing. Bird saidf 11This is unsafe; wePre backing 

out of here." Williams said, "No, we're not." Bird then said, 

"I want a safety steward." Without any hesitation or resistance, 

Williams allowed Bird to leave the area to get a safety steward 

(T. 262-263, 55). After Bird requested a safety steward, Williams not order him to mine the face (T. 262) 

After Bird left, Williams talked about the condition of the 

room with the other crew members (T. 263). No other crew member 

refused to work or asked to leave the room (T. 179). Crew members had in the past raised safety concerns with williams. He 

and the crew were always able to work out these problems together 

and continue mining (T. 260). Williams never required his crews 

to mine areas that he considered to be unsafe and his crew had 

"generally" trusted his judgment whether a room was safe to mine 

(T. 261). This crew had encountered high cuts in the past (T. 

259-260, 265) and had also encountered higher cuts than the one 

present in the room (T. 260). When presented with high cuts 

before, the crew would bar out the loose roof and then the roof 

bolter would rebolt the area (T. 260-261) . They would use these 

procedures to make the room safe and then continue mining (T. 

260). Based on his 21 years of mining experience and 15 years 

2477 
experience as a foreman, Williams believed they could bolt the 

room that had been barred out and make it safe (T. 265). 

Williams had the crew back up the miner so they could bolt 

the area where Bird had barred out the loose material (T. 263-

264). Williamson proceeded to back the miner about 25 to 30 feet 

in front of the barred out area. The roof bolter that was located behind the miner was positioned below the area that had 

been barred down by Bird. Williams expected that because Bird 

had gone to get a safety steward a lot of people would be coming 

into the room. Williams testified that the room was safe to mine 

but that in an abundance of caution the crew proceeded to bolt 

the area that had been barred out by Bird (T. 265, 291). The 

crew had placed five bolts when the power went off on the miner 

and the roof bolter (T. 139, 266). They could not continue to 

bolt because, as they learned later, Bird had shut the power off 

to their equipment (T. 189, 199, 266). 

Bird claims that after he left the room he was unable to 

locate a safety steward. He testified he attempted to reach a 

safety steward by making several calls from the lunch room (T. 

57). Bird called KEITH MULLINS, D crew shift supervisor, and 

asked him to look at the room (T. 61, 310) but Bird did not ask 

him to get a safety steward (T. 310). 

Bird testified on direct examination that he shut off the 

power when he "first heard" the equipment "beginning to move" and 

that he called Mullins after he shut off the power (T. 61). Subsequently~ he testified about having followed Mullins' instruction not to move anything after he turned off the power (T. 99-

101). Mullins testified he did not tell Bird to leave everything 

where it was (T. 310-Jll)u as Bird claims. 

Bird testified on direct examination that (apparently while 

he was at the lunch room) he heard the alarm warning that the 

miner and other equipment were moving. He testified1 as above 

notedu ·that he proceeded immediately when he first heard it beginning to move to turn the power off to the equipment (T. 61). 

Bird admitted that the crew could have been backing up the equipment to rebolt the curl at the time he turned off the power. 

Bird also testified that he did not look to see whether the crew 

was backing up to rebolt. Without bothering to check, Bird apparently assumed that the crew was proceeding to mine and shut 

off the power (T. 124-125). 3 

3 The crew receives safety training during the annual MSHA refresher 

training (T. 190). Respondent's mine safety supervisor reviewed the crew's 

most recent refresher training forms. The safety supervisor testified that 

the crew received their annual refresher training approximately two weeks 

before the hear- hearing was held before this Court (T. 360). In addition, 

the crew received safety and workers' rights training during their new miner 

2478 
After the power went off, Williams proceeded to the lunch 

room to determine why the power was off. Williams believed or 

suspected that Bird had turned off the power. He found Bird and 

asked him whether he (Bird} had turned off the power. Bird confirmed that he had. Williams then told him to turn on the power 

(T. 266). Bird refused and threatened to put his lock on the 

transformer (T. 267). 

During this exchange, Bird did not claim that Mullins had 

instructed him to turn off the power or leave everything where it 

was. Williams then gave Bird a direct order, "Turn the power on; 

don't put your lock on the miner." Bird again refused. Williams 

said, "Shane, I'll tell you one more time, go turn the power on 

and do not put your lockout on the miner or I'll take you out of 

the mine." Bird again disobeyed Williams' direct order and 

locked out the miner (T. 267-268). 4 Williams then informed Bird 

he was taking him out of the mine (T. 268). In his 15 years of 

supervisory experience, Williams had never had a worker disobey a 

direct order. He had never been in a position where it was necessary to give a direct order to any other employee besides Bird 

(T. 282). Although he could have, Williams did not attempt to 

turn the power back on himself because he believed Bird had 

turned the power off and the situation was "escalating too bad" 

(T. 266). 

Bird admitted upon examination by the Court that Williams 

"just said turn the power back on, and I told him 'No.'" When 

asked: "He didn't say go back and operate the machine?" Bird 

admittedQ "No, no. 91 Significantly 1 Bird later testified that, 99Wello he did tell me to turn the power back on and go back to 

the minerun {T. 67 11 68). Williams testifiedu 11 I told Shane to go 

up and get his water jug. I was taking him out of the mine" 

(T. 268). 

Mr. Bird alleges that Williams pushed him during their exchange in the lunch room (T. 130-131}. WilliamsQ howeveru testitraining (T~ 361). The safety supervisor said there is a new miner training 

plan in effect at General Chemical that is approved by MSHA (T. 359). The 

plan has a specific section addressing workers' rights {T. 360). The training 

related to safety concerns lasts one to two hours (T. 360). 

4 A lock is a device that all miners carry to place on a transformer 

to prevent power from energizing a machine. Bird placed his lock on the 

trans- former, which was located away from the mining equipment. Anyone can 

turn the power on and off at the transformer if it is not locked out. No one 

besides Bird could remove Bird's lock once he placed in on the transformer (T. 

300). 

24 79 
fied convincingly that he did not touch or push Mr. Bird at any 

time during the incident (T. 268, 295, 300). 

Following the incident at the lunch room, Williams called 

Keith Mullins, his shift supervisor on D crew. Mullins is Williams1 immediate supervisor to whom Williams reports on a daily 

basis. When Mullins arrived, he and Williams went to the room to 

look at the roof conditions (T. 268-270, 311). Williams explained to Mullins how the crew had backed up to rebolt so they 

could continue to mine. consistent with Williams' testimony, 

Mullins testified that the crew had placed bolts in the barred 

out area, trona was still in the curl in this area, and there was 

no sign that the cut had entered oil shale in the area (T. 311, 

329). Mullins agreed that Williams 11was doing the right thing" 

by rebolting to continue mining the room (T. 269, 327) and felt 

that the room did not look "bad" (T. 336). 

After Mullins decided to have the crew continue mining, Bird 

demanded a Union safety steward (T. 312). Contrary to Bird's 

contention (T. 101), this was the first time he had made this 

request to Mullins (T. 312). Mullins then left to get Bird a 

safety steward. Bird admitted that on numerous occasions he had 

called Mullins to intercede on his behalf because Bird "thought 

he was fair" (T. 122). After Mullins came down and inspected the 

area, he decided the crew could go back to work. It was only 

after Mullins' review of the situation did Bird demand Mullins 

get a safety steward (T. 123). 

RANDY To PITTS, General Chemical's production superintendent 

over the bore panelsu arrived after Mullins had left (T. 269 0 

:721o Pitts responsible for safety production costs 0 and 

control of 1l:he bore areas (T. 372) . Pitts and Williams went to 

the face and discussed the roof conditions {T. 270). Pitts 

examined the roof conditions. 

After Pitts came out of the roomu Bird came up to him and 

claimed Williams had pushed him (T. 375). Pitts asked Williams 

·to follow him outu so they could talk privately (T. 270g 376). 

Pitts asked Williams if he had pushed Bird (T. 270). Williams 

t:old Pitts he did not. Pitts again asked Williams whether he 

had, 00 in fact 6 ua shoved Bird (T. 376). Again, Williams denied 

pushing Bird (T. 270, 376). Pitts repeated his question about 

Bird's allegations and explained to Williams the severity of the 

allegationso Williams again denied pushing Bird and Pitts took 

no action against Williams. Pitts confirmed Williams had made 

the room safe for mining (T. 377). 

Pitts then decided to separate Bird's safety concern issue 

from Bird's insubordination in refusing to obey Williams' direct 

orders (T. 377). Pitts testified, "Bird can be a very volatile 

person, and I felt that the situation could very easily escalate 

to something much more severe" (T. 377). Pitts believed that "by 

2480 
removing Mr. Bird from the situation it would diffuse that" (T. 

378). Pitts did not want the safety issue confused with the insubordination issue since those issues were "completely separate" 

(T. 379). Bird's insubordination was based solely on his refusal 

to obey Williams' direct orders (T. 271-272). 

Pitts instructed the crew to back up the equipment and make 

a ventilation turn out of the·room (T. 271, 377). Removing Bird 

from the mine and backing the miner up to make a ventilation turn 

separated Bird's insubordination from Bird's raising a safety 

concern (T. 271, 379)o Pitts also decided to make the ventilation turn because he had already decided to remove Bird from the 

area and the crew would be short one person without Bird (T. 

378). Three persons are needed to efficiently and safely mine 

straight ahead (T. 378, 397-398). Making the ventilation turn 

did not require bolting and it could be done with only two crew 

members (T. 378). 

Pitts told Bird that he was taking him out of the mine but 

before this Pitts let Bird talk to the union safety steward, 

ROBERT Wo TAYLOR, who had been brought to the area by Mullins (T. 

210: 212-213 1 312: 379-380)o Taylor then proceeded to inspect 

the conditions of the room. 

TERRY w. ADCOCK, Respondent's mine safety supervisor, after 

learning of the incident between Williams and Bird, asked GLEN 

BIBER, a Union safety steward, to go with him into the bore panel 

areao They arrived after Bird had been taken out of the mine 

(To 355-357)o Adcock and Siber discussed what had happened with 

Williamson and Smith and examined the room togethero The crew 

showed ·them t.he area Bird barred out and the bolts that had been 

installed in that areao Adcock testified that he responded, 00Wellu 'Chat 1 s a standard practiceo 01 A 01 safety issuen was brought 

up on the roomu 01 but that was taken care of" according to Adcock 

(To 367 1 368)o Adcock then stated that the crew told him that 

the safety issue was resolved when they placed bolts in the area 

of concerno Four or five bolts were placed in the area that had 

been barred out by Bird and they were painted redo Adcock testified that the roof on the left side was 01 [f] ine 16 and that it was 00 in good shapeo uu The curl had not fallen out on the left side. 

Exhibit C-4 contains a dispute provision that reads~ 

In the event that an employee challenges his job 

assignment in the belief that it is eminently 

hazardous, the assignment will be investigated by 

supervision of company safety department representative and union representative. Thereafter, the case 

will stand on its own merits and in such case no 

employee will be disciplined until the foregoing 

procedure has been followed. 

2481 
Bird claims that "in his mind" there was no investigation made 

pursuant to this provision (T. 96). He admitted, however, that 

an investigation could have been performed after he was taken out 

of the mine (T. 72). Bird also conceded that the language of the 

dispute provision did not require that he be present for the investigation (T. 98). He also conceded that nothing in the agreement required the foreman to get him a union steward (T. 101). 

Prior to the time Bird was disciplined with a written warning, BOB TAYLOR and GLEN BIBER, both union representatives, investigated the conditions of the room. Also, before Bird was 

disciplined, Mullins, Pitts, and Adcock, General Chemical's 

safety department representatives (T. 136), investigated the 

conditions of the room. Bird testified that when Pitts arrived, 

he took his lock off because he believed the investigation was 

beginning (T. 137). 

Bird was sent home by Pitts but still received a full day's 

pay for February 17, 1992 (T. 83, 380). Pitts clarified that the 

act of removing Bird from "the mine was not disciplinary; it was 

just to remove him from a volatile situation" (T. 380). 

On February 18, 1992, the day after the incident, Respondent 

held a disciplinary hearing pursuant to Article XIII, Section 2, 

of the Labor Agreement between Respondent General Chemical and 

the Union ("Union Agreement") which provides: 

The administering of discipline will be done in conformi~y with established Company policy which shall 

recognize generally accepted principle of industry, 

due process, and cause, and will include the 

employee's right to a hearing and to Union representation unless the employee is specifically advised 

otherwise {T. 342, 380). 

At the hearing on February 18 Bird was given an opportunity 

to tell side of the events that occurred on February 17 (T. 

141, 343u 358, 381-382). Bird was represented by Union officialso Birdus low crew members also attended the hearing and 

talked about the incident. Exhibit C-6 makes no reference to 

moving Bird to another shift (T. 157). 

Following the hearing, Respondent issued to Bird a Notice 

and Record of Disciplinary Action (Ex. C-6), which provides: 

On February 17, 1992, Shane Bird was insubordinate 

wherein he refused to comply with a direct order given 

him by his supervisor, Danny Williams. Mr. Bird was 

given specific instructions by Williams to turn the 

power back on at the transformer and not to lock out 

the miner. Mr. Bird disregarded the instruction and 

proceeded to put his lock on the miner despite Wil2482 
liams' order. Insubordination is a serious violation 

of the company rules of conduct and would normally 

result in a lengthy suspension or termination. However, in consideration of mitigating circumstances 

presented at the hearing, the Company chose to forego 

these options and issue Mr. Bird a written reprimand 

for his actions on this day. (T. 381). 

Pitts and GERALD A. HASLAM, Respondent's Superintendent of 

Human Resources, explained the meaning of the term "mitigating 

circumstances" used in the Notice (T. 337-338, 382). The term 

referred to the safety concern Bird had raised about the condition of the room. Haslam stated, "Insubordination is a very 

serious infraction and can result in some very severe discipline" 

(T. 340). However, because Bird had raised a safety issue, 

Haslam explained that the company decided to confine that discipline to a written warning" (T. ·340). Prior to Bird's insubordination hearing, Respondent had terminated two other employees who 

had refused direct orders {T. 352). No grievance was filed after 

Bird received the written warning for insubordination (T. 420). 

According to Pitts, the mitigating circumstances referred to 

the Company's giving Bird the benefit of the doubt about the 

safety issue he had raised to Williams (T. 382). Respondent, 

however, did not give Bird the benefit of the doubt about insubordination and Pitts testified that Bird "was clearly insubordinate" in disobeying his foreman's direct orders {T. 382-383). 

Pitts telephoned Bird the evening of February 18 and told 

him he was being moved from D to B crew (T. 402). Pitts testified that he did not move Bird to B crew as a result of Bird's 

raising the safety issue (T. 402-403). Rather, Pitts testified, 0

'The allegation of the shoving and stuff was the straw that broke 

the camel's back .•.. I could not in good conscience put [Bird 

and Williams]) back together after that accusation was made (T. 

403) o Bird confirmed this (To 142u 157)o Bird told Pitts that 00 there was something that needed to be done about we his pushing 

allegation (To 76)o Pitts was asked on cross-examination, "To 

your knowledgeu are people usually moved for allegations?" Pitts 

responded, 01They"re moved when a whole series of events take 

placeo In any series of events there is a final event. That was 

the final event. The series of events involving Bird started in 

the years prior to the February 17 incident" (T. 404). 

During his conversation with Pitts on the evening of February 18, Bird asked for a vacation. Respondent accommodated 

Bird's request for vacation. Bird was allowed to take vacation 

even though it was to be granted on a first-come, first-serve 

basis. Bird's response to this treatment was, "I thought it was 

pretty white of them" (T. 143-145). 

2483 
Pitts testified that Mr. Bird was a "poor operator" of the 

borer and this, together with the insubordination and alleged 

shoving incident, led to Bird's being moved from D crew to B 

crew. Prior to February 17 Pitts, on a "great many occasions," 

talked to Bird about the way he operated the bore miner, both 

directly and through his foreman, Williams. These discussion 

were about (1) cutting off seam, (2) leaving the miner's top bar 

too low, and (3) leaving a step in the roof which created very 

dangerous situations. Bird also had a habit of standing outside 

the miner while he operated it. Pitts and Williams also talked 

to Bird about this problem on numerous occasions (T. 383-385). 

A few days before the February 17 incident, Pitts was walking 

past the panel and the other crew members saw him coming and 

flagged Bird so that he could jump back into the cab (T. 383). 

During the six weeks prior to February 17, 1992, problems 

arose with the way Bird operated the bore miner. Bird was aware 

the panel belt the crew was using was old and worn (T. 272, 384). 

Supervision talked to Bird and all of the bore miner "operators, 

telling them that they had to slow down, run continually, but 

slower, to prevent problems" (T. 109, 384). Bird often ran at a 

rate that would overload the belt and the system would shut down 

(T. 272). When the system started back up, the belt would break 

(T. 110, 272). If the miner is operated too fast, it creates 

"hard wear and tear on the front end of the miner 11 (T. 384). 

Bird conceded that if the miner is operated too fast it adds a 

lot of weight to the belt causing it to break (T. 178). This 

increases maintenance costs and significantly slows down produc-

(T. 384 . During the six-week period prior to February 17 1 

·there were breakdowns 1 seven of which were the result 

of Bird 1 s overloading the belts • 275 9 384). Although the 

belt was old 7 it could be operated at reasonable capacity 

without breaking. Several times Pitts and Williams instructed 

Bird to slow down the miner (T. 275, 276). After these discussions, there would be v

1 brief improvement for a few days . . . . But 

after a few 1 Bird would slip back into the same problems" 

(T. 276, 385). While Bird holds the record for one day 1 s producon the bore miner (T. 276) during 1991, Bird was in last 

place for total production for the year (T. 276) and for the year 

1992 after leftu D crew placed first for production. Wiliams explained that the discrepancy between the years 1991 and 

1992 for total production was because Bird 1 s replacement operates 

the miner u'safely at a good speed 1 but not overload anything" (T. 

277-278). The other operators understood better than Bird how to 

properly use the bore miner (T. 299). Bird is the only operator 

that Williams supervised during his 15 years of experience who 

has continually refused to change the way he operated a miner to 

prevent breakdowns (T. 283). 

Prior to the February 17 incident, Pitts' supervisor, RON 

HUGHES, General Chemical's mine manager (T. 344) 1 demanded that 

Pitts "identify and fix operational problems with the bore miner" 

2484 
(T. 386). Specifically, Hughes insisted that Pitts correct problems associated with the way Bird was operating the bore miner. 

These problems were important factors in the decision to move 

Bird to another crew after his insubordination (T. 387). 

Bird had confrontations "a number of times 11 with the foreman 

that preceded Williams, DON DARROUGH (T. 386). Pitts testified, 

"Darrough continuously had problems with Shane. And we came to 

the point of having to move Shane or move the foreman. And I 

told Shane that was the case; and he almost begged to stay on the 

machine and said that all the problems had to do with the foreman, and if he was given the opportunity to stay on the machine, 

that he'd do a much better job.~~ Pitts moved Darrough to a different crew instead of Bird (T. 386). 

Pitts indicated it was not possible to put Bird back as a 

bore miner operator because Bird is "a poor operator." Pitts 

denied that Bird was taken off the bore miner because he raised a 

safety concern. Pitts testified "Like I said 1 he was a poor operator and it was hurting us" (T. 387). 

Mr. Haslam testified that under Article II of the 1990 Labor 

Agreement between General Chemical and the Union (Ex. R-3) General Chemical retains the authority to assign shifts and tasks to 

personnel (T. 340). Bird agreed (T. 159). By asking to be put 

back on D crew, Bird was asking for an exception to the Union 

Agreement (T. 341). 

Haslam had in t.he past been responsible for management 

rights under the Labor Agreement. Haslam gave two examples where 

Respondent moved a worker because of a conflict his foreman. 

Respondent also moved a male employee because of a conflict with 

a female employee. In these instances, the Union filed grievances against the changes (T. 350-351). Bird did not file a 

grievance with the Union following his shift change from D crew 

to B crew . 340) , 

MICHAEL BENNETT 9 Respondentus Production Superintendent over 

the continuous areau has responsibility for administering the absentee grievance procedure for the underground portion of the 

mine (T. 407-408}. Respondent established business justifications for each shift move of Bird (T. 412). Bird was assigned to 

a continuous miner on D crew after he bid the move in the spring 

of 1990. Although Bennett did not attend the February 18 Disciplinary hearing, he was aware of Bird 1 s insubordination and pushing allegations (T. 413). Although Respondent tries to work out 

disputes between hourly employees and supervision, the problems 

between Bird and Williams were different (T. 413-414). Bennett 

testified, "I think that there's a problem waiting to happen 

there. It's been my experience that once there is a problem like 

2485 
that, it's just a matter of time before it redevelops and worsens" (T. 429). Respondent moved Bird out of harm's way to protect both Bird and Williams (T. 429). 

Bennett said that a previous bore miner operator, Mike 

Robertson, requested to get back on a boring machine. Robertson 

operated a continuous miner on B crew. The ••easiest move ••• 

causing the least disruption" was to switch Bird and Robertson 

(T. 414). so Bird was moved to B crew. 

After the decision to move Bird to B crew, Bennett and 

Haslam attended a meeting requested by Union representative TONY 

TRUJILLO, which was called because of concerns raised by FRANCES 

PAGE, a black female employee. On a previous occasion, Ms. Page 

had accused Bird of sexual and racial harassment. When Page 

learned that Bird was coming back on B crew, she expressed reservations about it (T. 416). B crew consists of approximately 40 

production and 30 maintenance and utility employees (T. 416). 

Respondent had no intention of putting Bird and Page together in 

the same panel (T. 417). Trujillo acknowledged that the mine was 

large and that Bird and Page would only see each other at the 

start and at the end of the shift and he believed that Bird and 

Page were adults and could work on the same crew without any 

problem (T. 417). The union agreed and assented to the move of 

Bird to B crew (T. 417) . 5 Bennett told Bird that Page had raised 

concerns about his sexual and racial harassment of Page while he 

had previously been on B crew. Bird was told that Respondent 

expected him to perform his job and to leave Page alone (T. 417-

418). 

Desp the Union's assurance that Bird and Page were going 

to act reasonably, April 1992 9 Page filed a discrimination 

complaint alleging that Bird had again sexually and racially harassed her. These allegations were in addition to the allegations 

Page had made earlier in 1990. Page filed her complaint against 

Respondent General Chemical because Wyoming law requires General 

Chemical to provide Page with a workplace free racial and sexual harassment . 151-152 9 418-419). As a result of the allegations made by Page in her complaint, Bennett moved Bird from B to 

c crew. This move was made to avoid potential liability of GeneChemical • 422-423). In addition, Bird testified that he, 

the Unionu and Page insisted that Bird be moved from B to C crew 

(T. 85u 146). Bird was told that he would be fired if anything 

5 

his mind 

B crew. 

move (T. 

William Korhonen, the union President, testified that neither in 

nor in the mind of the Union was an agreement reached moving Bird to 

However, the union did not object in writing and did not grieve the 

443-444). 

2486 
like Page's allegations arose again (T. 156). It was this move 

that caused Bird to curse at Mr. Bennett. 6 

The Union attempted to show that Respondent had set Bird up 

when they put him on B crew (T. 84). Bird testified that Respondent placed him on B crew so Page would file a racial and 

sexual harassment complaint against Respondent because of Bird 

(T. 178). However, Bird conceded he was not fired because of 

Page's complaint (T. 178). Respondent could have fired Bird 

based on the racial and sexual harassment allegations alone made 

by Page against Bird (T. 431). Instead, it moved him to C crew 

(T. 428). 

Bird moved to c crew in April 1992 and worked on c crew for 

about six months until he filed a grievance to be placed full 

time on a miner (T. 423). There are two bore and five continuous 

miner operator positions on C crew (T. 423). The period April 

through October is the heaviest vacation time at the mine {T. 

423). Bennett testified that during this time the mine is "not 

working much. Other times we are not filling all the continuous 

miner positions." Bennett was breaking up crews during this 

period, including Bird's (T. 423). Bird was operating a miner 

during this time about four days each week. In his grievance, 

Bird requested through the Union that he be assigned to a machine 

that he could run full time. The Union knew that to grant Bird's 

wishes Respondent would have to "do away with a continuous miner 

job to create a position for Mr. Bird." This is exactly what 

Bennett did (T. 424). 

A miner position was available on A crew. The A crew miner 

operator was on medical leave for about six weeks. Bird was told 00 that as a result of the changes that were taking place and the 

grievance that was filed in his behalf," he was being moved to A 

Bennett addressed the Notice of Disciplinary Action to Shane Bird 

dated April 14, 1992 (Ex. C-7». Bennett testified that this was a written 

warn- ing issued to Bird for an incident that occurred on April 10, 1992, and 

that four Union safety representatives were present at the hearing (T. 409). 

The April incident occurred when Bird came off shift, and Bennett sent 

word that he wanted to speak with him about a shift move. Respondent decided 

to move Bird from B crew to c crew as a result of Page's racial and sexual 

harassment allegations against Bird. Bennett informed Bird of this decision. 

Bird re- sponded that the Union told him he was going back to D crew. Bennett 

told Bird "there was no way we would move him back to D crew because of the 

incident with Mr. Williams, the pushing incident" (T. 411). Bird became irate 

and upset, turned to walk away and said, "F • • • you. I need to see a Union 

rep." Bennett called for a hearing immediately after this incident. As a 

result of Mr. Bird's use of abusive language, Exhibit C-7 was issued (T. 410-

412). Neither Bird nor the Union grieved the April 10 disciplinary hearing 

(T. 340, 412). Exhibit C-7 makes no reference to moving Bird to another 

shift. 

2487 
crew to operate the miner. Bird was told that when the A crew 

operator returned from medical leave, Bird would have the opportunity to choose either to return to C crew or stay with A Crew. 

so as a result of Bird's grievance, he moved to A crew until the 

operator returned from medical leave (T. 425}. After the operator returned from medical leave, Bird came to the Company "and 

said, 'Yes, I want to go back to C crew'." As a result of Bird's 

own request, in November 1992, the Company moved Bird back to C 

crew. Bird could have chosen to stay on A crew, but he chose c 

crew ( T • 4 2 5 ) • 

Approximately five or six weeks prior to the hearing in this 

matter, Bird came to management and said, "Look, I'm not running 

the machine all the time on c crew. I would like to be on a 

miner full time" (T. 426). He was advised that there was a miner 

open on A crew. Bird said that if he could work with a certain 

foreman, he would go to A crew. Respondent agreed to his request 

and made this change for Bird (T. 426). Bird is presently operating a continuous miner on A crew (T. 91}. 

BOB TAYLOR, the union safety steward, claimed he had never 

heard of Respondentus moving around the 24 miner operators, 01 unless they go in and request it" (T. 216}. Taylor admitted 

that none of the 23 miners had disobeyed direct orders like Bird 

had (T. 218). None of the other 23 miner operators have a history of problems like Bird. None of the other 23 have been accused of sexual and racial harassment like Bird. None of the 

other 23 operators are as controversial as Bird (T. 427). 

In summary, Bird was on D crew because he bid on it originallyff Bird moved from D to B crew because of his unsatisfactory 

job performance over a period of time and because of the alleged 

shoving incident with Williams; Bird moved from B to C crew 

because he was accused of sexually and racially harassing a black 

female employee; Bird then moved from C to A crew because the 

Union filed a grievance on Birdus behalf requesting that "he be 

assigned a full time miner 00 ; Bird moved from A to C crew because 

he requested it (To 427-428); and finally, Bird moved from C back 

to A crew at his own request (To 428)o Presently, Bird operates 

a continuous miner at the same rate of pay he was receiving as a 

bore miner operator on D crew (To 428)o He has received the same 

rate of pay since the February 17u 1992u incident (T. 105)o 

DISCUSSION AND CONCLUSIONS 

In order to establish a prima facie case of mine safety discrimination under Section 105(c) of the Act, a complaining miner 

bears the burden of production and proof to establish (1} that he 

engaged in protected activity, and (2) that the adverse action 

2488 
complained of was motivated in any part by that activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 

2786u 2797-2800 (October 1980), rev'd on other grounds sub nom. 

consolidation coal co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981), 

and Secretary on behalf of Robinette v. United Castle Coal Co., 

3 FMSHRC 803, 817-818 (April 1981). The operator may rebut the 

prima facie case by showing either that no protected activity 

occurred or that the adverse action was in no part motivated by 

protected activity. If an operator cannot rebut the prima facie 

case in this manner, it may nevertheless affirmatively defend by 

proving that {1) it was also motivated by the miner's unprotected 

actiyities, and (2} would have taken the adverse action in any 

event for the unprotected activities aloneo The operator bears 

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

v. Magma Copper Co., 4 FMSHRC 1935, 1936-1938 (November 1982). 

The ultimate burden of persuasion does not shift from the Complainant. Robinette, 3 FMSHRC-at 818 n. 20. See also Donovan v. 

stafford Construction co., 732 F.2d 954, 958-959 (D.C. Cir. 1984 

(specifically approving the 'Commission 1 s Pasula-Robinette test); 

and Goff v. Youqhiogheny & Ohio Coal Company, 8 FMSHRC 1860 

(December 1986). 

The record is clear that Complainant Bird initially engaged 

in an activity protected under the Act--complaining to his foreman Danny Williams that conditions in a room he was working in 

were unsafe and initially refusing to work. 7 Complainant concedes that Williams advised him that he had previously seen the 

area complained of and considered it safe (T. 54) and that 

Williams directed him and the crew to continue the work (T. 55; 

Complainant's Post-Hearing Briefu p. 3}. 

It is concluded on the circumstances of this case that 

Mr. 8 S act of turning off the power to the miner when he did 

not know the circumstances, and then later refusing a direct 

order to turn the power back on was unreasonable and was not a 

protected activity under the Act. 

It was established that Respondent took adverse action in 

form of a written warning to Mr. Bird for failing to comply 

7 For a work refusal to come within the protection of the Mine Act, 

the miner must have a good faith, reasonable belief that the work in question 

is hazardous. Robinette, supra, 3 FMSHRC 801-812. If such belief is 

reasonable, the mine operator has an obligation to address the danger 

perceived by the miner. River Hurricane Coal Company, Inc., 5 FMSHRC 1529 

(September 1983); Secretary of Labor v. Metric Constructors, Inc., 6 FMSHRC 

226 (February 1984), aff'd sub nom Brock v. Metric, 766 F.2d 469 (11th Cir. 

1985). A miner's continuing refusal to work may become unreasonable after an 

operator has taken reasonable steps to dis- sipate fears or ensure the safety 

of the challenged condition. See Ronny Boswell v. National Cement Company 14 

FMSHRC 253 (February 1992). 

2489 
with an order from Williams to turn the power back on at the 

transformer and to not lock out the miner (see Ex. C-6). Respondent also subsequently transferred Bird to different shifts. 

The essential issues then are whether the warning and transfers were discriminatorily motivated or were justified. 8 

The propriety of Respondent's issuance of a written warning 

to Mr. Bird, after investigation of the room had taken place and 

after a hearing the following day, is supported in the record. 

The second written warning received by Bird for using abusive 

language to a supervisor is irrelevant to this discrimination 

claim and he failed to prove any nexus of such to his protected 

activity. 

As previously found, Mr. Bird suffered no adverse action as 

a result of shift changes following his February 17 insubordination; he was moved to B crew to protect him from possible further 

altercations with his foreman and because of the poor operating 

performance. Respondent even accommodated his request for vacation with the change in shift. Bird was moved form B to c crew 

to protect him from claims asserted by Frances Page. He was then 

moved from c to A crew, A to C crew, and from C back to A at his 

request. Respondent abolished an operator position to make room 

for Bird and, as an accommodation, assigned him to work with a 

foreman with whom Bird had requested to work. 

Bird admits that at all times subsequent to his insubordination he has received the same rate of pay and has remained a 

continuous miner operator. Bird offered no rebuttal evidence and, 

thereforeu failed to carry his burden of proof to establish that 

he has suffered anv unwarranted adverse action as a result of the 

February incident.-

Complainant failed to establish that Respondent acted unreasonably, or in bad faith, in responding to and addressing his 

safety concern. The United States Court of Appeals for the District of Columbia Circuit in Gilbert v. Federal Mine Safety and 

Health Review Commission, 866 F.2d 1433 (.D.C. Cir. 1989), has 

held that 91When a miner expresses a reasonable 1 good faith fear 

in a hazard, the operator has a corresponding obligation to 

8 I have credited the version of the facts of Respondent's witnesses 

based not only on demeanor, but on discrepancies of testimony including those 

concerning whether the crew received safety training, the fact that the other 

crew members did return to work when ordered to do so, the fact that 

Complainant was accommodated in various requests by Respondent, indicating a 

mild approach to discipline despite an apparently troublesome work history, 

and since there is no substantial evidence of anti-safety animus .on the part 

of Respondent in this record. 

2490 
address the perceived danger." Respondent did so here. After 

Bird left the room and after talking to the crew, Williams had 

the crew back up and rebolt the area. They could have completed 

this task had Bird not shut down and locked out the equipment. 

Safety supervisor TERRY ADCOCK, a federal and state certified 

miner investigator, testified that Mr. Williams' attempted resolution was an accepted safety practice for dealing with high 

cuts. Further, Mullins, who Bird himself admitted was "fair," 

concluded Williams made or was attempting to make the room safe 

to mineo In addition, Bird's fears, if any, were completely 

satisfied when the decision was made to pull back and make a 

ventilation turn. These actions fully demonstrate a good faith 

and reasonable response to Bird's concern" 

Respondent thus discharged its duty to respond to Bird's 

reasonable belief that the work in auestion was hazardous. 

Williams never ordered Bird to go back to the room and operate 

the miner. Williams ordered him to perform solely unprotected 

activities (turn on the power and not to lock out) . In the circumstances here Williams was not required to explain to Bird that 

the crew was making the room safe to mine. It is immaterial that 

Williams never communicated to Bird that the crew was rebolting 

when Bird turned the power off on them. As Respondent contends, 

Mr. Bird confuses his role in the mine with that of management's. 

Bird has failed to establish discriminatory motivation by a 

preponderance of the evidence. There is no convincing evidence 

that the adverse action of Respondent was motivated in any part 

by Bird's limited protected activity. 

Discriminatory be proved by circumstantial indiincluding~ lcnowledge protected activity; hostility towards protected activity; coincidence in time between the protected activity and the adverse actions; and disparate treatment 

of the miner. Respondent responded to Bird's safety concerns and 

even gave him the benefit the doubt when it chose not to discipline him more severely when was insubordinate. Bird has 

not established by a preponderance evidence any of the 

circumstantial indicia of discriminatory intent. 

There is no persuasive evidence that Respondent displayed a 

specific hostility toward Bird 1 s protected activityo Respondent 

established convincing evidence to the contrary. Williams and 

the other supervisors recognized Bird 1 s safety concern and, contrary to Bird's assertion, did not attack or threaten him for 

raising such concern. Without hesitation or resistance, Williams 

allowed Bird to leave the room to find a safety steward. Respondent respected Bird's concern enough to pull back the miner 

and make a ventilation turn. Respondent removed Bird from the 

mine to protect him from further altercations, paid him for the 

full day, and bypassed Company policy to grant him vacation so he 

could make a reasonable transition to his new crew. Respondent 

2491 
has in the past discharged miners for less insubordination, but 

chose to discipline Bird with a written warning because he had 

raised a safety concern. He received a hearing concerning his 

insubordination. His shift changes did not reflect hostility to 

protected activity. On the contrary, each move was to protect 

Bird from harm or to grant his personal request for reassignment. 

Respondent abolished an operator position to accommodate Bird's 

request for a move and, as a further accommodation, assigned Bird 

to work with the foreman with whom Bird requested to work. 

Complainant Bird presented no evidence that Respondent had 

been, in general, hostile to his or others' protected activities. 

Although Respondent bears the burden of establishing its 

affirmative defense, "the ultimate burden of persuasion does not 

shift from" Mr. Bird. Sammons v. Mine Services Co., 6 FMSHRC 

1391 (June 1984). 

Legitimate business justifications existed for removing Bird 

from the mine apart from his protected activities. Respondent 

established that it removed Bird to protect him, not to discipline him. Respondent moved Bird because he refused Williams' 

direct orders and alleged Williams pushed him. Because Bird had 

a volatile reputation, Respondent believed in its business judgment that Bird should be removed to protect him from any further 

altercations and to diffuse the situation. The situation could 

have escalated to something more severe. Under the restrained 

inquiry required by the Commission in Chacon v. Phelps Dodge 

Corp. 1 3 FMSHRC 2508 (1981}, these justifications for removing 

Bird from the mine are neither incredible nor implausible. 

f legitimate business justification existed for 

issuing a written warning to Bird for his insubordination. A 

business justification for issuing Bird a written warning was for 

his turning off power to, and locking out, machinery and refusing 

s foremanffs direct orders. Bird's insubordination clearly es-

~ablished Respondentvs affirmative defense for issuing this written warning. 

As the Commission stated in Bradley v. Belva Coal Company, 4 

FMSHRC 981u 991 (June 1982)~ 01 0ur function is not to pass on the 

wisdom or fairness of such asserted business justifications, but 

rather only to determine whether they are credible and, if so, 

whether they would have motivated the particular operator as 

claimed." 

The record in this matter is convincing that Respondent was 

motivated for the reasons and justifications it claims. Complainant's evidence was not found to be persuasive that his discipline was due to any alleged expression of safety concerns. 

Consolidation Coal Co. v. Marshall, supra. 

2492 
CONCLUSIONS 

Respondent's motivation in reprimanding and reassigning 

complainant was for his unprotected activities and the decision 

to take such adverse action was justified. This adverse action 

was not wholly or in part discriminatorily motivated. Thus, 

complainant has failed to establish a prima facie case of discrimination under Section 105(c) of the Mine Act. 

Even assuming arguendo that it was established by a preponderance of the reliable, probative evidence that the adverse actions were motivated in part by protected activities, Respondent 

established by a clear preponderance of such evidence that it was 

also motivated by Complainant's unprotected activities and that 

it would have taken the adverse actions in any event for such. 

Gravely v. Ranger Fuel Corp., 6 FMSHRC 729 (1984). 

ORDER 

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

lack merit and this proceeding is DISMISSED. 

Distribution~ 

#~Ld,~ftMichael A. Lasher 1 Jr. 

Administrative Law Judge 

Mr. Harry Tuggle 1 Safety and Health Specialist 1 Health 1 Safety 

and Environment Department; United Steelworkers of Americav Five 

Gateway Center 1 Pittsburgh; PA 15222 (Certified Mail) 

Matthew F. McNulty IIIu Esq.v Bradley R. Cahoon, Esq., VANCOTT, 

BAGLEY, CORNWALL & McCARTHYv 50 South Main Street, Suite 1600, 

P.O. Box 45340, Salt Lake Cityv Utah 84144 (Certified Mail) 

Mr. Ronald Shane Bird, 114 South Main, Rock Springs, WY 82901 

(Certified Mail) 

ek 

2493 
PBDBRAL Kl:IIB SAFETY DD BBALTH RBVJ:D COJIMISSJ:OII 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

THOMAS P. GATES, 

Complainant 

v. 

GOUVERNEUR TALC COMPANY, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 81993 

DISCRIMINATION COMPLAINT 

Docket No. YORK 93-135-DM 

NE-MD-93-06 

#1 Mine 

Mine ID: 30-00611 

DECISION 

Appearances: Thomas P. Gates, pro se, Hailesboro, New York, 

for Complainant; 

James J. Dean, Esq., Putney, Twombly, 

Hall & Hirson, New York, for Respondent. 

Before: Judge Feldman 

This matter is before me for consideration based upon a 

discrimination complaint filed by Thomas P. Gates against the 

corporate respondent, Gouverneur Talc Company. Gates is bringing 

this discrimination action in his own behalf pursuant to Section 

105(c) (3) of the Federal Mine Safety and Health Act of 1977v 

30 u.s.c. § 815(c) (3) (the Act). Gates initiated this action 

after the Mine Safety and Health Administration (MSHA) conducted 

an investigation and concluded that there was no section 105(c) 

discrimination violation with respect to Gates' March 2, 1993, 

employment discharge by the Gouverneur Talc Company. 

This case was heard in Watertown, New York, on November 9, 

1993. At the hearing Gates called Thomas Cogan and Kevin Hurley, 

who are officials with Local 4979 of the United Steel Workers of 

America. Gates also called Harold Boncolln, the respondents' 

mine superintendent, and Gary Lutz, who was discharged with Gates 

shortly after they had an altercation on February 10, 1993. The 

respondent relied upon the testimony of Terry Jacobs, the 

respondent's safety director, and Greg Holly and Gary Rust, 

employees of the respondent who witnessed the altercation between 

Gates and Lutz. At the culmination of the hearing, the parties 

elected to make closing statements in lieu of filing posthearing 

briefs. After considering the evidence of record and the closing 

presentations, I issued a bench decision which is formalized 

herein. 

2494 
The chronology of events are not in dispute and can be 

briefly summarized. Gates' employment with the Gouverneur Talc 

Company as a maintenance mechanic began in April 1984. As a 

maintenance mechanic, Gates was responsible for all maintenance 

with the exception of electrical and vehicle repair. Gates 

served as a union safety man for approximately one year during 

the period 1986 through 1988. Gates also served as a United 

Steel Workers grievance committeeman for local 4979 for 

approximately four years prior to his discharge on March 2, 1993. 

As a union committeeman, Gates dealt primarily with contract 

interpretation issues and was not actively involved in union 

safety related issues or complaints. 

Gates is not alleging that his activities as a union safety 

man or as a union committeeman in any way contributed to his 

March 2, 1993, termination. The termination occurred shortly 

after Gates• February 10, 1993, altercation with Gary Lutz who 

was also discharged for fighting. {Tr. 21-22). Rather, Gates 

maintains that the discrimination complaint he filed with the 

Mine Safety and Health Administration on April 8, 1993, after he 

was permanently discharged on March 2, 1993, tainted his 

August 5, 1993, arbitration hearing because the arbitrator heard 

testimony concerning the fact that the complaint had been filed. 

(Tr. 22}. 

Gates' April 8, 1993, discrimination complaint primarily 

alleges breaches of the union-management labor contract 

concerning such matters as grievance procedures, eligibility to 

vacation pay after discharge, and termination of hospital 

insurance after discharge. The respondent provided testimony on 

these issues. For example, Lutzv company health insurance was 

terminated Gates 1 health insurance because Lutz received 

worker compensation benefits as a result of his injuries 

sustained in the altercation with Gates. respondent was 

legally obligated to retain Lutz in its health insurance program 

while Lutz was a worker compensation recipient. 

The focal point this case is altercation between 

Gates and Lutz which occurred on February 10, 1993. On that 

morning Gates was repairing a cable from approximately 7:00 a.m. 

until shortly after 8g00 a.m. The mine foreman requested Gates 

to assist Lutz with repairing track after he finished the cable 

repair work. Howeveru Gates decided that there was not enough 

time to travel to Lutz 1 work area before the 9~00 a.m. break 

period. Therefore, Gates decided to go to the lunchroom after 

repairing the cable until the morning break was finished. Lutz 

became annoyed when he learned that Gates was in the lunchroom. 

Lutz and Gates argued in the lunchroom at which time Lutz accused 

Gates of not showing up for work. Lutz also threatened to inform 

management that he did not want to work with Gates anymore. 

2495 
After the break, Holly, Rust, Lutz, and Gates traversed the 

tunnel to the work site. Lutz was unloading material from a 

flatbed when Gates approached him and repeatedly called him a 

"snitch" and "squealer." Lutz replied that he had "enough of 

[Gates'] shit and [Lutz] started towards [Gates]." (Tr. 85). 

An altercation then ensued, although Lutz has no recollection of 

the events. According to witnesses Holly and Rust, Lutz went for 

Gates and the two began pushing and shoving each other. Lutz 

ultimately fell on his back in the mud across the track and 

sustained cracked ribs. Lutz was subsequently admitted to the 

hospital where he experienced heart stoppage which may have been 

related to his traumatic chest injuries. Lutz required a 

pacemaker, however, it is not clear whether the cardiac 

condition was directly related to the injuries sustained at the 

mine. (Tr. 83). 

On February 16, 1993, the respondent served written notice 

on Gates, pursuant to paragraph 77 of the union agreement, that 

he was provisionally discharged for fighting with another 

employee on February 10, 1993. (Res. Ex. 2). Gates contested 

this action and hearings were held in accordance with the 

requirement of the union contract. The evidence considered at 

the hearings included information obtained from witnesses Holly 

and Rust as well an interview with Lutz in the hospital. On 

March 2, 1993, Gates' provisional discharge was converted to a 

permanent discharge. (Res. Ex. 18). A union grievance filed on 

March 4, 1993, was denied by the respondent. This matter became 

the subject of an arbitration proceeding. The arbitration 

hearing was conducted on August 5, 1993. On September 10, 1993, 

Arbitrator Mona Miller issued a decision wherein she denied the 

union grievance and concluded that the respondent had discharged 

Thomas Gates for just cause" (Res. Ex. 19a). 

In order to prevail in a discrimination case, the 

complainant must demonstrate that he participated in protected 

activity and that there is some nexus between the protected 

activity and the adverse action complained of. Secretary on 

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 9 

2797-2800 (October 1980)u rev~d on other grounds sub nom., 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 

1981) r Secretary on behalf of Robinette v. United Castle Coal 

Co. 9 3 FMSHRC 803q 817-818 (April 1981)o Alleged adverse actions 

associated with alleged violations of Gates 1 rights under the 

union contract, such as issues pertaining to hospital insurance 

and vacation pay 1 are beyond the scope of this proceeding. It is 

clear that the only pertinent adverse action in this matter, 

i.e., Gates• permanent discharge on March 2, 1993, could not have 

been related to his subsequent discrimination complaint filed 

with the Mine Safety and Health Administration on April 8, 1993. 

Consequently, I issued the following bench decision, with nonsubstantive edits, dismissing Gates' discrimination complaint. 

2496 
In addressing the issues in this case, I wish to point 

out that to prevail on a discrimination complaint under 

Section 105(c) of the Mine Act, the complainant must 

demonstrate that he or she has engaged in protected 

activity, and that the adverse action, in this case 

Gates' termination, was in some way motivated by the 

protected activity. 

Although Gates indicated that he was a union grievance 

committeeman from 1989 through his termination on 

March 2, 1993, and that he was a safety committeeman 

for approximately one year during the period 1986 

through 1988, he has conceded that he was not 

discriminated against for these activities. Thus, his 

termination was not in any way motivated by these 

activities. 

Moreover, it is important to note that Gary Lutz, who 

was also terminated for his role in the altercation in 

issue, was never a grievance or safety committeeman. 

Therefore, the fact that Lutz, who had no history of 

safety related or grievance committee activities, was 

also terminated is further evidence that Gates was not 

singled out for his prio:r safety or union related 

activities. 

The central issue in this proceeding is the 

February 10 1993, altercation between Gates and Lutz. 

I am confident that Gates is a sincere individual and 

that he had no intention of contributing in any way to 

Lutzv injuries. Howeveru when Gates made remarks about 

Lutz being a ovsnitchff on he knew or should reasonably 

have anticipated that such remarks could result an 

altercation. This was apparently the basis for his 

termination by the respondent. 

The thrust Gatesn case that his discrimination 

complaint filed April 8v 1993, approximately one month 

after his permanent discharge on March 2v 1993v somehow 

tainted his August 5, 1993v arbitration hearing. I 

find the record devoid of any evidence that the 

arbitrator 1 s knowledge that Gates had filed a Mine 

Safety and Health Administration discrimination 

complaint influenced her arbitration decision. 

Moreover, it was appropriate to reference Gates 1 

discrimination complaint in the arbitration proceeding 

as the complaint is relevant to Gates' state of mind 

and whether Gates felt that the company's discharge was 

motivated by his alleged past protected activities 

under the Mine Act rather than his altercation with 

Lutz. 

2497 
In reaching a conclusion in this case, I note that 

deciding who was primarily at fault in the altercation 

between Gates and Lutz is beyond the jurisdiction of 

this court. My role is not to determine whether Gates, 

Lutz or both were justly discharged. Rather, my 

jurisdiction is limited to the issue of whether Gates 

was discharged for any past activities which can be 

construed as protected activities under the Mine Act. 

In the current case, the only protected activity 

alleged by Gates is the Mine Safety and Health 

Administration complaint that he filed. As this 

complaint was filed after his employment termination 

had become permanent, I am unable to conclude that 

Gates' discharge was in any way motivated by his 

discrimination complaint or any other protected 

activity. This decision has no bearing on any rights 

or benefits Gates may claim under any other Federal 

statute or as a result Of any alleged breach of union 

contracte 

In summary, my decision in this matter solely relates 

to the discrimination issues within the parameters of 

the Mine Safety and Health Act. As such, Gates' 

discrimination complaint against the Gouverneur Talc 

Company is dismissed. (Tr. 159-163). 

ORDER 

Accordinglyu the discrimination complaint filed by 

Thomas P. Gates against the Gouverneur Talc Company in Docket 

No o YORK 3-135-DI"' IS HEREBY DISMISSEDo 

Distribution~ 

~~$5----_____::,-·::::--:, ~· Jerold Feldman 

Administrative Law Judge 

Mro Thomas Po Gates 1 PoOo Box 134 Hailesborou NY 13645 

(Certified Mail) 

James J. Dean, Esq., Putney, Twombly, Hail & Hirson, Bar 

Building, 36 West 44th Street, New York, NY 10036 

Ms. Dana Putman, General Manager, Gouverneur Talc Company, P.O. 

Box 89, Gouverneur, NY 13642 

/11 

2498 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 81993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MANALAPAN MINING COMPANY, 

INC. I 

Respondent 

Docket No. KENT 93-666 

A. C. No. 15-16318-03578 

Mine No. 6 

Docket No. KENT 93-670 

A. C. No. 15-05423-03731 

Docket No. KENT 93-671 

A. C. No. 15-05423-03735 

Mine No. 1 

Docket No. KENT 93-705 

A. C. No. 15-16733-03543 

Mine No. 7 

DECISION APPROVING SETTLEMENT 

Appearances: Joseph B" Luckett, Esq., Office of the Solicitor, 

U. s. Department of Labor, Nashville~ Tennessee, 

for the Secretary; 

Richard D. Cohelia, Safety Director, Manalapan, 

Mining Company, Inc., Evarts, Kentucky, for 

Respondent. 

Before~ Judge Maurer 

These cases are before me upon a petition for assessment of 

civil penalties under section 105(d) of the Federal Mine Safety 

and Health Act of 1977 (the Act). An evidentiary hearing in 

these matters was held on November 4, 1993, in London, Kentucky. 

At the conclusion of that hearing, the parties filed a motion to 

approve a settlement agreement and to dismiss these cases. 

2499 
The citations, initial assessments, and the proposed 

settlement amounts are as follows: 

CrTATrON[ PROPOSED PROPOS I~ 

ORDER NO. ASSESSMENT SETTLEMINT 

KENT 93-666 

4239039 $ 793 $ 520 

4239040 690 690 

4239181 690 690 

4239182 690 100 

KENT 93-670 

3000222 431 200 

3000224 506 506 

3164702 431 200 

3146703 431 431 

3164704 431 431 

3164708 690 690 

3164709 690 690 

3164710 431 428 

3164712 431 431 

3164713 431 431 

3164714 431 431 

3164718 431 431 

KENT 93-671 

3164648 903 900 

3164650 903 900 

4239362 309 100 

4239363 903 900 

KENT 93-705 

9885266 793 500 

9885275 2173 1500 

TOTAL $14,612 $12,100 

I have considered the representations and documentation 

submitted in these cases, as well as the testimony contained in 

the record of proceedings and I conclude that the proffered 

settlement is appropriate under the criteria set forth in 

section 110(i} of the Act. 

2500 
WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that respondent pay a penalty of $12,100 within 

30 days of this order. 

Law Judge 

Distribution: 

Joseph B. Luckett, Esq., Office of the Solicitor, 

U. s. Department of Labor, 2002 Richard Jones Road, Suite B-201, 

Nashville, TN 37215 (Certified Mail) 

Richard D. Cohelia, Safety Director, Manalapan Mining Company, 

Inc., Rt. 1, Box 374, Evarts, KY 40828 (Certified Mail} 

dcp 

2501 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

HERBERT COLLINS, 

Complainant 

v. 

J & S COLLIERIES, INC., 

Respondent 

December 9, 1993 

. . 

. . 

. . 

: 

. . 

DISCRIMINATION PROCEEDING 

Docket No. KENT 93-910-D 

PIKE CD 93-06 

No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

This case is before me pursuant to section 105(c) of the 

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

filed a joint motion to approve settlement of this matter which 

states in relevant part: 

1. Respondent J & S Collieries agrees to pay 

Complainant Herbert Collins the sum of Five Thousand 

Dollars ($5,000.00) upon entry of the Order Approving 

the Settlement, said sum being in payment of all 

claims, including wages, employee benefits and medical 

expenses. Mr. Collins agrees to relinquish his rights 

and claims to reinstatement andjor reemployment with 

J & S collieries or any other company owned by 

Clifton Street. 

2. Complainant Collins' employment with J & S 

Collieries was terminated on February 11, 1993 and he 

thereafter obtained employment with an unrelated mining 

operation. Mr. Collins was unemployed for approximately six weeks. 

3. The personnel records maintained by J & S 

Collieries shall be completely expunged of all information relating to the matters being litigated herein as 

relates to Mr. Collins. 

4. In the event that J & S Collieries is contacted by a prospective employer of Mr. Collins at any 

time in the future, J & S Collieries agrees not to give 

Mr. Collins a negative or unfavorable reference regarding his job performance while employed by J & s Collieries. J & S Collieries agrees to state only Mr. 

Collins job title(s) and dates of employment when 

contacted by a prospective employer. 

2502 
5. J & S Collieries and all other companies with 

the same ownership will not be required to offer employment and/or reinstatement to Mr. Collins at any 

time in the future. 

6. In light of the difficulties and contingencies 

necessarily attendant to the litigation of the subject 

case, the complex factual disputes requiring many witnesses, and the fact that Mr. Collins shall be compensated for any economic loss he may have incurred by the 

terms of this settlement, the parties and Mr. Collins 

agree that the proposed settlement of this case is 

appropriate under the circumstances. 

7. In consideration of the willingness of J & s 

Collieries to resolve this claim by payment of the 

above sum to Mr. Collins, the Secretary agrees that the 

appropriate civil penalty shall be Two Hundred Dollars 

($200.00). 

8. Whereas Section 105(c) of the Mine Act 

uniquely designed to benefit the public interest by 

restitution to those affected by a violation, the 

Secretary submits that such purposes are fulfilled in 

this case by the proposed settlement terms. 

9. By entering into this Agreement, J & S Collieries, agents, officers, employees and owners, do 

not admit that J & S Collieries violated Section 105(c) 

of the Act or any other provision of the Act. 

10. The parties submit that approval of this 

settlement in the public interest and will further 

the remedial purposes of the Mine Act" 

11. This Settlement Agreement shall be binding 

upon the parties hereto and Herbert Collins; and upon 

each of the respective successors. 

Based on the foregoing and noting that both parties have 

signed the settlement motion, I conclude that the proffered 

settlement is appropriate under the provisions of the Mine Act. 

Accordingly, the motion 

GRANTED. 

approval of settlement is 

It is ORDERED that the operator PAY the complainant, Herbert 

Collins, $5,000 immediately. 

2503 
It is further ORDERED that the operator PAY a civil penalty 

of $200 to the Mine Safety and Health Administration within 30 

days of the date of this decision. 

It is further ORDERED that this case be DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

Gretchen M. Lucken, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Billy Shelton, Esq., Baird, Baird, Baird & Jones, PSC, 415 Second 

Street, P. 0. Box 351, Pikeville, KY 41502 

Mr. Herbert Collins, P. 0. Box 37, Shelbaine, KY 41562 

Mr. Clifton Street, President, J & S Collieries, P. 0. Box 3544, 

Pikeville, KY 41502 

/gl 

2504 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SLADE VANOVER, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 161993 

Complainant 

: DISCRIMINATION PROCEEDING 

Docket No. KENT 93-359-D 

: BARB CD 93-06 

SHAMROCK COAL COMPANY, 

Respondent 

. . 

. 

• 

Appearances: 

Before: 

DECISION 

Phyllis L. Robinson, Esq., Hyden, Kentucky, for 

the Complainant; 

Timothy L. Wells, Esq., Neville Smith, Esq., Smith 

& Wells, Manchester, Kentucky, for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a complaint of alleged 

discrimination filed with the Commission on February 23, 1993, 

by the complainant against the respondent pursuant to 

section 105(c) (3) of the Federal Mine Safety and Health Act of 

1977 r 30 U o So Co § 815 (c) (3) o The complainant asserts that he was 

last employed by the respondent as a Longwall Technician, and 

that the course of his employment he complained to his 

supervisors about (1) excessive dust levels, (2) underground 

detonations while men were working at the face, and (3) the 

transportation of explosives on a mantripo The complainant 

further asserts that he was constructively discharged andjor 

forced resign on July 20 0 1992, due to these safety complaints 

being ignored by the respondent. 

The complainant filed his initial complaint with the 

Department of Labor, Mine Safety and Health Administration 

(MSHA)v and after completion of an investigation of the 

complaint, MSHA advised the complainant that the information 

received during the investigation did not establish any violation 

of section 105(c) of the Act. Thereafter, the complainant filed 

a complaint with the Commission. 

The respondent filed a timely answer to the complaint 

denying any discrimination, and asserting that the complainant 

voluntarily quit his job. A hearing was held in London, 

Kentucky, and the parties filed posthearing briefs which I have 

considered in the course of my adjudication of this matter. 

2505 
Issue 

The principal issue in this case is whether or not the 

complainant was constructively discharged by the respondent at 

the time he left his employment because of the alleged failure by 

the respondent to take any remedial action in response to his 

safety complaints. Additional issues raised by the parties are 

identified and disposed of in the course of this decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 301 et seg. 

2. Sections 105(c) (1), (2) and (3) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 815 (c) ( 1} , and ( 2} and ( 3) . 

3. Commission Rules, 29 C.F.R. § 2700.1, et seq. 

complainant's Testimony and Evidence 

The complainant Slade Vanover testified that he worked for 

the respondent for twelve and one-half years. He started as a 

roof bolter, and then worked as a continuous miner operator and a 

longwall shield technician, beginning in April, 1991. He 

received longwall training, knew how to perform that job, and he 

was comfortable doing that job (Tr. 13-18}. He stated that when 

he left his job he realized that he was leaving "one of the best 

jobs in the area"u and that "I thought about that real hard" 

(Tro 20) Q In response to a question an to how long it took him 

to make his decision, he responded as follows at (Tr. 20)~ 

Ao u when I took my vacation two weeks prior 

to when I actually quit and I thought about 

it all-- I guess I waited till the last 

minute before I actually quit. 

can you 'tell us why you left that job? 

Ao Because of conditions I was having to work in. 

Mr. Vanover stated that he worked as a continuous miner 

operator for five or six years before becoming a shield 

technician, and that he made complaints about the dusty 

conditions. .He stated that his complaints were taken care of 

"most of the time" (Tr. 16, 21). 

Mr. Vanover stated that he made his initial complaint about 

the dust on the longwall in April, 1991, "the week or so we 

started running coal" on the day shift (Tr. 21). He stated that 

he complained to mine superintendent Ed Boylen, head maintenance 

2506 
foreman Jim Tye, longwall coordinator David Hensley, safety 

director steve Shell, dust sampler Bill Sizemore, section 

maintenance foreman Hetch Begley, and supervisor Denny Osborne. 

He also complained to second shift supervisor Randy Turner and 

second shift maintenance foreman Wade Blevins (Tr. 22-24). 

Mr. Vanover stated that he worked for awhile on the second shift 

and then transferred to the first shift. He complained about the 

dust on both shifts (Tr. 24). 

Mr. Vanover explained that the dusty conditions resulted 

from·insufficient water to keep the dust down, and that "every 

once in awhile the air was insufficient to blow the dust out" 

(Tr. 24). In response to questions as to whether Mr. Boylen or 

Mr. Tye addressed his complaints, Mr. Vanover stated "Nothing, 

that I seen. They never took care of nothing, none of them 

didn't do nothing" {Tr. 24-25). He further stated that 

Mr. Blevins and Mr. Turner tried to control the dust by hanging 

ventilation curtains, but that they could not correct the lack of 

water because "they didn't have no help from the people that was 

running it" (Tr. 25). 

Mr. Vanover stated that the shear cutting drum water 

pressure was supposed to be maintained at approximately 150 to 

200 pounds on the sprays, but on one occasion when it was checked 

the pressure and was only 40 pounds, and foreman Begly "told them 

to go ahead and run anyway" {Tr. 26). 

Mr. Vanover stated that air stream dust helmets were 

supplied approximately six months after longwall coal production 

started (Tr. 27). He confirmed that the helmets "helped 

considerably for a whilenv but were later insufficient because of 

the lack daily filters (Tr. 28-29). Mr. Vanover stated that 

low miners Darryl Brock, James Hacker, Larry Smith, and 

Manford Roark also complained about the dust (Tr. 29). 

Mr. Vanover stated that he also complained about working 

excessive hours, and at times 3 he worked seven days a week on ten 

and twelve hour shifts. He confirmed that the mine is nonunion, 

and that he was paid overtime and had no complaints about the pay 

(Tr. 30-31). 

Mr. Vanover stated that on June 23 and 24, 1992, "shooting" 

took place underground, and that this scared him. He was working 

at the longwall face at that time and he "could feel the jar" of 

the shot, saw the smoke and dust coming toward him and could 

smell ammonia from the shot (Tr. 32). He stated that he 

complained about this but that "they shot the next day, too" 

(Tr. 33) • 

Mr. Vanover stated that on June 23, 1992, explosives were 

improperly handled while he was going out on a mantrip. He 

stated that "I didn't really know that they were on there at the 

2507 
time, till they took them off the motor". He explained that he 

observed Mark Griffy put a bag on the motor but he did not know 

what was in the bag at the time. He stated that the mantrip was 

going out with approximately 20 men in it and that "we just went 

out and they took the powder off". He confirmed that Mr. Griffey 

and other people told him that the explosives were on the mantrip 

and that they were transferred to another mantrip. He believed 

that explosives were required to be kept in self-containers and 

should not be transported on a mantrip. He stated that this 

incident scared him and that "I've dealt with powder before. It 

definitely scared me when I found out about it". (Tr. 34-35). 

Mr. Vanover stated that he complained about the explosives to 

Mr. Hensley and that Mr. Hensley said nothing about it and "just 

kind of shrugged his shoulders" (Tr. 35). 

Mr. Vanover stated that he complained about the dust from 

the beginning of his work on the longwall section, and continued 

his complaints during the ent-ire time that he worked there. He 

stated that the conditions did not improve and that "at times, 

they got worse" (Tr. 35). He stated that the longwall operated 

with less than 90 percent of the sprays being operative, that 

there were times when there was no water, and that the water was 

not always turned on before mining began (Tr. 36). 

Mr. Vanover stated that before taking his vacation in July, 

1992, he and Mr. Smith specifically complained about the water to 

Mr. Begley. Mr. Osborne stopped the shear and instructed 

Mr. Begley to check the water. Mr. Begley found 40 pounds of 

pressure on the drum and stated that he would fix it on the third 

shift. Mr. Osborne was told "to go ahead and run anyway", and it 

was not repaired the next day when he came to work. Mr. Vanover 

that the longwall shear cut in both directions and that he 

worked downwind of the shear and would be in more dust (Tr. 37). 

Mr. Vanover stated that he took his vacation in order to 

consider whether he wanted to continue working for the 

respondent. He stated that he thought about "them shooting 

underground and just the dust. Just fresh air was a big key". 

These conditions scared him and he stated that "I figured either 

me or somebody else was going to get killed up there" (Tr. 38). 

He further stated that 11 It 1 s just the way they was running, the 

way they was dong things. They was in a big hurry all the time 

to do stuff and they didn't take time to see what they was doing" 

(Tr. 39). 

Mr. Vanover stated that he was afraid of a dust explosion, 

that it affected his health, and that "this is one of the reasons 

I quit when I did" (Tr. 39). He also had fears that miners would 

not be evacuated quickly if they were injured because a mantrip 

was seldom kept at the face area (Tr. 40). He confirmed that 

Mr. Griffey, a close friend, was killed in an accident at the 

longwall, but that this incident occurred approximately a month 

2508 
after he quit, and Mr. Vanover did not believe that it was the 

result of any of the conditions that he complained about 

(Tr. 41). 

Mr. Vanover stated that he was afraid for his life at the 

time he quit his job. He stated that he has often observed 

sparks from the operating longwall shear and that he was 

concerned about the poor ventilation (Tr. 42). In response to a 

question as to whether any particular incident constituted the 

"last straw" that prompted him to say "this is it", he responded 

as follows at (Tr. 43-44): 

A. Well, just that day where they checked the 

water and there was just forty pounds on it and 

they said to go ahead and run it anyway. And 

they give me and Larry a hard time over it. 

They said we was just trying to be deadbeats. 

Q. Who gave you a hard time? 

A. Retch. 

Q. Can you remember his words? 

A. I can't remember his exact words. He just 

said, "Go ahead and run it." 

* * * * * * 

Q. Were you also afraid when the blasting was 

going on? 

* 

A. Yesu Mauam. I was more afraid then -- I almost 

quit then. 

Q. While you were thinking about your decision, 

did you consider whether or not the ventilation 

might improve; the dust might be controlled? 

A. No~ I knew wouldn 8 t be. 

Q. How did you know that? 

A. I worked for them twelve and a half years. It 

never changed. 

JUDGE KOUTRAS: You mean for twelve and a half years, 

these conditions went on like this? 

THE WITNESS: Well, the things like dust and stuff, 

that was bad. They never did change. 

2509 
JUDGE KOUTRAS: In twelve and a half years? 

THE WITNESS: Yeah. 

Mr. Vanover stated that he threatened to quit to Mr. Begley 

and Mr. Osborne if the dust conditions were not remedied, and 

that "they made a joke of it" (Tr. 47). Mr. Vanover explained 

that he told them that " I would probably take them to court over 

it", but that he didn't know about which court because "I don't 

know much about this". He also stated that it "was just kind of 

a threat. I was trying to get them to do something" (Tr. 48). 

Mr. Vanover explained that on the day he quit he started to 

go to work but instead went to the company office in Manchester 

and spoke to a lady (Barbara) who was working in the office and 

told her he was leaving his employment. Company Official Kenny 

Smith called him later to come back to the office. Mr. Vanover 

stated that he returned and told Mr. Smith that he quit "because 

of the dust and they wouldn't work on the water and stuff" 

(Tr. 49). Mr. Vanover identified a copy of a company 

"Separation/exit interview" form which states that he was 

leaving because of "working conditions too dusty at the face" 

(Exhibit C-A) • 

Mr. Vanover confirmed that he had previously refused to 

perform unsafe work 5 or 6 years before he quit, but that he 

never refused to do any work on the longwall (Tr. 52). He 

believed that he had no choice at the time he quit his job, and 

that "it was die or get out" (Tr. 53). He confirmed that he has 

a pending black lung claim against the respondent (Rejected 

Exhibit C-B~ Tro 55-56) o 

On cross-examination; Mro Vanover stated that it took two or 

three months to set up the longwall after January, 1991, and that 

large fans were installed. He stated that he requested his 

vacation time three or four days before he took it (Tr. 63). He 

confirmed that the respondent took some corrective action 

concerning the problems on the continuous miner sectionu but he 

did not believe it did enough (Tr. 64). 

Mro Vanover stated that the longwall shields were in working 

order and had enough water, but he indicated that they were 

powered by different pumps (Tr. 65). He stated that the 

respondent used 8 inch water lines to supply the mine with water. 

He confirmed that the mine had fans large enough to provide the 

required ventilation and had the equipment and means to control 

the dust. In his opinion, "they simply didn't get it done" 

(Tr. 66). 

Mr. Vanover stated that he transferred to the first shift in 

approximately March , 1992. He confirmed that when he worked on 

the second shift he made dust complaints to foreman Turner and 

2510 
that Mr. Turner "Tried to do what he could with them" (Tr. 67). 

He recalled that there were occasions when the longwall was shut 

down and production was stopped to repair the air and water on 

the second shift (Tr. 67-68). 

Mr. Vanover stated that when Mr. Begley checked the water 

and found 40 pounds of pressure, production was stopped and 

Mr. Osborne did address his complaint that day (Tr. 69). 

Mr. Vanover also confirmed that there were several other 

occasions when Mr. Osborne and Mr. Turner stopped production at 

his request to address the lack of water (Tr. 70). He also 

confirmed that shear operators James Hacker and Bill Wilson shut 

the shear down due to a lack of water, and he was not aware that 

Mr. Hacker was ever disciplined for shutting down the shear 

(Tr. 71). 

Mr. Vanover stated that when he moved to the first shift, he 

worked fewer hours than he did while on the second shift 

(Tr. 73). He confirmed that he bid for the longwall job and 

was informed that he would be required to work extra hours when 

the longwall was being moved or if there were any problems 

(Tr. 74-75). He further confirmed that the longwall was moved 

periodically and that more coal was produced on the second shift 

than on the first shift, and that the people on the second shift 

"made an attempt to treat you better11 than on the first shift 

(Tr. 78) • 

Mr. Vanover confirmed that when he gave his deposition he 

stated that "Randy Turner and them, they was pretty good about, 

you know, trying to keep you out of the dust and stuff" (Tr. 80). 

Mr. Vanover confirmed that air stream helmets were furnished to 

him on both the first and second shifts, but he indicated that 

helmet motor wouldnut work during the last few weeks of his 

employment (Tr. 81-82). He also confirmed that he started 

complaining about the availability of helmet filters and was not 

provided more than one filter "right at first" (Tr. 83). 

Mr. Vanover stated that he was never told not to work 

downwind of the shear, but that Mr. Hensleyu Mr. Boylen, and 

Mr. Sizemore told him not to work downwind when an inspector was 

on the section (Tr. 86). Mr. Vanover further stated that his job 

required him to be downwind at times, and that "sometimes it was 

a routine thing, sometimes wasn't 91 {Tr. 86). When asked if he 

were there by his own choice as a matter of routine, he replied " 

I guess I was" (Tr. 86). 

Mr. Vanover stated that when his work required him to be 

downwind of the shear he would ask the first shift shear 

operator, who he called "wolfman", to stop the shear for a few 

minutes, but he wouldn't and kept cutting (Tr. 87). Mr. Vanover 

could not recall ever asking Mr. Osborne or Mr. Turner to stop 

production while he was downwind of the shear (Tr. 87). He 

2511 
confirmed that the respondent's ventilation plan specified that 

no one be downwind of the shear, but stated that "it was expected 

of us" (Tr. 87-88). He further confirmed that there were times 

when he stayed downwind of the shear at the tailgate while the 

shear proceeded to the headgate to cut coal, to straighten the 

tail, or push the pan line out (Tr. 88-89). 

Mr. Vanover stated that he knew that staying downwind of the 

shear was contrary to the ventilation plan, and he confirmed that 

no one ever told him to stay there (Tr. 90). He also confirmed 

that on one occasion Mr. Begley told him that "you ain't supposed 

to be back down there anyway", and that he made this statement 

when he (Vanover) complained about the dust and the lack of water 

(Tr. 90) • 

With regard to his complaint about shooting underground, 

Mr. Vanover stated that he complained to Mr. Hensley the morning 

after the first shot, but he could not state if his complaint on 

the second day was before the ·second shot was made. He confirmed 

that in his prior March 1993 deposition he stated that he 

complained after the second day, but that he could not now 

remember his deposition statement but "guessed" that "it's close 

to correct" (Tr. 94). 

Mr. Vanover stated that "he kind of complained" to 

Mr. Hensley about the shots, and he explained that "I just told 

him I didn't like it" (Tr. 95). He reiterated that he could not 

remember whether he complained before or after the second shot 

was fired {Tr. 96). 

Mr. Vanover explained why he believed the shots were 

dangerous v and he s·tated that he was concerned about an explosion 

and the dust: (Tr o ·s7-98) • He confirmed that in his deposition he 

sta·ted. that he \,"'las not concerned about a roof fall and that his 

biggest concern was the dust generated by the shots (Tr. 99-100). 

He believed that 11 the way they shot them" was a violation of 

uosomethingn but he could not state with any certainty if it was 

illegal (Tro lOl)c He could not recall if any further shots were 

::ired subsequent to 'che ·two in question (Tr o 102} o 

With regard to his complaint concerning the transportation 

of explosives in a mantripv Mr. Vanover stated as follows 

(Tr. 102=103) ~ 

Q. All you really saw wa a yellow bag on the man 

trip. Is that correct? 

A. Yes, that is correct. 

Q. And you don't know of your own personal 

knowledge what was in the bag. 

2512 
A. Well, I don't know whether it was the same bag 

or not, but prior to that evening, I seen the 

explosive in the bag. 

Q. You don't really know if anything at all was in 

the bag, do you? 

A. No. 

Mr. Vanover confirmed that after he quit his job he met with 

Mr. Smith and Mr. Bauer at "Pete's Minimart" in Leslie County at 

their request and Mr. Bauer asked him why he had quit. 

Mr. Vanover stated that he explained his concerns, but he denied 

that Mr. Bauer offered to have a safety inspector return to the 

mine with him and to stay on the longwall section with him to 

determine if there were any problems. Mr. Vanover also denied 

that Mr. Bauer offered to go himself or to ask Lynberg Rice to go 

with him {Tr. 105-106). Mr. Vanover further stated as follows at 

(Tr. 106-107}~ 

Q. What did he say when you made these complaints 

and told him why you quit? 

A. He just said -- I don't remember exactly what 

he did say. He just said, "If we go back in 

there, and try to change things, will you come 

back?" And I told him things wouldn't change; 

they would be just like they was when I 

started. 

Did you understand him to mean that he would go 

back 1:'Ji th you and try t.o help you change 

A. Nou sir, I didn't take it that way. 

Qo In any eventv he asked you if you would return to 

your employment if your concerns were addressed. 

Ao That would be a fair statemento 

Q. What about Mro Smith? Did he offer to go 

underground with you? 

Q. Did he offer to speak to anybody at Shamrock on 

your behalf? 

A. I don't recall it. 

2513 
Q. Did you tell Mrs Bauer and Mr. Smith under what 

circumstances you would return to Shamrock? 

A. No, I don't believe so. 

Q. Did you tell them that you were intending to 

enroll in college? 

A. Yes, sir. I told them I thought about going to 

college. 

Q. Did you tell them you were done with coal mining? 

A. I told them I was done with Shamrock. 

on redirect examination, Mr. Vanover stated that during his 

employment at the mine he did not believe that there was adequate 

ventilation to control the dust. He stated that the ventilation 

plan required 34, ooo feet of ·~:dr and that for the year and one 

half that he worked on the longwall, he believed that the air was 

adequate for only a one-month period {Tr. 114-117). Mr. Vanover 

confirmed that he was not aware of any violations that were 

issued for inadequate airu but the mine was shut down by the 

inspectors, and he did not know how many times this occurred 

(Tr. 118) . 

Mr. Vanover stated that he complained about inadequate air 

at the face, but that he never specifically mentioned the 

34,000 foot plan requirement and never requested an air reading 

(Tr. 119-120). He confirmed that he has observed foreman take 

readings,, no\.J know ~they were taken each time he 

complained 

Mr o Vanover had no ~{now ledge as to whether anyone ever 

refused to work downwind of the shear, and he confirmed that he 

did not (Tr. 123). He also confirmed that he was not warned 

about the blasting that occurred on his shift (Tr. 123). 

Mr. Vanover ieved that: he met ~rJi th Mr o Smith and Mr. Bauer 

before he filed MSHA complaint ·this matter (Tr. 124). 

In response further questionsu Mr. Vanover confirmed that 

the incident concerning the alleged transportation of explosives 

the mantrip occurred only one timeu and that the underground 

blasting incident was the only that had occurred on his 

shift (Trc 130). He confirmed that he could not remember how he 

communicated his complaint concerning the transportation of 

explosives because "Larry (Smith) was already talking about it. 

What I complained about was them shooting underground" (Tr. 131). 

With regard to the detonations underground, he stated that "I 

knew they shot after I told him11 (Tr. 131). He further stated 

that he wanted to quit over these two incidents and "figured it 

would happen again somewhere down the line" (Tr. 132). 

2514 
Mr. Vanover reiterated that when he met with Mr. Smith and 

Mr. Bauer after he quit he had not yet filed his MSHA complaint 

and did not tell them that he was thinking about filing a 

complaint. Although he had filed an unemployment complaint he 

was not certain whether he filed it before this meeting 

(Tr. 139-141). He confirmed that when he quit his job he 

withdrew his company paid profit sharing account of approximately 

over $56,000 (Tr. 142-143). He confirmed that his unemployment 

claim was denied and that he received no benefits, and he did not 

know that it was denied because he left his work voluntarily 

(Tr. 144) • 

George D. Smith, testified that in June, 1992, he was 

employed by the respondent on the day shift. He stated that at 

the end of his shift and while travelling out of the mine on a 

mantrip he was seated on one end and heard someone at the other 

end state "Let's get that dynamite off the motor and put it on 

that other motor 11 o He could not identify who made the statement 

(Tr. 146-148) . 

On cross-examination, Mr. Smith stated that he did not see 

the dynamite or any container that might have contained dynamite. 

He did not see Mr. Vanover on the mantrip, and he indicated that 

the other vehicle was a supply car locomotive and that it was 

parked at a switch ready to go to the face (Tr. 149-150). 

Mr. Smith stated that he did not hear anyone say anything 

about the alleged transfer of the explosive bag and did not see 

the bag. (Tr. 152). When asked if someone stated "Let's get 

that bag off the motor", Mro Smith replied "They might have said 

that" (Tr. 153) . 

Larry Smith testified that he last worked for the respondent 

on August lOu 1992u and that he voluntarily left his employment 

(Tr. 155). He confirmed that he worked on the longwall with 

Mr. Vanover for four or five months, and previously operated a 

continuous miner. He stated that he bid for the longwall job and 

performed various tasks (Tr. 156). 

Mr. smith testified that when the longwall was initially 

started, the water sprays and air on the section were erratic. 

He confirmed that he asked for and received an air stream helmet, 

and initially was supplied with filters, but later had to utilize 

used filters which were ineffective (Tro 158). 

Mr. Smith stated that he complained about the dust to 

Mr. Osborne, Mr. Shell, and Mr. Sizemore, and that they responded 

by telling him that "we'll take care of it" but that "we have to 

run coal". He stated that the respondent supplied air and water 

for the sprays when an inspector was in the mine, but that "after 

he left, you know, it was the same old thing" (Tr. 160). He 

2515 
confirmed that MSHA inspector Randy Cline issued some citations, 

but he did not know how many were issued (Tr. 160). 

Mr. Smith stated that the longwall shear would make as many 

as 18 passes when an inspector was not present, and that the mine 

holds '

1two or three world records" for longwall production 

(Tr. 166). He stated that the water sprays worked intermittently 

from day to day and that three or four repairmen were working at 

the face on a regular basis, and that production was not stopped 

to repair the sprays (Tr. 168). He stated that the day he quit 

he complained to Mr. Begley about the spray pressure and that 

Mr. Begley cussed him (Tr. 169). 

Mr. Smith stated longwall repairs were made on the 

third shift, but at no time were the conditions "perfect" when he 

worked at the longwall and that there was w'always something going 

wrong" (Tr. 171). He stated that he had to work downwind of the 

shear because it was cutting in both directions (Tr. 172). He 

confirmed that he complainedto Mr. Sizemore and Mr. Shell about 

the waterv the dust 8 the air, and the dust filters, and that 

"there was times they would correct it, you know, if an inspector 

was there" (Tr. 173-174). He also complained about broken roof 

shield protection, but that nothing was done about this 

(Tr. 176-178). 

Mr. smith stated that he never contacted an inspector about 

any of his complaints because "the word got back to the company", 

and he was not aware that he could make anonymous complaints and 

was afraid he would lose his job if he complained to an inspector 

(Tr. 183-184). 

lvtr. Srnit:h 'cha·t he complained once in June or July 

about shots being lon~wall was running and he 

received no warning about shot (Tr. 184). With regard to the 

transportation of dynamite on a mantrip 1 Mr. Smith stated that it 

was in a yellow bag and placed on another motor which was going 

out of the mine {Tr. 185). He stated that uvwe didn;t know it was 

on there till we out and tched motors" (Tr. 186). 

On cross-examinationu Mro Smith denied that Mro Edward Bauer 

ever called him at home he quit his jobv but stated that 

Mro Hensly and someone se asked him to come back to work. He 

confirmed that Mrc Bauer gave him his business card and told him 

to call him if he had any problems 1 but that he did not do so 

because he quit and "was ieved1Q (Tr. 192-193). 

Mro Smith confirmed that he filed an unemployment claim 

against the respondent but 11 gave it upvv and never appeared for a 

scheduled hearing before a referee. He also confirmed that he 

made no complaints to MSHA or to any state regulatory authority 

about his problems (Tr. 196-197). Mr. Smith stated that his 

2516 
memory was clear about the dynamite being transported out of the 

mine after being moved from one motor to another (Tr. 199). 

Mr. Smith stated that after he quit, he visited the MSHA 

office at Hyden and was interviewed and gave a statement about 

his complaints. Mr. VanoverPs counsel characterized the 

"complaint" as an "informational complaint" concerning "safety to 

the other workers". Mr. Smith confirmed that he did not file a 

discrimination complaint because "It's not going to change. 

They're not going to do nothing no different" (Tr. 205). 

Mr. Smith confirmed that he knew that the respondent's 

ventilation plan prohibited employees from being downwind of the 

shear, but stated that he needed to be there to perform assigned 

work. He confirmed that he has requested a boss to shut the 

shear down if there was insufficient air or water and 

that "sometimes they would, and sometimes they wouldn't 11 

(Tr. 220-221). 

Jim Tye was called as an adverse witness by the complainant, 

and testified that he has served as the longwall manager since 

September, 1992, and that prior to that time he was a maintenance 

foreman. He confirmed that he worked with Mr. Vanover, and 

although he confirmed that "we had problems on the wall on 

occasion", he denied that Mr. Vanover ever complained to him 

about the water (Tr. 229). 

Mr. Tye stated that he was familiar with the ventilation 

plan and that he enforced it to the best of his ability even 

though it was not his direct responsibility (Tr. 229). He 

identified a copy of the longwall dust control plan 

(Exhibi·t ~ and confirmed that it now provides for a minimum 

of 34 0 000 cubic feet per minute at the longwallv but that 

Aprilp 1991u it only required 24,000 or 25,000 (Tr. 230-231). He 

confirmed that the mine was out of compliance with the dust 

requirements at one time and was cited for thatv and as a result 

the citation, the longwall ventilation plan was upgraded to 

provide 34 0 000 feet air Tr. 231-232). 

Mr. Tye confirmed that the dust control plan required that 

90 percent of the water sprays be operational and he was not 

aware that the respondent has ever been cited for having less 

than 90 percent operational (Tr. 233). 

Mr. Tye denied that Mr. Begley ever informed him that 

Mr. Vanover had complained to him. He stated that he did not 

know that Mr. Vanover quit his job until a couple of months after 

he quit (Tr. 234). He confirmed that he never spoke to 

Mr. Vanover about coming back to work (Tr. 234). 

2517 
Mr. Tye stated that there were always problems on the 

longwall, and he explained as follows at (Tr. 236): 

Q. What did you consider the biggest problem? 

A. Well, just the basics. We always have a 

problem with roof control. We always have a 

problem with ventilation. We always have a 

problem with the equipment. It's a continuous, 

never-ending job. 

Mr. Tye stated that although Mr. Vanover did not complain to 

him about the dust, he spoke to Mr. Vanover about positioning 

himself to stay adjacent to the shields and not to work inby in 

the dust. If Mr. Vanover stayed outby the shields he would not 

be in the dust generated by the shear while it was cutting coal 

(Tr. 239-24 o) • 

Mr. Tye stated that the longwall is targeted for 24,000 tons 

of "raw product" per day on two production shifts. However this 

production schedule varies, but it is still high (Tr. 241}. 

Mr. Tye identified production tonnage estimates for March 

through July, 1992 (Exhibits C-D through H) (Tr. 243-247). He 

confirmed that as production increases, the amount of dust 

generated also increases, but this would depend on varying 

conditions (Tr. 248). 

Mr. Tye stated that he does not travel with mine inspectors, 

and they are usually escorted by a shift foreman or a safety 

person (Tr. 250). He confirmed that at one time the shear cut in 

both directions, but after the adoption of a the new dust control 

plan the shear now cuts only one direction from tail to head 

(Tr. 253) c He also confirmed ~chat: ngtrim cuts 11 and gastep cutting'u 

is done to keep the longwall face even. Further, uadouble 

cuttingn is permitted under the plan for the first 120 feet to 

uvsquare the face" (Tr. 254-257). Mr. Tye reiterated that he has 

spoken t.o Mr. Vanover abou~c vmrking downwind of the shear, and he 

confirmed that ventilation plan does not permit anyone to be 

downwind. of the shear and t.hat he has cautioned Mr. Vanover about 

this (Tr. 258). 

Mro Tye identified a copy of the mine ventilation plan 

for October, 1991 1 and subsequent thereto, and he confirmed that 

the new plan became effective in June, 1992 (Exhibit R-12< 

Tr. 260-261). He confirmed that the new plan was adopted because 

of the ventilation problems experienced under the 1991 plan 

(Tr. 262). He stated that under the new plan, the number of 

water sprays and water pressure were increased, and one-way 

cutting was done (Tr. 263). 

Mr. Tye stated that the respondent was out of compliance 

with its ventilation plan only one time under the October 23, 

2518 
1991, plan and it has been in substantial compliance with the 

current plan since that time (Tr. 264). He stated that the water 

pressure on the sprays is currently 200 p.s.i., and 220 gallons 

of water per minute is sprayed directly on the face as the coal 

is cut (Tr. 265). 

Mr. Tye identified several invoices showing expenditures 

made by the respondent on certain devices designed to lessen the 

miner's exposure to dust, and he explained some of the equipment 

that has been purchased, including an expenditure of $25,000 for 

a kit, spray beams, and dust helmets at a cost of $532 each, and 

filters for the helmets (Exhibit R-14 Tr. 266-275). Mr. Tye also 

explained how water is brought into the mine (Tr. 275-276). 

Mr. Tye stated that there have been occasions when shear 

operators and foremen have stopped production to make ventilation 

and water repairs and he has never reprimanded anyone for 

stopping production for this purpose (Tr. 276-277). Mr. Tye 

confirmed that on one occasion when Mr. Smith complained, the 

shear was shut down and a cracked drum was repaired 

(Tr. 278-279). 

Mr. Tye confirmed that he was not aware that miners were 

working downwind of the shield, and that Mr. Vanover was not 

downwind when he spoke to him about properly positioning himself 

(Tr. 281). Mr. Tye stated that he did not go underground to 

confirm Mr. Smith's complaint about the 40 pounds water pressure 

and he had never previously heard about this allegation and only 

knew that a spray drum was cracked. 

Mr. Tye did not know why it was necessary for anyone to work 

downwind of the shear while it is cuttingu and company guidelines 

prohibit this {Tr. 293-294). He confirmed that the ventilation 

plan requires preventive maintenance when less than 90 percent of 

the water sprays are operational and that corrective action is 

taken when this is discovered by stopping the shear and taking 

care of any problem (Tr. 298). Mr. Tye again denied that 

Mr. Vanover ever complained to him about any dust or water 

problems (Tr. 299-302). 

Daryl V. Brock, longwall technician and shear operatorf 

stated that he has worked on the longwall from the beginning for 

two and one-half years and worked with Mr. Vanover. Mr. Brock 

stated that when the longwall was started in June or July, 1991, 

he complained to section foreman Randy Turner about excessive 

dust and that the dust conditions remained "severe" after that 

time, including July, 1992, when Mr. Vanover left his employment 

(Tr. 302-304). Mr. Brock confirmed that he uses a dust helmet 

and had problems when he first got one. However, filters are now 

readily available and he uses one per shift, and this was the 

case when Mr. Vanover left. He also confirmed that as a matter 

2519 
of practice, the shear is stopped for major repairs, but not for 

relatively minor repairs. (Tr. 305). 

Mr. Brock stated that the shear does not now cut in both 

directions, and he indicated that it has "been awhile" since it 

cut in two directions. He could not recall if it cut in two 

directions at the time Mr. Vanover last worked at the mine 

(Tr. 306). 

On cross-examination, Mr. Brock stated that there is 

currently ample water and air at the mine. He confirmed that on 

one occasion when he and Mr. Vanover complained to foreman Steve 

Shell while working on the second shift about the dust helmet 

filters Mr. Shell addressed their concerns, took care of the 

problem, and had "a positive attitude" (Tr. 307). 

Mr. Brock stated that when Mr. Vanover left his job on the 

first shift he had not worked with him for four or five months 

and did not know what the conditions were on the shift {Tr. 308). 

Mr. Brock stated that there were air and dust problems at the 

time the shear cut in both directions, but when this practice 

stopped he agreed that ventilation was increased and water 

pressure on the face was increased. He confirmed that conditions 

are presently better (Tr. 309-310). He confirmed that he is 

the only member of his five-man crew who wears a dust helmet 

(Tr. 311). He also confirmed that everyone complained about 

the dust and water, including Mr. Vanover (Tr. 312-314). 

Manford Roark, formerly employed by the respondent, stated 

that he left his employment on April 26, 1993, and worked on the 

second shift as a longwall technician. He did not work with 

Mr. Vanover when he left his job, but had worked with him before 

Mr" Vanover transferred to the first shift (Tr. 317-318)o 

Mr. Roark stated that the conditions on the longwall were 

v'very dusty - most of the time. Sometimes it was normal 

conditions, not always" and that when an inspector was there u~they bumped the water upu made sure we had air 11 (Tr. 318). He 

stated that when shooting was done on the second shift, 

production would stop and men were taken outby the shot area 

(Tr. 319) . 

On cross-examination, Mr. Roark denied that he would have 

testified in this case if he were not subpoened, and he confirmed 

that he has a pending claim against the respondent for workers' 

compensation benefits (Tr. 320). He also confirmed that he has 

advanced black lung and quit his job for his health (Tr. 321). 

James E. Hacker, shear operator, testified that he worked 

with Mr. Vanover and heard him make complaints about the dust 

conditions to Randy Turner, but to no one else (Tr. 322). 

Mr. Hacker stated that Mr. Vanover complained about the dust 

2520 
and water, and he described the dust and water problems 

{Tr. 323-325). He was not aware that Mr. Vanover ever complained 

about insufficient air Stream helmet filters (Tr. 325). He 

confirmed that the air and water conditions have improved since 

Mr. Vanover left his employment (Tr. 326). 

Mr. Hacker stated that it was a practice to stop the shear 

for repairs to the water supply and to clean the water sprays 

(Tr. 326). He confirmed that he did not work with Mr. Vanover at 

the time he left his job, but worked with him three or four 

months before he left (Tr. 327). Mr. Hacker stated that he would 

stop the shear if anyone told him it was too dusty and the 

respondent has never fired anyone for stopping the shear 

(Tr. 328). He confirmed that he did not wear an air stream 

helmet because it was too bulky (Tr. 328-329). 

Mr. Hacker confirmed that Mr. Vanover complained to him 

about the water and air. He stated that the shear was cutting in 

both directions at that time, and that on one pass Mr. Vanover 

would be inby the shear, and on the second pass he would be 

behind the shear. However, the cutting plan was changed so that 

the Shear cut only one way and Mr. Vanover could not legally be 

behind the shear after this change was made (Tr. 331). However, 

he indicated that Mr. Vanover had to be there because "the shear 

would cut coal faster than the shields would advance" (Tr. 332). 

With regard to any safety complaints, Mr. Hacker stated as 

follows at (Tr. 334-336): 

Q. Did you or Mr. Vanover -- You said Mr. Vanover did 

complain to Randy Turner. 

uve complained to Randy. 

Q. And what was his reaction? 

A. Randy told us that -- Randy would do what he could at 

the time. If we had an air problem, Randy would go 

over, make sure the curtains was up to where they needed 

to be. He would block all the air where the air would 

come down the face. And there has been times we still 

wouldnut have the minimum requirement. 

Q. What would he do with the water? 

A. He would do what he could. He would have the repairman -- which is something that me or him or nobody else on 

the production end knows anything about, is the fresh 

water pump. They would try to adjust the pressure. 

Q. While the shear was operating? 

2521 
A. Right. But we had a lot of problems. on the startup, 

we had a lot of dregs in the lines stopping our filters 

up and stopping our sprays up. 

* * * * * * * * 

Q. So you're saying like day to day, there problems were on 

and off. Is that the way you would characterize it? 

They would have problems and try to address it? 

A. Our section foreman would, Yes. 

Q. Was that Turner? 

A. Yeah. 

Elmer R. Couch, Utility foreman, testified that he has held 

various jobs at the mine, and helped set up the longwall in 

1991, and is familiar with its operation. He confirmed that he 

was familiar with the dust control plan (Tr. 341-342). Mr. Couch 

stated that he had no knowledge of the longwall conditions after 

July, 1992. He confirmed that he had no dust complaints while 

the longwall was being set up, and returned to work on the 

longwall two months ago (Tr. 346). Mr. Couch stated that it was 

not unusual to have dust downwind of the shear when rock is being 

cut, but the dust plan does not permit anyone to be downwind 

while the shear is cutting (Tr. 348). 

Respondent's Testimony and Evidence 

Edward Bauer, respondent 6 s safety directoru testified that 

longwall panel No. 1 was initially cut on April 22, 1991Q and 

that four subsequent panels were cut during the period October 3u 

1991 9 to t.he present (Tro 14). He stated that he was familiar 

with the longwall shields and has observed the longwall in 

operation, and he confirmed that the roof control plan requires 

that longwall shields be installed at distances no greater than 

18 inches apart (Tr. 16) o He did not consider missing side 

shields to be more that an ordinary mining hazard, and he 

indicated that replacing a missing side shield before a longwall 

move would be extremely hazardous because the shield would have 

to be loweredu and this would expose a wider area of unsupported 

roof at the face (Tr. 18). 

Mr. Bauer testified that he headed the respondent's 

investigation of the fatal accident concerning Mr. Mark Griffy, 

and also participated in the MSHA and state investigations. He 

believed that Mr. Griffey was properly trained, and he confirmed 

that no training citations were issued to the respondent as the 

result of this incident (Tr. 18-24). He also confirmed that he 

conducted an investigation into the underground detonations of 

June 23 and 24, 1992, and he confirmed that he first learned of 

2522 
these incidents during a discussion with Larry Smith on the 

longwall section in August 6 1992 (Tr. 25). Mr. Bauer explained 

that he interviewed employees working on the section to determine 

what happened and that he requested a meeting and met with MSHA 

subdistrict manager James Ison on August 24, 1992. Mr. Bauer 

stated that his investigation disclosed that a single stick of an 

approved explosive was set off on the day shift in a confined 

charge approximately 100 to 200 feet outby the longwall face. 

Mr. Bauer stated that the area had been rock dusted and that 

proper methane and ventilation checks had been made before the 

shot. He further stated that a warning was given before the 

shot, and that the shot fireman gave the standard "Fire in the 

Hole" voice warning three times (Tr. 25-27). 

Mr. Bauer produced a copy of a September 4, 1992, Memorandum 

from an MSHA inspector to Subdistrict Manager Ison concerning an 

anonymous telephone complaint received by MSHA concerning safety 

allegations at the respondent's mine during June 23 and 24, 1992. 

Mr. Bauer stated that he received the report from MSHA in his 

capacity of safety director (Tr. 27-29; Exhibit R-1). Mr. Bauer 

testified that Mr. Isom gave him a copy of the memorandum when he 

went to his office to discuss the detonation incident (Tr. 33). 

Mr. Bauer acknowledged that the longwall had ventilation 

problems when an excessive dust violation was issued on 

August 28, 1991, and he explained the action taken by the 

respondent as a result of this violation. He stated that the 

mine ventilation was initially changed on October 31, 1991, and 

that the air velocity on the longwall face was increased from 

23,000 c.f"m. to 25,000 Cof.m. A subsequent increase was made to 

34§000 Cof.m. 8 on December 3 1991 7 and instead of cutting in two , ·the plan was changed to require cutting in one 

He confirmed that mine has not had additional 

problems staying in compliance since December, 1991. He confirmed 

that from March, 1992, when Mr. Vanover began working the first 

shift, until he left in Julyu 1992, only two ventilation 

ations were issued on the longwall section (Tr. 33-38). 

Mro Bauer confirmed there are occasions when fewer 

of the longwall shear are made when an inspector is in the f and he gave some representat examples from his records, 

production downtime (Tr. 52-56). Mr. Bauer stated that 

downtimes are caused by inspector meetings or inspections 

the tailgate area which requires a stop in production 

(Tro 56=57)o 

Mr. Bauer stated that he initiated the meeting at Pete's 

Minimart with Mr. Vanover on August 5, 1992, after assistant 

personnel director Kenny Smith advised him that Mr. Vanover 

stated that he left his employment because of excessive dust on 

the longwall section. Mr. Bauer confirmed that Mr. Smith was also 

present, and he explained what transpired during the meeting, 

2523 
including actions that he had taken and certain assurances that 

he gave Mr. Vanover concerning his dust concerns (Tr. 57-59). 

Mr. Bauer further explained as follows at Tr. 59-61): 

A. After I explained to Mr. Vanover what we had done, we 

asked if he felt comfortable enough in returning to work 

at Shamrock, Yes. 

Q. What was his reply? 

A. He indicated, no, he wasn't. 

Q. Did he tell you why he wasn 1 t going to return to work? 

A. He indicated he didn't think things would change. And 

at that point, I asked if we had a person in the safety 

department go with him -- I even said Steve Shell go 

with him, at the beginning of the shift, to take air 

readings and water pressure readings, would that make 

him feel any better about it? 

Q. What did he say? 

A. He indicated negatively. He just didn't think things 

could change. And I asked him, "What if I went in with 

you at the beginning of every shift to take air readings 

and water pressure readings?" I said, "We won't start 

till you feel comfortable. 11 

Q. And the reply? 

Did you offer anything else? 

A. Yes. I finally said, 11 If Lynberg Rice goes in with 

you ..• and at that timep Lynberg was the general manager 

of operations. c •• If he goes in with you and we take 

readings and water pressure readings and we don 1 t 

start till you feel things are right, would you feel 

comfortable then?" He indicated he was done with coal 

mining. 

Q. He didn't say what he intended to do? 

A. During my conversation, he did not. During his 

conversation with Kenny Smith, he indicated 

* * * * * * 

2524 

* 
THE WITNESS: After Kenny Smith had reiterated, or I 

stated, Mr. Vanover indicated he was going to get his 

money and go to college. 

Mr. Bauer further explained that he learned of Mr. Vanover's 

dust complaint during the exit interview at the end of July, and 

that August 5, was the earliest date he could arrange a meeting 

with Mr. Vanover (Tr. 63). Mr. Bauer also explained the action 

he took after receiving Larry Smith's allegations concerning 

explosives allegedly carried on a mantrip. He confirmed that he 

conducted an investigation and also implemented a safe work 

instruction for handling explosives (Tr. 63-65: Exhibit R-3). 

Mr. Bauer stated that he conducts safety training and 

instructions as part of his job, and that mine personnel are 

informed as to how to go about expressing safety complaints 

(Tr. 66-70). He confirmed that shot firemen are required to pass 

a state certification test, and they are required to have a 

certain amount of experience in the use of explosives (Tr. 70). 

On cross-examination, Mr. Bauer responded to additional 

questions concerning the longwall section reports (Tr. 72-85). 

He further testified about the operation of the shear shields, 

and he confirmed that the longwall machinery is loud and that it 

is possible that no one heard the shot firer give his verbal 

warning before firing the shots in question (Tr. 95). He 

confirmed that his records reflect only one excessive dust 

violation on the longwall from April, 1991, through the end of 

July, 1992 (Tr. 95}. He also confirmed that the first dust 

complaint that he was aware of was the one made by Mr. Vanover 

during his exit interview (Tr. 97)o 

Mro Bauer reviewed certa longwall section reports and 

testified certain air readings taken periodically during 

several months in 1991 and 1992, as well as intermittent dust 

sampling (Tr. 99-111~ Exhibit C-J). 

Mr. Bauer confirmed that any dust generated by the 

underground shot in June 9 1992 would go by the longwall face 

(Tr. 113). Mr. Bauer testified about his investigation of the 

incident concerning explosives being transported on a mantrip. 

He stated that his investigation was inconclusive and that no one 

that he interviewed saw explosives or a detonator on the man trip 

(Tro 114-ll?)o He stated that Mark Griffey told him that a 

yellow brattice bag and a green and white coal sampling bag had 

been placed on top of a man trip, but that he did not see any 

explosives or detonators on the man trip (Tro 119). 

In response to further question, Mr. Bauer stated that 

146 mine inspection shifts were conducted at the mine between 

January, 1992, and through the end of July, and that only two 

longwall ventilation citations were received during that time 

2525 
(Tr. 121). He stated that air readings are taken daily as 

required, and that the law does not require air readings to 

appear on longwall section reports, nor is a longwall section 

report required to be kept (Tr. 122). He identified copies of 

certain preshift reports (Exhibit R-5), and testified to several 

recorded air readings. He confirmed that 34,000 c.f.m. of air is 

required on the longwall face while coal is being mined, and he 

pointed out additional air reading notations in the preshift 

reports indicating compliance with the October, 1991, plan 

requiring 25,000 c.f.m. of air (Tr. 128). Mr. Bauer denied any 

knowledge of a foreman ever instructing anyone to stay downwind 

of the shearer while coal was being cut in order to do their job 

(Tr. 131) • 

Billie Sizemore, Safety technician, testified that his 

duties include the monitoring of dust surveys, assisting on 

safety plans, and accompanying inspectors. He explained the 

procedures for dust sampling on the longwall, and confirmed that 

there were dust problems in October, 1991. He also explained the 

remedial measures taken by the respondent, including the 

installation of a "spray arm" which provided additional sprays 

directly on the longwall cutter and the purchase of air stream 

helmets {Tr. 141-145). 

Mr. Sizemore stated that he submits his dust sampling 

schedule to MSHA in advance of sampling and confirmed that 

inspectors accompany him during his dust sampling (Tr. 145, 148). 

He identified reports of dust samples he has submitted to MSHA, 

including samples for certain designated longwall areas, and he 

confirmed that the areas have been in compliance for at least a 

year and the periods shown on the reports (Exhibit R-6, 

Tro 149-153)o 

Mr, Sizemore identified copies of bimonthly dust samples 

submitted to MSHA for a mechanized mining unit (M.M.U.) for the 

MayjJune 1991, sampling cycle, and he confirmed that the unit was 

in compliance and that the average dust concentration was 

loOu which is below the allowable limit of 2.0 (Exhibit R-7, 

Tro 153-154) o He identified additional sample surveys for 

JulyjAugustu 1991, and September/October, 1991, and January 

through June, 1992. He confirmed that the mine was in compliance 

with MSHA's dust standards during all of these periods, except 

for SeptemberjOctoberu 199lu when there were problems with the 

face falling out and a lot of rock coming between the shields, 

and the ventilation plan was revised (Tr. 155-156). He stated 

that the respondent has not been out of compliance through the 

time Mr. Vanover left his employment {Tr. 157-158, Exhibit R-8). 

Mr. Sizemore stated that the respondent spent $17,347.04, 

for air stream helmets, filters, and replacement parts from 

October 1, 1992 to March 25, 1993 (Exhibit R-10, Tr. 160-162). 

2526 
On cross-examination, Mr. Sizemore testified further about 

his dust sample results and the production on the longwall 

(Tr. 163-169). He confirmed that dust complaints were made 

during September/October, 1991, and they were brought to his 

attention. He could not recall if the complaints were made by 

Mr. Vanover (Tr. 171). 

Mr. Sizemore stated that according to the mine dust plan no 

one is supposed to be downwind of the shear when the shear is 

coming back to the headgate entry cutting coal. He has observed 

people working downwind of the Shear, and they were cited by an 

inspector on two occasions because of this (Tr. 171-172, 

177-178}. 

In response to further questions, Mr. Sizemore could not 

deny that Mr. Vanover ever made any dust complaints, and stated 

that "I couldn't say he did either. I cannot remember whether 

he complained to me or not" (Tr. 182). He also could not recall 

Mr. Vanover complaining to any one else (Tr. 183). He confirmed 

that there were many complaints about the air during 

September/October, 1991, but after corrective action was taken 

by increasing the amount of air, installing additional sprays, 

and purchasing additional air helmets, the complaints decreased 

(Tr. 184). He stated that npeople are going to complain no 

matter what you dou, and that he has responded by going to the 

face to check the air and water pressure (Tr. 185). He denied 

that Mr. Vanover ever complained or spoke to him about 

transporting explosives underground or shooting underground 

(Tr. 185}. 

Hetch Begley, Jrov longwall maintenance foreman, testified 

that he worked with Mro Vanover on the first shift at the time he 

left his employmentc Mro Begley stated that his job involves the 

maintenance and repair longwall equipment,? including the water 

sprays. He stated that he has repaired the water sprays on an 

average of 6 to 12 times a week and that the Shear is shut down 

when repairs are made (Tro 187-188}. He explained that he has 

responded to ls to make the repairs or has dispatched his 

maintenance personnel to so 

Mro Begley stated that Mro Vanover complained to him on 

several occasions about the dust on the longwall? and that he 

responded by sending his maintenance people to address the 

problemo He denied that he ever told Mro Vanover that repairs 

were not needed and to eo keep running coal 00 c He had no knowledge 

that any of his personnel ever stated this to Mro Vanover, and 

indicated that he would not approve of this if they did 

(Tr. 190). 

Mr. Begley stated that he has observed Mr. Vanover behind 

the shear, and informed him that it is not permitted by company 

rules and regulations (Tr. 190). He stated that there was no 

2527 
reason for anyone to be working behind the shear, and that if 

work is necessary at that location the shear is supposed to be 

stopped (Tr. 191). 

Mr. Begley stated that on one occasion when Larry Smith 

complained about low water pressure shortly before he quit, he 

went to the tailgate and shut the shear down and personally 

checked the water pressureo After finding it in order, the shear 

was started up, and Mr. Smith complained again. Mr. Begley 

checked it a second time, and found that the pressure was low and 

he shut the shear down again and repaired a broken hose and 

missing spray (Tr. 193-194). 

on cross-examination, Mr. Begley reiterated that Mr. Vanover 

complained to him about the water and dust on several occasions, 

but he could not recall the exact number (Tr. 198). 

John F. Craft, longwall mechanic, testified that he worked 

with Mr. Vanover on the first and second shifts. He confirmed 

that the water sprays need servicing or repairs every shift and 

that Mr. Osborne, Mr. Begley, and the shear operators have been 

called upon to do this work. He stated that the shear must be 

shut down to do the work, and he has never told anyone that there 

were no problems and that they should just keep working. He has 

never refused to shut down the shear to make repairs, and that 11 I 

fix it when it needs fixing. That is my job. I try to find out 

the problem" (Tr. 203). 

On cross-examination, Mr. Craft stated that the decision to 

shut down the shear is usually made by the production or 

maintenance foremanu including Mr. Osbornev Mr. Turneru and 

Mr. Begley Tr. 203)o He stated that the water sprays are 

:regularly serviced ·twice a shi depending on when the belt is 

moved (Tr. 204 . Mr. Craft confirmed that the broken headgate 

drum was repaired during the summer of 1992, and it took one to 

two weeks to receive a replacement part (Tr. 205). 

r1:r. stated that Mr. Vanover complained to him about 

·the dust and lacJ{ of water on the section u and he responded to 

Mr. Vanover•s requests to check the water pumps (Tr. 205). He 

stated that the shields are maintained and repaired as needed, 

and he has never had to replace any shields. Side shields have 

be maintained at least 18 inches apartu and they are replaced 

when there a move to another panel (Tro 207). 

Doyle Roberts, lighthouse attendant, testified about his 

care and maintenance of the air stream helmets and filters, and 

the procedures he follows for making them available to the 

workforce (Tr. 209-212). He identified several invoices for 

purchases of the airstream helmet filters that are stocked and 

available in the supply house and lamp house (Exhibit R-9, 

2528 
Tr. 212-215). He confirmed that he checks the helmet fans every 

two weeks and if anyone complains about the fans, he will issue a 

new one (Tr. 216). 

On cross-examination, Mr. Roberts stated that he did not 

service Mr. Vanover's helmet, and testified further about his 

servicing of the filters {Tr. 217-220). He explained that he 

never worked with Mr. Vanover because they were on different 

shifts, and he was not certain that Mr. Vanover had a helmet 

(Tr. 221) • 

Denny Osborne, longwall production foreman 1 testified that 

he served in that position since the longwall was started in 

1991, and has worked for the respondent for 16 years. He was 

Mr. Vanover's supervisor on the first shift. He confirmed that 

there were problems with the water supply sometimesp and that the 

equipment would be shut down to address the problems, depending 

on the particular problem. If a water line breaksv he would shut 

down the equipment, and he did so "probably twice a week11 

(Tr. 223). 

Mr. Osborne could not recall Mr. Vanover ever complaining to 

him about the dust. He could not recall any dust problems in 

October, 1991, but did recall a change in the ventilation plan 

when the cutting was done one way from tail to head (Tr. 224). 

He denied that shield technicians on his section were required to 

work downwind of the shear to perform maintenance or to repair a 

shield problem. He has observed people downwind of the shear, 

but has informed them they are not to be there and has required 

them to move out (Tr. 225). 

Mr. Osborne stated that the shear operators have the 

authority to stop the shearv and that the shield technician may 

request that this be done. He confirmed that he has stopped the 

shear to fix a dust or water problem (Tr. 226). He has observed 

Mr. Vanover stay at the tail section while another shield 

technician went with the cut 1 but he never warned him about this. 

He not know whether Mr. Vanover wore an air stream helmet 

Tr. 227) c He stated that I>lir. Vanover only worked on shift 

as part of the crew for two or three months (Tr. 229)c 

on cross-examination~ Mr. Osborne stated that Mr. Vanover 

took his vacation in Julyv 1992v and then quitv and did not 

complain to him about the dust or lack of water before he took 

vacation or during the entire time he worked for him (Tr. 230v 

234). He did not know why Mr. Vanover quit his job, and never 

discussed it with him. He knew nothing about any efforts to get 

Mr. Vanover to come back to work, and he considered him to be a 

good worker (Tr. 236). 

Timothy w. Roberts, Shield technician, testified that he 

worked with Mr. Vanover on the first shift. He confirmed that 

2529 
there were problems with the water "sometimes", but that he never 

complained about the dust or water. He stated that when problems 

were encountered with the water the respondent "tried to get it 

fixedn and the shear would be shut down to make repairs. He 

could not recall Mr. Vanover ever complaining to him about the 

dust or water pressure (Tr. 239). Mr. Roberts recalled the 

underground shots on June 23 and 24, 1992, and he did not fear 

for his safety even though he was closer to the shot than 

Mr. Vanover (Tr. 239). 

On cross-examination, Mr. Roberts stated that he knew that 

the shots would be fired because he was assigned to watch the 

break to make sure that no one came through the area. He was in 

fresh air at the time, and the dust from the explosion went down 

the longwall face and down the return where Mr. Vanover was 

working (Tr 241) • 

Mr. Roberts stated that as a shield technician he tries to 

keep up with the shear operator and that a couple of times he 

asked the operator to slow down. He confirmed that he has worked 

downwind of the shear because "sometimes the shields wouldn't 

operate right" and he needed to be there to make sure it was 

operating properly (Tr. 243). 

Mr. Roberts recalled that Mr. Vanover and Larry Smith 

complained about the water pressure on the last days that they 

worked at the mine. He believed that Mr. Vanover complained to 

the maintenance foreman, but did not hear the actual complaint 

and only "heard people talking about him making a complaint" 

(Tr. 245) • 

.::;·effrey so Shell, Safety coordinator f testified that his 

include safety training of personnel working on the 

longwall, including Mr. Vanover. He stated that the training 

included an explanation of the procedures for making safety 

complaints and the protections afforded by the Mine Act for 

personnel making complaints. He also has instructed personnel not ~o be downwind of the Shear and to stay on the intake side, and 

ne conducts annual refresher training once a year (Tr. 246-249). 

On cross-examinationf Mr. Shell stated that Mr. Vanover 

spoke about not having filters for the air steam helmets, but 

could not recall that he complained about the dust or inadequate 

water (Tro 249). 

Kenny Smith, assistant personnel manager, identified copies 

of Mr. VanoverRs work time card records that are in his custody 

(Exhibit R-11). He also identified a copy of Mr. Vanover's exit 

interview that he prepared and confirmed that he made the 

notation ~'Too dusty at the face", and that this is what 

Mr. Vanover told him (Exhibit "A", Tr. 255). He also identified 

a job bid sheet and a job posting request for a first shift 

2530 
longwall technician position that Mr. Vanover made a bid for 

(Exhibit R-16, Tr. 258). He confirmed that the job posting 

specified that overtime work would be scheduled as needed, 

including Sundays {Tr. 258). 

Mr. Smith stated that after conducting the exit interview 

with Mr. Vanover on July 28, 1992, he arranged a meeting with 

Mr. Vanover and Mr. Bauer at "Pete"s minimart", and the three of 

them met there on August 5, 1992, at 11:00 a.m., Mr. Smith stated 

that he and Mr. Bauer spoke to Mr. Vanover about his dust 

complaints and his reasons for leaving his job (Tr. 261). 

Mr. Smith further explained as follows at (Tr. 261-262): 

The first thing we asked him, said. "Would you consider 

to come back to work at Shamrock if the problems were 

fixed." And Slade said, "Don't much -- Don't think I'm 

interested in coal mining anymore," I believe is what 

he said. 

And Ed said, "If I were to check into this and it were 

true, if a safety inspector went with you, would you 

feel comfortable with it? Then he said, well, how 

about myself, if I went with you?" and finally, Ed said 01Even if Lynberg Rice goes with you, would you feel 

comfortable with it?" 

And as I remember, Slade said, "I just think I'm 

through with mining coal." He said, "I'm going to go 

back to school." And at that time, I said, "Slade, 

where are you gong to go to school?" And he said 

Maybe 1 I think he said he was going to Eastern" 

There a community college over at Manchestero 

Actuallyu itus a center for Eastern Kentucky 

University. And I asked Slade, I said, "if there is 

anything you need at Eastern, at Manchester, let me 

know. Iull be happy to help you or try to help you, if 

you need some classes or whatever. 00 

And, at (Tr. 268-270) ~ 

Q. So you're telling me itPs not unusual to meet with an 

employee when he claims that here is something that 

might affect the safety of the mine. Is that what 

you 8 re telling me? 

A. That is what I'm telling you. 

Q. Did he ever complain to you before this exit interview 

or did you have any knowledge of any complaints he may 

have filed about dust or water? 

2531 
A. I had none, sir. 

Q. How about explosives being transported on the man trip? 

A. No, sir. 

Q. How about detonations underground? 

A. I had never talked to Slade, other than just in a casual 

manner, before July 28; I mean, just being at the mine 

site, hello, or whatever. 

* * * 

Q. So you had no inkling that Mr. Vanover was complaining 

or had any problems until 

A. Not until I talked to him on the twenty-eighth. 

on cross-examination, Mr. Smith stated that he could not 

recall Mr. Vanover stating that "he did not think things would 

change" during their meeting of August 5, 1992 (Tr. 263). 

Mr. Smith confirmed that he does not administer the company 

profit sharing plan, and he "guessed" that it was a retirement 

fund that is based partially on company profits, and that the 

company guarantees payment of a percentage of an employees' 

salary to the plan (Tr. 264). 

* 

In response to further questions, Mr. Smith stated that he 

first heard about any dust complaints by Mr. Vanover on July 28, 

l992v during the exit interview. He explained that Mr. Vanoverus 

last day t.he job ~vas 20 or 21, but since he had been on 

vacation he did not learn that he had quit until he came in for 

the interview (Tr. 265). 

Mr. Vanover was called in rebuttal, and stated that when he left 

his job he thought about going to college but decided not to 

because ~I would have never made itYi (Tr. 272). He confirmed 

t.hat he ·told Mr. Smith and Mr. Bauer that he was thinking about 

going to college when he met with them, and that he had submitted 

the necessary paperwork to withdraw his profit sharing money 

which he thought about using for college (Tr. 274). 

Mr. Vanover stated that he informed Mr. Osborne before he 

quit that he was going to take one week of vacation "to think 

about it, and if I didnPt come back the second week, that I would 

probably quit" (Tr. 276). When asked if he told Mr. Osborne why 

he was thinking about quitting, Mr. Vanover stated "he already 

knew", and he confirmed that he had complained to Mr. Osborne and 

Mr. Begley about the dust, and "mostly about the water pressure" 

that was insufficient to control the dust at the face (Tr. 277). 

2532 
Mr. Vanover stated that he worked downwind of the shear to 

keep up with the shear operator every shift since the longwall 

was started even though it was contrary to company policy because 

"I took it that it was my job, that was the way that it was done" 

(Tr. 277-279). He stated that none of his foreman ever told him 

not to get out from the area downwind of the shear (Tr. 280). 

Mr. Vanover stated that Mr. Begley responded to his dust and 

water complaints "a few times, but not every time" (Tr. 283). He 

also stated that he never attempted to shut the shear down 

himself but that others have done so when it was broken down or 

completely out of water (Tr. 284}. He further stated that a few 

side shields close to the headgate and tailgate were replaced 

(Tr. 286). 

Mr. Vanover stated that he did not actually see the dynamite 

on the mantrip, but had seen dynamite in a bag earlier in the day 

in another entry and he assumed that the person who had it was 

going to use it to shoot. Mr. Vanover stated that he left the 

entry to go to the face and saw the bag later, with another bag, 

on the mantrip. When asked if the bag could have been empty, 

Mr. Vanover responded "I suppose it could have" (Tr. 288-290). 

He confirmed that he did not know whether the bag was empty or 

full when he saw it on the mantrip, and that no one else said 

anything about it, except for Mark Griffy who commented that the 

bag was heavy and had something in it (Tr. 290). 

When asked if his observation of the bag caused him to quit 

his job, Mr. Vanover responded 11 not exactly, but that helped" 

(Tr. 291). He confirmed that this incident occurred about a 

month before he quit (Tr. 291). 

Larry Smith was called in rebuttal, and he stated that he 

heard Mr. Vanover make complaints to Mr. Osborne about the water 

or dust on ouAny "tvork day", but not every day (Tr. 294, 297). 

Mr. Smith stated that he quit his job after receiving a layoff 

notice (Tr. 301). He stated that he has no bad feelings against 

the respondent or Mr. Vanover, but commented that 11 I don't 

associate either one of themg the company or him" (Tr. 302). 

Findings and Conclusions 

Fact of Violation 

In order to establish a prima facie case of discrimination 

under section 105(c) of the Mine Act, a complaining miner bears 

the burden of production and proof to establish (1) that he 

engaged in protected activity and (2) that the adverse action 

complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Company, 

2 FMSHRC 2768 (1980), rev'd on other grounds sub nom. 

2533 
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 

1981); Secretary on behalf of Robinette v. United Castle Coal 

Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v. 

Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on 

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

(November 1981}, rev'd on other grounds sub nom. Donovan v. 

Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator 

may rebut the prima facie case by showing either that no 

protected activity occurred or that the adverse action was in no 

way motivated by protected activity. If an operator cannot rebut 

the prima facie case in this manner it may nevertheless 

affirmatively defend by proving that (1) it was also motivated by 

the miner's unprotected activities alone. The operator bears the 

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

Magma Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden 

of persuasion does not shift from the complainant. Robinette, 

supra. See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983): 

and Donovan v. Stafford Construction Company, No. 83-1566 D.C. 

Cir. {April 20, 1984) (specifically-approving the Commission's 

Pasula-Robinette test). See also NLRB v. Transportation 

Management Corporation, ____ U.S. ___ , 76 L.ed.2d 667 (1983), 

where the Supreme Court approved the NLRB's virtually identical 

analysis for discrimination cases arising under the National 

Labor Relations Act. 

The Complainant's Protected Activity 

I conclude and find that Mr. Vanover had a right to complain 

about mine working conditions and practices that he believed were 

hazardous to his safety and health, and that any such complaints 

are protected activities which may not be the motivation by mine 

management for any adverse personnel action against him. 

Secretary of Labor ex rel Pasula v. Consolidation Coal Co., 

FMSHRC 2786 (October 1980), Revfd on other grounds, sub. nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981)u 

and Secretary of Labor ex rel. Robinette v. United Castle Coal 

Co.u 3 FMSHRC 803 (April 1981). Safety complaints to mine 

management or to a section foreman constitutes protected 

activityu Baker v. Interior Board of Mine Operations Appealsu 

595 F.2d 746 (D.C. Cir. 1978); Chacon, supra. However, the 

minerRs safety complaints must be made with reasonable promptness 

and in good faithu and be communicated to mine management, MSHA 

ex rel. Michael J. Dunmire and James Estle v. Northern Coal 

Company, 4 FMSHRC 126 (February 1982); Miller v. FMSHRC, 687 F.2d 

194 1 195-96 (7th Cir. 1982); Sammons v. Mine Services Co., 

6 FMSHRC 1391 (June 1984) 

The Complainant's Complaint Communication to the Respondent 

In a number of safety related "work refusal" cases, it has 

been consistently held that a miner has a duty and obligation to 

communicate any safety complaints to mine management in order to 

2534 
afford the operator with a reasonable opportunity to address 

them. See: Secretary ex rel. Paul Sedqmer et al. v. 

Consolidation Company, 8 FMSHRC 303 (March 1986); Miller v. 

FMSHRC, 687 F.2d 194 (&th Cir. 1982); Simpson v. Kenta Energy, 

Inc., 8 FMSHRC 1034, 1038-40 (July 1986); Dillard Smith v. Reco, 

Inc., 9 FMSHRC 992 (June 1987); Sammmons v. Mine Services Co., 

6 FMSHRC 1391 (June 1984); Charles Conatser v. Red Flame Coal 

Company, Inc., 11 FMSHRC 12 (January 1989), review dismissed Per 

Curiam by agreement of the parties, July 12, 1989, u.s. Court of 

Appeals for the District of Columbia Circuit, No. 89-1097. 

The evidence establishes that Mr. Vanover was assigned to 

the longwall section as a second shift shield technician in March 

or April 1991, an that he transferred to the first shift in 

March, 1992. He testified that he began complaining about the 

dust from the time he was assigned to the longwall until he left 

his job in July, 1992. This is consistent with his March a, 

1993, deposition testimony that he started complaining about the 

dust approximately a month orso after the longwall started in 

production (Tr. 8). 

Mr. Vanover testified that his dust complaints were made to 

mine superintendent Ed Boylen, maintenance foreman James Tye, 

longwall coordinator David Hensly, Safety director Steve Shell, 

dust sampler Bill Sizemore, maintenance foreman Hetch Begley, and 

shift supervisor Denny Osborne. 

Mr. Begley confirmed that Mr. Vanover complained to him on 

several occasions about the longwall dust and water problems. 

Mr. Tye testified that Mr. Vanover never complained to him and 

that he did not know that Mr. Vanover had quit until two months 

later. Mr. Sizemore testified that Q'everyoneu' complained about 

the ventilation when the longwall initial was 

production p but could not. recall ·that !Y1r. Vanover complained 

to him or anyone se. Safety coordinator Jeffrey vosteve•v Shell 

testified that Mr. Vanover spoke to him about the lack of dust 

helmet filtersp but he could not recall that Mr, Vanover 

complained about any dust or water problems, Mro Osborne could 

not recall ·that. Mr o Vanover ever complained \:o about the 

dust. 

Daryl Brockv longwall technician and Shear operatorv 

testified that everyone complained about t.he \vater and dust, 

including Mr. Vanover. Longwall mechanic John Craft testified 

that Mr. Vanover complained to him about the dust and lack of 

water on the longwall section. Shield technician Timothy Roberts 

recalled that he heard from others that Mr. Vanover had 

complained about the water pressure on the longwall. 

Mr. Vanover testified that he also complained about the 

longwall dust when he worked on the second shift, and that he 

complained to shift supervisor Randy Turner and shift maintenance 

2535 
foreman Wade Blevins. Mr. Turner and Mr. Blevins did not testify 

in this case. Shear operator James Hacker, who worked with 

Mr. Vanover for two or three months before he left the job, 

testified that he heard Mr. Vanover complain about the dusty 

conditions to Mr. Turner. Mr. Hacker stated that Mr. Vanover 

also complained to him about the water and ventilation. 

Mr. Vanover testified that he complained about working 

excessive hours. However, I take note of the fact that his 

original discrimination complain is devoid of any such 

allegation. I also note the fact that Mr. Vanover voluntarily 

bid for the job, was compensated with overtime pay, and had no 

complaints about the pay (Tr. 30-31). Further, at the time the 

job was posted for bidding, the notice specifically stated that 

overtime work, including sunday work, would be scheduled as 

needed, and that shift schedules may be rotated as necessary. 

These statements were included as part of the job requirements 

(Exhibit R-16), and this was confirmed by assistant personnel 

manager Kenny Smith (Tr. 258). Mr. Vanover himself confirmed 

that he was aware of these work requirements when he took the job 

(Tr. 74-75). 

I find no credible evidence to establish that Mr. Vanover 

complained to management about working excessive hours. Even if 

he had complained, there is no evidence that any such work, even 

if it were performed, adversely affected Mr. Vanover's health or 

safety, or was in any way a reason for his leaving his job. 

Mr. Vanover testified that after an underground shot was 

fired on June 23, 1992, he complained about this to Mr. Hensley 

the next morning 0 June 24 1 1992v and that a second shot was fired 

'chat day (Tr. 33 v 94) • Mr" Vanover could not recall whether he 

complained before or after the second shot was fired, and when 

reminded of his deposition testimony that he complained to 

Mr. Hensley after the second day (Depo. Tr. 14), Mr. Vanover 

stated that he cold not remember whether he complained before or 

after the shot on the second day and he "guessed" that his 

O.eposi tion testimony 91was close to correct 11 (Tr. 94) • 

Mr. Vanover confirmed that he did not complain about the 

shot on June 23 1 after it occurred that day because he "didn't 

see anybody that dayn (Tr. 95). He stated that the next day, 

June 24 0 he saw Mr. Hensley and "kind of complained about it to 

him91 (Tr. 95). When asked to further explain his complaint to 

Mr. Hensleyi Mr. Vanover stated that "I just told him I didn't 

like it" (Tr. 95) . 

Respondent's Safety Director Bauer testified that he first 

learned about the shots sometime in August, 1992, during a 

discussion with Larry Smith (Tr. 25). Mr. Hensley did not 

2536 
testify in this case, and Mr. Vanover's testimony concerning his 

"complaint" to Mr. Hensley concerning the underground shots in 

question is unrebutted. 

Mr. Vanover testified on direct examination that he also 

complained to Mr. Hensley about the alleged transportation of 

explosives underground on a mantrip and that Mr. Hensley "didn't 

really say nothing about it. He just kind of shrugged his 

shoulders" (Tr. 35). However, in response to further bench 

questions, Mr. Vanover stated that he could not remember how he 

communicated his complaint, and he stated that Larry Smith "was 

already talking about it'!, and that he (Vanover) complained about 

the underground shots (Tr. 131). 

Mr. Bauer testified that he learned about the incident in 

question from Larry Smith after August 5, 1992, (Tr. 61-65), and 

there is no evidence that Mr. Vanover ever complained to 

Mr. Bauer or anyone else aboutthe matter. 

I find Mr. Vanover's testimony to be rather equivocal and 

unconvincing to support any conclusion that he did in fact 

complain directly to Mr. Hensley about the transportation of 

explosives on a mantrip. Even if he had complained, it would 

appear to me that it reached management's attention after the 

fact, and that management responded reasonably when it learned of 

the incident. Safety Director Bauer testified credibly that he 

:::onducted on inquiry into the matter when it was called to his 

attention by Larry Smith, met with MSHA's sub-district manager to 

discuss the matter, and implemented a safe work instruction for 

handling explosives. I also take note of the fact that MSHA 

responded to an anonymous telephone complaint about the matter 

made on August 25f 1992v well after Mr. Vanover left his jobv and 

conducted an investigation which included interviews with miners 

who rode the mantrip on June 23 and 24, 1992. All of the miners 

who were interviewed stated that no explosives were hauled on the 

mantrip on the days in question (Exhibit R-1). 

Mr Vanover confirmed that air stream dust helmets were made 

available at the longwall section and that they were of 00 considerable. helpw1 initially, but were later insufficient 

because of the lack of new filters every day. Mr. Vanover 9 s 

complaint about the filters was voiced for the first time at the 

hearing in this case, and his original complaint did not include 

or mention any helmet problem. Although the evidence in this 

case reflects some initial periodic problems concerning a daily 

supply of fresh helmet filters when the helmets were initially 

made available on the longwall section, it also shows that 

helmets were available for use, and that additional helmets and 

filters were purchased and made available to all miners who 

wanted them. 

2537 
Safety coordinator Steve Shell confirmed that Mr. Vanover 

spoke to him about not having helmet filters. However, I take 

note of longwall technician Brock's credible and unrebutted 

testimony that when he and Mr. Vanover complained to Mr. Shell 

about the lack of filters on the second shift, Mr. Shell 

displayed 80 a positive attituden, addressed their concerns, and 

took care of the problem (Tr. 307). 

Aside from the apparently single isolated complaint to 

Mr. Shell while working on the second shift, I find no credible 

evidence that Mr. Vanover complained to mine management about any 

dust helmet problems at any time close to his quitting his job. 

Furtheru I cannot conclude that Mr. Vanover's rather brief 

concern about the lack of daily helmet filters, had any 

connection with his leaving his job. I further conclude and find 

that the respondent addressed Mr. Vanover's concerns by taking 

reasonably prompt efforts to secure additional helmets and 

filtersu and to make them available to the lighthouse and supply 

personnel for distribution to the workforce as needed. 

I conclude and find that Mr. Vanover timely communicated his 

complaints about the longwall dust and water problems to 

maintenance foreman Hetch Begley. I further conclude and find 

that Mr. Vanover 5 s unrebutted statement to longwall coordinator 

David Hensley that he 11 did not like" the underground shooting 

that took place constituted a communicated safety related 

complaint. Both of these complaints met the "safety 

communication" requirements established by the Commission in 

Secretary on behalf of Dunmire and Estle v. Northern Coal Co., 4 

FMSHRC 126 (February 1982) ~ Secretary ex rel John Cooley v. 

Ottowa Silica Comoany, 6 FMSHRC 516 (March 1984) ~ Gilbert v. 

Sandy Fori;: I.J:ininc; Company, supra~ Sammons v. Mine Services Co. o FMSHRC :"..391 ~"..984 

The Respondentus Responses to the Complainant's Complaints 

When expressed a reasonable 11 good faith fear of 

a or hazard and has communicated this to mine 

management:.f management has a duty and obligation to address the 

perceived hazard or safety concern in a manner sufficient to 

reasonably quell fears 11 or to correct or eliminate the 

hazard. Secretary c River Hurricane Coal Co., 5 FMSHRC 1529, 

1534 (September 1983}? Gilbert v. Sandy Fork Mining Company, 12 

FMSHRC 177 (February 1990); on remand from Gilbert v. FMSHRC, 866 

F.2d 1433 (D.C. Cir. 1989), revtg Gilbert v. sandy Fork Mining 

Co.i 9 FMSHRC 1327 (1987). 

There is no evidence in this case that prior to leaving his 

job, Mr. Vanover ever refused to work because of his complaints. 

In a typical "work refusal" case, the critical issue presented is 

whether or not the complaining miner's belief that a hazard 

exists is reasonable and made in good faith. Secretary ex rel. 

2538 
Bush v. 997 (June 1983); Miller v. FMSHRC, 687 F.2d 1984 (7th 

cir. 1982). In analyzing whether a miner's belief is reasonable, 

the hazardous condition must be viewed from the miner's 

perspective at the time of the work refusal, and the miner need 

not objectively prove that an actual hazard existed. Secretary 

ex rel Bush v. Union Carbide Corp., 5 FMSHRC 993, 997-98 (June 

1983); Secretary ex rel. Pratt v. River Hurricane Coal Co. FMSHRC 

1529, 1533-34 (September 1983); Haro v. Magma Copper Co., at 810. 

secretary on behalf of Hogan and Ventura v. Emerald Mines Corp., 

8 FMSHRC 1066 (July 1986). The Commission has also explained 

that "good faith belief simply means honest belief that a hazard 

exists 11 • Robinette, supra at 810. 

I conclude and find that Mr. Vanover's case is one of 

"constructive discharge". A constructive discharge occurs when a 

miner engaged in protected activity can show that an operator 

created or maintained conditions so intolerable that a reasonable 

miner would have felt compelled to resign. Simpson v. FMSHRC, 

842 F.2d 453 (D.C. Cir. 1988) at 461-463. Whether such 

conditions are so intolerable is a question for the trier of 

fact, Simpson v. FMSHRC, supra, at 463. See also: Stenson Begay 

v. Liggett Industries, Inc., 11 FMSHRC 887 (May 1989}, aff'd, 

Liggett Ind. v. FMSHRC, 923 F.2d 150 (lOth Cir. 1991) of 

Secretary ex rel. Harry Ramsey v. Industrial Constructors. Inc. 

11 FMSHRC 1585 (August 1989), rev'd, 12 FMSHRC 1587 (August 

1990). 

The Shot Firing Incident 

Mr. Vanover confirmed that when he was assigned to the 

longwall he received longwall training, knew how to perform his 

job as a longwall technician, and felt comfortable doing his job 

(Tr. 13-18). Mr. Vanoverus deposition testimony reflects that he 

was aware of the purpose of the blasting which took place on June 

23 and 24, 1992, and he acknowledged that the conditions which 

required blasting had been known and discussed for a week or two 

(Depo. Tr. 13 . When asked what he expected of Mr. Hensley, 

Mr. Vanover responded 91They just shot two days, you know. They 

(sic) wasnPt nothing to be done then. It was already over with" 

(Depo. Tr. 13). 

Mr. Vanover 8 s opinion that the shots were somehow "illegal" 

is unsupported. To the contrary, the credible and unrebutted 

evidence presented by the respondent establishes that proper 

safety procedures were followed in firing the shots, and that the 

respondent's shot firers are licensed and experienced. Shield 

technician Roberts, Mr. Vanover's fellow worker on the longwall, 

testified credibly that he was aware of the shots, that he was 

assigned to watch the break to insure that no one came through 

the area, and that he did not fear for his safety, even though he 

was closer to the shot than Mr. Vanover (Tr. 239). 

2539 
The credible and unrebutted testimony of respondent's safety 

director Bauer reflects that he conducted an investigation of the 

incident after learning about it during a discussion with Larry 

Smith in August, 1992. Mr. Saurer testified that he determined 

that a single shot of approved explosive was set off approximately 100 to 200 feet outby the longwall face, and that the area 

had been rock dusted and proper methane and ventilation checks 

were made before the shot was fired. He also testified that the 

standard voice warnings were made by the shot firer. 

It would appear from the evidence in this case that the shot 

or shots which took place in June, 1992, were isolated and 

controlled incidents" and Mr. Vanover confirmed that he could not 

recall similar occurrences before or after the time these shots 

were fired. I also take note of the fact that this incident is 

not included among the previously noted anonymous complains 

lodged with 1-iSHA on August 25 1 1992, which included the use of 

explosives and the alleged transportation of explosives on a 

mantrip. I also note the absence of any testimony from any other 

miners working at the face at the time of the shots. 

Mr. Vanover testified that his greatest concern was the dust 

generated by the shots in question. Mr. Roberts confirmed that 

the dust generated by the shots went down the return toward the 

face area where Mr. Vanover was working and that the dust lasted 

"maybe for a little while" (Tr. 240). Mr. Vanover was working at 

the longwall face while coal was being cut and he claimed that he 

could "feel the jar" of the shot, smelled the amonia used for the 

shotu and observed the dust generated by the shot coming down the 

face. There is no evidence that the work taking place at the 

face was interruptedp that the shots adversely affected the 

miners 't:'JOrking at ·the face or placed them at riskQ or that anyone 

complained. 

Although Mr. Vanover testified that he "almost quit" when 

the blasting occurred because he was afraid (Tr. 44)! he did not 

so. Insteadv he continued working after the shots were fired 1 

and apparently made no further complaints about the matter. As a 

matter of factv Mr. Vanover was unsure as to when he actually 

complained to Mr. Hensleyr and as previously noted, Mr. Vanover 

acknowledged that he 01 kind of complainedff' to Mr. Hensley" and 

simply told him that he u

1didnut like it. It seems to me that if 

Mr. Vanover truly believed that the shots were life threatening 

and placed him at immediate risk, he would have protested more 

vigorously or at least decided that it was time to end his 

employment at that time. Instead, he continued working, 

requested to go on vacation two or three days before it was to 

begin, and then took a two-week vacation before deciding not to 

return to work. Under all of these circumstances, I conclude and 

find that Mr. Vanover's asserted fears regarding the underground 

2540 
shot firing in question are not reasonable or credible and were 

not, wholly, or partially, the proximate cause of this decision 

to quit his job. 

The transportation of Explosives on a Mantrip 

I have previously concluded that there is no credible 

evidence to establish that Mr. Vanover ever complained about the 

alleged transportation of explosives on a mantrip. Even if he 

had complained, I further concluded that the respondent acted 

with reasonable promptness in addressing the matter, and I took 

note of the fact that an MSHA inquiry failed to disclose any 

evidence that explosives were transported on a mantrip. 

It is uncontradicted that the incident in question, if it 

occurred, was only a one-time occurrence that was not ignored by 

the respondent. Further, the evidence presented by Mr. Vanover 

regarding this incident is somewhat contradictory and raises 

doubts my mind as to whether any explosives were in fact 

transported on a mantrip. Mr. Vanover acknowledged that he never 

actually saw any explosives in the bag that was purportedly used 

to transport them, and he conceded that the bag could have been 

empty. Further, although Mr. Vanover testified that the 

explosives were being transported on an incoming mantrip, Larry 

Smith testified that they were being transported on a mantrip 

going out of the mine. 

The incident in question allegedly occurred on June 23, 

1992, and Mr. Vanover testified that it scared him when he found 

out about it at the time the bag purportedly containing the 

explosives were taken off the mantrip he was on that was going 

out the minep and transferred to another mantrip that was 

going to the face (Tro 32-35). Mr. Vanover testified that he was 

·told by others that the bag contained 01 powder 11 (Tr. 34). He also 

testified that he was on the mantrip with twenty other miners 

when the transfer was made. Miner George Smith, who was on the 

mantrip 0 testified that the assumed that Mr. Vanover was aboard, 

but did not see him. Mr. Smith testified that he did not see any 

dynamite or any dynamite container. Larry Smithc who was on the 

same mantrip 1 testified that the bag was transferred to a mantrip 

going out of the mine, and not to the face as testified by 

Mr. Vanover and George Smith. 

Mr. Vanover testified that the incident "definitely scared" 

him when he found out about it because he nhad dealt with powder 

before" (Tr. 34). He stated that he "wanted to quit" at that 

time because he believed it might happen again (Tr. 131-132). He 

then stated that "I don't knovl whether I would have quit over 

that incident" (Tr. 132). When called in rebuttal during the 

second day of the hearing Mr. Vanover was asked whether this 

incident caused him to quit his job. He responded "not exactly, 

but that helped" (Tr. 291}. He also acknowledged that the 

2541 
incident occurred almost a month before he quit, but that "Just a 

little bit of everything, the dust and stuff", impacted on his 

decision to quit. 

On the facts and evidence here presented, I conclude and 

find that the respondent did all that was possible to address the 

complaint brought to its attention by Larry smith well after the 

alleged incident in question and after Mr. Vanover quit his job. 

I further conclude and find that Mr. Vanover's asserted fear over 

this isolated incident was less than reasonable, particularly 

since there is no credible, reliable, or probative evidence to 

establish that explosives were being transported on the mantrip. 

Even if they were, and even if I were to accept Mr. Vanover's 

contention that he was frightened, I would find that any fears he 

had at that time would not have extended to the time he made the 

ultimate decision to quit. In short, I reject as less than 

credible or reasonable Mr. Vanover's suggestion that his 

frightened state of mind when _he learned that explosives were 

transported on a mantrip influenced his decision to quit, or 

caused him to quit his job approximately one month after that 

alleged event. 

The Longwall Dust Problems 

Mr. Vanover confirmed that he transferred to the longwall 

first shift in approximately March of 1992, some four months 

prior to his quitting on July 20, 1992. He testified that at the 

time he was contemplating whether to quit his job, he did not 

believe that the dust and ventilation conditions would ever 

improve because they had existed unchanged for the entire twelveand-one-half years that he worked for the respondent (Tr. 43-44). 

I find this testimony to be rather incredible and totally lacking 

evidentiary support. It is also contrary to Mr. Vanoveris 

sworn deposition testimony of March 8, 1993, where he testified 

that prior to his assignment to the longwall section he never had 

any problems with the respondent regarding any safety matters and 

had no complaints before he took the job of longwall technician 

(Depo. Tr. 5). Mr. Vanover further testified that the first time 

he ever complained to anyone about dust was 11 shortly after" or 

09 about a month and a half 11 after the longwall was placed in 

production (Depo. Tr. 8}. 

In stark contrast to his general overall indictment of the 

respondent;s efforts to address his complaints, Mr. Vanover 

confirmed that foremen Blevins and Turner made an effort to 

control the dust by hanging ventilation curtains, and that 

Mr. Turner tried his best to address his dust complaints 

(Tr. 25, 67). Mr. Vanover also confirmed that there were several 

occasions when Mr. Osborne and Mr. Turner stopped production at 

his request to address the lack of water, and that shear 

operators James Hacker and Bill Wilson shut the shear down for a 

lack of water. During his deposition testimony, Mr. Vanover 

2542 
stated that "Randy Turner and them, they was pretty good about, 

you know, trying to keep you out of the dust and stuff" 

(Depo. Tr. 16). 

Mr. Vanover testified that shortly before taking his 

vacation he complained to Mr. Begley about the lack of water 

pressure on one of the drum sprays. Mr. Osborne responded by 

stopping the shear and instructing Mr. Begley to check the water 

pressure. Mr. Begley found only 40 pounds of pressure and 

indicated that it would be repaired on the third shift and 

allowed it to continue to be operated. Mr. Vanover asserted that 

it was not repaired when he came to work the next morning, and he 

indicated that this incident was the "last strawn that prompted 

his decision to quit (Tr. 43-44). However, on cross-examination, 

Mr. Vanover admitted that longwall production did in fact stop 

and that Mr. Osborne addressed his complaint about the lack of 

water pressure (Tr. 69-70). Mr. Begley testified credibly that 

he checked he water pressure on two occasions on the day in 

question and that he shut the shear down and repaired a broken 

and missing water spray (Tr. 193-194). 

Mr. Vanover confirmed that there were other occasions when 

Mr. Osborne and Mr. Turner stopped production of his request to 

address water problems, and that shear operators James Hacker and 

Bill Wilson also shut the shear down for similar problems 

(Tr. 69-70). Mr. Hacker confirmed that it was a practice to stop 

the shear to clean or repair the water sprays, and that he would 

stop it if anyone complained about the dust (Tr. 326, 328). 

Mr. Vanover confirmed that the longwall shields were in 

working order and had sufficient wateru that 8 inch water lines 

were used to supply the mine with waterv and that the mine had 

fans large enough to provide the required ventilation and that 

the equipment and the means to control the dust were available 

(Tr. 65-66). Notwithstanding all of this, Mr. Vanover was of the 

opinion that the respondent just "didn't get it done" (Tr. 66). 

Mr. VanoverRs principal complaint about the dust appears to 

be the asserted lack of sufficient water pressure on the longwall 

sprays to keep the dust down. Mr. Vanover alluded to 

insufficient air f but he indicated that 81 every once in awhile the 

air was insufficient to blow the dust out" (Tr. 24). Although it 

is true that the longwall shear cut in both directions at one 

timeQ which increased the dust conditionsg this practice was 

discontinued before Mr. Vanover quit and the dust control plan 

was amended and provided for face passes to be made in only one 

direction from the tailpiece to the headpiece, except for the 

last 120 feet at the tailgate where the cut is allowed to be made 

from the headpiece to the tailpiece. 

Longwall manager Tye testified credibly that the new 

ventilation and dust control plan became effective in June, 1992, 

2543 
and that it was adopted because of the ventilation problems 

experienced under the 1991 plan. Mr. Tye confirmed that the new 

planj which was in effect at least a month before Mr. Vanover 

quitu provided for an increase in the number of water sprays, 

increased water pressure on the sprays, and only one directional 

cutting on the face. Mr. Tye also confirmed that the respondent 

took additional measures to lessen the miner's exposure to dust, 

including the purchase of additional dust control and protective 

equipment. Under all of these circumstances, it appear to me 

that the dust conditions which had existed at one time on the 

longwall under the prior plan when two-directional cutting 

was being done, had improved at least a month or so before 

Mr. Vanover decided not to return to work. 

Although shear operator Brock stated that the dust 

conditions were still "severe" at the time Mr. Vanover quit, he 

confirmed that nthere is plenty of air and water currently" at 

the mine. He also confirmed that he worked on a different shift 

when Mr. Vanover left, had not worked with him for at least four 

or five months prior to his quitting, and that he had no personal 

knowledge of the mine conditions on the first shift at the time 

Mr. Vanover quit (Tr. 308). Mr. Brock also confirmed that at the 

time one-directional cutting was adopted, the respondent 

installed additional water systems and increased the water and 

ventilation pressures at the face (Tr. 309). Although Mr. Brock 

stated that it was dusty "when the first longwall panels were 

being minedn, he confirmed that "step-by step" improvements 

were made and that the conditions "definitely improved" 

(Tr. 310, 314). 

Heavy concentrations of dust downwind of a shear that is 

cu.t:t.ing coa2. a:c <:he face is not r in my view r unusual. The 

::.ncreased concent:::::·C:.·cions of dust downwind of t.he shear would 

appear ·to Joe a normal and. inherent by-product of the longwall 

mining method in use, and the ventilation plan should provide the 

necessary provisions to insure adequate dust control. That is 

why I believe the respondent 6 s longwall dust control plan 

ExhibL: G~Bj, prohibits longwa.ll personnel from positioning 

·themselves down-vlind of t.he shear while coal is being cut or 

downwind. of t.he shields when they are being moved. 

Larry Smith •":est.ified ·that the respondent tvould only respond ·:c.c~ the dust a.nd. vJater problems when an inspector was present, and 

he suggested that he quit over these conditions. However, when 

called in rebuttal after the first day of the hearing, Mr. Smith 

admitted that he quit after receiving a layoff notice. He also 

confirmed that he filed an unemployment claim against the 

respondent but abandoned his claim after he failed to appear at a 

hearing before a referee. Having viewed Mr. Smith's demeanor in 

the course of the hearing, and notwithstanding his assertion that 

he had "no bad feelings" against the respondent, I believe that 

quite the opposite is true. Mr. Smith appeared hostile and 

2544 
antagonistic toward the respondent and I believe that he would 

color his testimony to place the respondent in the worse possible 

light. In short, I find him to be a less than credible witness. 

Contrary to Mr. Vanover's suggestion that the respondent 

expected its employees to work downwind of the shear, the 

respondent's credible and unrebutted evidence establishes quite 

the opposite. Longwall manager Tye testified that he cautioned 

Mr. Vanover about going downwind of the shear and working there 

in the dust (Tr. 90, 239-40, 259). Mr. Tye believed that 

Mr. Vanover would not be exposed to excessive dust if he stayed 

outby the shear and the area downwind. 

Mr. Begley and Mr. Osborne denied that anyone was required 

to be downwind of the shear in order to perform work. 

Mr. Osborne confirmed that he has observed people downwind of the 

shear and ordered them out after informing them they were not to 

be there (Tr. 225). Mr. Sizemore confirmed that on two 

occasions, an inspector has cited employees after observing them 

downwind of the shear. 

Mr. Begley confirmed that after observing Mr. Vanover 

downwind of the shear, he ordered him out and informed him that 

this was not permitted (Tr. 190}. Mr. Vanover confirmed that on 

one occasion Mr. Begley told him that he was not to be downwind 

of shear {Tr. 90). 

I find no credible evidence to establish that Mr. Vanover 

was required or assigned to work downwind of the shear while it 

was cutting coal at <the face. Although he suggested during his 

direct testimony that: he t'lias consistently required to worl( 

downwind of the shear t.he dust, on cross-examination he 

testified that ·this only occurred ou timesa 9 v and when asked if 

this were a matter of routine or personal choice, he replied "I 

guess it was" (Tr. 86). Further, when called in rebuttal during 

the second day of the hearingv Mr. Vanover changed his story and 

stated that he worJ{ed downwind of the shear on every shift since 

longwall started production because he thought this was 

part of his job (Tro 278-279)" I find Mro Vanover's assertion 

that was required to work downwind of the shear on every shift 

because he was required to as a part of his job to be lacking in 

evidentiary supportg and casts reasonable doubts in my mind on 

his credibilityo 

The respondent 1 s credible evidence establishes that working 

downwind of the shear is contrary to the approved ventilation and 

dust control plan and company work rules. Mr. Vanover 

acknowledged that he was aware of these prohibitions, and I 

reject as less than credible his suggestion that he worked 

downwind of the Shear with the full knowledge and consent of 

management because it was expected of him or was required as part 

2545 
of his job. Indeed, Mr. Vanover testified that no one ever told 

him to go downwind of the shear (Tr. 90). 

Mr. Hacker confirmed that Mr. Vanover would be downwind of 

the shear at the time it was cutting in both directions, but that 

it would be illegal for him to be there after the one-directional 

cutting was adopted (Tr. 330). Although Mr. Hacker believed that 

Mr. Vanover needed to be downwind to advance the shields and to 

keep up with his fast paced cutting, he confirmed that if asked 

to do so by the shield technician because of a dust or other 

problem, he would stop the shear (Tr. 328). He confirmed that he 

and Mr. Vanover are friends and that if Mr. Vanover wanted him to 

shut the shear down because of a problem he would have done so 

(Tr o 332) • 

While it may be true that some technicians had difficulty 

keeping up with the pace of the shear that was cutting the face, 

particularly during the time that cuts were being made in both 

directions, I find no credible evidence that Mr. Vanover had such 

a problem when he decided to quit. I take note of the fact that 

Mr. Hacker was not working on the same shift as Mr. Vanover at 

the time Mr. Vanover quit. Mr. Hacker indicated that he had not 

worked with Mr. Vanover for three or four months before he quit 

(Tr. 327). Under the circumstances, any problems that 

Mr. Vanover may have had keeping up with Mr. Hacker would have 

occurred well before he quit, and I find it less than credible 

and unreasonable for him to have believed that he would have 

encountered the same problems if he had returned to work. 

The respondent has acknowledged that it had some longwall 

ventilation oroblems result:ed an excessive dust violation 

on August 28: 199 • However? Mr. BauerPs credible and unrebutted 

testimony reflects as result: violation 1 

ventilation changes were made in Octoberu and Decemberu 1991, 

increasing the amount of air on the faceu and the two-directional 

face cutting was discontinued" Mr" Bauer further indicated that 

only two dust violations were issued from Marchu 1992u when 

Mro Vanover was first assigned the first shiftv until he left 

July u 1992 0 and ·tha·t cche mine has been substantial 

compliance with the dust plans since Decemberu 1991. He also 

indicated that the mine received only one excessive dust 

violation on the longwall section from Aprilu 1991v through the 

end of Julyv 1992o 

Although Mr" Vanover indicated that e•every once in awhile 

the air was insufficient to blow the dust out", there is no 

evidence that this was a problem when he decided to quit, and he 

confirmed that he was unaware of any violations issued at the 

mine for inadequate air ventilation (Tr. 118). 

Safety technician Sizemore testified credibly about the 

remedial measures taken by the respondent as a result of the 

2546 
October, 1991, dust problems. With the exception of the 

September/October, 1991, dust sampling cycle on the longwall, 

Mr. Sizemore's unrebutted testimony reflects that the mine was in 

compliance with MSHA's allowable respirable dust limitations 

before and after the September/October, 1991, period, and from 

January through June, 1992. Under all of these circumstances, 

I have difficulty accepting as reasonable and credible 

Mr. Vanover's contention that he feared for his life 

because of the dust conditions on the longwall at the time 

he decided to quit his job. 

The evidence establishes that Mr. Vanover's meeting with 

Mr. Smith and Mr. Bauer took place before he ·filed his 

discrimination complaint with MSHA. In the absence of any 

evidence to the contrary, I cannot conclude that the respondent 

had any ulterior motive in seeking the meeting other than to 

learn from Mr. Vanover why he left his job. Mr. Vanover could 

have refused to meet with Mr. ·smith and Mr. Bauer, but he did 

not. I find Mr. Bauer's explanation as to why he sought the 

meeting to be credible and plausible. I also find that 

Mr. Bauer's offer to Mr. Vanover to return to work was bona fide 

and made in good faith. 

After a careful review and consideration of all of the 

evidence in this case, I cannot conclude that the respondent 

maintained the longwall in such a condition, or allowed 

conditions on the longwall to deteriorate to the point where it 

would have made it intolerable for Mr. Vanover to continue on in 

his employment or to return to work. 

The evidence this case establishes that Mr. Vanover 

requested to take leave two or three days before he left work for 

a two-week vacationo At the conclusion of his vacation, and 

after waiting "until the last minute" (Tr. 20), he decided to 

quit his job. As a matter of fact, Mr. Vanover started to return 

to work, but instead, drove to the respondent's main office and 

told a lady in the office that he was quitting (Tr. 48-49). 

Mr. Vanover asserted that he took his vacation to consider 

whether to return to work. Given the fact that his refusal to 

accept management 1 s offer to return to work was based on his 

belief that nothing would ever change at the mine, I find it 

rather strange that Mr. Vanover needed more time to ponder the 

question. It seems to me that if he truly feared for his life, 

or truly harbored a fear that to return to work would place him 

at risk, he would have quit sooner than he did. His failure to 

do so casts doubts in my mind regarding the credibility and 

reasonableness of his asserted reasons for quitting and not 

returning to work. 

During his direct testimony, Mr. Vanover acknowledged that 

when he met with Mr. Bauer and Mr. Smith he informed them that he 

2547 
intended to enroll in college and that he 11was done with 

Shamrock" (Tr. 20). When called in rebuttal the second day of 

the trial, Mr. Vanover was rather equivocal and evasive about his 

plans to attend college, and although he admitted to a high 

school education, he indicated that he "would never had made it" 

in college and knew that he could not read or write well enough 

for college work (Tr. 272). Mr. Vanover asserted that he had 

been thinking about attending college "off and on" over a period 

of time (Tr. 274). It seems to me that if he had any 

reservations about his ability to succeed in college, he would 

have realized this sooner than he claimed he did. 

I conclude and find that Mr. Vanover voluntarily quit his 

job for reasons other than a fear for his life, his health, or 

his safety. Having withdrawn approximately $56,000, from his 

profit sharing account that was completely paid for by the 

respondent, I believe that Mr. Vanover decided it was time to end 

his mining career and to seek to enroll in college to further his 

education and to better himself. 

ORDER 

In view of the foregoing findings and conclusions, I 

conclude and find that Mr. Vanover has failed to make a case of 

discrimination pursuant to section l05(c) of the Act, and that he 

has failed to establish by a preponderance of the credible and 

probative evidence adduced in this matter that the circumstances 

under which he voluntarily quit his job and refused the 

respondent's offer to return to work constituted a constructive 

discharge within the meaning of the anti-discrimination ~revisions of the Act. Accordinglyu his claims for relief ARE 

DENIEDr and his complaint IS DISMISSED. 

~~ Administrative Law Judge 

Distributiong 

Phyllis L. Robinsonu Esq.v P.Oo Box 952, Haydenu KY 41749 

(Certified Mail) 

Timothy L. Wellsv Esq., Smith & Wells, P.Oo Box 447, Manchester, 

KY 40962 (Certified Mail) 

/ml 

2548 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5267/FAX (303) 844-5268 

DEC 1 71993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)u 

Petitioner 

. 

0 

Docket No. WEST 92-314-M 

A.C. No. 04-01924-05527 

v. 

Docket No. WEST 92-319-M 

A.C. No. 04-01924-05529 

JAMIESON COMPANY I 

Respondent 

Docket No. WEST 92-389-M 

A.C. No. 04-01924-05530 

Appearances: 

Before~ 

Pleasanton Pit and Mill 

DECISION 

Jan N. Coplick, Esq., Office of the Solicitor, 

u.s. Department of Labor, San Francisco, 

California, 

for Petitioner; 

William R. Pedderu Esq.u Alamedau Californiau 

for Respondent. 

Judge Lasher 

In these three proceedings~ the Secretary of Labor (MSHA) 

originally sought assessment of penalties for a total of seven 

Citations pursuant to Section 110(a) of the Federal Mine Safety 

and Health Act of 1977u 30 U.S.C. § 820(a) {1977). 

After the commencement of hearing in Pleasantonu Californiau 

on May 26 1 1993 1 MSHA moved to vacate Citation No. 3912067 in 

Docket No. WEST 92-314-M, for good and sufficient reason and 

based thereon this Citation was vacated from the bench (T. 35-

38). That disposition is here AFFIRMED. The six remaining 

citations were litigated. 

Preliminary Penalty Assessment Criteria Findings 

Based on stipulations received at the hearing, it is found 

that Respondent is a medium-sized, one plant, 50-employee, sand 

and gravel operation with a history of 36 previous violations 

2549 
during the pertinent two-year period preceding the issuance of 

the citations involved in these proceedings. It is also found 

that Respondent proceeded in good faith after notification of any 

violations found to abate such promptly and that Respondent's 

ability to continue in business would not be adversely affected 

by imposition of reasonable penalties for any violations found 

herein. 

The Two Safety standards Involved 

30 C.F.R. § 56.14107 is the regulation involved in citations 

numbered 3912068, 3912072, 3912077, 3912079, and 3912080. It 

provides: 

Moving machine parte shall be guarded to protect 

persons from contacting gears, sprockets, chains, 

drive, head, tail, and takeup pulleys, flywheels, 

couplings, shafts, fan blades, and similar moving 

parts that can cause injury. 

(b) Guards shall not be required where the exposed moving parts are at least seven feet away from 

walking or working surfaces. 

30 C.F.R. § 56.12008 is the regulation involved in Citation 

No. 3912075. It provides: 

Power wires and cables shall be insulated adequately 

where into or out of electrical compartments. shall enter metal frames of motors, 

splice boxes, and electrical compartments only through 

proper fittings. When insulated wires, other than 

cables, pass through metal frames, the holes shall be 

substantially bushed with insulated bushings. 

Respondent challenges the occurrence of the violations 

charged by Petitioner 1 Petitioner 1 s position on negligence and 

gravity; and the 11 Significant and Substantial 11 (S&S) designations 

indicated on three of the Citations. 

Docket Noo WEST 92-314-M 

citation No. 3912068 (T.JS-79) 

This violation consists of a piece of metal which had been 

welded at the end of the shaft on the head pulley not being 

guarded (T.45, 50, 60-61, 70-71, 75). The shaft with the piece 

welded to it is a moving machine part and is thus covered by the 

regulation (T. 46). The welding piece protruded 1/16 of an inch 

{T. 58). 

2550 
The hazard created was that a workman's sleeve could be 

caught in the moving part resulting in loss of a finger or arm, a 

permanently disabling injury (T. 47-51). It was unlikely that 

the hazard would have occurred (T. 51, 61-64, 65) since the only 

reason an employee would come in close proximity to the hazard 

would be for maintenance or for oiling the gearbox (T. 56-58, 

70-71, 75). 

Respondent's witness, Operations Manager Richard Kelly, 

concedes that the part in question was not guarded (T. 60-61). 

While he felt that the condition would not pose a danger since 

the gear box should be locked out before maintenance was performed, Mr. Kelly also conceded that accidents have occurred 

where lockout procedures have not been followed (T. 62, 64). 

It is concluded that the violation occurred as charged in 

the Citation except that the welded piece stuck out only 1/16th 

of an inch. 

The violation was obvious and involved, as indicated by the 

Inspector, moderate negligence. The violation, which is not 

charged to be (S&S), was not likely to result in an injury but 

did pose the threat of serious bodily harm had the hazard envisioned come to fruition. Accordingly, the violation is found 

to be moderately serious. 

A penalty of $50 is ASSESSED. 

This Citation, not designated S&S, alleges that the tail 

pulley on the No. 2 feeder was not "adequately" guarded in that 

the guard was 0'too far back. eo 

Respondent contends ·that the guard system was that which had 

been approved by another inspector previously in early 1991 and 

that the guard is in compliance with the standard in question. 

The Inspector who issued the Citation testified that the 

face of the pulley was approximately 12 inches from the edge of 

the guard which was a "dangerous" distance since a person's 

sleeve could become entangled (T. 83). The pinch point was 20-32 

inches (T. 84-85) from the edge of the guard. This, again, was a 

distance which could be reached by a person's arm or shovel (T. 

84, 87, 91-92, 95). The hazard of entanglement could result in 

loss of a body part (arm). The violation was observable by management (T. 88, 114) and thus a result of moderate negligence 

(T. 88, 114) and thus a result of moderate negligence (T. 88) 

since it had existed for some time (T. 88-89). 

2551 
Petitioner established three of the four prerequisites of a 

"Significant and Substantial" violation by establishing that 

there was a violation of the safety standard cited; that there 

was a discrete safety hazard (entanglement and loss of a body 

part) contributed to by the violation; and that there was a 

reasonable likelihood that any injury would be of a reasonably 

serious nature (loss of an arm). Mathies Coal Co., 6 FMSHRC 1, 

3-4 (January 1984). There was no showing, however, of a reasonable likelihood that the hazard contributed to would result in an 

injury, that is, the third prerequisite of Mathies. Petitioner 1 s 

only evidence was the weak testimony of the Inspector at pages 86 

and 87 of the transcript which is insufficiently clear as to its 

meaning. such testimony is rejected as remote and not probative. 

On the other hand, the testimony of Respondent's witness, that 

there was only a mere possibility of injury was clearer and more 

credible and such is credited. The S&S designation will be 

stricken. 

Since it was not reasonably likely that an injury would have 

occurred--even though such injury would. have been serious in 

nature--the gravity of the violation will be deemed only moderately serious. 

Respondent established that to abate a prior citation some 

six months previously (T. 106) it installed the guarding system 

cited in the instant Citation and there had been no changes 

either to the guards or to the location of the pulley during the 

interim (T. 106-110). I find and infer from Respondent's evidence that MSHA approved the subject guarding system in approving 

the manner of abatement of the previous violation. In Secretary 

v. King Knob Coal Company" Inc.v 3 FMSHRC 1417 (1981) r the Commission generally rejected the doctrine of equitable estoppel. 

However, it also viewed the erroneous action of the Secretary 

(mistaken interpretation of the law leading to prior non-enforcement) as a. factor tvhich can lbe considered in mitigation of penalt.yc stating~ 

The Supreme Court has held that equitable estoppel 

generally does not apply against the federal government. Federal Crop Insurance Corp. v. Merrill, 332 

U.S. 380, 383-386 (1947); Utah Power and Light Co. v. 

United States, 243 u.s. 389, 408-411 (1917). The 

Court has not expressly overruled these opinions, 

although in recent years lower federal courts have 

undermined the Merrill/Utah Power doctrine by permitting estoppel against the government in some 

circumstances. See, for example, United States v. 

Georgia-Pacific Co., 521 F.2d 92, 95-103 (9th Circ. 

1970). Absent the Supreme Court's expressed approval 

of that decisional trend, we think that fidelity to 

precedent requires us to deal conservatively with this 

~rea of the law. This restrained approach is buttressed by the consideration that approving an estoppel defense would be inconsistent with the liability 

2552 
without fault structure of the 1977 Mine Act. See El 

Paso Rock Quarries, Inc., 3 FMSHRC 35, 38-39 (1981). 

Such a defense is really a claim that although a violation occurred, the operator was not to blame for it. 

Furthermore, under the 1977 Mine Act, an equitable 

consideration, such as the confusion engendered by 

conflicting MSHA pronouncements, can be appropriately 

weighed in determining the appropriate penalty •••. 

Accordingly, the doctrine of equitable estoppel will not be 

applied to the enforcement action of the Secretary here. However, the Respondent's evidence in this connection will be considered in mitigation of penalty. 

After consideration of such, and in view of the modifications in the severity of the violation discussed above, a penalty 

of $10.00 is found appropriate and is here ASSESSED. 

Citation No. 3912075 (Te 124-141) 

This Citation, as modified, charges that the electrical 

cable for the vibrator on the sand tank was not properly fitted 

where it came out of the main switch box. The occurrence of the 

violation was clearly established. 1 

The hazard was that a person could trip on the cable which 

was lying on the ground and pull it out of the electrical box 

since was secured only with tape instead of a clamp (T. 126 1 

127, 133). Had such hazard occurred, electrocution could result 

(T. 127, 129). Since the only miners who had occasion to work in 

proximity to the hazard were electricians, the likelihood of injury was unlikely and the Inspector did not designate the violation as "S&S" (T. 127-128, 134). Only moderate negligence was 

involved in the commission of this violation (T. 128, 134). The 

condition was obvious (T, 127) and should have been checked by 

management (T. 128). 

Although the occurrence of injury was not likely, had such 

an injury occurredv the injury could have been fatal. The violation is found to be moderately serious and a penalty of $50 

(T. 140) is found appropriate and here ASSESSED. 

Respondent produced no witnesses. 

2553 
Docket No. WEST 92-319-M 

Citation 3912072 CT. 141-192) 

This citation, as modified, is designated "Significant and 

Substantial" and charges that the drive chain on the No. 2 scrubber was not adequately guarded to prevent a person from contacting the chain and becoming entangled. Respondent, as previously 

noted, challenges the occurrence of the violation, the "S&S " 

designation, and the degree of gravity charged. The violation 

itself was clearly established. The drive chain in question was 

not adequately guarded since there was a gate--not a guard--used 

to prevent exposure (T. 145, 146, 147, 148). The entire drive 

chain was a hazard since a person could get entangled (by sleeve 

or pant's leg) anywhere along the chain (T. 146). The walkway 

was less than seven feet from the hazard (T. 178). Persons could 

reach the exposed moving chain by opening the gate (T. 147) or by 

stepping over the motor (T. 149, 151, 161) and there was footprint evidence observed by the Inspector that persons had done so 

{T. 150, 153). 

Employees were exposed to the hazard on a daily basis to 

perform maintenance work (T. 145, 154, 163, 191-192). Had an 

injury occurred from the hazard contributed to by the violation 

such would have been permanently disabling or fatal (T. 155). It 

is concluded that a violation occurred and that such was "Significant and Substantial," since as noted herein, there was a reasonable likelihood that an injury would have occurred due to the 

frequency of exposure~ the ease of exposureu and the proximity of 

exposure to a considerable hazard~ and the evidence that there 

had been exposure such as evidenced by the footprints observed 

by the Inspectoro The other elements of Mathies, supra, have 

been delineated herein above. The violation is found to be 

serious. 

The violation was visible and obvious and the Inspector's 

determination of moderate negligence is found warranted. A penalty of $400 is found appropriate and is here ASSESSED. 

Docket No. WEST 92-389-M 

Citation No. 3912077 CT. 192-221) 

This "S&S" Citation alleges that the tail pulley on the No. 

14 conveyor belt was not adequately guarded. 

While there was a guard in place, it was not adequate since 

the nip point on the tail pulley could be reached (T. 196, 202). 

Thus, assuming as Respondent maintains (T.214, 217}, that the 

2554 
distance from the edge of the guard to the nip point was 34 

inches, a miner could reach the nip point or could reach it with 

a tool (T. 197, 198, 199, 200, 211}. 

It was not reasonably likely that a workman would sustain 

injury from contacting the nip point (T. 200, 201) even though 

employees did engage in "cleaning material spillage" on a daily 

basis. There was only a "possibility" that an employee might try 

to dislodge materials by reaching into the hazardous area deliberately (T. 200, 201) and such latter factor would be the result 

of "an extremely conscious effortn (T. 214, 215). Official notice is taken that a person with an advertised 34-inch shirt 

sleeve length would not actually have an arm- and hand-length of 

34 inches (see T. 214-215, 218-218), but rather approximately 30 

inches. 

The conditions described constitute a violation of the 

standard, and resulted from a moderate degree of negligence on 

the part of Respondent (T. 203) since it was obvious and since 

supervision failed to check the installation of the guard to 

determine if it had been installed correctly (T. 203, 204). 

Based on the foregoing findings, it is found that the violation was only moderately serious since it was unlikely that 

injury would ensue from exposure to the hazard. The "gravity" of 

the violation indicated in the citation will be modified to 

reflect this change and to delete the "S&S" designation. Upon 

consideration of the various penalty assessment factors, a penof $50 here ASSESSED. 

This "S&S" Citation charges that the tail pulley on the No. 

28 conveyor belt was not adequately guarded to prevent a person 

from getting hand or shovel caught. The violation was 

clearly established. 

The nip point was only 25 inches from the guard (T. 231, 

241) and this created a hazard since it could be contacted by a 

miner (T. 226), since a miner possibly could reach it by bending 

down or kneeling and then by leaning forward and reaching it with 

his body or a tool (T. 226, 238-239, 245). The nip point could 

not be reached by a standing person (T. 242). 

The hazard was in an area where miners performed cleaning 

duties (T. 227). Miners were exposed to the hazard on a daily 

basis (T. 227). Had an injury occurred as a result of the hazard 

contributed to by the violation, it could have resulted in the 

loss of a miner's arm (T. 228) or other serious injury (T. 229). 

2555 
Moderate negligence was involved since the violation should 

have been observable by management (T. 228, 240). 

From the evidence of record it is concluded that it was 

possible but not "reasonably likely" that an injury would occur 

as a result of the occurrence of the hazard contributed to by the 

violation (T. 237-239, 242, 245). The record lacks probative 

evidence of the third element of the Mathies "S&S" formula and 

this designation on the citation will be stricken. Likewise, the 

gravity of the violation will be modified to show that an injury 

would be "unlikely" to occur. 

Upon consideration of the various mandatory assessment 

factors, a penalty of $50 is found appropriate and is here 

ASSESSED. 

ORDER 

1. Citation No. 3912067 in Docket No. WEST 92-314-M is 

VACATED. 

2. citation No. 3912080 in Docket No. WEST 92-314-M is 

MODIFIED to change the "Gravity" designation in paragraph 10 A 

thereof from "Reasonably Likely" to "Unlikely"; and to delete the 

"Significant and Substantial" designation in paragraph lOC. 

3. Citation No. 3912077 In Docket No WEST 92-389-M is 

MODIFIED to change the "Gravity" designation in paragraph lOA 

thereof from uiReasonably Likelyun to 9'Unlikely and to delete the 

'

0Significant and Substantial no designation in paragraph lOC. 

4. Citation No. 3912079 in Docket No. WEST 92-389-M is 

MODIFIED to change the «'Gravity" designation in paragraph lOA 

thereof from "Reasonably Likely" to "Unlikely" and to delete the 

"Significant and Substantial" designation in paragraph lOC. 

~. Respondent SHALL PAY to the Secretary of Labor within 

30 days form the date of issuance hereof the penalties hereinabove assessed in the total sum of $510.00. 

2556 

,.. _. .T "'}"" ··;· ., v4. / 

>//?· _ c a ~P-A-c /<?~ 

Michael A. Lasher, Jr. 

Administrative Law Judge 
Distribution: 

Jan M. Coplick, Esq., Office of the Solicitor, U.S. Department of 

Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA 94105-

2999 (Certified Mail) 

William R. Fedder, Esq., a Professional Corporation, 2447 Santa 

Clara Avenue, suite 201, Alameda, CA 94501 (Certified Mail) 

ek 

2557 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 2 0 1993 

CONSOLIDATION COAL COMPANY, 

INCORPORATED, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY 

INCORPORATED, 

Respondent 

CONTEST PROCEEDING 

Docket No. WEVA 92-873-R 

Order No. 3717931; 4/21/92 

Arkwright Mine No. 1 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 92-1066 

A.C. No. 46-01452-03867 

Docket No. WEVA 92-1094 

A.C. No. 46-01452-03868 

Appearances: Daniel E. Rogers, Esq., Consolidation Coal 

Company, Inc.r Pittsburgh, Pennsylvania, 

for Contestant/Respondent; 

Beforeg 

Charles M. Jackson, Esq., Office of the Solicitor, 

u.s. Department of Labor, Arlington, Virginia, 

for Respondent/Petitioner. 

Judge Barbour 

In these consolidated cases arising under the Federal Mine 

Safety and Health Act of 1977 ("Mine Act" or "Act"), 30 u.s.c. 

801 et seg., Consolidation Coal Company, Inc. ("Consol'1 ) is 

contesting the validity of an order issued pursuant to section 

104(d) (2) of the Act. 30 u.s.c. 814(d) (2). The order alleges a 

"significant and substantial" violation of mandatory safety 

standard 30 C.F.R. § 75.1725(a) caused by Consol's "unwarrantable 

failure" to comply with such standard. The order was issued 

shortly after the issuance of a citation alleging a S&S violation 

of the same standard. Consol also is disputing the validity of 

the this citation. A hearing was held in Morgantown, West 

Virginia. 

2558 
At the commencement of the hearing and as relevant to these 

matters the parties stipulated as follows: 

1. Consol is the owner and operator of the Arkwright No. 1 

Mine. 

2. The operations of Consol are subject to the 

jurisdiction of the Mine Act. 

3. This case is under the jurisdiction of the Commission 

and its ALJs pursuant to sections 105 and 113 of the 

Mine Act. 

4. The individual whose signature appears in block 22 of 

Citation No. 3717929 and Order No. 3717931 was acting 

in his official capacity as an authorized 

representative of the Secretary. 

5. True copies of the citation and order were served on 

Consol or its agent as required by the Mine Act. 

6. The total proposed penalty will not affect Consol's 

ability to continue in business. 

7. The copies of the citation and order attached to the 

Secretary 1 s petition for civil penalty are authentic 

with all appropriate modifications or abatements. 

Tr. 11-13. 

~ACTUAL AND PROCEDURAL BACKGROUND 

During the midnight B~OO a.m. shift on Apri 21 1 1992 9 

MSHA Inspector Richard McDorman conducted a regular inspection at 

Consol 0 s Arkwright No. 1 Mine, an underground coal mine, located 

in Monongalia Countyu West Virginia. 

McDorman was accompanied by Consol 9 s safety escort Harold 

Moore and minersi representative Denise Russell. After the group 

visited the 11 left longwall sectionu they arrived at a crosscut 

wherein the main south high voltage splitter box1 was located. 

McDorman observed that four bolts were missing from the lids on 

top of the splitter box and other bolts were broken off in their 

threaded holes. Pursuant to section 104(a) of the Mine Act, 

30 U.S.C. § 814(a)v McDorman issued Citation No. 3717929 1 because 

the splitter box was not maintained in safe operating condition 

in accordance with section 75.1725(a), a mandatory safety 

standard for underground coal mines. Section 1725(a) provides: 

1

A splitter box allows a single incoming power cable to be split or 

divided to accommodate two separate output power cables. 

2559 
"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." 

Moore lifted a lid with one bolt missing to see what needed 

to be repaired and the incoming power to the splitter box was 

immediately 11 knocked" by a "finger" safety switch installed in 

the lid. After the power went off, McDorman told Moore he should 

not restore power to the splitter box. 

Moore went to the paging telephone located at the tenant 

bore hole2 to call the maintenance shop to report what had 

happened and he heard people on the paging telephone and on the 

jeep radio "hollering11 that they had lost power. According to 

Moore, Gary Neely, the shift foreman, indicated that the supply 

motormen had lost power to operate the locomotives on the supply 

tracks. Motormen hollered that the locomotives were losing the 

air on their brakes. Gary samples, the foreman on 11 left 

longwall section, yelled that he needed power. The tippleman had 

only partial power. All the belts had gone down. All AC power 

was off and most DC power was off. Moore told the shop that he 

needed a mechanic to come look at the splitter box. 

Moore returned to the splitter box and told McDorman that he 

needed to turn the power back on for the safety of consol's 

employees. Moore explained that there was no problem with the 

splitter box, the 11 left longwall needed power, and miners were 

stranded on sections without vehicles to transport them in case 

of injury. McDorman warned Moore that turning the power back on 

would violate section 1725(a) and that he would write another 

violationo When the mechanics arrivedr Moore directed them to 

t.urn the power back o 3 

Abou·t 15 minut.es after the power had been restored u Robert 

Lauklinv the maintenance foreman, arrived at the splitter box, 

sent one of the mechanics to the shop for parts, and then had 

another mechanic knock off the power so the lids on the splitter 

box could be :E 

McDorman told Moore he was ready to go and they went to the 

mine safety Pursuant to section 104(d) (2) of the Mine 

Act McDorman then issued Order No. 3717931 because Moore had 

known the splitter box was unsafe operating condition, had 

known the requirements of section 1725(a), and nonetheless had 

2

The tenant bore hole brings power from above ground to the bottom of 

the mine. At the bottom, there is a power set to turn the power on and off 

and a circuit breaker. The power cable goes to the splitter box located 

approximately 100 feet (one crosscut away) from the tenant bore hole. 

3The mechanics are electrically certified by the state. 

2560 
ordered the splitter box into operation, creating the same 

likelihood and severity of potential injury that existed when the 

citation was issued. 

CITATION NO. 3717929 

McDorman issued Citation No. 3717929 for failure to maintain 

the splitter in safe operating condition. In his opinion, the 

lid to the splitter box did not have a sufficient number of bolts 

to prevent it from being lifted. According to testimony at the 

hearing, the splitter box is a yello~ metal box approximately 15 

to 22 feet long, 4-1/2 to 10 feet wide, and 3-1/2 to 4-1/2 feet 

high, with three to five lids on top weighing 20 to 70 pounds 

each. One-half to three-eighth-inch bolts keep the lids securely 

attached atop the splitter box. The splitter box receives high 

voltage power, i.e., 7200 volts AC, and separates the power to 

supply two sections of the mine. A 4 aught (4/0) cable enters 

one end of the splitter box supplying power. Two similar cables 

exit the other end. There is a layer of insulation around the 

4/0 cable until it enters the splitter box. Inside the box, the 

insulation is removed and there are bare high voltage wires 

connected to metal bus bars, or termination points. Both of the 

ongoing cables are connected to the same bus bars or connection 

points. There are high voltage warning signs at the splitter box 

and the cable is fenced to keep people away from it. 

McDorman testified that he never has seen a splitter box 

without some type of retaining device on the lids. Michael 

Kalich, an MSHA electrical inspector, testified that he never has 

observed a splitter box without its lids bolted or welded to the 

framework of the splitter box. McDorman testified that there 

were three lids on top of the splitter box weighing about 20 

pounds each and was one bolt on each side of each lid 

ioe. two bolts lid or 6 bolts per splitter box. McDorman 

stated that since he found four missing bolts, one lid had no 

bolts to prevent it from being removed. Moore testified that 

there were five lids on top of the splitter box weighing 40 to 60 

pounds each and there were two bolts on each side of each lid 9 

i.e.r four bolts per lid. Lauklin testified that there were 

about five lids on top of the splitter box weighing about 60 to 

70 pounds each and there was one bolt on each side of each lidr 

i.e. 9 two bolts per lid. Regardless of the number lids on top 

the splitter box and the number of bolts in each lid1 it is 

undisputed that Moore was able to lift one lid. 

When the splitter box is energized, no one is permitted to 

lift a lid. The splitter box has to be deenergized before a lid 

is raised by going outby the splitter box to the next device that 

would deenergize the cable that feeds the splitter box and then 

4

All electrical installations at the mine are painted yellow. 

2561 
deenergizing, locking, tagging, and grounding it to bleed off the 

capacity charge5 to the cable before opening the lid. Under 

these conditions, a certified electrician is permitted to unbolt 

and remove a lid. 

Each lid on the splitter box is equipped with a lid switch, 

which is a safety device to deenergize incoming power to the 

splitter box when a lid is lifted. When the lid is down, the 

finger-style switch is bent and the circuit is closed. When the 

lid is lifted, the spring-loaded lid switch raises to a vertical 

position and opens the circuit which deenergizes the power at its 

source. Lid switches are generally made of plastic or metal and 

they fail on occasion. Inspector McDorman has seen lid switches 

that did not work on several occasions on similar high voltage 

split·ter boxes. Kalich has encountered eight switches that did 

not work. 

If a lid switch did not work or did not operate the circuit 

properly, then the components. inside the splitter box would not 

be deenergized. They would carry the full voltage of the system. 

Even if the lid switch worked properly and turned off the power, 

the high voltage cable would still have a capacity charge in it 

that would continue to energize the components of the splitter 

bOXo 6 

'l'HE VIOLATION 

As noted, Section 75.1725(a) requires stationary equipment 

to be maintained in safe operating condition and unsafe equipment 

tc be removed from service immediately. I find lifting the lid 

could allow a person's hand or arm into the splitter box, and 

ranging from a slight electrical shock to an electrocution 

result: o I conclude therefore that the missing bolts u which 

litated unauthorized lifting of the lid of the splitter boxu 

rendered the equipment unsafe and therefore that Consol violated 

mandatory safety section 75.1725(a) as charged in the citation. 

5

After the power is turned off and before the cable is grounded, the 

high voltage cable stores a capacity charge that continues to energize 

components of the splitter box. 

6

one could reasonably expect to find from 0 to 100 milliamps in capacity 

charge on the cable. A SO milliamp shock would be severe enough for a person 

to lose feeling in his hand. Further, if the charge was a 100 milliamp shock, 

under wet conditions, it could be fatal. 

2562 
A "significant and substantial" violation exists if the 

"violation is of such nature as could significantly and 

substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard." 30 u.s.c. 814(d). The 

Commission has held that a violation is significant and 

substantial within the meaning of section 104(d) (1) if, based on 

the particular facts surrounding the violation, there exists a 

"reasonable likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious nature." Cement 

Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission further explained: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum, the Secretary ••. must prove: (1) the 

underlying violation of a mandatory safety standard; 

(2) a discrete safety hazard -- that is, a measure of 

danger to safety -- contributed to by the violation; 

(3) a reasonable likelihood that the hazard contributed 

to will result in an injury; and (4) a reasonable 

likelihood that the injury in question will be of a 

reasonably serious nature. 

The Commission also has held that the significant and substantial 

nature of a violation must be determined in the context of 

continued normal mining operations. u.s. Steel Mining Co., 

6 FMSHRC 1573-1574 (July 1984). The Commission has emphasized 

that "the contribution of the violation to the cause and effect 

of a mine safety hazard is what must be significant and 

substantiaL ou U.s, Steel Mining Co, , 6 FMSHRC 1834, 183 6 (August 

1984) (emphasis omitted), 

The hazard presented by the absence of bolts is unauthorized 

entry into the splitter box, which could result in electrical 

burns, electrical shock? or electrocution. Kalich testified that 

since 1970, there have been 70 miner fatalities involving high 

voltage and since 1985, there have been 2 fatalities involving 

miners who opened boxes while the circuits were energized. In 

one instance, the lid switch did not work. In the other the 

circuit was defective, In addition, there have been fatalities 

due to unauthorized access of high voltage equipment, e.g., a 

belt cleaner entered a high voltage compartment and was 

electrocuted and a utility man entered a high voltage room and 

was electrocuted. I credit Kalich's testimony and I find that 

even if the lid switch worked and deenergized the power, while 

the potential severity of an injury might be lessened, the 

likelihood of an injury occurring would not be reduced because of 

the capacity charge on the cable. Thus, the unbolted lid 

contributed to an electrical shock hazard and whether the shock 

2563 
was caused directly by the current or by the capacity charge the 

resulting injury was reasonably likely to be serious in nature. 

In addition to the underlying violation, the discrete safety 

hazard and the reasonably serious nature of the potential injury 

caused by the violation, I conclude that the injury was 

reasonably likely to occur. 7 The missing bolts facilitated and 

encouraged unauthorized entry in that in the event of a 

malfunction requiring entry into the box, the temptation would 

have been for a miner immediately to raise the lid and correct 

the problem rather than to wait for a certified electrician to 

unbolt the lid and begin repair work. I am convinced this ease of 

access made an electrical injury reasonably likely, which I 

assume is why the lids were bolted in the first place. In other 

words, based on the occasional failure of lid switches, the 

possible presence of a capacity charge on the cable, and the 

previous fatalities resulting from unauthorized entry into other 

high voltage boxes, I find that a reasonable likelihood existed 

that unauthorized entry into the splitter box would have resulted 

in a serious injury if normal mining operations had continued, 

and I find that the violation was S&S. 

CIVIL PENALTY 

Because a significant electrical injury or even a fatality 

could have resulted for the violation; I conclude the violation 

was serious. In addition, I agree with McDorman that it was due 

to Consol's negligence. The mine has a large history of previous 

violations. The Secretary has proposed a civil penalty of $288 

for the violation. Given the gravity of the violation, the 

mineQs large history of previous violations and Consol 0 s large 

sizer I conclude that a civil penalty of $500 appropriate. 

ORDER NO. 3717931 

Inspector McDorman issued Order No. 3717931 for putting the 

cited splitter box back into operation following its removal from 

service minutes earlier pursuant to the citation. Moore knew 

that McDorman considered-the splitter box to be in unsafe 

operating condition and that turning the power back on would 

violate section 1725(a). Howeveru Moore testified that he 

ordered the splitter box back into operation to alleviate safety 

concerns other areas of the mine. The violation in the order 

was attributed to a high degree of negligence on Consol's part. 

7

The splitter box is located 25 to 35 feet away from the supply track. 

2564 
THE VIOLATION 

Moore decided unilaterally to restore power to the splitter 

box without first having the lid bolts replaced. In so doing he 

returned the splitter box to service in an unsafe condition. 

Because the splitter box was then not maintained in safe 

operating condition, McDorman was right to again cite consol for 

a violation of section 75.1725(a). I conclude that issuance of 

the separate order alleging a violation of the same standard was 

valid and that the violation existed as charged. 

The second violation of section 75.1725(a) was not S&S in 

that injury was not reasonably likely to occur. Rather, entry 

into the splitter box by untrained and unauthorized personnel was 

highly unlikely after the power was restored. The condition of 

the splitter box was known to everyone, McDorman was on the scene 

and repair work was underway within 15 or 20 minutes. 

UNWARRANTABLE FAILURE 

Under section 104(d) (1) of the Mine Act, 30 u.s.c. 

§ 814(d) (1), a finding of "unwarrantable failure" may be made if 

a violation is caused by the operator's unwarrantable failure to 

comply with a mandatory safety standard. The Commission has 

defined unwarrantable failure as "aggravated conduct, 

constituting more than ordinary negligence, by a mine operator in 

relation to a violation of the Act." Emery Mining Corp., 

9 FMSHRC 1997, 2004 {December 1987); Youghiogheny and Ohio Coal 

Co., 9 FMSHRC 2007, 2010 (December 1987). In Emery Mining the 

Commission stated~ 

~unwarrantablec is defined as ~not justifiableu or ~inexcusable. 0 \Failure 1 is defined as ~neglect of an 

assigned, expected, or appropriate action. 9 Webster's 

Third New International Dictionary (Unabridged) 2514, 

814 {1971) ... (N]egligence is the failure to use such 

care as a reasonably prudent and careful person would 

use and is characterized by ~inadvertence, n 

'thoughtlessness,~ and ~inattention. 9 Black's Law 

Dictionary 930-31 (5th ed. 1979). Conduct that is not 

justifiable and inexcusable is the result of more than 

inadvertenceu thoughtlessness, or inattention. 

9 FMSHRC at 2001. 

Withdrawing the splitter box from service shut down power on 

the entire south side of the mine. Moore intentionally placed 

the cited splitter box back into service to remedy safety 

concerns and Moore told McDorman that he would turn the power 

2565 
back on and take another violation rather than jeopardize the 

safety of his employees. 

One and one-half hours before citing the splitter box, 

McDorman had visited the 11 left longwall section and had spoken 

with miners who told him that the shields were digging into the 

soft bottom. Roof rock that was in the pan line of the longwall 

indicated to McDorman that roof conditions were poor, but he did 

not observe any unsafe roof conditions that would have required 

the longwall to continue operations after the splitter box shut 

down power. On the other hand, Moore testified that in the 

previous 2 to 3 weeks, the longwall had been mined continuously 

every shift except on Sundays to try to keep control of the bad 

roof. Moore stated that the longwall was in a major fault area 

with extremely bad bottom and roof conditions, and large rocks 

and loose shale were falling into the pan line and over the top 

of the pan line out into the walkways. He also stated that the 

shields could not advance and the tailgate was impassable. Moore 

testified that in this situation, the rock was removed by running 

the longwall to keep the pan line moving until the rock was small 

enough to go into the crusher. Otherwise, the rock had to be 

broken with a sledgehammer or blown up with rock blaster powder. 

Moore stated that if power was lost on the longwall the roof 

conditions could have worsened, exposing miners to falling rock 

and to the danger's inherent in trying to break or shoot the 

rock. 

On the paging telephone and jeep radio, Moore heard miners' 

concerns about having lost power. Moore heard that the 

locomotives could not be operated on the supply tracks. He also 

heard the motormen expressing concern about the locomotives' 

brakes. Moore testified that this was a safety problem for the 

locomotives and the supply cars they were pulling because of the 

possibility of runaways. The equipment could run either towards 

a working section, a power center or could have derailed. 8 Moore 

also was concerned that miners were stranded on sections without 

vehicles to transport them in case of injury. Moore struck me as 

a conscientious supervisor and I credit his testimony. 

Under these circumstances, I conclude that Consol 0 s 

negligence in restoring the cited splitter box to service was 

mitigated by Moore 1 s legitimate safety concerns. I do not 

believe that the violation resulted from Consol 1 s indifference or 

serious lack of reasonable care. Rather, Consol was diligent in 

8

A Consol mechanic testified that all the sections are on an incline. 

2566 
trying to minimize the hazard at the splitter box9 while at the 

same time, minimizing other possible mine safety hazards 

resulting from the power outage. I conclude that the second 

violation of section 75.1725(a) was not the result of Consol's 

"unwarrantable failure" to comply with the standard. 

CIVIL PENALTY 

For the reasons set forth above, I find the violation was 

not serious and was the result of less than ordinary negligence 

on Consol's part. As noted, the mine has a large history of 

previous violations and Consol is large in size. The Secretary 

has proposed a civil penalty of $1700 for the S&S violation 

caused by Consolvs 11 unwarrantable failure" to comply in Order No. 

3717931. Given the fact that I have found the violation to be 

neither S&S nor "unwarrantable" and taking into consideration the 

civil penalty criteria just mentioned, I conclude that a civil 

penalty of $250 is appropriate. 

ORDER 

Accordingly, Citation No. 3717929 is AFFIRMED and a 

civil penalty of $500 is assessed for the violation of 

section 75.1725(a). The Secretary is ordered to MODIFY Order 

No. 3717931 to a section 104(a) citation and to delete the S&S 

and "unwarrantable" findings. A civil penalty of $250 is 

assessed for the violation of section 75.1725(a). Consol is 

ORDERED to pay the civil penalties and the Secretary is ORDERED 

to make the modifications within thirty (30) days of this 

decision and upon receipt of payment and modification of the 

order~ these matters are DISMISSED. 

j)~F6~-· David F. Barbour 

Administrative Law Judge 

(703)756-5232 

9

Lauklin asked Moore if he could station a mechanic at the energized 

splitter box until the bolts were fixed so no one could get into it and 

McDorman said that would not suffice. 

2567 
Distribution: 

Daniel E. Rogers, Esq., Consolidation Coal company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified 

Mail) 

Charles M. Jackson, Esq., Office of the Solicitor, 

u.s. Department of Labor, 4015 Wilson Boulevard, suite 516, 

Arlington, VA 22203 (Certified Mail) 

2568 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 21, 1993 

SECRETARY OF LABOR CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

BENEVENTO SAND AND GRAVEL, 

Respondent 

. . Docket No. YORK 93-138-M 

A. C. No. 19-00288-05507 

Docket No. YORK 93-143-M 

A. C. No. 19-00288-05508 

North Wilmington 

Quarry & Mill 

DECISION 

Appearances: Gail E. Glick, Esq., Office of the Solicitor, 

u. s. Department of Labor, Boston, Massachusetts, 

for Petitioner; 

Joseph H. Murphy, Esq., Benevento Sand & Gravel, 

Andover, Massachusetts, for Respondent. 

Before: Judge Merlin 

These cases are petitions for the assessment of civil penalties filed by the Secretary of Labor against Benevento Sand and 

Gravel under section 110 of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 820. 

A hearing was held on December 1 1 1993~ Prior to going on 

~he recordr there was a pre-hearing conference between counsel 

and the undersigned. As a result of the off the record conference, counsel for both parties agreed to submit the alleged 

violations on stipulated facts and findings (Tr. 6-7). 

The ies also agreed to several general stipulations as 

follows (Tr. 6) ~ 

1) the operator is the owner and operator of the subject 

mine' 

(2) the operator and the mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977: 

(3) I have jurisdiction of these cases; 

(4) the inspector who issued the subject citations and 

orders was a duly authorized representative of the Secretary of 

Labor; 

(5) true and correct copies of the subject citations and 

orders were properly served upon the operator; 

2569 
with respect to size 1 good faith abatement, prior history of 

violations and the effect payment would have on the operator's 

ability to continue in business, the Solicitor stated the 

following: 

* * * The operator, in this case, is a small operator. It is a family business of sole proprietorship. 

There are a total of 11 employees in the operation. 

The history with respect to violations under the Federal Mine Safety and Health Act, there have been penalties and violations that have been assessed. And in 

fact there have been violations of the very same items 

and regulations that are currently cited in these two 

cases. However, the violations both previously and in 

this particular case have always been promptly abated 

and none of these violations have resulted in any 

disabling injuries or any fatalities. 

* * * 

In fact, they have demonstrated an excellent record in 

terms of accidents and injuries. Moreover, the operator has always made an honest attempt to comply with 

the standards in general. The payment of the amounts, 

in the view of the Secretary of Labor, is that it would 

affect the employer's ability to do business (Tr. 7-8). 

With respect to the effect payment would have on the 

operator's business, operator's counsel made this 

representation~ 

If it. may please the court, with regard to the 

sums set out in the original special assessments, those would have created a great burden on the 

ongoing operations of Benevento Sand & Gravel. As the 

Solicitor has stated, they are a small family-owned 

company. They do approximately $1.5 million dollars in 

annual sales. And they have approximately annual 

profit of $100u000o Both Mr. Charles Benevento and Mr. 

John Benevento have significant personal financial 

problems arising from different business dealings and 

Mr. John Benevento has extensive property tax that he 

unable to pay for the land he cannot develop and Mr. 

Charles Benevento has suffered from the general economic downturn with regard to the business and construction in.this area. It is unlikely that the business 

could have continued in the manner it is now, if the 

original sums were so enforced (Tr. 8-9). 

The Solicitor accepted the foregoing representations by 

operator's counsel (Tr. 9). 

2S70 
The stipulations and representations of the Solicitor and 

operator's counsel are ACCEPTED. 

YORK 93-138-M 

six alleged violations are involved in this docket number. 

Five of these were issued pursuant to section 104(d) (1) of the 

Act, allegedly resulting from unwarrantable failure on the part 

of operator. 

Citation No. 4079716 was issued under section 104(d) (1) for 

a violation of 30 C.F.R. § 56.14132(a) because the automatic 

reverse activated signal alarm provided for the CAT 769 haul 

truck, Company number E-3, did not function when tested. The 

violation was designated significant and substantial and negligence was assessed as high. The Solicitor advised that injury 

was reasonably likely because of vehicular traffic on the roadway 

and the fact that the view to the rear of the truck was obstructed approximately 75 to 80 feet (Tr. 13-14). The Solicitor's 

representations were agreed to by operator's counsel (Tr. 14). 

On the record I held as follows with respect to this 

citation: 

Based upon the Solicitor's representations agreed 

to by operator's counsel, I affirm the 104(d) (1) citation and find the violation was significant and substantial and resulted from unwarrantable failure on the 

part of the operator. Penalty proceedings before the 

Commission are novo. [Sellersburg Stone Co., 5 

FMSHRC 287, 290-93 (March 1983), aff'd, 736 F.2d 1147, 

151-52 (7th Cir. 1984) .] I am not bound by the proposed penalty assessments of the Mine Safety and Health 

Administration. I am obliged to take into account the 

six criteria set forth Section 110(i) of the Act. 

And I now do so. In affirming the 104(d) (1) citation, 

I find there was a high degree of negligence and that 

the violation attained the degree of gravity required 

by the Commission for the significant and substantial 

designation. 

In addition 1 I take into account the operator's 

financial condition and I note the representation of 

operator's counsel that payment of the originally 

assessed penalties would affect the operator's ability 

to continue in business. I further note the representation of the Solicitor to the effect that the operator 

has a prior history which in its entirety is good and 

that it has no fatalities or serious injuries. I note, 

2571 
too, that this is the first occasion where this operator has been before the Commission. Taking into account all of the criteria of Section 110(i) of the Act, 

I assess a penalty of $1,500 for this violation 

(Tr. 14-15) . 

I adhere to the foregoing findings, conclusions and 

assessment. 

Order No. 4079717 was issued under section 104{d) (1) for a 

violation of 30 C.F.R. § 56.14132(a) because the automatic 

reverse activated signal alarm (back-up alarm) provided for the 

CAT haul truck 769B, Company number E-2, did not function when 

tested. The violation was designated significant and substantial 

and negligence was assessed as high. According to the Solicitor 

injury was reasonably likely because of traffic in the area, the 

steep grade on the roadway and the fact that the haul truck had 

an obstructed view to the rear. The basis for the negligence 

evaluation was that two violations for the same standard had been 

issued (Tr. 16-18). Operator's counsel noted the rapid abatement 

after the citation was issued (Tr. 17-18). 

I affirmed this 104(d) (1) order on the record and found the 

violation was significant and substantial and resulted from 

unwarrantable failure on the part of the operator (Tr. 18-19). 

In addition, on the record I held as follows with respect to 

the order: 

As I previously stated, taking into account all of 

the factors mandated under Section 110(i), including 

the abil to continue in business, size, and overall 

prior history, I determine that the appropriate penalty 

assessed for this order is $1,500 (Tr. 19). 

I adhere to the foregoing findings, conclusions and 

assessment. 

Order No. 4230581 was issued under section 104(d) (1) for a 

violation of 30 C.F.R. § 56.14131(a) because the operator of the 

CAT 769 haul truck company No. E-2 was observed operating this 

piece of mobile equipment without wearing the seat belt that was 

provided. The order was designated significant and substantial 

and negligence was assessed as high. The Solicitor stated that 

there was a reasonable likelihood of injury because of the road 

conditions, the steepness of the road grade with two-way traffic, 

the size of the truck involved, and the fact the operator has to 

negotiate a 90 degree turn in a short space. The Solicitor 

further stated that the evaluation of negligence was justified 

because the operator had no seat belt policy and the employees 

admitted they received no training with respect to seat belts 

2572 
(Tr. 19-21). The Solicitor's representations were agreed to by 

operator's counsel (Tr. 21). 

On the record I held as follows with respect to this order: 

This of course is a very serious violation and 

based upon the representations, the order undoubtedly 

was properly issued because the violation was significant and substantial. There was an unwarrantable 

failure on the operator's part. The operator has a 

duty to see that the policies, the requirements of the 

Act are put into effect and seat belts are one of those 

requirements. It doesn't matter what the state law, 

says. Federal law takes precedence over state law 

unless there is some direction in the law to the contrary. So that is the way it is. The operator has to 

understand it. But again, I take into account all of 

the factors I mentioned before and most particularly, 

the fact that this operator has not been before the 

Commission previously. Again, I take note of the fact 

that high penalty assessments originally proposed by 

the Secretary might well impair the operator's ability 

to continue in business. Therefore, I determine as 

appropriate and assess a penalty for this violation the 

sum of $3,000, which although it represents a 50 percent reduction from the Secretary's proposal, nevertheless remains a substantial sum (Tr. 21-22). 

I adhere to the foregoing findings, conclusions and 

assessment. 

Order No. 4280582 was issued as a 104(d) (1) order for a 

violation of 30 C.F.R. § 56.9200(d) because an employee was 

observed riding on top of the fuel tank on the Trojan 5500 loader 

between the operator station and the ladder. The employee was 

being transported from the salvage yard to the Quarry shop. The 

violation was designated significant and substantial and negligence was assessed as high. The Solicitor advised that injury 

was reasonably likely because the employee could fall off the 

loader (Tr. 22-24). Operator 1 s counsel stated that the individual riding on the tank was a mechanic who was checking for an 

equipment defect. Also counsel advised that the road being 

traveled was wide and level with very limited traffic and that 

the machine was going very slowly, but he admitted the violation 

was dangerous (Tr. 24-25). 

On the record, I held the following with respect to this 

order: 

Based upon the representations of both counsel I 

find that the order was properly issued because the 

2573 
violation was significant and substantial and, therefore, that it presented the reasonable likelihood of 

serious injury from the hazard. The individual could 

have fallen off and suffered a very serious injury. So 

although I take note of the operator's counsel's representations, the violation remains significant and 

substantial. I also find that it was the result of an 

unwarrantable failure. The loader was being operated 

by the operator himself. I again take note of all of 

the factors set forth in Section 110(i) of the Act, 

i.e., the violation was undoubtedly serious and resulted from high negligence. However, I also take into 

account the operator's financial situation, its size, 

and its overall history. Since I have previously set 

forth these items in detail, I will not again repeat 

them. Based thereon I determine as appropriate and 

assess a penalty of $3,500 for this violation. Although this assessment represents a substantial reduction from the proposed assessment, it remains a significant amount and is, I believe, consistent with the 

purposes of the statute (Tr. 25-26). 

I adhere to the foregoing findings, conclusions and 

assessment. 

Order No. 4280583 was issued as a 104(d) (1) order for a 

violation of 30 C.F.R. § 56.14130(g) because the operator of the 

Trojan 5500 front end loader was observed operating it without 

using the seat belt provided. The violation was designated 

significant and substantial and negligence was assessed as high. 

Operator 1 s counsel advised that the terrain where the loader was 

operated was flatr the loader was not operating for a long period 

of time and the machine was going slowly (Tr. 28)" Based upon 

these factors, the Solicitor agreed to modify the order by 

deleting the significant and substantial designation (Tr. 28). 

On the record I held as follows with respect to this order: 

I accept that proposed modification. It seems to 

me it is appropriate in light of the fact that the 

piece of equipment was operating on level ground and 

that it was going at a slow rate of speed. The circumstances under which this violation occurred, are plainly different from those under which the prior Order 

4230581 was issued for seat belt violation. The terrain there was steep and had sharp turns. I do find, 

however, that the violation remains a serious one. 

Although the circumstances do not rise to the level 

required by the Commission for the existence of significant and substantial, in particular the reasonable 

likelihood requirement identified by the Solicitor, the 

2574 
violation nevertheless was serious. There was a poss 

bility of serious injury which supports a finding of 

gravity. I further find that the operator was guilty 

of unwarrantable failure for the reasons set forth by 

the Solicitor. I, therefore, find appropriate and 

assess a penalty of $2,500 for this citation in light 

of all of the factors in Section 110(i) I discussed 

previously (Tr. 28-29). 

I adhere to the foregoing findings, conclusions and 

assessment. 

Citation No. 4079713 was issued for a violation of 30 C.F.R. 

§ 56.14130{i) because the seat belt provided for the Trojan 5500 

was not maintained in a functional condition. The violation was 

designated significant and substantial and negligence was assessed as moderate. The Solicitor agreed to modify this citation 

by deleting the significant and substantial designation. The 

reason for the modification was that the vehicle in question was 

parked at the time of the inspection and the defective belt could 

easily be replaced or repaired (Tr. 10-11). 

On the record I held as follows with respect to this citation, "In view of the deletion of the significant and substantial 

designation I find appropriate and I assess a penalty of $167." 

(Tr. 12) . 

I adhere to the foregoing determination and assessment. 

YORK 93-143-M 

Citation No. 4079712 was issued under section 104(a) for a 

violat of 30 C.F.R. § 56.14132(a) because the automatic 

reverse activated signal alarm provided for the Trojan 5500 was 

not maintained in a functional condition. The violation was 

designated significant and substantial and negligence was assessed as moderate. Operator's counsel advised that at the time 

of the inspection the vehicle was not in operation and was set 

aside to be repaired (Tr. 32). The Solicitor agreed based upon 

operator 1 s counsel representation to modify the citation by 

deleting the significant and substantial designation (Tr. 32). 

On the record I held as follows with respect to this 

citation~ 

Based upon the representation I accept that proposal. The s & s designation is deleted. In light of 

all of the factors to be considered under Section 

110(i) I find a penalty of $250 is appropriate. I 

hereby assess that penalty for this violation (Tr. 32). 

2575 
I adhere to the foregoing findings, conclusions and 

assessment. 

Citation No. 4079715 was issued for a violation of 30 C.F.R. 

§ 56.14107(a) because the head pulley guard provided for the 

No. 3 conveyor was not adequate. The violation was designated 

significant and substantial and negligence was assessed as 

moderate. According to the Solicitor, injury was reasonably 

likely because the head pulley is openly accessible to any person 

who walks on the walkway which abuts this pulley. The walkway 

was available for the purpose of accessing the pulley for maintenance (Tr. 34-35). Operator 1 s counsel advised that at the time 

of the inspection, the pulley guard was in the process of being 

made and the violation was quickly abated. Based upon these 

representations the Solicitor agreed to modify the citation by 

reducing negligence from moderate to low (Tr. 35). 

On the record I held as follows with respect to this 

citation: 

I accept that modification. I believe it is 

appropriate. In light of the representations, the 

violation remains, however, significant and substantial. In light of these negligence and gravity findings and in light of the other factors set forth in 

Section llO(i) of the Act, as discussed previously, I 

find appropriate and assess a penalty of $250 for this 

violation (Tr. 35-36). 

I adhere to the foregoing findings, conclusions and 

assessment. 

I·t is 

and Order 

4079713 

L~Q79715 

ORDERS 

ORDERED ·that the fact of the violation for Citation 

Nos. 4079716, 4079717, 4280581, 4280582, 4280583 and 

Docket No. YORK 93-138-M and Citation Nos. 4079712 and 

Docket No. YORK 93-143-M be AFFIRMED. 

It further ORDERED that the significant and substantial 

designations for citation and Order Nos. 4079716, 4079717, 

4280581, and 4280582 in Docket No. YORK 93-138-M and Citation 

No. 4079715 in YORK 93-143-M be AFFIRMED. 

It further ORDERED that the unwarrantable failure finding 

for Citation and Order Nos. 4079716, 4079717, 4280581, 4280582, 

and 4280583 in Docket No. YORK 93-138-M be AFFIRMED. 

It is further ORDERED that Order and Citation Nos. 4280583 

and 4079713 in Docket No. YORK 93-138-M and Citation No. 4079712 

in YORK 93-143-M be MODIFIED by deleting the significant and 

substantial designations. 

2576 
It is further ORDERED that Citation No. 4079715 in Docket 

No. YORK 93-143-M be MODIFIED by reducing negligence from 

moderate to low. 

It is further ORDERED that the penalty assessments for the 

violations in Docket Nos. YORK 93-138-M and YORK 93-143-M be as 

follows: 

Citation/Order No. 

4079716 

4079717 

4280581 

4280582 

4280583 

4079713 

Citation/Order No. 

4079712 

4079715 

YORK 93-138-M 

Penalty Assessment 

$1,500 

$1,500 

$3,000 

$3,500 

$2,500 

$ 167 

YORK 93-143-M 

Penalty Assessment 

$ 250 

$ 250 

It is further ORDERED that the operator PAY the above 

assessed penalties within 30 days of the date of this decision. 

It is further ORDERED that these cases be and are hereby 

DISMISSED. 

----------\---\--~{ Paul Merlin ~ Chief Administrative Law Judge 

Distribution~ (Certified Mail) 

Gail Eo Glick, Esqo, Office of the Solicitor, Uo So Department of 

Labor, One Congress Street, 11th Floor, Po Oo Box 8396, Boston, 

MA 02114 

Joseph Ho Murphy, Esqo, McCabe and 0 1 Brien, PCo, Benevento Sand & 

Gravel, Andover, MA 01810 

jgl 

2577 
FEDERAL MINE SAFETY AND HEAlTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 3 01993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 93-369 

A.C. No. 15-14074-03634 

v. 

Martwick UG 

PEABODY COAL COMPANY 1 

Respondent 

Appearances: 

Before: 

DECISION 

Anne T. Knauff, Esq., Office of the Solicitor, 

u. s. Department of Labor, Nashville, Tennessee, 

for Petitioner; 

Carl B. Boyd, Jr., Esq., Henderson, Kentucky, for 

Respondent. 

Judge Arnchan: 

STATEMENT OF THE CASE 

~- The Grounding Violation 

MSHA Inspector Darold Gamblin conducted an inspection of 

Respondent 0 s Martwick underground mine on December 14, 1992 

(Tr. 10-11). Upon reaching the 3 South Panel entries he 

encountered an electrical transformer supplying power to the 

equipment the entr l . At the transformer, he 

observed power cable u or cathead 0 that was being used 

to plug a cable running to a belt feeder transfer point into the 

transformer o 11 = 14). This cathead consists of two large 

metal parts. One a female receptacle that is mounted on the 

transformer; the other a male part to which the cable is 

attachedu which plugged into the female part (Tr. 8 - 9, 11 - 14u Jto EXho 4)o 

The cathead has an internal grounding device and an external 

grounding device. The internal grounding device would prevent an 

employee from being shocked or electrocuted by the cable, if the 

cable insulation were to break. However, the metal casing of the 

cathead might become energized unless the external grounding 

device is properly connected (Tro 14- 15). 

2578 
The external grounding device consists of two wires, one is 

attached to the male portion of the cathead; the other to the 

transformer or to the female portion of the cathead (Tr. 25, Jt. 

Exh. 4). In order to perform its function, the two wires must be 

connected to each other; when Mr. Gamblin observed them, they 

were disconnected (Tr. 25). 

As the result of this observation, Mr. Gamblin issued 

Respondent Citation No. 3417313 alleging a violation of 30 C.F.R. 

§ 75.701. This standard requires that: 

Metallic frames, casings, and other enclosures of 

electric equipment that can become "alive" through 

failure of insulation or by contact with energized 

parts shall be grounded by methods approved by an 

authorized representative of the Secretary. 1 

The Secretary proposed a civil penalty of $189 for this 

alleged violation. Respondent concedes that a violation of the 

standard occurred but takes issue with Inspector Gamblin's 

characterization of the violation as "significant and substantial 

( Tr • 7 , Jt . Exh . 1 ) . " 

The Commission formula for a "significant and substantial" 

violation was set forth in Mathies Coal Co. 6 FMSHRC 1 (January 

1984) : 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary of Labor must prove: {1) 

the underlying violation of a mandatory safety 

standard; (2} a discrete safety hazard--that isu a 

measure of danger to safety--contributed to by the 

violation; (3} a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a 

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

As in most cases litigated under this test, it is 

exclusively the third criteria, the likelihood of injury that is 

in question in the instant case. The totality of the Secretary's 

evidence on this point is as follows~ 

Question~ In the usual course of mining, how could 

parts of this belt feeder cathead have become energized 

or hot or alive? 

1

This standard was enacted as part of 1969 Coal Act and is 

also found at 30 u.s.c. § 867. 

2579 
Answer: If the insulation of the cable entering the 

cable coupler become broke down or through -- these are 

drug all over the bottom when they're moving the power. 

You know, the internal parts come in contact with the 

casing. 

Question: And based on your experience, then, what 

would have happened if a miner had come into contact 

with the energized or hot parts of that belt feed 

cathead? 

Answer: Injury would be reasonably likely. 

Question: What kind of injury could someone suffer? 

Answer: Electric shock (Tr. 17 - 18) 

Question: How likely was it that the condition would 

lead to injury or illness if mining continued, if the 

mining process continued? 

Answer: Reasonably likely. (Tr. 26) 

Later, Inspector Gamblin explained that while normal 

practice would be to shut off the power by turning off the 

breaker on the transformer--before unplugging the cathead, this 

is not always done (Tr. 66-67,72). If the breaker is not turned 

off, the internal grounding device should protect the employee if 

it»s functioning properly. The external ground is a back-up 

system which protects the employee from electrical shock if the 

internal ground defective (Tr. 72~74). 

Not ingly, Respondent disagrees with Inspector 1 s 

Gamblin's that injury is reasonably likely. Alan Perks, 

Peabody 0 s Chief Maintenance Engineer, testified that normal 

mining procedure is to turn off the circuit breaker on the 

transformer before disconnecting the cathead. This, he believes, 

would risk of injury {Tr. 88). Moreover, he stated 

that even if an employee were to disregard the normal practice it 

would be that he would be shocked: 

I that there is a sufficient electrical 

connection by the mechanical interference fitting in 

these laches [of the two parts of the cathead] that if 

the shell became energized, the electrical current 

would flow through these connections and operate the 

ground trip relay of the transformer which would, in 

turn, kill the circuit breaker feeding power to this 

unit •.• 

I view this [the external ground wires] as, I guess, an 

additional safety device. I think there is enough 

2580 
electrical connection here to trip it under most 

situations, this (the external ground] just being an 

additional safety backup (Tr. 83). 

Mr. Perks, who has a B. S. degree in electrical engineering 

from the University of Maryland, performed continuity testing on 

a cathead similar to the one cited by Mr. Gamblin (Tr. 83-84, 94-

95). These tests indicated good continuity between the two parts 

of the cathead (Tr. 84). In Mr. Perks' opinion, this indicates 

that, if the metal casing of the cathead became energized, there 

would be sufficient transfer of current to operate the ground 

trip relay and shut off the circuit breaker on the transformer 

(Tr. 84) • 

APPLICATION OF THE MATHIES TEST 

Determining the likelihood that injury will occur, the third 

element of the Mathies test, is a very difficult task. Injuries 

are normally the result of accidents, which by definition, are 

unusual occurrences. Before embarking upon the task required by 

Mathies I note that under the analogous provision of the 

Occupational Safety and Health Act, consideration of the 

likelihood of injury is precluded. 

Section 104(d) (1) of the Federal Mine Safety and Health Act 

distinguishes between violations that "could significantly and 

substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard" and violations that do not. 

MSHA, pursuant to its regulations at 30 C.F.R. § 100.4, generally 

assesses a $50 civil penalty for violations that are "non S&S." 

Section 17 ) of the OSH Act, 29 u.s.c. 666(k), defines a ' 0seriousvo violation for which higher penalties are proposed than 

for 11 other-than-seriousv1 violations. See OSHA Field Operations 

Manual, 3 BNA Occupational Safety and Health Reporter pages 

77:2507 and 77:2701 et. seq .. A "serious" violation is one which 

exists 11 ••• there is a substantial probability that death or 

serious physical harm could result from a condition which 

exists ..• in such place of employment unless the employer did not, 

and could not with the exercise of reasonable diligence, know of 

the presence of the violation. 11 

The Occupational Safety and Health Review Commission and the 

Courts of Appeals have repeatedly held that only the seriousness 

of an injury should one occur, not the likelihood of an injury 

occurring is to be considered in determining whether or not an 

OSHA violation is "serious." The Court of Appeals for the Ninth 

Circuit observed: 

Where violation of a regulation renders an accident 

resulting in death or serious injury possible, however, even 

2581 
if not probable, Congress could not have intended to 

encourage employers to guess at the probability of an 

accident in deciding whether to obey the regulation. 

California stevedore and Ballast Company v. OSHRC, 517 F.2d 

986 (9th cir. 1975). 

The proposition that the likelihood of injury is irrelevant 

to whether an OSHA violation is "serious" has been reaffirmed on 

many occasions. Communications, Inc., 7 BNA OSHC 1598, 1602 

(R.C. 1979); Trumid Construction Co., 14 BNA OSHC 1784, 1789 

(R.C. 1990); Department of Labor v. Kerr-McGee, F.2d , 15 

BNA OSHC 2070 {9th Cir. 1993); East Texas Motor Freight,-rnc. v. 

OSHRC, 671 F. 2d 845, 849 (5th Cir. 1982}; Kent Nowlin 

construction Co. v. OSHRC, 648 F. 2d 1278, 1282 (lOth Cir. 1981). 

The probability of injury is considered in proposing OSHA 

penalties, although a higher penalty will be proposed for a 

"serious" violation than an "other-than-serious" violation, other 

considerations being equal, OSHA Field Operations Manual, supra. 

The purpose of civil penalties under both the Mine Safety 

and Health Act and the OSH Act is to encourage future compliance. 

Characterizing a violation as "non-significant and substantial" 

and assessing a $50 penalty hardly provides an incentive for the 

mine operator to make any greater effort to comply with the cited 

standard. Indeed, the import of Mr. Perks' testimony is that the 

standard at 30 C.F.R. § 75.701 serves virtually no useful purpose 

in protecting miners. If the regulation is as unimportant as his 

testimony indicates, there is no reason why Respondent should 

make any particular effort to assure that the external ground 

wires on its catheads stay connected. 2 

It would appear contrary to purposes of the Mine Act to 

assess such minimal penalties as are called for under 30 C.F.R. 

§ 100.4v these violations may one day cause serious injury to 

a miner. In precluding consideration of the likelihood of an 

accident from the determination of whether a violation is 

seriousu the OSHA case law is consistent with the statutory 

purpose of preventing accidents. Since the purposes of the Mine 

Safety and Health Act and OSHA are essentially identical, there 

2

0n the other hand, Mr. Perksi testimony is that there is 

sufficient electrical connection between the laches of the 

cathead to trip the circuit breaker in most situations. This 

suggests that there may be situations in which the functioning of 

the external ground may be the difference between life and death. 

Furthermore, Mr. Perks' testimony relies upon an "after-the-fact" 

determination that the electrical connection on a cathead, 

different than the one cited, was sufficient to trip the circuit 

breaker. 

2582 
should not be such a tremendous disparity in the case law under 

the two statutes unless there is a good rationale for such 

differences. 

The undersigned believes greater harmonization of the tests 

for a "serious" violation under OSHA and a "significant and 

substantial" violation under the Mine Act is possible and 

desirable. In u. s. steel Mining Co., 6 FMSHRC 1573, 1574 

(July 1984), the Commission made it clear that "significant and 

substantial" is not to be determined solely upon conditions as 

they existed at the time the citation was issued, but should also 

consider "continued normal mining operations." 

If MSHA promulgated a mandatory safety standard requiring 

the metal casings of electrical equipment to be grounded, it must 

have done so under the assumption that under normal mining 

conditions injuries would occur unless the standard was followed. 

I, therefore, assume that unless the record indicates that the 

conditions cited do not pose the hazard to which the standard is 

directed, that sooner or later, at this mine or at another, 

noncompliance with the standard will result in injury. As I see 

nothing in this record that indicates that the conditions for 

which Citation No. 3417313 was issued were distinguishable from 

the concerns for which 30 C.F.R. § 75.701 was promulgated, I 

conclude that the injury was reasonably likely in the context of 

continued normal mining operations and that the violation was 

''significant and substantial." 

I recognize that this decision is somewhat inconsistent with 

the rationale of the Commission 1 s decision in Cement Division, 

National Gypsum Companvv 4 FMSHRC 822 (April 1981). In that 

casei7 the Commission held for the first time that an ns&S" 

violation requires a showing that there exists a reasonable 

likelihood that the hazard will result in an injury of a 

reasonably serious nature. Part of its rationale was a concern 

that interpreting the significant and substantial language in 

sections 104(d) and (e) to encompass almost all violations would 

render that language virtually superfluous 4 FMSHRC at 826. 

Howeveru the later u.s. Steel Mining decision is itself not 

entirely consistent with National Gypsum. 

The vast majority of the Secretary 1 s regulations are 

directed to hazards that will cause serious injury. If 

noncompliance with any one of these regulations persists 

industry-wide, serious injury is likely to occur. As u.s. Steel 

2583 
Mining is a more recent decision than National Gypsum, I feel 

obligated to follow it where the two opinions are not completely 

harmonious. 3 

Many accidents result from several things going wrong at 

once. For this reason, a number of MSHA standards call for backup safety devices. Without the refinement to National Gypsum and 

Mathies provided by the u.s. Steel Mining decision, the fact 

finder in adjudicating a case under one of these standards, is 

forced to speculate on the likelihood of several factors coming 

together at one time to produce injury. Otherwise violation of a 

standard requiring back-up protection would be "S&S" only in 

situations in which these factors are already present. In the 

latter situation, "significant and substantial" is hardly 

distinguishable from imminent danger. 

The import of the National Gypsum test without the gloss of 

u.s. Steel Mining is that a violation of standards like those 

cited in the instant case, which provide "back-up" or secondary 

safety protection, could never be "S&S" unless a variety of 

factors combined to make injury imminent. To categorize all 

violations of these standards as "non S&S" is to invite lassitude 

by operators in complying with their terms and is totally 

inconsistent with the purposes of this statute. 

THE UNMARRED CATHEAD 

During his inspection of December 14, 1992, Inspector 

Gamblin also noticed two catheads by which the cables leading to 

the two continuous mining machines were plugged into the ~ransformero One of the catheads was marked to indicate the 

machine which its cable was attached and the other was not 

marked (Tr. 36u 42)o Mr. Gamblin issued Respondent Citation 

Noo 3417315 alleging a violation of 30 C.F.R. § 75.601. That 

standard provides: 

•• Disconnecting devices used to disconnect power from 

trailing cables shall be plainly marked and identified 

and such devices shall be equipped or designed in such 

a manner that it can be determined by visual 

observation that the power is disconnected. 

would also note that the National Gypsum decision is 

predicated in part on the concern of what might happen with 

regard to section 104(e) vs pattern provisions if "significant and 

substantial" were interpreted broadly. Commissioner Lawson noted 

in his dissent in Phillips Uranium Corp., 4 FMSHRC 549, 560 

{April 1982) that there had been no enforcement action taken by 

MSHA under section 104(e). As best as the undersigned can 

determine from reported Commission and ALJ decisions, that is 

still true. 

2584 
As was the case with the prior citation, Respondent concedes 

that the violation occurred and takes issues only with MSHA's 

characterization of the violation as "significant and substantial 

(Tr. 7)." As was true with the prior citation, it is the third 

element of the Mathies test, the likelihood of injury that is at 

issue. The penalty proposed for this violation was also $189. 

Inspector Gamblin believes it is reasonably likely that an 

employee could attempt to work on a mining machine for which he 

or she mistakenly believed the power was disconnected due to the 

lack of identification markings on the one cathead (Tr. 40, 50, 

56, 60-63). If this were to happen, the employee could be 

shocked or injured by the cutting head of the continuous miner 

(Tr. 40). Respondent contends that there are several reasons why 

an injury would be unlikely. First of all, an employee could 

determine which cathead belonged to which continuous miner by the 

process of elimination. By looking at the cathead which was 

marked, an employee would know that the unmarked cathead belonged 

to other continuous mining machine (Tr. 52). 

The two catheads could also be easily distinguished by the 

fact that one was much cleaner than the other (Tr. 53). The 

reason that Respondent had two continuous mining machines in the 

section was that it was in the process of replacing one with the 

other, which had been recently rebuilt (Tr. 89). The older 

machine was to remain in the section with the rebuilt machine for 

only two or three days until Peabody was satisfied that the 

rebuilt machine functioned properly (Tr. 92, 103). Because the 

older machine had been in the section for quite a while, the 

cathead for its trailing cable was much dirtier than the cathead 

for the newer machine (Tr. 106- 107). 

Finallyc Respondent contends that 1n)ury is unlikely because 

normal practice is for an employee to follow a trailing cable 

back to the transformer to make sure he unplugs the right one 

(Tr. 90}. Moreover, Peabody company policy is that the 

individual employee who performs work on the continuous mining 

machine is to disconnect and lock out the power himself or 

herself (Tr. 109). Thisu according to Respondent, would make it 

very unlikely that an employee could be injured while working on 

a continuous miner because he or she thought the power was 

disconnected. 

As with the prior citation, I have to assume that MSHA, in 

promulgating 30 C.F.R. § 75.601 concluded that, if disconnecting 

devices are not plainly marked and identified, that, in the 

normal course of mining operations, an employee may be injured. 

Even if injury is likely to occur only once every ten or twenty 

years somewhere in the United States due to the violation of the 

standard, I would conclude that injury is "reasonably likely" 

within the meaning of the Mathies test. 

2585 
The Commission in U.S. Steel Mining Company, Inc., 6 FMSHRC 

1834, 1836 1838 (August 1984) found a violation of section 

75.601 to be "significant and substantial." It is useful to 

analyze that decision to see if the facts in that case are 

distinguishable from the instant case. There were two unmarked 

trailing cable plugs (which I assume are the same thing as 

catheads) at the time of the citation at u.s. Steel's mine, 

however they were very different in size and appearance. There 

were also marked catheads which the Commission found could be 

mistaken for the unmarked catheads. 

The commission rejected the company's argument that the 

"process of elimination" made it unlikely that the unmarked 

catheads would be confused with marked catheads. Indeed the 

Commission appeared to reject any factor depending on human 

behavior as negating likelihood. See footnote 4 on page 1838. A 

great deal of importance was placed on a fatal accident at the 

same mine in 1979 which resulted from the mix-up of catheads for 

two shuttle cars. 

In all the factors present in the 1984 case, I can only 

discern one which distinguishes the instant situation in any 

meaningful way. That is the fact that the older continuous miner 

in the instant case was to be in the section for only two or 

three days and its cathead was noticeably dirtier than that of 

the rebuilt continuous miner. 

I do not find this distinction sufficient to find the 

instant violation to be non S&S. The standard does not require 

marking and identification only when there is equipment that can 

be confusedo I can only conclude that, when promulgating the 

standard 1 MSHA concluded that marking and identification of 

catheads was necessary to prevent injury in every situation in 

which they could be plugged in or disconnected from a power 

source. To find otherwise would be to question the wisdom of the 

standard which I believe neither I nor the Respondent is entitled 

to do--after the regulation has been properly promulgated. 

Final ·to find that injury is unlikely due to relative 

cleanliness of the catheads would require the undersigned to 

speculate that an employee would in every situation make the 

logical connection between the appearance of the cathead and its 

connection to the new or old mining machine. I see no basis for 

concluding that this connection would necessarily be made. 

ORDER 

I affirm Citation Nos. 3417313 and 3417315 as "significant 

and substantial" violations. Considering the statutory factors 

enumerated in section 110(i) of the Act, particularly the low to 

moderate negligence of Respondent, its good faith in correcting 

2586 
the violations, and the gravity of the violation, I assess a $189 

penalty for each violation. Payment shall be made within 30 days 

of this decision. 

Distribution: 

0f(Z.r~ Artfiur J. Amchan 

Administrative Law Judge 

703-756-6210 

Anne T. Knauff, Esq., Office of the Solicitor, u. s. Department 

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

37215-2862 (Certified Mail) 

Carl Boyd, Jr., Esq., 120 N. Ingram St., Suite A, Henderson, KY 

42420 (Certified Mail) 

jjf 

2587 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 3 01993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

On Behalf of CARROLL JOHNSONu 

complainant 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA) , 

Intervenor 

JIM WALTER RESOURCES, 

INCORPORATED, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA) 

Intervenor 

JIM WALTER RESOURCESp INCop 

Respondent 

Q 

0 

0 

0 

. . 

DISCRIMINATION PROCEEDING 

Docket No. SE 93-182-D 

BARB CD-92-20 

No. 7 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. SE 93-104 

A. C. No. 01-01401-03938 

DECISION 

Appearancesg 

Before: 

William Lawsonf Esq.u Office of the Solicitor, 

u.s. Department of Labor, Birmingham, Alabama, 

for Complainant and Petitioner3 

Barry Woodbrey, Esq., United Mine Workers of 

America (UMWA), for Intervenor; 

David M. Smith, Esq., and Mark Strength, Esq., 

Meynard, Cooper and Gale, Birmingham, Alabama, 

and R. Stanley Morrow, Esq., Jim Walter Resources, 

Inc., Birmingham, Alabama, for Respondent. 

Judge Weisberger 

2588 
Statement of the Case 

The above captioned cases commenced by the Secretary, 

involve an alleged violation by Jim Walter Resources, Inc., 

{Respondent) of Section 103(f) of the Federal Mine Safety and 

Health Act of 1977 ("the Act"), and an alleged violation of 

Section 105(c) {1) of the Act. On March 19, 1993, the Secretary (Complainant) filed a motion for approval of settlement regarding 

both these cases. The United Mine Workers of America (UMWA}, 

Intervenor, filed a response in opposition to the motion. 

Respondent filed a submission in support of the motion. On 

April 26, 1993, an order was issued denying the motion to approve 

settlement. Pursuant to notice, the cases were scheduled and 

heard in Birmingham, Alabama, on July 20 and 21, 1993. On 

september 23, 1993 the Secretary filed a brief. Respondent and 

Intervenor each filed their briefs on September 28, 1993. on 

october 1, 1993, the Secretary filed a reply brief. Respondent's 

response was received on October 12, 1993. 

Findings of Fact 

1. Jim Walter Resourcesr Inc. 5 Respondent, operates Mine 

No. 7u an underground coal mine. 

2. At Mine No. 7, coal is mined on a continuous miner 

section and on two longwall sections. 

3. In October 1991, carroll Johnson, a miner, and chairman 

of the union safety committee at the subject mine, received 

safety complaints from miners regarding respirable dust on the 

longwall sections. In responseu he requested a Section l03(g) 

inspectionu on October 22Q 199lff pursuant to the Section 103(g) 

inspection at the No. 1 Longwall Section. citation No. 2805274 

was issued to Respondent, alleging excessive respirable dust. 

The time to abate the violation was set for November 17, 1991 and 

subsequently extended to November 22 0 1991. 

~. on November 22, 1991 0 Respondent was issued a Section 

104(b) u order (No. 3805276} 9 alleging excessive respirable dust 

on the No. l Longwall Section. 

5. on November 23u 1991, MSHA and Respondent agreed to 15 

changes 1 and adjustments to control dust on the No. 1 Longwall, 

including the placement of additional sprays, and fog-jet sprays. 

Also, one of the changes required a decrease in one of the 

diameters of the opening on the drum sprays, and the maintenance 

of" a minimum of 70% operating." (Exh. G-4, par. N) (sic). 

1 These changes were made to the original Dust Control Plan. 

2589 
6. The Section 104(b) Order, supra, was modified on 

November 23, 1991, to allow production to resume on the No. 1 

Longwall Section"··· to evaluate the changes and adjustments made to the approved ventilation methane and dust control plan 

and collect respirable dust samples." (Exh. G-3). 

7. on November 23, 1991, MSHA Inspector Terry Gaither, and 

Milton Zimmerman an MSHA Supervisor Coal Mine Inspector, went to 

the No. 1 Longwall to evaluate the agreed upon changes and 

adjustments to the Dust Control Plan ("Plan"), and to determine 

if the Operator was in compliance with the respirable dust 

regulatory standards. 

a. Johnson, as the representative authorized by miners, 

("walkaround") accompanied the MSHA inspectors on November 23, 

1991 on their inspection. 

II. 

Further Findings of Fact and Discussion 

A. Discrimination under Section 105Cc) 

An analysis of the specific events that transpired during 

the time period in question is to be made based upon the 

principles established by the Commission in Secretary on behalf 

of Robinette v. United Castle Coal Company, 3 FMSHRC 817 (1981). 

In Robinette, the Commission held that to establish a prima facie 

case of discrimination under Section 105(c) of the Act, a miner 

has the burden of proving that (1) he or she engaged in protected 

activity and (2) the adverse action complained of was motivated 

00 i:n any part 61 by the protected activityo The operator may rebut 

the prima facie case by showing either that no protected activity 

occurred, or that the adverse action was in no part motivated by 

protected activity. If an operator cannot rebut the prima facie 

caseu it nevertheless may defend affirmatively by proving that it 

also was motivated by the minerQs unprotected activity and would 

have taken the adverse action in any event for the unprotected 

activity aloneo 

lo Johnson 9 s version 

According to Johnson, on November 23, 1991, prior to the 

start of production at the subject site, air readings were taken, 

and the spray pressure was noted. Johnson said that once 

production was started, he followed the shearer to see if the 

sprays were working properly. Johnson related that some sprays 

appeared clogged., and he asked the shearer operator if they were 

2590 
clogged. According to Johnson, the latter's response was "yeah 

they're acting up a little again." (Tr. 138). Johnson stated 

that he mentioned to Thom Parrott, who was the longwall coordinator, that it "looked" to him "like the sprays may not be 

at seventy percent as required." (Tro 138). Johnson said that in 

response Parrott "shrugged his shoulders," and did not say anything. (Tr. 139). Johnson said that he then told MSHA 

Inspector Terry Gaither, who in turn told Parrott that the sprays 

may have to be cleaned, and "you a~e getting quite a few stopping up." (Tr. 140) (sic)). According to Johnson, at that point 

Parrott agreed, and the sprays were shut down and cleaned. 

According to Johnson, about 15 or 20 minutes after he had 

pointed out the clogged sprays to Parrott, Parrott asked to see 

him alone. Johnson said that Parrott then told him that he was 

not on his own inspection, was not an inspector, and was to "quit 

pointing things out." (Tr. 143) Further, according to Johnson, 

Parrott told him that he had·not been staying in the immediate 

vicinity of the inspectors, and that he (Parrott) did not want to 

catch him away from them again. Johnson stated that his response 

was to say "Ah come on." (Tr. 144), but that he may have said 

that phrase harshly. He said he then walked away to the dinner 

hole. contemporaneous notes taken by Johnson, in essence, 

corroborate the version he testified to at the hearing. 

Johnson further testified, in essence, that at approximately 1:00 p.m., the inspectors stopped to talk to a miner. He said 

that when they stopped he was approximately 15 to 20 feet ahead 

of them, and he stopped and looked at the shearer. According to 

Johnsonu while he was waiting for the inspectors, Parrott 

approachedu and told him that he was being relieved of his 

dutieso Johnson said that Parrott told him that he was relieving him of his duties because he was not staying in the immediate 

vicinity of the inspectoro According to Johnson, after he was 

relieved of his duties, Parrott said that he wanted to talk to 

him "alone with Danny Watts. In (Tr. 157) (sic) Parrott did not 

tell him why he wanted talk to himo Johnson said that he did 

not go talk to Parrott because he was afraido 

~0 Parrottvs version 

According Parrottu approximately 9~43 a.m.v on 

November 23 0 Johnson was observed looking at the shearer at the 

tailgate. Parrott said that the shearer was down at the time, 

and the inspectors were 250 and 300 feet away. Parrott indicated 

that this was the first time that he had seen a safety committeeman or a walkaround "go off on his own like that." 

(Tr. 458). Parrott called Richard Donnelly, who was the Deputy 

Mine Manager at the subject mine, and asked him if it was legal 

or within Respondent's work rules for Johnson to leave the · general vicinity of the inspectors, and Donnelly said "no." 

2591 
(Tr. 458) Donnelly told Parrott to take Johnson aside, and not to 

confront him, but to tell him not to make his own inspection. Accordinq to Parrott, after he spoke to Donnelly, he found 

Johnson alone at the headqate drive. Parrott said he told 

Johnson that he was not to wander off and make his inspection, and that it was company policy for him to remain with the 

inspectors. Parrott said that Johnson's response was as follows: 

"Under the Act, I have full access to this mine, I can come and 

qo as I damn well please and I will." (Tr. 461). According to 

Parrott, Johnson further said "If this is somethinq personal, 

maybe you and I can step off the property after the shift and 

settle it." (Tr. 461) Parrott said that Johnson then "got anqry" and went to the dinner hole. (Tr. 461). 

Parrott stated, in essence, that the next time he saw 

Johnson, he was 1'around the corner ••• out of sight of the 

inspectors" (Tr. 463). He indicated that Johnson was 30 or 40 

feet from the inspectors. Parrott said that he gave Johnson a 

464) Parrott stated that Johnson became "real argumentative." 

(Tr. 464) Accordinq to Parrott, Johnson said that "he did not 

give a damn what I said" (Tr. 464), and pointed out that the 

inspectors were only 15 feet away. Parrott said he then 

requested Johnson to step away, as he wanted to explain to him 

that if he would disobey an order, he would be suspended. 

Parrott said that Johnson refused the request and at that point he told Johnson that he was giving him a "direct order" to walk 

over to him (Parrott) (Tr. 465). According to Parrott, Johnson 

said "do you really want me to put some heat on your ass do you 

want me to come down here and inspect this lonqwall." (Tr. 467). 

Parrott said he then used the term "direct order" and asked 

Johnson if he understood what follows by disobeying a "direct 

order 1'n Parrott said Johnson responded by saying he did not 

careo that pointu Parrott informed Johnson that he was being ~uspended with the intent to discharge for insubordination. 

3. Discussion 

Protected Activities 

In essence 0 Respondent arguesu inter alia, that the 

Secretary has failed to establish a prima facie case in that he 

has not proven that Johnson was engaged in any protected 

activities. SpecificallYu Respondent argues that there is no 

evidence that Johnson was out of the presence of the inspectors 

for the purpose of aiding the inspectors. Respondent also argues 

that there is not any evidence that Johnson left the inspection 

party at the request of the inspectors. For the reasons that 

follow, I find that the Secretary has established that Johnson 

was engaged in protected activities. 

2592 
The Section 105(c) discrimination complaint filed by the 

Secretary is based upon an alleged discrimination against Johnson 

while he was exercising rights under Section 103(f) of the Act. 

Section 103(f) of the Act, as pertinent, provides that an 

authorized representative of miners shall be given an opportunity 

to accompany an inspector during an inspection" ••• for the 

purpose of aiding such inspection •••• " The Legislative History 

of Section 103(f) supr~ indicates the importance of the right of 

miners' representatives to accompany an inspector. Congress 

concluded that participation of miners in inspections "will 

enable miners to understand the safety and health requirements of 

the Act and will enhance mine safety and health awareness." 

(Legislative History, at 616, supra). The language of Section 

lOJ(f) of the Act supra, indicates that the right of a 

representative to "accompany" an inspector is "for the purpose of 

aiding such inspection." 

(1) Aiding the Inspection 

Milton Zimmerman, a supervisory coal mine inspector, 

testified that, in general, a safety committeeman (representative of miners) assists in a dust inspection by checking sprays, 

talking with miners, and checking if the shields are being washed. Although neither Zimmerman, nor MSHA Inspector Terry 

Gaither, made any specific request of Johnson to do anything to 

aid them in the inspection, Zimmerman remarked as follows"··· it 

didn't make any difference whether Mr. Johnson was with me or 

whether he was on a tailgate because he was assisting us on the 

inspection. And had he been on the tailgate or lonqwall which is 

1000 feet awayu he was assisting on the inspection." (Tr. 69). 

Based on this testimonyQ I find that Johnson°s presence in the 

inspection party was aiding the inspection. 

(2) Accompanying the Inspector 

Webster~s Third New International Dictionary (1986 edition) 

defines 09 accompany19 as follows~ ~~ (1) to go with or attend as an 

associate or accompany? go along with. uu ij'With 91 defined 9 inter 

alia as follows • . • 91 4a ••• used as a function word to indicate 

one that shares in an action, transaction, or arrangement.'* 

Applying the common meaning of the word "accompany ,eQ I find that 

there is no requirement in Section 103(f) for a representative of 

miners to be within a specific distance from the inspectors. It 

is sufficient if the representative "shares in an action." I 

find that Johnson, in the locations observed by Parrott, was part 

of the general action of the inspection. It would be unduly 

restrictive to find that a miner's representative is beyond the 

scope of Section 103(f) supra, unless he is at a location at the 

specific request of an inspector, or engaged in a specific action 

to aid the inspector at the latter's request. To the contrary, 

2593 
as explained by Zimmerman, Johnson's presence in the general area 

was aiding the inspectors. Accordingly, broadly construing 

Section 103(f) supra, 2 I find that given the framework of the 

specific inspection at issue, i.e., to evaluate the effectiveness 

of the changes to the Plan, Johnson's presence on the section 

other than within a few feet of the inspectors was within the 

scope of Section 103(f) rights. Hence, I conclude that Johnson 

was engaged in protected activities on November 23. 

b. Motivation 

(l) Johnson's version 

In essence, according to Johnson, when he was at the 

headgate at the beginning of the shift, he told Parrott that it 

looked to him "that the sprays may not be at 70 percent as 

required." (Tr. 138). Johnson's contemporaneous notes also 

indicate that at 10:30 a.m., he pointed out as follows: "less 

than 70 percent sprays on H.G. 11 • Johnson indicated that Parrott 

did not say anything, but that approximately 15 or 20 minutes 

later, Parrott told him that he was not to be on his own 

inspection, and to quit pointing things out. In contrast, 

Parrott stated that Johnson did not point out that 70 percent of 

the sprays were not operating. He also denied telling Johnson 

that he (Johnson} was pointing things out to the inspectors. 

Parrott also stated that he was not aware that Johnson was 

pointing things out to the inspectors on the lonqwall. In this 

connection, Respondent argues that no other witness corroborated 

Johnsonis testimony that he had pointed things out, 3 and no 

citation was issued on the basis of any alleged insufficient 

sprays., In this connectionv Zimmerman indicated that Johnson did 

not him that anything was wrong with the sprays. Howeverv 

version testified by Johnson finds corroboration in the 

2 In generalp Congress manifested its intent that the scope protected activities under Section l05(c) be broadly 

interpreted (S. Rep. No. 95-181 1 95th Cong.v 2d Sess.v reprinted in Legislative History of the Federal Mine Safety and Health Act 

of 1977 at 623 ("Legislative History"). Given this intent, it 

might be reasoned that Congress similarly intended a broad 

interpretation to be accorded rights under Section 103(f) sypra, where these are the basis of protected activities under Section 

l05(c) supra. 

3 Johnson said that he told MSHA Inspector Terry Gaither 

that he thought that some of the sprays were "stopping" up 

(Tr. 140). Gaither did not testify to corroborate Johnson. 

Based on my observations of Johnson's demeanor, I find his 

testimony credible on this point. 

2594 
testimony of Richard Donnelly, who was the deputy mine manager. Donnelly indicated that when Parrott called him between 10 and 

11:00 a.m., on November 22, to ask him if a safety committeeman 

is allowed to make his own inspection, Parrott told him that 

Johnson was pointing things out to the inspectors. Hence, for 

these reasons, and also based upon my observation of the 

witnesses• demeanor, I accept the version testified by Johnson, 

and find that he did point out problems with the sprays. 

According to Johnson, at approximately 1:00 p.m., when he 

was about 15 or 20 feet ahead the inspectors, Parrott told him 

that he was relieved of his duties for not staying in the 

immediate vicinity of the inspectors. 

(2) Parrott's version 

According to Parrott, when he initially advised Johnson that 

it was the company's "position" (Tr. 460) that he remain with the 

inspectors, Johnson said "if.this is something personal, maybe 

you and I can step off the property after the shift and settle 

it." (Tr. 461). Parrott testified at the second time when he 

spoke to Johnson and gave him a "direct order" to stay with the 

inspectors, Johnson stated as follows "do you really want me to 

put some heat on your ass, do you want me to come down here and 

inspect this longwall." (Tr. 467). On direct examination Parrott 

maintained that the fact that Johnson defied an order to stay with the inspectors did not have anything to do with the decision 

to suspend Johnson. He further said, in essence, that Johnson's 

position vis-a-vis the inspectors did not result in his 

discharge. Parrott said that Johnson's refusal to come over and 

discuss the situation with him was the main reason for the 

suspension in combination with threats that Johnson had madee 

Parrottrrs contemporaneous notes corroborate his testimony that he had given Johnson "direct orders'' to stay with the 

inspectors. However, the notes do not indicate that he gave 

Johnson a "direct order" to come to him and discuss the 

situation. On cross-examination Parrott indicated that he was 

not sure if he used the words 91 direct order" when he told Johnson 

to walk over to him. Parrott also indicated that he could not be 

sure if used the words "direct order", since he did not write it 

in his notes. In either event, it is critical to note that on 

cross-examination Parrott indicated that the fact that Johnson 

defied his 1'direct orderQ1 to stay with the inspectors eo •• o was 

tied in" to the decision to suspended him. (Tr. 527). 

Donnelly testified that, in the second conversation he had 

with Parrott on November 23, the latter informed him that he had 

a "confrontation" with Johnson and had told Johnson "that he was 

again making his own inspection." (Tr. 350) (sic). According to 

Donnelly, Parrott then informed him that he had told Johnson 

"several times" to come and talk to him "about it" and Johnson 

2595 
refused. (Tr. 351). Donnelly further stated as follows: "And as a 

result of that, Thom (Parrott) informed me that he had given him 

five days with intent and relieved him of his job duties." 

(Tr. 351). Donnelly stated that he told Parrott that he wasn't 

sure if he agreed with him and he in turn contacted Willis 

Coates, the mine manager of No. 7 Mine, and J.T. Piper, the 

senior vice president of operations, to "discuss it." (Tr. 352). 

Neither Coates, nor Piper testified. Donnelly did not testify either as to specifically what he told Coates and Piper, or what 

he asked them. Neither did Donnelly testify to what Coates and 

Piper told him. Donnelly indicated that after speaking with 

Piper and Coates he informed Parrott to have Johnson "go to the 

end of the track." (Tr. 354). He stated that he also told John 

Looney, the mine foreman, who was Parrott's superior, that there 

was a personnel problem, and that he should go to the longwall 

and Parrott would explain it to him. (Tr. 354). Subsequently, at 

the beginning of Johnson's shift on November 25, 1991, Donnelly 

instructed Looney to administer to Johnson a five day suspension with intent to discharge. In the RECORD OF DISCIPLINARY ACTION 

served on Johnson, Donnelly had Looney state the following under 

the heading REASON FOR DISCIPLINARY ACTION: 

Work Rule #7 Work Rule #1 

Employee refused a direct order 4 

Employee threatened supervisor & company. (Exh. G-19). 

Donnelly indicated that the fact that Johnson had been 

given a "direct order" to stay with the inspectors and not to be 

making his own inspection was not the reason why he instructed 

Looney to give Johnson a five day suspension with intent to 

dischargeo (Tr 416) n In the context of his directions to Looneyu Donnellv was asked whether he considered the fact that Johnson 

had disobeyed an order to stay with the inspectoru and had 

disobeyed an order not to be making his own inspection, and he 

answered as follows~ "Iud answer that no." (Tr. 416). However, 

in earlier cross-examination he was asked whether it was true 

that one of the bases for the disciplinary action was that 

,J'ohnson refused 09 direct orderuo from Parrott not to be making 

his own inspection 9 and he answered as follows: "That is part of 

the circumstances that lead up to my feeling that he was 

insubordinatsu yeah. 00 (Tr. 415). 

4 Donnelly said that the order that was referred to was the 

"direct order" given to Johnson to walk away from the miners who 

had gathered so that Parrott could discuss the matter with him. 

2596 
(3) Conclusions 

Given the above sequence of events, as set forth in the 

testimony of Johnson that I accept, and considering the testimony 

of Parrott and Donnelly on cross-examination, I conclude that the 

decision by Parrott to discipline Johnson, which was apparently affirmed by Donnelly, was motivated in part by Johnson's refusal 

to follow Parrott's order to stay with the inspectors. In this 

connection, I have concluded above, II(A) (3) (a) infra, that 

Johnson was engaged in protected activities, and was not outside 

the scope of these activities when he was not in the immediate 

vicinity of the inspectors. According to the testimony of 

Parrott on cross-examination, the fact that Johnson defied his 

order to stay with the inspectors was "tied in" to the decision 

to suspended him. Considering this testimony and the sequence of 

events, presented herein, I conclude that it has not been 

established that Respondent would have fired Johnson for his 

unprotected activities alone, i.e., the threats he allegedly made 

to Parrott, and his refusal to follow an order to walk over to 

Parrott and discuss the problems that had arisen that morning. 5 

Hence, I find that the Secretary has established a prima facie 

case which has not been rebutted by Respondent. Nor has 

Respondent established an affirmative defense. 

c. Penalty 

In essence, Intervenor argues for the imposition of a 

$10,000 penalty based upon the history of violations, negligence, and the lack of good faith of Respondent in abating the 

violationo 6 

5 As correctly argued by the Secretaryp the fact that 

Johnson did not remain in the immediate vicinity of the 

inspectors, which was not outside the scope of protected activitiesp was the catalyst which triggered the subsequent 

orders given to him by Parrott to step over and talk to him. In 

other wordsu this order, and the prior direct order given by 

Parrott to Johnson to stay with the inspectors and not to conduct 

his own investigation were inseparable. The defiance of either 

of these orders alone cannot be isolated as a independent motive 

for the discharge. 

6 The Secretary seeks to bring to my attention Secretary of 

Labor on behalf of Donald B. Carson v. Jim Walter Resources, Inc. 

15 FMSHRC 1992 (September 29, 1993 (Judge Maurer), and Secretary 

of Labor on behalf of James Johnson and UMWA v. Jim Walter 

Resources, Inc., 15 FMSHRC (Docket No. SE 93-127-D, 

November 18, 1993) (Judge Fauver). Neither of these cases 

involve the same violation as the case at bar, i.e., Section 

2597 
(1) History of Previous Violations 

Intervenor urges that cognizance be taken of adverse actions 

of Respondent against UMWA officials. In this connection, 

Intervenor refers to the testimony of Darrell Dewberry, District 

No. 20 union executive board member that when he was a member of 

the Union Safety Committee, he had been disciplined in 1981, for 

reporting adverse roof conditions. Dewberry filed a Section 

105(c) complaint that subsequently was settled. Also, Dewberry 

testified that Union Safety Committeeman Don Nelson had been 

disciplined for reporting an unsafe condition. A Section lOS(c) 

complaint was subsequently brought by the Secretary on behalf of 

Nelson. That case was subsequently settled, and a decision was 

issued by Commission Judge Melick approving the settlement which 

required Respondent to pay a penalty of $2,000. Intervenor 

further cites the testimony of Larry Spencer that he was 

disciplined for filing a safety complaint in April, 1991. 

Spencer filed a Section 105(c) complaint which was subsequently withdrawn when a grievance filed by him was resolved. Also, 

Tommy Boyd, a member of the safety committee testified that he 

was disciplined in 1989 by Parrott because he asked that a 

methane monitor be calibrated. Boyd did not file a Section 

lOS(c) complaint. 

Among the factors required to be taken into account in 

assessing a penalty by a Commission Judge is an operator's "history of previous violations" (Section llO(i) of the Act)). 

In evaluating the congressional intent in enacting this phrase, I 

note the following language set forth in the report issued by the 

Senate Committee on Human Resources on the bill that became the 

Actg "In evaluating the history of the operator's violations in 

assessing penaltiesu it is the intent of the Committee that 

repeated violations of the same standard particularly within a 

matter of a few inspections, should result in a substantial 

increase in the amount of the penalty to be assessed." (S. Rep. 

No. 181 at 43, Legislative History, at 631). (emphasis added). In 

considering what evidence is to be taken into account in 

evaluating an operator 1 s Q'history of previous violations," I 

initially note that in order for a record of an incident to be 

considered part of a 11 history of previous violations," this 

incident must result in a citation that has not been vacated, 7 

103(g), nor the engagement in the same protected activities that 

were retaliated against. Accordingly, they were not accorded 

much weight in evaluating Respondent's history of previous violations or the gravity of the violations found herein. 

7 See, Youghiogheny and Ohio Coal Company, 7 FMSHRC 200, at 

203 (1985). 

2598 
or at least there must be a "final determination" by the 

Secretary that a violation has occurred (See, Peggs Run Coal 

Company, Inc.,) 5 IBMA 144, 150 (September 22, 1975). 

I find that the testimony relied on by Intervenor is 

insufficient to increase the appropriate penalty on the basis of 

Respondent's history of previous violations. In this connection, 

I note that Intervenor has not cited any "history of previous violations" similar to the one at issue, i.e., interference with 

the right of a walkaround who was not in the immediate vicinity of the inspectors. 

(2) Negligence and Good Faith in Abatement 

After Parrott ordered Johnson to go to the end of the track, 

Zimmerman was informed that Johnson had been relieved. Zimmerman 

informed Donnelly and Parrott that the inspection could not be 

continued without miner repr~sentation, and that the "b" 8 order 

would be reinstated. In essence, Parrott asked Johnson and 

Zimmerman to name a replacement to serve as the walkaround, and 

they each refused. Zimmerman issued a citation alleging a 

violation of Section 103(f). Zimmerman informed Parrott and 

Donnelly that if miner representation was not allowed, he was 

going to reinstate the "b" order. 9 

The following Monday, Johnson reported for work and was 

instructed to go to see the foreman. Based on Donnelly's instructions, Johnson was then given a notice of a five day suspension with intent to discharge. The following day, Willis 

Coates, the mine manager, called Darrell Dewberry, the UMWA 

District Noo 20 executive board memberu and requested him to tell 

Johnson to report work for his next shift. Dewberry was further 

told to inform Johnson that Respondent would compensate him for 

all lost waqeso Johnson was in fact so compensated. 

The violation of Section 105(c), supra, initially occurred 

on November 23u when Parrott ordered Johnson to leave the work 

area. on JohnsonQs next regular shift on November 25 1 further 

8 On November 22, 1991, Respondent was issued a Section 

104(b) u Order (No. 3805276) 0 alleging excessive respirable dust 

on the Noo l Longwall Section. 

9 According to Parrott, Zimmerman informed him that he was 

going to issue a citation and then told them they had 15 minutes 

to obey it or "it becomes a "b" order." (Tr. 472). According to 

Parrott at that point he then called Donnelly who told him to 

reinstate Johnson. 

2599 
adverse action was taken against him when he was suspended for 

five days with intent to discharge. However, the following day, Johnson was reinstated and subsequently compensated for all lost 

wages. Hence, Johnson did not incur any damages as a consequence of the discriminatory action taken against him by Respondent. 10 

Based on all the above, I conclude that a penalty of $2,000 

is appropriate for the Section 105(c) violation. 

d. Relief 

It is ordered as follows: 

1. Respondent and its agents shall comply with 

Section 103(f), and shall cease and desist from seeking to 

intimidate Complainant and other members of the Health and Safety Committee from asserting rights under Section 103(f) supra. 

2. Respondent shall post a notice on the mine 

bulletin board stating that it will not violate Section 105(c) 

supra, in the future. 

3. Respondent shall expunge and destroy all 

reference, and copies of all documents, from any and all records 

of Respondent related to complainant about the events and actions 

which took place from November 23 through November 26, 1991. 

4. Respondent shall pay $2,000 within 30 days of this 

decision, as a civil penalty for the violation of Section 105(c), 

supra. 

Bo Violation of Section 103(f) 

In essenceu Section l03(f) of the Act provides for a 

representative of miners to accompany inspectors to aid in their 

inspection. The legislative history of Section 103(f) manifests 

the importance that Congress placed on this right as it found 

"chat such participation "will enable miners to understand the 

safety and health requirements of the Act and will enhance miner 

safety and health awareness. 01 Legislative History, supra, at 616-

6l7o As set forth above, II(A) (3) (a) (1) infra, Zimmerman 

indicated in general, how a walkaround aids an inspection. When 

10 I note Intervenor•s concern that does not counteract the 

chilling effect of his suspension on miners who might be 

reluctant to voice safety concerns reasoning that if a Union 

walkaround can be fired for engaging in protected activities, 

then the operator would not hesitate to fire them for similarly 

engaging in protected activities. I find this argument to be too 

speculative. 

2600 
617. As set forth above, II(A) (3) (a) (1) infra, Zimmerman 

indicated in general, how a walkaround aids an inspection. When 

Johnson was observed by Parrott he was not in the immediate 

vicinity of the inspectors. Parrott did not inquiry of him why 

he was not with the inspectors, or why he was located where he 

was. I found, above, II(A) (3) (a) infra, that Section 103(f) does 

not require a walkaround to be, at all times, in the immediate 

vicinity of the inspectors. I also found, above II(A) (3) (b) 

infra, that when Parrott relieved Johnson of his duties on 

November 23, he was motivated, in part, by Johnson's refusal to 

follow his order to stay with the inspectors. I thus, find 

Parrott's action interfered with Johnson right's as a walkaround 

under Section 103(f), and hence Section 103(f) was violated. 

1. Penalty 

I find that Johnson was reinstated as a walkaround after 

Zimmerman threatened Respondent with the issuance of a "b" order 

unless Johnson would be reinstated as a walkaround. This fact is 

important in assessing Respondent's good faith in abating the 

violation. Also considering Respondent's negligence as discussed 

above, II(A) (3) (c} (2) infra, I conclude that a penalty of $1000 

is appropriate. 

2. Relief 

It is ordered that Respondent pay, within 30 days of this 

Decision, $1,000 as a civil penalty for the violation of Section 

103(f), supra. 

Administrative 

/Ji;;wei~ Law Judge 

Distributiong 

William Lawsonu Esq. 9 Office of the Solicitoru u.s. Department of 

Laboru Suite l50u 100 Centerview Drive, Chambers Building 1 

Highpoint Office Centeru Birmingham, Alabama 35203 (Certified 

Mail) 

Barry A. Woodbreyu Jr. 9 Esq., United Mine Workers of America, 

900 Fifteenth Street, N.W., Washington, D.C. (Certified Mail) 

R. Stanley Morrow, Esq., Jim Walter Resources, Inc., 

P.O. Box 133, Brookwood, AL 35444 (Certified Mail) 

David M. Smith, Esq., and Mark strength, Esq., Maynard, cooper & 

Gale, 1901 Sixth Avenue, North, 2400 AmSouth, Harbert Plaza 

Birmingham, Alabama 35203-2602 (Certified Mail) ' 

/efw 

2601 

ADMINISTRATIVE LAW JUDGE ORDERS 

PBDBRAL Kl:IIB SUBTY MID HEALTH RBVXBW COKIUSS:tOII 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

Vo 

SAGINAW MINING COMPANY, 

Respondent 

DEC 2 l 1993 

CIVIL PENALTY PROCEEDING 

: Docket No. Lake 93-165 

A.Co No. 33-00941-03757 

Saginaw Mine 

ORDER DISAPPROVING SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

Before: Judge Feldman 

This case is before me based upon a petition for assessment 

of civil penalties filed by the Secretary pursuant to 

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

(the Act). 30 u.s.c. § 801 et seq. The Secretary has filed a 

motion for the approval of settlement concerning the three 

citations in issue. These citations concern a fatal roof-fall 

accident that occurred at the Saginaw Mine on October 23, 1991. 

A mine foreman suffered fatal injuries and a construction foreman 

suffered serious injuries as a of accident. The 

Secretary seeks my approval reductions in the to~al proposed 

penalties from $21u000 to $15u000o 

The motion before me contains no specific rationale or 

evidence of mitigating circumstances that would support the 

proposed reduction in civil penalties. Section llO(k), 

30 u.s.c. § 820( u requires Commission approval of any 

settlement agreement in this matter. The Commission must 

consider whether the terms of the proposed settlement are 

consistent with the six statutory criteria set forth in Section 

llO(i) of the Act, 30 u.s.c. 820(i). See Sellersburg Stone 

company v. Federal Mine Safety and Health Review Commission, 

736 F.2d 1147 (7th Cir. 1984}o 

Based upon the absence of supporting information in the 

Secretary's motion, particularly in this case which involves a 

fatality, I am unable to conclude that the suggested penalty 

reduction is appropriate. Accordingly, IT IS ORDERED that the 

motion for approval for settlement IS DENIED. IT IS FURTHER 

ORDERED that the parties shall provide additional information 

specific to each citation supporting their motion for reduction 

2602 
in civil penalty. The information provided should specifically 

address the mitigating circumstances, if any, that warrant a 

reduction in penalties. This information should be provided 

within 30 days of the date of this order. Failure to timely 

provide the requested information will result in the scheduling 

of this case for hearing. 

Distribution: 

Jerold Feldman 

Administrative Law Judge 

Maureen M. Cafferkey, Esq., Office of the Solicitor, u. s. 

Department of Labor, 881 Federal Building, 1240 East Ninth 

Street, Cleveland, OH 44199 (Certified Mail) 

George Basara, Esq., Polito & Smock, Four Gateway Center, Suite 

400, Pittsburgh, PA 15222 (Certified Mail) 

jll 

2603 

oU.S. GOVERNMENT PRINTING OFF!CE:l994-301-878/93381