OCTOBER 1986 

COMMISSION DECISIONS 

10-14-86 Fife Rock Products Company, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

10-01-86 

10-01-86 

10-01-86 

10-01-86 

10-01-86 

10~01-86 

10-02-86 

10-03-86 

10-09-86 

10-09-86 

10-09-86 

10-16-86 

10-16-86 

10-16-86 

10-17-86 

10-17-86 

10-20-86 

10-20-86 

10-21-86 

10-21-86 

10-24-86 

10-24-86 

10-31-86 

Beth Energy Mines, Inc. 

Krieger Coal, Inc. 

United States Steel Mining Co. 

Sec. for Andrew Dubetsky v. Barnes & Tucker Co. 

Allentown Cement Company, Inc. 

Consolidation Coal Company 

Peabody Coal Company 

Columbia Portland Cement Co. 

Dennis Ayres v. Fairpoint Coal Co. 

K C Mining Company 

Brubaker-Mann Incorporated 

Amax Chemical Corporation 

Greenwich Collieries 

Bethenergy Mines, Inc. 

Sec. Labor for DuWayne Schafer v. Consolidation 

Coal Company 

Lonnie Smith v. Reco, Inc. & Dillard Smith v. 

Reco, Inc. 

River Cement Company 

River Cement Company 

Helvetia Coal Company 

Sec. Labor for John Bushnell v. Cannelton 

Industries, Inc. 

Tony Wiley v. Samoyed Energy Co., Inc. 

Jim Walter Resources, Inc. 

Sanders Construction, Inc. 

WEST 85-141-M Pg. 1503 

PENN 86-162 Pg. 1507 

PENN 86-197 Pg. 1509 

PENN 86-214 Pg. 1511 

PENN 86-227-D Pg. 1512 

PENN 86-229-RM Pg. 1513 

WEVA 86-112 Pg. 1519 

LAKE 83-73 Pg, 1521 

LAKE 86-38-M Pg. 1522 

LAKE 86-65-D Pg. 1523 

SE 86-62 Pg. 1527 

WEST 85-157-M Pg. 1529 

CENT 84-68-M Pg. 1533 

PENN 85-204 Pg. 1535 

PENN 86-287-R Pg. 1567 

CENT 85-89-D Pg. 1568 

VA 86-7-D Pg. 1592 

VA 86-9-D 

CENT 86-91-M Pg. 1599 

CENT 86-127-M Pg. 1602 

PENN 86-193 Pg. 1605 

WEVA 85-273-D Pg. 1607 

KENT 86-99-D Pg. 1611 

SE 86-111 Pg. 1616 

WEST 86-86-M Pg. 1618 

OCTOBER 1986 

The following case was granted for review during the month of October: 

Martha Perando v. Mettiki Coal Corporation, Docket No. YORK 85-12-D. 

(Judge Melick, September 9, 1986) 

Secretary of Labor, MSHA v. Fife Rock Products Co., Inc., Docket No. 

WEST 85-141-M. (Judge Morris, Default Decision, September 15, 1986) 

Review was denied in the following case during the month of October: 

Secretary of Labor on behalf of Ronnie Beavers, etc. v. Kitt Energy 

Corporation , Dodket No. WEVA 85-73-D. (Judge Maurer, September 10, 1986 

decision pending final order. Petition was ruled premature). 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

FIFE ROCK PRODUCTS COMPANY, 

INCORPORATED 

October 14, 1986 

Docket No. WEST 85-141-M 

BEFORE:' Ford, Chairman; Doyle and Lastowka, Commissioners 

ORDER 

BY THE COMMISSION: 

In this civil penalty proceeding arising under the Federal Mine 

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

Administrative Law Judge John J. Morris issued "ii'"""decision on September 15, 

1986, finding Fife Rock Products Co., Inc. ("Fife") in default, affirming 

a citation issued for an alleged violation of 30 C.F.R. § 56.5-7 (1984), 

and assessing a civil penalty of $600. After the judge's decision was 

issued, Fife filed with the judge a request that the decision be stayed 

and the matter be reheard. We deem Fife's request to constitute a 

petition for discretionary review which we hereby grant. For the reasons 

that follow, we vacate the judge's decision, and remand for further 

proceedings. 

The case commenced when the Secretary of Labor filed a Proposal for 

Penalty proposing that Fife be assessed a civil penalty of $600 for an 

alleged violation of section 56.5-7. The matter was assigned to Judge 

Morris. After unsuccessful settlement negotiations between the Secretary 

and Fife, the judge issued a Notice of Hearing on June 2, 1986, setting 

a hearing for August 12, 1986, in Salt Lake City, Utah. When Fife did 

not attend the hearing, the judge orally found Fife in default and 

assessed a penalty of $600 for the violation. In his written decision 

of September 15, 1986, the judge confirmed his ~ntry of default and his 

penalty assessment. Subsequently, on September 22, 1986, Clifford P. 

Woodward, Fife's General Manager, sen.t to Judge Morris a letter that 

stated in part: "Having received a copy of your 'Decision and Order' 

dated September 15, 1986, it is apparent to us that we were not aware of 

1503 
the hearing set for August 12, 1986." Fife requested that "the decision 

be stayed and that all parties ••. be heard through a rehearing of 

the case." By letter dated September 25, 1986, Judge Morris informed 

Fife that his jurisdiction had terminated and forwarded Fife's request 

to the Commission. Fife's letter was received by the Commission's 

Docket Office on September 29, 1986. 

The judge correctly indicated that his jurisdiction in this matter 

terminated when his decision was issued on September 15, 1986. 29 C.F.R. 

§ 2700.65(c). The Commission has observed repeatedly that default is a 

harsh remedy and that if a defaulting party can make a showing of adequate 

or good cause for a failure to respond to an order or notice, the failure 

may be excused and appropriate proceedings on the merits permitted. See 

M.M. Sundt Construction Co., 8 FMSHRC , No. CENT 86-6-M, slip op. a~ 

3. (September 15, 1986), and authorities cited. Fife has alleged that 

it did not receive the judge's June 23, 1986 notice of hearing and was 

unaware of the August 12, 1986 hearing. 1/ Fife is also proceeding 

without benefit of counsel. We conclude-that in the interest of justice, 

Fife should have the opportunity to present its position to the judge. 

M.M. Sundt, supra, slip op. at 2-3. 

1/ The June 2, 1986 notice of hearing claimed not to have been received 

appears to have been mailed to the parties by regular first class mail. 

The Commission's procedural rules do not mandate service of a notice of 

hearing by registered or certified mail, return receipt requested. 

However, in view of the recent questions raised both here and in M.M. 

Sundt Construction Co., regarding whether proper service has occurred, 

the Commission's judges should consider the advisability of serving 

notices of hearing and orders to show cause issued pursuant to Commission Procedural Rule 63(a), 29 C.F.R. § 2700.63(a), either by registered 

or certifi~d mail, return receipt requested, or by both regular first 

class mail and registered or certified mail, return receipt requested. 

1504 
Accordingly, the judge's decision is vacated and this matter is 

remanded for further proceedings consistent with this order. 2/ 

2/ Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we 

have designated ourselves a panel of three members to exercise the· 

powers of the Commission in this matter. Further, Fife is reminded to 

serve the Secretary with copies of all its correspondence and other 

filings in this matter. 29 C.F.R. § 2700.7. 

1505 
Distribution 

Clifford P. Woodland, Gen. Mgr. 

Fife Rock Products Co. 

P.O. Box 479 

Brigham City, Utah 84302 

Margaret A. Miller, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1585 Federal Bldg. 

1961 Stout St. 

Denver, Colorado 80294 

Ann Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

40.15 Wilson B.lvd. 

Arlington, VA 22203 

Administrative Law Judge John Morris 

Federal Mirie Safety and Health Review Commission 

333 West Colfax Avenue, Suite 400 

Denver, Colorado 80204 

1506 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 1, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BETH ENERGY MINES, INC., 

Respondent 

. . . 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-162 

A.C. No. 36-00840-03579 

Cambria Slope Mine 33 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

The Solicitor has filed a motion to approve settlement 

of the one violation involved in this case. The originally 

assessed penalty was $259. The proposed settlement is for 

$125. 

The Solicitor's motion discusses the violation in light 

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

Federal Mine Safety and Health Act of 1977. Order No. 

2688594 was issued for violation of 30 C.F.R. § 75.303(a) 

because the No. l Bleeder Room had not been examined within 

three hours before the start of a shift, as required by the 

operator's ventilation plan. The Solicitor represents that 

a reduction in the proposed penalty is justified because 

both gravity and negligence were less than was originally 

thought. The ventilation plan required that all active 

workings and all adjacent places receive preshift examinations. 

The Solicitor maintains that the No. 1 Bleeder Room was an 

"adjacent place," while the operator maintains it was not. 

However, the Solicitor admits that the term "adjacent place" 

is ambiguous. Therefore, the negligence involved was reduced. 

The Solicitor also represents that the No. 1 Bleeder Room · 

had been examined four hours before the start of the shift, 

that no miners, equipment, methane or other hazards were 

present in the room. Therefore, gravity was reduced. 

The representations and recommendations of the Solicitor 

are accepted. 

Accordingly, the motion to approve settlement is GRANTED 

and the operator is ORDERED TO PAY $125 within 30 days of 

the date of this decision. 

~cJ-. Paul Merlin 

Chief Administrative Law Judge 

1507 
Distribution: 

William T. Salzer, Esq., Office of the Solicitor, U.S. Department 

of Labor, Rm 14480-Gateway Bldg., 3535 Market Street, Philadelphia, 

PA 19104 (Certified Mail) 

R. Henry Moore, Esq., 900 Oliver Building, Pittsburgh, PA 

15222-5369 (Certified Mail) 

J. M. Gallick, Director/Safety & Env. Health, Beth Energy 

Mines, Inc., PA Div., Box 143, Eighty-Four, PA 15330 

(Certified Mail) 

/sc 

1508 
FEDER'AL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

October·1, 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KRIEGER COAL, INCORPORATED, 

Respondent 

. . 

. . 

Docket No. PENN 86-197 

A. C. No. 36-02735-03501 

Krieger Coal, Inc. 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

The Solicitor has filed a motion to approve settlement of 

the one violation involved in this case. The proposed settlement 

is for $30. 

The Solicitor's motion discusses the violation in light of 

the six criteria set forth in section llOCi) of the Federal Mine 

Safety and Health Act of 1977. The operator was cited for violation of 30 C.F.R. § 48.8 because two miners were at work without having received annual refresher training. The Solicitor 

represents that a reduction in the proposed penalty is justified 

because of the precarious financial condition of the operator. 

According to the documents submitted with this motion, the 

operator lost more than $106,000 in 1985 and has mined no coal 

during 1986. The parties assert that payment of the originaliy 

assessed penalty would hamper the operator's efforts to remain in 

business. 

The representations and recommendations of the Solicitor are 

accepted. However, in the future, necessary training must be 

provided. Such a low penalty cannot 'be routinely approved for 

this type of violation regardless of the operator's financial 

condition. 

Accordingly, the motion to approve settlement is GRANTED and 

the operator is ORDERED TO PAY $30 within 30 days of the date of 

this decision. 

Paul Merlin 

Chief Administrative Law Judge 

1509 
Distribution: 

Linda M. Henry, Esq., Office of the Solicitor, u. S. Department 

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

Philadelphia, PA 19104 {Certified Mail) 

Mr. James Krieger, President, Krieger Coal Inc., R.D., Saxton, PA 

16678 (Certified Mail) 

/gl 

1510 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 October 1, 19 86 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

UNITED STATES STEEL MINING 

COMPANY, INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-214 

A.C. No. 36-05018-03604 

Cumberland Mine 

ORDER OF DISMISSAL 

Before: Judge Merlin 

The Solicitor has filed a motion to withdraw his penalty 

petition in this case. The Solicitor represents that the 

two citations involved were withdrawn by MSHA on August 11, 

1986. Both citations were issued for violations of 30 C.F.R. 

§ 75.503 because, in the opinion of the inspector, the 

battery lids on two scoops were not properly fastened. The 

facts presented by these citations are almost identical to 

those in two previous cases in which no violation was found. 

Secretary of Labor v. United States Steel Mining Co., Inc., 

6 FMSHRC 155, 156 (1984); Secretary of Labor v. United 

States Steel Mining Co., Inc., 6 FMSHRC 1510, 1518 (1984). 

Therefore, the withdrawal of the two citations and the 

penalty petition ts proper. 

Accordingly, the motion to withdraw the penalty petition 

is GRANTED and this case is DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

James E. Culp, Esq., Office of the Solicitor, U.S. Department 

of Labor, Rm. 14480-Gateway Bldg., 3535 Market Street, Philadelphia, 

PA 19104 {Certified Mail) 

Billy M~ Tennant, Esq., 600 Grant Street, Room 1580, Pittsburgh, 

PA 15230 (Certified Mail) 

Mr. Samuel L. Cortis, Safety Manager, U.S. Steel Mining Co., 

Inc., Cumberland Mine, 351 West Beau Street, Washington, PA 15301 

(Certified Mail) 

Michael H. Holland, Esq., UMWA, 900 15th Street, N.W., Washington, 

D.C. 20005 (Certified Mail) 

/sc 1511 
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 

ANDREW J. DUBETSKY, 

Complainant 

v. 

BARNES & TUCKER COMPANY, 

Respondent 

October 1 1 1986 

DISCRIMINATION PROCEEDING 

Docket No. PENN 86-227-D 

PITT CD 86-6 

Lancashire No. 20 Mine 

ORDER OF DISMISSAL 

Before: Judge Merlin 

The miner-complainant has reached a settlement with the 

operator, has accepted a lump sum payment and has elected to withdraw his complaint. The Solicitor concurs with the settlement 

and supports the motion to withdraw. Upon independent review of 

the record, it is found that the settlement is fair and in accord 

with the Act. 

Accordingly, the motion to withdraw is GRANTED and this case 

is DISMISSED. 

Law Judge 

Distribution: 

Frederick w. Moncrief, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Thomas J. Jennings, Esq., Alco Standard Corporation, P. o. Box 

834, Valley Forge, PA 19482-0834 (Certified Mail) 

Mr. Gerald P. Scanlon, Vice President, Barnes & Tucker Company, 

1912 Chestnut Avenue, Barnesboro, PA 15714 (Certified Mail) 

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

20005 (Certified Mail) 

/gl 

1512 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 1, 1986 

ALLENTOWN CEMENT COMPANY, 

INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

1513 

CONTEST PROCEEDINGS 

Docket No. PENN 86-229-RM 

Citation No. 2625709; 5/12/86 

Docket No. PENN 86-230-RM 

Citation No. 2625710; 5/12/86 

Docket No. PENN 86-231-RM 

Citation No. 2625712; 5/12/86 

Docket No. PENN 86-232-RM 

Citation No. 2625713; 5/13/86 

Docket No. PENN 86-233-RM 

Citation No. 2625714; 5/13/86 

Docket No. PENN 86-234-RM 

Citation No. 2625715; 5/13/86 

Docket No. PENN 86-235-RM 

Citation No. 2625716; 5/13/86 

Docket No. PENN 86-236-RM 

Citation No. 2625717; 5/14/86 

Docket No. PENN 86-237-RM 

Citation No. 2625718; 5/14/86 

Docket No. PENN 86-238-RM 

Citation No. 2625719; 5/14/86 

Docket No. PENN 86-239-RM 

Citation No. 2625720; 5/15/86 

Docket No. PENN 86-240-RM 

Citation No. 2625650; 5/12/86 

Docket No. PENN 86-241-RM 

Citation No. 2625651; 5/12/86 

Docket No. PENN 86-242-RM 

Citation No. 2625652; 5/12/86 
Before: Judge Merlin 

Docket No. PENN 86-243-RM 

Citation No. 2625653; 5/12/86 

Docket No. PENN 86-244-RM 

Citation No. 2625654; 5/12/86 

Docket No. PENN 86-245-RM 

Citation No. 2625655; 5/13/86 

Docket No. PENN 86-246-RM 

Citation No. 2625656; 5/13/86 

Docket No. PENN 86-247-RM 

Citation No. 2625657; 5/13/86 

Docket No. PENN 86-248-RM 

Citation No. 2625658; 5/13/86 

Docket No. PENN 86-249-RM 

: Citation No. 2625659; 5/13/86 

Docket No. PENN 86-250-RM 

Citation No. 2625660; 5/13/86 

Docket No. PENN 86-251-RM 

Citation No. 2626521; 5/14/86 

Docket No. PENN 86-252-RM 

Citation No. 2626522; 5/14/86 

Docket No. PENN 86-253-RM 

Citation No. 2626523; 5/14/86 

Docket No. PENN 86-254-RM 

Citation No. 2626524; 5/14/86 

Docket No. PENN 86-255-RM 

Citation No. 2626525; 5/14/86 

Docket No. PENN 86-256-RM 

Citation No. 2626526; 5/15/86 

Docket No. PENN 86-257-RM 

Citation No. 2626527; 5/19/86 

Docket No. PENN 86-258-RM 

Citation No. 2626532; 5/13/86 

Evansville Quarry & Mill 

ORDER OF DISMISSAL 

1514 
The operator filed the above-captioned thirty notices of 

contest on July 28, 1986. The contests seek review of citations 

issued from May 12, 1986 to May 19, 1986. 

The Solicitor has filed a motion to dismiss on the ground 

that the notices of contest are untimely filed. The operator has 

opposed the motion. Both parties have filed memoranda in support 

of their positions. 

The operator contends that its notices of contest are timely 

because they were filed within thirty days of the MSHA's notification of the proposed penalty assessments.· The operator has 

failed, however, to submit copies of the notifications it alleges 

it received from MSHA or even to give their dates. In no event, 

could the operator's opposition to the Solicitor's dismissal 

motion be sustained without the necessary documentary support. 

In .any event, in order to expedite consideration of these cases 

it will be assumed that the notices of contest were filed within 

30 days of the operator's notification of the proposed 

assessments. 

Section 105(a) of the Act, 30 u.s.c. 815(a) provides in 

pertinent part: 

Sec. 105(a) If, after an inspection or 

investigation, the Secretary issues a citation or order under section 104, he shall, 

within a ~easonable time after the termination of such inspection or investigation, 

notify the operator by certified mail of the 

civil penalty proposed to be assessed under 

section llO(a) for the violation cited and 

that the operator has 30 days within which to 

notify the Secretary that he wishes to contest the citation or proposed assessment of 

penalty ..• If, within 30 days from the 

receipt of the notification issued by the 

Secretary, the operator fails to notify the 

Secretary that he intends to contest the 

citation or the proposed assessment of 

penalty, ... the citation and the proposed 

assessment of penalty shall be deemed a final 

order of the Commission and not subject to 

review by any court or agency •..• 

Section 105(d) of the Act, 30 u.s.c. 815(d), provides in 

pertinent part: 

Cd) If, within 30 days of receipt thereof, an operator of a coal or other mine notifies the Secretary that he intends to contest 

the issuance or modification of an order 

1515 
issued under section 104, or citation or a 

notification of proposed assessment of a 

penalty issued under subsection (a) or {b) of 

this section, .•• the Secretary shall 

immediately advise the Commission of such 

notification, and the Commission shall afford 

an opportunity for a hearing (in accordance 

with section 554 of title 5, United States 

Code, but without regard to subsection (a)(3) 

of such section), and thereafter shall issue 

an order, based on findings of fact, 

affirming, modifying, or vacating the Secretary's citation, order, or proposed penalty, 

or directing other appropriate relief .••• 

The foregoing statutory sections as implemented by Commission regulations establish parallel procedures for the various 

types of actions an operator can challenge. With respect to each 

of them there is a filing requirement of 30 days. If an 

operator desires to challenge the issuance of a citation or 

order, it must file its notice of contest within 30 days of its 

receipt of the citation or order. See 29 C.F.R. § 2700.20 et 

seq. under the heading "Contests of Citations and Orders." If an 

operator wants to question a penalty assessment, it may do so 

within 30 days from its receipt of the notification of proposed 

assessments. See 29 C.F.R. § 2700.26 et seq. under the heading 

"Contests of Proposed Assessment of Penalties." By separating 

notices of contest regarding citations and orders from contests 

of proposed penalty assessments, the regulations require that 

citations and orders be contested within 30 days of their receipt 

by an operator and that likewise, proposed penalty assessments be 

contested within 30 days of notification by an operator. The 

regulations do not contemplate that contests of citations be 

filed within 30 days of proposed penalty assessments. On the 

contrary, the regulations specifically provide that an operator's 

failure to file a notice of contest shall not preclude it from 

challenging the citation in a penalty proceeding. 29 C.F.R. 

§ 2700.22. If the operator could file its notice of contest when 

it receives the penalty proposal, section 2700.22 of the 

regulations would be unnecessary. 

The operator seeks to rely upon certain language in section 

105(a) regarding notification by the Secretary of Labor to the 

operator of a proposed penalty and contest by the operator within 

30 days of the citation or proposed assessment. Section 105(a) 

is principally. concerned with notifications by the Secretary to 

the operator, whereas 105(d) lays down the conditions precedent 

to hearing and review by the Commission. Giving proper effect to 

section 105(d) requires a 30~day filing period for notices, 

orders and proposed penalty assessments respectively, in 

accordance with Commission regulations, supra. 

1516 
Applicable Commission pre.cedent also demonstrates that a 

notice of contest of a citation must be filed within 39 days of 

its issuance. In Energy Fuels Corporation, 1 FMSHRC 299 (May 

1979) the Commission considered whether a notice of contest of a 

citation could be filed within 30 days of the issuance of a 

citation and before the Secretary proposes a penalty. Under the 

prior 1969 Mine Safety Act such immediate reviews of abated citations (as opposed to withdrawal orders) had not been allowed. 

The Commission decided that under the 1977 Act immediate review 

of citations was available, explaining why it was necessary in 

many situations such as expensive abatement, special findings of 

unwarrantable failure, etc. Since under Energy Fuels the 

operator has the right to contest a citation immediately upon its 

issuance, giving it the right also to file the same contest later 

when the Secretary brings the penalty case, would be redundant. 

The Commission has left open the issue whether an operator who 

does not file an immediate notice of contest from a withdrawal 

order can later challenge special findings in a subsequent 

penalty proceeding, Black Diamond Coal Mining Company, 

7 FMSHRC 1117, 1122, n. 7 (Aug. 1985). 1/ Admittedly, Black 

Diamond concerned a withdrawal order, but that makes no 

difference. Since the Commission in Energy Fuels gave the same 

right of immediate review to citations as previously had existed 

with respect to withdrawal orders, there is no reason now to give 

an additional right of belated review such as that argued for by 

this operator with respect to the contest of citations. Also, 

although the Commission reserved the question in Black 

Diamond, it has decided penalty cases which involved the special 

finding of "significant and substarttial." Cement Division, 

National Gypsum Company, 3 FMSHRC 822 (1981); u. S. Steel Mining 

Co., Inc., 6 FMSHRC 1834 (1984); See also, C.D. Livington, 8 

FMSHRC 1006, 1007, n. 2 (1986). 

That the operator has no right to file a contest from a 

citation within 30 day$ of the proposed assessment notification 

also is clear from the Commission's decision in Old Ben Coal 

Company, 7 FMSHRC 205 (Feb. 1985). In that case the operator 

filed an immediate notice of contest of a citation within 30 days 

from issuance of the the citation but it did not pursue the subsequent penalty case. The Commission held that the failure to contest the penalty extinguished the operator's right to continue 

with the contest case. The earlier contest in effect, merges 

with the subsequent penalty. Under such circumstances existence 

of a right to file a contest when the penalty case begins would 

make no sense. 

±I In this case the operator has not raised the issue of 

special findings. 

1517 
If the operator has timely contested the civil penalties 

proposed £or these citations and requested a hearing, then it 

will be able to contest the validity of the citations in the 

civil penalty proceedings. 

Accordingly, the Solicitor's motion is GRANTED and these 

cases are DISMISSED. 

Law Judge 

Distribution: 

J. Anthony.Messina, Esq., Robert S. Hawkins, Esq., Pepper, 

Hamilton & Scheetz, 2001 The Fidelity Building, 123 South Broad 

Street, Philadelphia, PA 19109 (Certified Mail) 

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

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

Philadelphia, PA 19104 (Certified Mail) 

Mr. Lawrence Beeman, Director, Office of Assessments, U. S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

1518 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 1, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 86-112 

A. C. No. 46-01438-03631 

Ireland UG Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

The Solicitor has filed a motion to approve settlement of 

the one violation involved in this case. The originally assessed 

penalty was $750. The proposed settlement is for $250. 

The Solicitor's motion discusses the violation in light the 

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

Safety and Health Act of 1977. Order No. 2714192 was issued for 

violation of 30 c:F.R. § 75.902 because of the inoperative state 

of the failsafe ground check circuit. A back-up ground check 

system was not functioning due to a manufacturer's defect. The 

Solicitor represents that a reduction in the proposed penalty is 

justified because the negligence of the operator was less than 

was originally thought. The company was not aware that the 

circuit and back-up system were not working. The parties had 

proposed a settlement of $100. Because of the seriousness of the 

violation, the initial proposed settlement was rejected and the 

parties were advised to reconfer. A settlement in the amount of 

$250 was then proposed. 

The representations and recommendations ~f the parties are 

now accepted. However, the operator should take whatever action 

is necessary including discipline, if appropriate, to prevent any 

recurrence of such an incident. 

1519 
Accordingly, the motion to approve settlement is GRANTED and 

the operator is ORDERED TO PAY $250 within 30 days of the date of 

this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Thomas A. Brown, Esq., Office of the Solicitor, u. ·s. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

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

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Safety Department, Consolidation Coal Company, 450 Racetrack 

Road, Washington, PA 15301 (Certified Mail) 

Michael H. Holland, Esq., UMWA, 900 15th Street, N.W., 

Washington, DC 20005 (Certified Mail) 

/gl 

1520 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OCT 2 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH, 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 83-73 

A.C. No. 11-00598-03524 

Eagle No. 2 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

This case is before me upon a petition for assessment 

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

Safety and Health Act of 1977, 30 U.S.C. 801, et seq. 

Petitioner has filed a motion to approve a settlement agreement 

and to dismiss the case. Respondent has filed a response 

thereto. I have considered the representations and documentation 

submitted by both parties and I conclude that the proffered 

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

the Act. 

ORDER 

WHEREFORE IT IS ORDERED that the motion for approval of 

settlement is GRANTED and Respondent shall pay the approved 

penalties in the amount of $3,000.00 within 30 days of this 

Decision. Upon such payment this proceeding is DISMISSED. 

This Decision and Order were read to counsel for the 

parties October 2, 1986; and were approved by them before 

signing below. 

Distribution: 

_,...~...,.-~} J ! J "/ .. ' ' ;· . ·(...-;.,'.~ ~v~ 

William Fauver 

Administrative Law Judge 

J. Philip Smith, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Cer ied 

Mail) 

Michael o. McKown, Esq., P.O. Box 235, St. Louis, MO 63166 

(Certified Mail) 

Mr. Parvin E. Koker, General Delivery, New Burnside, IL 62967 

(Certified Mail) 

kg 

1521 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 3, 1986 

SECRETARY OF LABOR, 

Mine Safety and Health 

Administration (MSHA) , 

Petitioner 

v. 

COLUMBIA PORTLAL~D CEMENT CO., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 86-38-M 

A.C. No. 33-03990-05507 

Jonathan Limestone Mine 

ORDER OF DEFAULT 

Before: Judge Merlin 

On February 14, 1986, the Secretary of Labor filed a 

proposal for a penalty against you, the mine operator, for 

an alleged violation of the Federal Mine Safety and Health 

Act of 1977. On July 7, 1986., you were ordered to le your 

Answer to the Proposal or show good reason for not doing so. 

You have done neither. 

Judgment by default 

Secretary. As a 

sum of $2,000.00 

Distribution: by certified mail 

the 

Paul Merlin 

Chief Administrative Law Judge 

Marcella L. Thompson, Esq., Off of the Solicitor, U.S. 

Department of Labor, 881 Federal Bldg., 1240 East Ninth St., 

Cleveland, Ohio 441~9 

Mr. Charles Kuhn, Manager, Columbia Portland Cement Co., 

P.O. Box 1531, Zanesville, Ohio 43701 

jhe 

1522 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

. 2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 9 1986 

DENNIS AYRES, DISCRIMINATION PROCEEDING 

Complainant 

v. Docket No. LAKE 86-65-D 

MSHA Case No. VINC CD 86-2 

FAIRPOINT COAL COMPANY, 

Respondent Fairpoint Strip Mine 

Appearances: 

Before: 

DECISION 

Dennis Ayres, Lantana, Florida, pro se; 

Rodney D. Hanson, Esq., Thomas, Fregiato, Myser 

& Hanson, Bridgeport, Ohio, for Respondent. 

Judge Koutras 

Statement of the Case 

This is a discrimination proceeding initiated by the 

complainant Dennis Ayres against the respondent pursuant to 

section 105(c) of the Federal Mine Safety and Health Act of 

1977, alleging that the respondent discriminated against him 

by discharging him for exercising certain rights afforded him 

under the Act. Mr. Ayres' initial complaint was investigated 

by MSHA, and it declined to file a formal complaint with this 

Commission. Mr. Ayres subsequently filed this action with the 

Commission pro ~· 

A hearing was held in Wheeling, West Virginia, on 

August 26, 1986, and the parties appeared and participated 

fully therein. At the close of the complainant's case, the 

parties agreed to settle this dispute, and they have filed 

sufficient information in this regard to enable me to dispose 

of the matter. 

Discussion 

Mr. Ayres testified that he worked for the respondent off 

and on since May, 1978, and during intervening periods of 

lay-offs. He was last employed as a dozer operator on 

October 14, 1985. Except for two weeks between jobs, he has 

1523 
been steadily employed since leaving the respondent's employ in 

various construction jobs in Florida. He testified as to the 

circumstances surrounding his complaint, and he believed that 

he was discriminated against by the respondent because he was 

concerned about operating equipment which he believed to be 

unsafe. He te ied about certain events concerning a portion 

of a highwall which fell on his dozer on October 14, 1985, and 

his dispute over that incident. Mr. Ayres believed that the 

incident resulted from the failure of the machine reverse gear 

to engage properly, and he stated that he had reported this 

condition to mine management and nothing was done about it 

(Tr. 8-12, 14 ) • 

Mr. Ayres testified that on October 14, 1985, shortly after 

the highwall incident, he went to the mine office and informed 

a secretary that November 14, 1985, would be his last day of 

work. He also told the secretary that if he were further 

"hassled," he would quit that same day, and even he were not 

further "hassled," he was giving notice that November 1, 1985, 

would be his last day of work (Tr. 12). Later that day, he was 

confronted by mine foreman Louis Zaccagnini, who purportedly 

told him "You don't tell me when you're going to quit; I tell 

you when" (Tr. 13). Mr. Zaccagnini then gave him his paycheck 

and "it was all over" (Tr. 13-14) . Mr. Ayres confirmed that 

Mr. Zaccagnini did not use the words "you're fired," and~simply 

stated "you're done" (Tr. 14). 

Mr. Ayres confirmed that while he was aware of the condition of his machine for 3-weeks prior to the highwall incident 

on October 14, and was aware of his right not to operate unsafe 

equipment, he nonetheless operated the machine and never refused 

to operate it because he believed was unsafe. He did so 

because he was he would be £ired if he refused to operate 

the machine (Tr. 17-18). He also confirmed that Mr. Zaccagnini 

accused him of causing the highwall incident which resulted in 

damage to the machine, but Mr. Ayres took the position that if 

the reverse gear were operating properly, he could have backed 

away from the highwall and avoided the falling material (Tr. 

18-19). 

Mr. Ayres confirmed that prior to his purported.discharge, 

he filed no complaints with MSHA, but did report the condition 

his machine to mine management (Tr. 20). He conceded that 

management dispatched a mechanic to look at the machine the 

same day that he complained, and he believed that management's 

response was appropriate (Tr. 21). He also conceded that -

Mr. Zaccagnini did not tell him that he was fired because of his 

complaints about the_ machine, or that if he did not operate the 

1524 
machine in the condition that it was in, that he would be fired 

(Tr. 21}. Mr. Ayres confirmed that after the mechanic looked at 

the machine, he did not inform Mr. Zaccagnini that he was still 

having a problem, and made no further complaints to anyone 

(Tr. 22). 

Mr. Ayres conceded that operator error may cause the type 

of incident which occurred at the highwall in question. He also 

conceded that he operated the machine for approximately an hour 

and a half prior to the incident in question, did not believe 

that he could get.hurt, and that he could run the machine "the 

best I could with the machine I had" (Tr. 27). He confirmed that 

after the highwall fall, his supervisor Bill Simmons instructed 

him to work with the mechanic to get it ready to operate, and no 

one told him to operate it in an unsafe condition (Tr. 28). He 

also confirmed that after thinking about it further, he became 

angry and decided to inform management that he quit his job (Tr. 

28) • He conceded that had he not been terminated earlier by 

Mr. Zaccagnini, November 1, 1985, would have been his last day 

of work, and he would have quit that day (Tr. 30-31}. He also 

conceded that he did not inform the secretary of any reasons for 

giving notice that he would quit (Tr. 31.). 

Mr. Ayres confirmed that he had in the past engaged in a dispute with mine management over an incident concerning his wearing 

of short pants on the job, but he denied cursing or threatening a 

foreman. He also confirmed that he was sent home on September 9, 

1985, because of this dispute, but was not fired or threatened 

with termination {Tr. 32-36). Mr. Ayres stated that he got along 

well with mine management, was never disciplined, and that he had 

a good attendance record (Tr. 39-40). 

At the close of his case, Mr. Avres indicated to the court 

that he would be rec~ptive to a settlement of his dispute with 

the respondent. The parties were afforded an opportunity to 

explore this further, and they agreed that Mr. Ayres would be 

paid for 2-weeks pay from October 14, 1985 to November 1, 1985, 

in the gross amount of $760, subject to the usual deductions, 

and Mr. Ayres would execute a release and his complaint would be 

dismissed (Tr. 42-43). Mr. Ayres stated that he was sati ied 

with this settlement of his complaint (Tr. 44). 

Conclusion 

The parties have now finalized their agreed-upon settlement disposition of the complaint filed in this case. Mr. Ayres 

has received a cashier's check from the respondent in the net 

1525 
amount of $556.35, after appropriate social security and income 

tax deductions, and he has executed a release and agreement 

dismissing his complaint with prejudice. Under the circumstances, 

I am satisfied that the agreement is reasonable and in the public 

interest and in accord with the intent and purposes the Act. 

I see no reason why this matter should not now be dismissed. 

ORDER 

In view of the foregoing settlement disposition of this 

matter, and having concluded that the parties have complied 

with the terms of their agreement, this matter IS DISMISSED. 

ib~lliW~ Administrative Law Judge 

Distribution: 

Mr. Dennis Ayres, 1441 W. Jennings Street, Lantana, FL 33462 

(Certified Mail) 

Rodney D. Hanson, Esq., Thomas, Fregiato, Myser & Hanson, 

320 Howard Street, Bridgeport; OH 43912-1197 (Certified Mail) 

/fb 

1526 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 9 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

·Petitioner 

·v. 

K C MINING COMPANY, 

Respondent 

Docket No. SE 86-62 

A. C. No. 40-02876-03503 

No. 1 Mine 

DECISION 

Appearances: Mary Sue Ray, Esq., Of ce of the Solicitor, 

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

for Petitioner; 

Before: 

Archie Ketchersid, Whitwell, Tennessee, for 

Respondent. 

Judge Maurer 

This case is before me upon a petition for assessment of 

a civil penalty under Section 105(d} of the Federal Mine 

Safety and Health Act of 1977 (the Act). On the record at the 

hearing on September 18, 1986, at Nashville, Tennessee, the 

parties jointly moved for approval of a settlement agreement 

and dismissal of the case. The violation in this case was 

originally assessed at $478 and the respondent has agreed to 

remit the full amount in installments of $150, commencing on 

October 1, 1986, with a second $150 installment on November 1, 

1986, a third on December 1, 1986, and a final payment of $28 

on January 1, 1987. 

I have considered the representations and documentation 

submitted in this case, and I conclude that the proffered 

settlement is appropriate under the criteria set forth in 

Section llO(i) of the Act. 

WHEREFORE, the motion for approval of a settlement is 

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

$478 as set out above. Upon payment in full, this proceeding is DISMISSED. 

1 .S?7 
Distribution: 

Mary Sue Ray, Esq., Office of the Solicitor, u. s. Department 

of Labor, 801 Broadway, Rm. 280, Nashville, TN 37203 

(Certified Mail) 

Archie Ketchersid, KC Mining Co., Route 2, Box 337-A, Whitwell, 

TN 37397 (Certified Mail) 

yh 1528 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES OCT 9 1986 333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BRUBAKER-MANN INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 85-157-M 

A.C. No. 04-00030-05503 

Brubaker-Mann 

AMENDMENT TO DECISION 

Comes now John J. Morris, Administrative Law Judge in the 

above case, and states that the above decision was issued on 

September 30, 1986. Further, the Commission has not yet directed 

this decision for review. 

Pursuant to Commission Rule 65(c), 29 C.F.R. § 2700.GS(c), 

the judge amends said decision by striking all of the decision 

beginning with "Summary of the Evidence" and substituting a new 

portion therefor. 

This. amendment is necessary to correct a clerical mistake 

that occurred when the text from WEST 85-177-M was erroneously 

transposed to this case. 

The full text of the amended decision is ~ttached hereto. 

Law Judge 

Distribution: 

Rochelle Ramsey, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3247 Federal Building, 300 North Los Angeles Street, 

Los Angeles, CA 90012 (Certified Mail) 

Steve Pell, Esq., 3200 Telegraph Road, Suite 207, Ventura, CA 

93003 (Certified Mail) 

/ot 

29 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE "00 

DENVER, COlORADO 8020" 

OCT 9 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BRUBAKER-MANN INCORPORATED, 

Respondent 

: 

: 

Docket No. WEST 85-157-M 

A.C. No. 04-00030-05503 

Brubaker-Mann 

AMENDED DECISION 

Appearances: Rochelle Ramsey, Esq., Office of the Solicitor, 

U.S. Department of Labor, Los Angeles, California, 

for Petitioner: 

Steve Pell, Esq., Ventura, California, 

for Respondent. 

Before: Judge Morris 

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

Health Administration, (MSHA), charges respondent with violating 

a safety regulation promulgated under the Federal Mine Safety and 

Health Act, 30 u.s.c. § 801 et seq., (the Act). 

After notice to the parties a hearing on the merits commenced in Los Angeles, California on June 11, l986. 

The parties filed post-trial briefs. 

Issues 

Certain threshold issues were discussed and ruled contrary 

to respondent's contentions in WEST 84-96-M. 

Stipulation 

The parties stipulated that respondent is a small operator. 

Further, respondent is subject to the Act unless MSHA's jurisdiction is pre-empted by the Californ~a Occupational Safety and 

Health Administration (Tr. 191, 249). 

Citation 2364576 

This citation charges respondent with violating 30 C.F.R. 

§ 56.6005 which provides as follows: 

§ 56.6005 Areas around storage facilities. 

Areas surrounding magazines and facilities for the.storage 

1530 
of blasting agents shall be kept clear of rubbish, brush, 

dry grass, or trees {other than live trees 10 or more feet 

tall), for a distance not less than 25 feet in all 

directions, and other unnecessary combustible materials 

for a distance of not less than 50 feet. 

Summary of the Evidence 

MSHA Inspector Ronald Ainge issued this citation when he 

found two pieces of lumber within six feet of a power magazine. 

In addition, there were railroad ties within 20 feet of the 

magazine (Tr. 58, 129). In the inspector's opinion several 

hundred railroad ties are unnecessary for a mining operation 

(Tr. 125, 126). However, there were loading docks in the area 

(Tr. 126) • 

The railroad ties were higher than the nearby rock pile 

(Tr. 124) . 

While the inspector considered that an accident was unlikely 

he believed a fire could involve the powder magazine with a resulting 

explosion (Tr. 58, 125). 

. Powder magazines also fall under the jurisdiction of other 

federal, state and county authorities (Tr. 127, 128, 215). 

Mr. Mann testified that the area met the requirements of the 

federal firearm and explosives representatives (Tr. 243, 244). 

These authorities required the company to install a stone berm 

approximately 10 fe~t high and the company complied (Tr. 244). 

Evaluation of the Evidence 

The facts establish a violation of the regulation. There 

were two pieces of timber and several hundred railroad ties within 

20 feet of the powder magazine. I concur with the inspector's 

view that such a large number of ties constitute 11 unnecessary combustible material" as prohibited by the regulation. 

Concerning Mr. Mann's testimony: I accept his statements 

that other federal authorities required a stone berm. But I do 

not find it credible that they would also require railroad ties 

in such close proximity to the magazine. 

Citation 2364576 should be affirmed. 

Civil Penalty 

The statutory mandate to assess civil penalties is contained 

in section llO{i) of the Act, now codified 30 u.s.c. § 820(i). 

Concerning prior history: the computer printout (Ex. P34) shows 

that respondent had no violations in the two-year period ending 

March 5, 1985. The printout shows two violations before March 6, 

1983. But, as the respondent contends, these would appear to be 

1531 
the two citations vacated in Brubake·r-Mann, 2 FMSHRC 227 (1980). 

Accordingly, I conclude that the Secretary has failed to prove 

any adverse history on the part of respondent. The parties have 

stipulated that the operator is a small company. The penalty 

appears appropriate in relation to a small operator and it should 

not affect the ability of the company to continue in business. 

Concerning the negligence of the operator: the condition 

around the powder magazine was obvious. Several hundred railroad 

ties are readily apparent. Accordingly, the operator must be 

considered to be negligent. The gravity is minimal since it is 

not likely that an explosion would occur. Finally, the operator 

is credited with statutory good faith since the company abated 

the violative condition. 

On balance, I consider that the proposed penalty of $20 

should be reduced to $15. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portion of this decision, the following conclusions 

of law are entered. 

1. The Commission has jurisdiction to decide this case. 

2. Citation 2364576 should be affirmed and a penalty of $15 

assessed. 

Based on the foregoing findings of fact and conclusions of 

law I enter the following: 

ORDER 

1. Citation 2364576 is affirmed. 

2. A civil penalty of $15 is assessed. 

Law Judge 

Distribution: 

Rochelle Ramsey, Esq., Office of the Solicitor, U.S. Department 

of Labor, 324 7 Federal Building, 300 Nor.th Los Angeles Street, 

Los Angeles, California 90012 {Certified Mail) 

Steve Pell, Esq., 3200 Telegraph Road, Suite 207, Ventura, 

California 93003 (Certified Mail) 

/ot 

1532 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

October ,16, ,19 86 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

AM~ CHEMICAL CORPORATION, 

Respondent 

. . 

. . 

. . 

. . 

Docket No. CENT 84-68-M 

A.C. No. 24-00174-05515 

Docket No. CENT 84-69-M 

A.C. No. 29-00174-05516 

: .Amax Mine & Mill 

ORDER LIFTING STAY 

AND 

DECISION APPROVING SETTLEMENT 

Appearances: Jack F. Ostrander, Esq., Office of the 

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

Texas for Petitioner; 

Charles c. High, Jr., Esq., Kemp, Smith, Duncan 

& Hammond, El Paso, Texas, for Respondent. 

Before: Judge Melick 

These cases are before me upon petitions for assessment 

of civil penalty under Section llOCd) of the Federal Mine 

Safety and Health Act of 1977 (the Act). Petitioner had 

filed motions to approve settlement agreements and to dismiss 

the cases proposing a reduction in penalties from $2,925 to 

$445. These motions were denied by the undersigned and 

hearings on the merits were held. Following those hearings 

and the subsequent release by the Commission of the decision 

in Secretary v • .Amax Chemical Corporation, 8 FMSHRC 

(Docket No. CENT 84-91-M) the parties renewed their request 

for settlement. I have considered the testimony and documentation submitted and I have evaluated the effect of the Commission's decision in Amax, supra, on these cases. Under the 

circumstances I now conclude that the proffered settlement is 

appropriate. 

WHEREFORE, the Stay Orders issued June 18, 1985 are 

lifted, the motions for approval of settlement are GRANTED, 

and it is ORDERED that Respondent pay a penalty of $445 

within 30 days of this order. The deletion of "significant 

1533 
and substantial" findings and the vacation of citations set 

forth in the Motion for Settlement are accordi ly also 

approved. 

Distribution: 

Jack F. Ostrander, Esq., Office of 

ment of Labor, 555 Griffin Square 

TX 75202 CCertif ied Mail) 

U.S. Depart501, Dallas, 

Charles c. High, Jr., Esq., Kemp, Smith, Duncan & Hammond, 

2000 State National Plaza, El Paso, TX 79901 (Certified Mail) 

rbg 

1534 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 161986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

GREENWICH COLLIERIES, 

DIVISION OF PENNSYLVANIA 

MINES CORPORATION, 

Respondent 

GREENWICH COLLIERIES, 

DIVISION OF PENNSYLVANIA 

MINES CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 85-204 

A.C. No. 36-02405-03596 

: Greenwich No. 1 Mine 

. . 

. . 

. . 

. . 

: CONTEST PROCEEDING 

Docket No. PENN 85-114-R 

: Order No. 2255733-01: 1/17/85 

. . 

: 

Greenwich No. 1 Mine 

DECISIONS 

Appearances: 

Before: 

Linda M. Henry, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for 

Petitioner/Respondent; 

Joseph T. Kosek, Jr., Esq., Ebensburg, 

Pennsylvania, for Respondent/Contestant. 

Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concern a civil penalty 

proceeqing initiated by MSHA against the respondent pursuant 

to section llO(a) of the Federal Mine Safety and Health Act 

of 1977, seeking a civil penalty assessment for an alleged 

violation of mandatory safety standard 30 C.F.R. § 75.316, as 

stated in a section 104(a) Citation No. 2255733, with special 

1535 
"significant and substantial" CS&S) findings, issued by an 

MSHA inspector on January 16, 1985. The citation was subsequently modified by the inspector on January 17, 1986, to a 

section 104(d)(2) Order No. 2255733-01. The contest was filed 

by the contestant to challenge the legality of the order. 

The cases were consolidated for hearing, and the parties 

appeared and participated fully therein. Greenwich filed a 

posthearing brief, but MSHA did not. However, I have considered its oral arguments made during the hearing. 

Issues 

The issues presented are whether or not the condition or 

practice cited by the inspector constitutes a violation of 

the cited mandatory safety standard, whether the alleged violation was "significant and substantial," and whether it constitutes an "unwarrantable failure" by the contestant to 

comply with the requirements of the standard in question. 

Additional issues raised by the parties are identified and 

disposed of in the course of these decisions, including an 

appropriate civil penalty assessment for the violation in 

question. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

P.L. 95-165, 30 u.s.c. § 801 et seq. 

2. Commission Rules, 29 C.F.R. § 2700.1 et seg. 

Stipulations 

1. The Greenwich No. 1 Mine is owned and operated by 

the respondent/contestant Greenwich Collieries. 

2. Greenwich Collieries and the No. l Mine are subject 

to the Act. 

3. The presiding administrative law judge has jurisdiction to hear and decide these cases. 

4. The subject order issued in these proceedings was 

properly served on a representative of Greenwich Collieries 

and may be admitted to establish its issuance and service. 

5. Payment of the assessed civil penalty will not 

adversely affect the respondent/contestant's ability to continue in business. 

1536 
6. The respondent/contestant's annual coal production 

is approximately two million tons. Mine production for the 

No. 1 Mine is approximately 877,000 tons annually. Greenwich 

Collieries is a medium-to-large mine operator. 

7. The respondent/contestant exhibited ordinary good 

faith in timely abating< the cited condition or practice. 

8. Respondent/contestant's history of prior paid civil 

penalty assessments consists of 245 paid assessments for the 

first 9 months of 1985, 214 in 1984, and 155 in 1983. 

9. The 104(d) "chain" is properly established in that 

no intervening "clean" mine inspections took place immediately 

preceding the issuance of the subject contested section 

104Cd)(2) order. 

MSHA's Testimony and Evidence 

MSHA Inspector Samuel Brunatti stated that he is a ventilation specialist, and he testified as to his experience 

and training. He confirmed that he issued a section 104(a) 

Citation No. 2255733, on January 16, 1985, but that the conditions cited were previously observed by him when he was at 

the mine on January 10, 1985. He explained that his supervisor instructed him to go to the D-9 area of the mine during 

the midnight-to-8:00 a.m. shift on January 10, to examine the 

area. The mine had experienced a large methane accumulation 

and miners were withdrawn when he arrived at the mine. 

Mr. Brunatti identified exhibit G-2, as a copy of a portion of the mine map depicting the area in question and he 

confirmed that he made notations on the map on January 10, 

depicting the direction of air flow, and his air and methane 

readings. He confirmed that he determined the direction of 

air flow by means of a smoke test and observation (Tr. 17-23). 

Mr. Brunatti confirmed that when he was at the mine on 

January 10, there was no methane accumulation and he indicated 

that he complimented the company for the job they did in clearing away the methane which prompted the withdrawal of miners. 

He confirmed the prior methane accumulation by reviewing the 

mine examiner and foreman books (Tr. 24). He also confirmed 

that he issued no citations or orders on January 10, and that 

he was at the mine in his capacity as the resident inspector 

and was not at that time a ventilation specialist. He also 

confirmed that he did not have the appropriate ventilation 

plan with him on January 10, and had no knowledge of the ventilation system (Tr. 24). 

1537 
Mr. Brunatti stated that after completion of his inspection on January 10, his supervisor was concerned about the 

methane incident and he asked to review his notes. After a 

discussion with his supervisor and a review of his notes and 

the appropriate ventilation plans, it was determined that the 

conditions he observed on January 10, with regard to the 

direction of the air flow constituted a violation of the plan 

(Tr. 25). 

Mr. Brunatti identified exhibit G-3 as the ventilation 

plan for the D-9 area in question, which was approved by MSHA 

on June 7, 1985. Exhibit G-3(a) is the August 1, 1984, plan 

for ventilating the active section while producing coal, and 

the direction of air flow over the gob into the bleeder 

entries, and to the return. Both plan provisions are applicable in this case, and the June 7, provisions in no way changed 

the,requirements of the plan reviewed on August 1 (Tr. 26). 

Mr. Brunatti explained the ventilation plan requirements 

for maintaining the direction of air flow over the cited D-9 

area of the mine. He confirmed that the conditions he 

observed on January 10, which he noted on exhibit G-2, reflect 

that the air ventilating the section was escaping out of the 

return instead of putting pressure on the gob area, thus creating, in his opinion, a methane build-up in the back end of the 

gob area. It was his view that had all of the available ventilation air been placed on the gob, and had proper air pressure 

been maintained on the gob, the methane build-up previously 

experienced would not have occurred. He confirmed that he 

issued the citation because the air flow was misdirected in 

violation of the ventilation plan because in two of the three 

entries in the area, air was travelling inby, when in fact the 

plan depicts the air flowing outby. 

In support of the violation, Mr. Brunatti stated that 

the ventilation plan provision shown on the second page of 

exhibit G-3, at the upper left-hand corner, depicts a double 

arrow pointing to the top of the page indicating the direction of air flow over the gob and exiting at the point marked 

BE #58, which is the evaluation point for checking methane 

liberation and air flow. At that point, the air then travels 

down the three entries in the direction of the three double 

arrows shown on the diagram and out the return. In contrast 

to these required air directions, on January 10, he found 

that the air was travelling down the number one entry, but in 

the opposite direction in the adjacent two entries CTr.~-

27-33). 

1538 
Mr. Brunatti confirmed that the section 104(a) citation 

issued on January 16, was subsequently modified to a section 

104(d)(2) order the next day. He confirmed that it was modified after some discussion with his supervisor, but that he 

(Brunatti) made the decision to modify the citation to an 

order. Mr. Brunatti stated that his notes for January 16, 

reflect a conversation with company safety representative 

Desalvo and mine foreman Richard Endler, during which they 

stated that they believed that the direction of air flow as 

found by Mr. Brunatti on January 10, was the way it was 

depicted on the ventilation plan, but was contrary to the way 

the company engineer submitted it on the plan. Mr. Brunatti 

stated that mine management was ventilating the section one 

way, but that the plan submitted by the engineer indicated 

ventilation in a different way. Mr. Brunatti stated further 

that he had the "impression" that Mr. Desalvo and Mr. Endler 

were aware of the fact that the direction of air on 

January 10, was different from that shown on the submitted 

plan, but he conceded that he could not confirm that they had 

actual knowledge of the plan requirements until he later 

called it to their attention (Tr. 36). 

Mr. Brunatti confirmed that the No. 1 Mine is on a section 103(i) 5-day spot inspection status because it has a 

history of methane ignition, and that an explosion occurred 

at the mine in February or January of 1984, resulting in the 

death of three miners. The explosion was the result of an 

ac.cumulation of methane (Tr. 37). 

Mr. Brunatti confirmed that at the time he issued the 

initial citation on January 16, he marked the citation form 

to reflect "moderate negligence," and that he did so because 

"I wasn't really aware of all that was involved, you know, as 

far as the ventilation changes I'm sure" (Tr. 37). He also 

stated that he was influenced by the fact that the company 

had withdrawn the miners and had done a fine job in correcting 

the methane problem. He later realized that mine management 

should have been aware of the ventilation plan requirements 

(Tr. 38). 

Mr. Brunatti stated that the ventilation plan is designed 

to prevent methane accumulations, and that "what could happen 

here is a methane gas explosion." If the cited condition were 

uncorrected, he believed it was highly likely that an 

explosion would have occurred because the area was a pillar 

area where the roof is constantly falling, and sparks from a 

roof f'all would be an ignition source to ignite the methane. 

He conceded that he had no knowledge of any such ignitions 

from roof falls in the mine in question, but was aware of such 

1539 
an occurrence. in another mine <Tr. 4 0 > • Mr. Brun at ti confirmed that he indicated on the citation form that one miner 

would be affected by a methane explosion because the area 

where the air was misdirected was an outby area which was not 

in an active working section (Tr. 39). He also conceded that 

while the mine has experienced numerous roof falls, they are 

planned falls connected with pillar recovery and the "majority 

probably weren't violations" (Tr. 44). He pointed out, however, that the cited area was only required to be examined 

once a week, and it was an area that was "coming of£ the gob" 

(Tr. 45). 

Mr. Brunatti stated that the mine had experienced problems in ventilating other gob areas, and that this was a contributing factor to the explosion which previously occurred. 

He also indicated that had an explosion occurred in the 

instant case, "the whole working section" would have been 

affected because it was in close proximity to the cited area 

(Tr. 46). 

On cross-examination, Mr. Brunatti confirmed that at the 

time he inspected the mine on January 10, and issued the citation on January 16, 1985, he was not a ventilation specialist, 

and that the citation was issued as part of a regular mine 

inspection (Tr. 48). He stated that he was the resident 

inspector at the mine, and that he was at the mine during the 

period from January 10 to January 16, but was not in the D-9 

section (Tr. 53). He confirmed that while at the mine on 

January 16, he did not conduct an inspection of the D-9 section, and simply issued the citation on the basis of the information that he had previously compiled when he was there on 

January 10 (Tr. 54). The conditions described in the citation 

were conditions which existed on January 10, and not on 

January 16, and he did not know what the ventilation conditions were on January 16 (Tr. 56). 

Mr. Brunatti stated that the methane accumulation on 

January 9, 1985, was 4.2 percent, and that he confirmed this 

information from a review of the mine books for that day. He 

confirmed that he commended mine management for their reaction 

to the methane accumulation and for the steps taken to protect 

the miners, and respondent's counsel confirmed that the miners 

were voluntarily withdrawn by mine management, and that management contacted MSHA and the appropriate state agency. Counsel 

also asserted that at the time Mr. Brunatti was at the mine on 

January 10, the methane had been dissipated and the mine was 

back in production (Tr. 59). 

1540 
Mr. Brunatti stated that he took methane readings on the 

morning of January 10, and detected no methane levels which 

were in violation of the regulations. The mine was in compliance with the methane requirements, even though the ventilation air was flowing in the wrong direction (Tr. 62). 

However, Mr. Brunatti believed that the prior methane reading 

of 4.2. recorded in the mine books on January 9, was caused 

by the air being coursed in the wrong direction, and that the 

condition was corrected by making some adjustments to the 

ventilation system (Tr. 63). 

Mr. Brunatti stated that the ideal ventilation for any 

mine is to insure the maintenance of air pressure on the gob 

area so that the majority of air is coursed to the gob. In 

the instant case, the majority of air was escaping outby, and 

only a minimal amount was coursed to the gob to dilute any 

methane which may have been present. Since methane concentrations and liberation change because of roof falls or other 

conditions, the ventilation plan is intended to control these 

events (Tr. 64). Referring to exhibit G-2, Mr. Brunatti 

explained the desirable and required methods for ventilating 

the right and left entries while they were partially and 

fully developed (Tr. 66-71). 

Mr. Brunatti confirmed that when he was at the mine on 

January 10, certain changes had been made to the ventilation 

system, but he still had a problem with the direction of the 

air flow. However, he stated that "at that time, I wasn't 

aware that it was a problem" (Tr. 73). He confirmed that 

during the period between January 10 through 17, he was not 

aware of any additional methane build-up in the gob at the 

back of the D-9 area, even with the ventilation air flow as 

he found it (Tr. 73). 

Mr. Brunatti confirmed that when he issued the citation 

on January 16, he marked the "negligence block" on the form 

as "moderate," and when he subsequently modified the citation 

to a section 104Cd)(2) order on January 17, he did not change 

his negligence finding (Tr. 72). He testified that he did 

not believe that the company was indifferent to the requirements of the cited mandatory standard, but felt that there 

may have been a miscommunication between mine management and 

the company engiheer with respect to the ventilation plan 

which had been submitted, and with respect to the actual ventilation in the area in question (Tr. 74). 

Mr. Brunatti stated that he did not believe that the 

violation in question resulted from the company's willful 

intent to violate the law, or that it resulted from a serious 

1541 
lack of reasonable care on the part of the company (Tr. 74). 

He confirmed that he modified the citation to an,order after 

discussing the matter with his supervisor (Mr. Baesinger), 

and he explained the reasons for his action as follows (Tr. 

75-76): 

A. But basically, we discussed the ventilating 

system, the type of changes that were made 

which caused the air to flow in the wrong direction. And it was determined that mine management had to be directly involved in that. 

I mean, to say this could have occurred without 

them knowing, or should have knowing, however 

you want to say it -- well, it just couldn't. 

You know, the company is responsible -- mine 

management is responsible for ventilation and 

installing or removing ventilation controls 

from the ventilating system. 

Mr. Brunatti confirmed that the ventilation plan "Review 

No. 26" as depicted on the first page of exhibit G-3, was not 

applicable at the time of the violation, and that plan "Review 

No. 25," exhibit G-3Ca), is the applicable plan provision in 

this case (Tr. 79-80). MSHA's counsel stated that the plan 

requirements as depicted in both exhibits were essentially the 

same requirements, and that exhibit G-3 had not modified · 

exhibit G-3Ca) in any way for the purpose of the D-9 section 

of the mine (Tr. 80). 

In response to further questions, Mr. Brunatti stated 

that his notes made on January 16, 1985, (exhibit G-4), confirm that mine management agreed with his observations that 

the air was being coursed in the wrong direction, and that 

there may have been miscommunication among those management 

people who were in charge of the ventilation system. He also 

stated that it is reasonable to expect a mine foreman to check 

to see what the ventilation should be for a particular mine 

section and to know what the plan provides in this regard. He 

also believed it was reasonable for those who designed the 

system to communicate with the foreman concerning the plan 

provisions (Tr. 82). 

Mr. Brunatti explained the extent to which the cited 

area in question had been developed when he went to the mine 

on January 1 O, an.a he explained why the air should have been 

directed in the manner that he required as follows (Tr. 86): 

1542 
Good ventilation is, you put the majority 

of your air or positive pressure on your gob, 

with just leaving a little bit amount to ventilate that section return to keep whatever 

little bit of methane is being liberated in 

that area off the ribs. 

Positive pressure on the gob reduces the 

methane and dilutes it and renders it harmless, taking it into the bleeder entries to 

return to the fan and out of the mine, and 

keeping it below an explosion mixture. 

Mr. Brunatti stated that when he went to the mine on 

January 10, he was there to determined whether the large 

accumulation of methane still existed. When he determined 

that it did not, he stated that "I was done with what I was 

sent there to do" (Tr. 92). Although he made a determination 

as to the direction of the air used to ventilate the area in 

question, he did not at that time know whether it was right 

or wrong, but later made this determination a day before he 

issued the citation on January 16, after he and his supervisor 

r~viewed the ventilation plan and determined that a violation 

had occurred on January 10 (Tr. 93; 96-97). When asked to 

explain the basis for his conclusion that the misdirected air 

caused 4.2. methane accumulation on January 9, but did not 

cause any accumulations on January 10, he replied in pertinent 

part as follows (Tr. 94): "I base that on some of my experience in and around the mine, based on other conditions of that 

air, the system ventilating that area. * * * I don't feel 

that the ventilating system was rendering the methane constantly harmless." 

Mr. Brunatti confirmed that even though miners were withdrawn as the result of the 4.2 methane accumulation on 

January 9, MSHA did not conduct any investigation to determine the cause for this amount of methane. In his opinion, 

the high methane level was caused by inadequate ventilation, 

and the misdirected air was one contributing factor (Tr. 95). 

He confirmed that even though adjustments were made to the 

ventilation system to dissipate the prior 4.2 level of methane, the continued misdirection of air did not result in 

unusual or illegal methane accumulations (Tr. 96). 

Mr. Brunatti stated that while the misdirected air condition which he found on January 10, was "questionable," he 

could not· remember whether he discussed the condition with 

mine management at that time (Tr. 98). He conceded that had 

1543 
his supervisor not raised a question concerning the ventilation, it was "very possible 11 that the citation would not have 

been issued (Tr. 97). He reiterated that on January 10, he 

made no determination that the direction of the air was in 

violation of the ventilation plan <Tr. 98). 

Mr. Brunatti stated that he had no knowledge as to how 

the cited condition was abated because another MSHA inspector 

terminated the order (Tr. 112). MSHA's counsel stated that 

the order was terminated by MSHA Inspector Carl Sensibal on 

January 21, 1985 (exhibit G-1), and the termination reads "as 

determined with a chemical smoke cloud the air is now travelling in its proper course (outby). Ventilation adjustments 

were made to assure proper air flow direction through the 

affected bleeder entry in the D-9 butt area 11 (Tr. 113, 

exhibit G-1). 

Respondent' Testimony and Evidence 

Richard Endler, mine foreman, testified as to his duties 

and experience, (Tr. 117-121). He stated that he has taken 

several training courses in mine ventilation and that he participates in the preparation and approval of the company's 

6-month ventilation plans submitted to Federal and state 

agencies. He confirmed that at the time of the violation, 

plan "review 25" was in effect, and that he participated in 

the preparation and approval of that plan (Tr. 122). 

Referring to several exhibit overlays which were projected on a screen in the courtroom, Mr. Endler explained the 

projected mining for the D-9 area at the time of the violation, the applicable ventilation plan provisions, the projected 

method for developing the entries, the intended direction of 

air through the areas in question, and the operation of the 

ventilation system (Tr. 125-133; exhibits 0-2 through 0-8). 

Mr. Endler disagreed with Inspector Brunatti's interpretation of the applicable ventilation plan, and insisted that the 

direction of the air on January 10, was exactly the way the 

applicable plan "review 25" (exhibit G-3(a)) was submitted and 

approved. That plan shows the air going up both entries in 

the completed first butt heading that had been driven. 

Mr. Endler explained that Mr. Brunatti believed that the arrow 

depicted in the upper left-hand.corner of the plan sketch 

depicted air flow down through all three entries, but 

Mr. Endler could find nothing in the plan supporting 

Mr. Brunatti's interpretation. Mr. Endler stated that no 

changes were made in the ventilation depicted in the plan in 

question which would have resulted in the air flowing down all 

1544 
three entries as interpreted by Mr. Brunatti. Contrary to 

Mr. Brunatti's interpretation, Mr. Endler insisted that plan 

"review 25" and exhibit 0-2 depict the air going ~ two 

entries and down.the third one, and that this was precisely 

how it was directed on January 10, when Mr. Brunatti tested it. 

Mr. Endler believed that the dispute lies in the fact that 

Mr. Brunatti believed the arrow at the top left-hand corner of 

"review 25" reflects that the air should go down all three 

entries (Tr. 135-137). ~~ 

Mr. Endler explained that in the development of a section, three entries are driven, and the belt is always the 

middle entry. He explained that air is always going up the 

middle belt entry, as well as up the right-hand entry, and 

then down the left-hand entry. Any changes in the direction 

of the air flow could only be made by submitting them to MSHA 

for approval. He finds nothing in plan "review 25 11 to indicate any change in the direction of air down all three entries 

(Tr. 146-148). 

Mr. Endler confirmed that the order was terminated after 

changes in the air flow direction were made to comply with 

Mr. Brunatti's requirements, and he identified exhibit 0-8 as 

the plan revision accepted by MSHA as part of "review 25." 

He confirmed that at the time the order was issued, 

Mr. Brunatti believed the direction of air flow should have 

been as shown in the plan revision submitted to terminate the 

order, and had it been that way, no citation would have been 

issued (Tr. 148-151). 

On cross-examination, Mr. Endler stated that exhibit 0-2 

was submitted as part of the ventilation plan to depict how 

the mining of the area would be developed, and that it does 

not basically reflect how a gob area should be ventilated 

during retreat mining CTr. 156-157). He confirmed that 

"review 25," exhibit G-3(a), reflects how a gob area should 

be ventilated. He explained that air would be directed up 

and across the gob area by means of regulators and restricting the area on the return by use of canvass which forces the 

air through the holes that are created. He confirmed that at 

the time the violation was observed by Mr. Brunatti, retreat 

mining was taking place in the cited area in question (Tr. 

157-158). 

Mr. Endler stated that the air in the back-end of the 

D-9 area was being coursed in the direction depicted on 

"review 25." He stated that Mr. Brunatti was concerned about 

the direction of air flow in the adjacent panel that had been 

driven, and that he did in fact determine that it was being 

1545 
coursed .!:!.£ two entries and down the third entry, 'but believed 

that it should have been coursed down all three entries as 

shown in the print submitted to abate the order, (exhibit 

0-8; Tr. 160-161). 

In response to additional questions, Mr. Endler confirmed 

that at the time the citation was issued he and representatives of the company safety department discussed the plan provision found in "review 25" with Mr. Brunatti, and that there 

was disagreement between the company and Mr. Brunatti as to 

the significance of the arrow shown in the plan. His testimony in this regard is as follows (Tr. 165-171): 

* * * * * * 

And I argued with Mr. Brunatti that that 

arrow, to me, didn't designate that that air 

was supposed to come down all three entries. 

And he argued back that it meant that it was. 

And naturally, they have more clout than what 

I have, so the violation was issued. I lost 

my case on that. But that arrow, to me, still 

does not depict air flow in the adjacent panel. 

No matter how many times I look at it, I can't 

visualize how that depicts air flow down the 

other three entries. 

JUDGE KOUTRAS: Well, where would the air go, 

after it -- with all these stoppings in place 

here, then? 

THE WITNESS: The air would go out the single 

entry on the far left-hand side. 

* * * As far as I'm concerned, the air, with 

the ventilation that I know that we haQ in 

there, the air would travel across these two 

entries and proceed down the single entry. 

* * * * * * 

JUDGE KOUTRAS: Okay. And where did the 

inspector say that that would go? 

* 

THE WITNESS: The inspector said that it meant 

that air was supposed to go down this entry. 

154,6 
JUDGE KOUTRAS: And you're saying, no, it just 

goes across the top, because you have air 

coming up there? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: And he said the air coming up 

there was not in compliance with your plan? 

THE WITNESS: Yes, he did. 

JUDGE KOUTRAS: And what did he base that on? 

THE WITNESS: His opinion. 

* * * * * * * 

THE WITNESS: Okay, Once these connections 

were made at the top, these two crosscuts were 

put through up at the top, then you could 

change the air around. But we did not have a 

plan submitted in Review 25 that would have 

permitted me to turn that air around in them 

other two entries. I had to keep that air 

going that way. 

JUDGE KOUTRAS: Again, on the 10th, how was 

the air going in the air that he cited? 

THE WITNESS': It was going up the two entries. 

JUDGE KOUTRAS: Okay. No dispute about that. 

THE WITNESS: No. 

JUDGE KOUTRAS: And that's the way you intended 

it to go? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: And that's the way your plan 

intended it to go? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: And the dispute is that the 

inspector says, "You're right, the air's going 

that way, but under your plan it should be 

going in the other direction?" 

1547 
THE WITNESS: That's right. 

JUDGE KOUTRAS: And you claim that that was 

never the intent? 

THE WITNESS: No. 

JUDGE KOUTRAS: And that that arrow at the top 

only --

THE WITNESS: That arrow at the top only 

denotes air flow from the gob as proceeding 

out through these other two crosscuts at the 

top. It shows a movement at the back of the 

gob to the adjacent entries that we had driven 

up. That's all that arrow shows to me. 

JUDGE KOUTRAS: How is the present plan now? 

You still have the arrow at the top? 

(Pause.) 

THE WITNES: Yes, sir. 

JUDGE KOUTRAS: What's the difference between 

the arrow at the top now under this plan and 

the way it was on this other one, prior to the 

citation? 

THE WITNESS: These two arrows coming down the 

other two entries. That's the difference. We 

changed the air around to bring the air -- all 

of the air that was coming through the gob now 

came down these three entries and ventilated 

this back here. Prior to that, I had this air 

that was coming out here going up these two 

entries, as per the plan. · 

JUDGE KOUTRAS: What have you accomplished now 

that you didn't have before, from your point 

of view, in terms of ventilation? 

THE WITNESS: The ventilation is still the 

same, as far as I'm concerned. I still have 

the same amount of air. I didn't really 

change any --

1548 
JUDGE KOUTRAS: Do you feel that the inspector 

actually believed that your accumulation --

that your methane problem that you had that 

caused the withdrawal of miners was due to the 

fact that you weren't ventilating this area in 

the manner in which he felt your plan required 

it to be ventilated? 

THE WITNESS: No, I don't believe that's why 

it occurred. 

JUDGE KOUTRAS: Do you get the impression 

·that's why he 'issued the citation in this 

case? 

THE WITNESS: Yes, sir 

JUDGE KOUTRAS: Did he tell you that? 

THE WITNESS: No -- maybe, you know. It's 

possible that that discussion came up. 

* * * * * * * 

JUDGE KOUTRAS: Well, can I ask you something? 

When this thing was submitted, G-3A was submitted, why wasn't it as explicit as it is --

as it was made after it was --

THE WITNESS: I 

JUDGE KOUTRAS: Do you have any idea? 

THE WITNESS: No. I mean, it was just drawing 

the depicted air flow at the back-end of that 

gob. It didn't intend to show air flow in the 

adjacent panel that was already driven, 

because we had already shown how that was 

going to be ventilated with the prior print, 

that showed the air going up those two entries 

and down the outside one. And really, all 

that is showing is, the air that's coming 

through the gob being carried away down the 

other entry, the outside entry. 

MR. KOSEK: Your Honor, if I might 

JUDGE KOUTRAS: Yes? 

1549 
MR. KOSEK: -- the reason we made the submission was so we wouldn't get any more viola-, 

tions. I don't know that Mr. Endler would 

necessarily agree with that submission. But 

obviously, in order to terminate the violation, that's what we did. 

MSHA's Rebuttal Testimony 

John A. Kuzar, MSHA Hastings, Pennsylvania, Field Office 

Supervisor, testified as to his experience and background, 

including 6 years as a ventilation specialist, and 3 years as 

a mine inspector. He confirmed that he was not at the mine 

in question when the citation and order was issued, and that 

he last visited the mine sometime in 1982 (Tr. 174-176). He 

also confirmed that he has no supervision over the No. 1 Mine, 

but does supervise the inspections of the No. 2 Mine {Tr. 

17 8 )'. 

Mr. Kuzar confirmed that while he familarized himself 

with plan "review 25" during the 2 days of hearings, he was 

not familiar with the plan in 1985 when the citation and order 

were issued (Tr. 179). MSHA's counsel conceded that Mr. Kuzar 

had no personal knowledge as to what prompted Inspector 

Brunatti to issue the citation (Tr. 181). 

Ref erring to the right-hand portion of the sketch depicting plan "revision 25, 11 exhibit G-3{a), Mr. Kuzar described 

it as follows (Tr. 182-183): 

Ao This face print that is in front of me 

ght now shows a retreating -- first of all, 

it shows a bleeder system established around 

this gob. Okay? It shows -- it says, "BE, 11 

but in reality, it's an IE. 

It 1 s a retreating inlet evaluation point to 

assure that you've got positive pressure on 

the inby end of this gob, which in turn --

this is a bleeder system around the top. 

You must maintain a bleeder around the gob 

area to assure positive pressure on the gob, 

and all the gases are diluted and swept out to 

the return pull to the fan. Now, as far as 

what I'm seeing right here, this looks all 

right. 

But over here, on the other side --

1550 
Q. Okay, Now, you were pointing originally 

to the right side~ 

A. Yes, ma'am. 

Q. Now, you're pointing over the left side? 

A. That is correct, which is the table off 

the diagram. This is where the problem is, I 

guess, with which way the air was supposedly 

going. 

* * * * * * * 

THE WITNESS: If there was a regulator there 

-- which I do not know -- and the regulator 

was controlled, yes, it would shove air up 

there. But if it was open, what it would be 

would be a direct short to the return. 

The problem we're addressing here is the fact 

of 316 being direction of air flow or what 

have you, where you have more of a problem 

that apparently this had occurred, or the mine 

wouldn't have been withdrawn. 

It 329, in which 329 states that gob areas 

bleeder entries shall be ventilated in such 

a manner to prevent any of this occurring, any 

of this methane gas being pushed back out. 

When asked about the hazard presented by ventilating the 

cited area in the manner in which it was being ventilated at 

the time the citation issued, Mr. Kuzar responded "I wasn't 

there. I don't know" (Tr. 188). He then proceeded to explain 

"You have the possibility of that methane corning back over 

that equipment, that section that was working" (Tr. 192>. In 

response to further questions, he stated as follows (Tr. 

193-197): 

JUDGE KOUTRAS: What's the significance of 

that arrow at the top of the page there that 

seems to be the focal point? 

THE WITNESS: This arrow? 

JUDGE KOUTRAS: Yes? 

1551 
THE WITNESS: This arrow here shows me everything going to return through my bleeder 

entries, across the top. It shows me going -- because, what I'm getting at, air doesn't -- you don't take air to buck air. You're not 

shoving air up and air coming down. It's got 

to go to return someplace. 

JUDGE KOUTRAS: Okay. 

BY MS. HENRY: 

Q. Mr. Kuzar, when you say, "You don'·t take 

air to buck air," what is your understanding 

of what the mine management has stated that 

their intention was, in the way they were ventilating, the way this air was flowing? 

A. The way I understood mine management, the 

air was coming up those other entries, and I 

assume that it was joining with this return 

coming across this bleeder system on the inby 

end. That's what I believe them -- what they 

were saying. 

Q. And do you believe that, with your knowledge and looking at this ventilation plan, 

with what they were saying, that that would 

have been an adequate ventilation of that 

mine, of this area, the way the map is showing 

it should be ventilated? 

A. I would have to see it work that way. 

* * * * * * * 

Q. And what would be the effect of, as management has stated, their pushing the air up the 

other way? And I realize I'm using simple 

terms, but I'm trying to get sort of a layman's 

understanding here. Of instead of the air 

going down, the air flowing the way Mr. Brunatti 

found it flowing? 

A. Conditions could change that. It would 

depend how much they had available for this 

section, how much air was on this section 

where they were mining. 

1552 
There's a lot of things are involved there. 

What they had going out this bleeder, 

quantity-wise; how much was going down the 

split return. There's a lot of things have a 

bearing on this, what could occur. 

* * * * * * * 

Q. Why would you consider let me ask you 

this. Would you consider the testimony you've 

heard today from Mr. Brunatti about the condition from the mine management about the condition, and looking at the plans yourself, would 

you consider this to be a significant and substantial violation? 

A. Yes, I would. 

Q. Why? 

A Because of what occurred. 

Q. Okay, could you explain? 

A. The occurrence prior to the inspector 

getting there, you had a methane build-up in a 

gob area in that mine. And whether it be 

the chances of that methane being pushed back 

over this active section would be very slim, 

being that the fan is over here. 

But a change in a barometer -- various things 

could govern on what that methane did. And 

it's very unlikely that it would come back 

over this active· section with the fan being 

over here. 

Q. Let me make sure I'm understanding what 

you're saying. The way the air was flowing, 

you're saying that the fan placed where it 

was, it was unlikely that the methane would 

leave would dissipate? Is that what you're 

saying? 

A. The way that the ventilation that the 

inspector found with the location of the fan 

Q. Right? 

1553 
A. -- all right? If they did not have a ventilation control that was mantained to assure 

that air going up in there, the way the inspector cited it, you would have a methane build-up 

in this gob. 

Q. Okay. 

A. And apparently, that's what.occurred. 

Q. Do you have any reason in your knowledge 

to believe that the way that air flow was 

coursing would have contributed to the methane 

build-up in that area, that caused the 

withdrawal? 

~. No, because I don't know the condition of 

the entries, the other entry that would be on 

the far side that would be carrying this methane out of there and diluting it. I don't 

know the condition of the airways. There's a 

lot of other things come into play. 

* * * * * * * 

JUDGE KOUTRAS: The question is, whether or 

not the air being coursed in the way that 

Mr. Brunatti thought it was coursed at the 

time of the violation, whether that had any 

direct nexus or relationship to the methane 

accumulation. That's the question. You don't 

know that? 

THE WITNESS: I could have -- I don't know. 

JUDGE KOUTRAS: It could have 

THE WITNESS: I wasn't there, but it could 

have. 

The parties agreed that the prior 4.2 methane accumulation occurred in the D-9 standing room regulator area depicted 

on exhibit G-3(a), in the upper right-hand corner of the 

sketch where the statement "Regulator may consist of blocks 

removed from walls as necessary" appears (Tr. 198-199). When 

asked whether he found some connection with the way in which 

the air was being directed at the time of the violation, and 

whether this condition had any relationship to the methane 

1554 
accumulation, Mr. Kuzar responded "No," "Not outby, I don't, 

in here, yes" (Tr. 199). 

Mr. Kuzar stated that the method used to ventilate the 

area, as explained by Mr. Endler, up two entries, and then 

being melded with the air coming out at the top of the area 

shown on exhibit G-3(a), and then down and out of the return, 

was a wrong way to course the ventilating air because all of 

the air pressure should be put on the gob, rather than out 

the return (Tr. 200). Good ventilation practice ca1·1s for 

keeping the majority of the air pressure on the gob to assure 

that gases go out the bleeder system to the return, with a 

limited amount down. the return that has to be travelled 

weekly {Tr. 201-202). 

On cross-examination, Mr. Kuzar confirmed that he first 

reviewed exhibit G-3(a), on Monday prior to the hearing, and 

was not previously familiar with plan "review 25" when the 

violation was issued (Tr. 203). He also confirmed that he 

had no knowledge as to how the prior 4.2 methane accumulation 

got there (Tr. 203-204). When asked if he knew whether the 

arrow that is shown at the top of the plan in question is 

still in the current applicable plan, he responded "I do not 

k'now what's in there at the present time. But if this is the 

bleeder system, it better be there" (Tr. 204). 

Inspector Brunatti was recalled in rebuttal and referring 

to his notes made on the mine map, exhibit G-2, testified as 

to certain air readings that he took in the area on January 10. 

In his opinion, based on his air readings, the air that day 

was coursing through several check curtains and by-passing the 

gob area. He measured air quantities of 16,948 and 10,505 

CFM's at two locations, and 5,000 CFM was ventilating the gob 

area. In his opinion, 5,000 CFM for gob ventilation is not 

positive pressure on the gob. The installation of permanent 

stoppings rather than ventilation curtains, and the adjustment 

of the regulator to control the air flow, would have put pressure on the gob. Had the gob area been adequately ventilated, 

the air in the D-9 right butt section would have been coursing 

down all three entries {Tr. 206-210). He also referred to two 

additional air readings of 1,250 and 725 CFM's, which indicated that positive pressure was not maintained on the gob {Tr. 212). . . 

In response to further questions, Mr. Brunatti stated 

that in his opinion there was no positive air flow on the gob 

on January 10, and that this condition constituted a violation of the law. He confirmed that he did not issue a violation for this condition that day because he detected no 

1555 
methane over 2 percent. He also confirmed that the air readings he took that day were in compliance (Tr. 216), and that 

there was a positive air flow coming out of the regulator 

which is shown on the right-hand portion of the sketch containing his notes, exhibit G-2 (Tr. 219). 

Respondent's Rebuttal Testimony 

Richard Endler produced copies of several mine examiner 

and foreman reports reflecting recorded air readings for the 

D-9 intake and return on January 2, 9, and 10, 1985, indicating 29,880, 6,762, 10,080, 5,875, 26,460, 7,104, and 2,881 

CFM's at the locations noted. Mr. Endler concluded that 

there was "roughly" 13,000 CFM's of air available to ventilate the gob, and while he could not state that all of this 

air was going through the gob, it was available for that purpose (Tr. 221-223, exhibits o-9 through 0-11). He confirmed 

that the ventilation pattern for the area was the same on 

January 2 and 9 (Tr. 224). He stated that the gob was being 

positively ventilated (Tr. 227). 

Mr. Endler explained the action taken by the company in 

response to the 4.2 methane accumulation which was reported 

on January 9. He stated that checks were installed at the 

back end area to direct the air coming up the two entries 

around to flush out the methane. The methane level then 

decreased to 1.2 percent, and it was then determined that it 

was safe for the men to go back to work (Tr. 224-225; 

230-234). After the methane was flushed out, the checks 

"were taken down and put it back to the original way. And 

the methane did stay down" (Tr. 247). Mr. Endler stated that 

the amount of air necessary to dilute any methane in the gob 

varies, and that it did so during the week prior to the 

violation (Tr~ 247). 

Mr. Endler identified exhibit G-5, as a plan submitted 

by the company for the pillar mining of rooms off the left of 

the D-9 area, and that it does not reflect mining on the 

right-hand side at that point in time. In his view, that 

plan has nothing to do with this case (Tr. 226). 

Findings and Conclusions 

The condition or practice cited by Inspector Brunatti as 

an alleged violation of 30 C.F.R. § 316, and the respondent's 

approved ventilation plan, is described as follows in section 

104(a) "S&S" Citation No. 2255733, issued on January 16, 1985 

(exhibit G:...l) : 
The approved ventilation and methane and 

dust-control plan was not being complied with 

in the D-9 area of the mine in that two of the 

three entries (bleeder) in the 1st Rt Butt 

area were letting air go inby. The plan 

depicts only air coming outby from this area. 

With the ventilation this way the air ventilating D-9 section was escaping out the return 

instead of putting all the pressure on the gob 

area thus creating a methane build-up in the 

back end of the gob. 

Inspector Brunatti modified the citation on January 17, 

1985, by a "subsequent action" which modified the citation to 

reflect that it was changed to a section 104Cd)(2) Order 

No. 2255733-01. The modification also included references to 

a previously issued Order No. 2110076, March 10, 1984, which 

are incorporated by reference in items No. 14, No. 15, and 

No. 16 on the citation/order form. 

30 C.F.R. § 75.316, provides as follows: 

A ventilation system and methane and dust 

control plan and revisions thereof suitable to 

the conditions and the mining system of the 

coal mine and approved by the Secretary shall 

be adopted by the operator and set out in 

printed form on or before June 28, 1970. The 

plan shall show the type and location of 

mechanical ventilation equipment installed and 

operated in the mine, such additional or 

improved equipment as the Secretary may 

require, the quantity and velocity of air 

reaching each working face, and such other 

information as the Secretary may require. 

Such plan shall be reviewed by the operator 

and the Secretary at least every 6 months. 

The testimony and evidence adduced in these proceedings 

establishes that on January 9, 1985, a methane accumulation 

of approximately 4.2 percent occurred in the D-9 section of 

the mine. Greenwich notified MSHA and the appropriate state 

agency of the accumulation, and withdrew the men from the 

mine. After corrective measures were taken and the methane 

cleared up, the miners were permitted to go back to work. 

As a result of the reported methane accumulation, Inspector Brunatti was contacted at his home by his supervisor and 

was instructed to go to the mine to examine the affected area. 
Mr. Brunatti went to the mine on the midnight shift of 

January 10, 1985. The miners had been withdrawn, no unusual 

methane accumulations were detected, and Mr. Brunatti complimented mine management for their efforts in clearing up the 

methane problem. Mr. Brunatti confirmed the prior methane 

accumulation by reviewing the mine examiner's books. He also 

made some notations concerning the direction of air flow, air 

velocity, and methane present in the D-9 section, and the 

notations were made on an enlarged portion of the mine map 

(exhibit G-2). Mr. Brunatti confirmed that he determined the 

direction of the air flow by means of a smoke test and by 

visual observation. He determined that the air was flowing 

up two of the entries, and down the third entry as shown by 

the arrows on exhibit G-2. 

After completing his examination of the D-9 section on 

January 10, 1985, Mr. Brunatti issued no citations and made 

no determination as to whether any violations existed at that 

time: He confirmed that he did not have the appropriate ventilation plan with him, and also confirmed that he did not at 

that time have any knowledge of the mine ventilation system. 

He testified that he was directed to go to the mine to determine whether any large accumulations of methane still existed, 

and that is what he did. 

With regard to his notations concerning the direction of 

air flow on the three entries in question, Mr. Brunatti testified that he had "a problem" with the air direction and considered it "questionable," but made no determination on 

January 10, that it was a violation of the ventilation plan. 

He could not recall discussing the matter with mine management, and confirmed that he did not know whether the noted 

air direction "was right or wrong" at that time. 

During the period January 11 and 16, 1985, Mr. Brunatti 

was at the mine performing his regular inspection duties, but 

he was not in the D-9 section. He issued the contested citation while at the mine on January 16, and he based the citation on the notations he made with respect to the flow of air 

on January 10, and his belief that the prior. reported methane 

accumulation resulted from the misdirected air flow. He confirmed that on January 16, he did not visit the D-9 section 

and did not know what the ventilation was that day. He also 

confirmed that he made a finding of "moderate negligence," 

and so indicated by marking the appropriate block on the citation form. He explained that he made this finding out of 

consideration of mine management's fine job in correcting the 

methane problem, and because he was not totally aware of any ventilation changes. 

1558 
Mr. Brunatti confirmed that the decision to issue the 

citation on January 16, was made after a consultation with 

his supervisor. His supervisor was concerned about the 

reported methane accumulation and asked to review his notes. 

During these discussions, Mr. Brunatti indicated concern that 

changes were made in the ventilation system to cause the air 

to flow in the wrong direction, and he believed that mine 

management had to be involved in any such changes. After 

further discussion and review of the ventilation plans with 

his supervisor, it was concluded that the misdirected air as 

noted by Mr. Brunatti during his mine visit of January 9, 

constituted a violation of the ventilation plan and section 

75.318. 

On January 17, 1985, Inspector Brunatti modified the 

section 104(a) citation to a section 104Cd)(2) unwarrantable 

failure order, but he did not change or modify his moderate 

negligence finding. The modification was made after further 

discussions with his supervisor, and Mr. Brunatti admitted 

that the decision to modify the citation and issue the order 

was made prior to his going to the mine on January 17. 

Inspector Brunatti testified that he did not consider 

the action of Greenwich with respect to the violation to be 

willful, nor did he consider it to be the result of indifference or a serious lack of reasonable care on the part of 

Greenwich (Tr. 7~-74). 

In its posthearing brief, Greenwich argues that the contested section 104(d)(2) order is invalid because it was based 

on an investigation of a past methane accumulation incident 

rather than a condition or practice detected by Inspector 

Brunatti during the course of an inspection. In support of 

its argument, Greenwich cites the following cases in which six 

Commission Judges decided the issue as argued by Greenwich: 

Westmoreland Coal Company, Docket Nos. WEVA 82-34-R, et. al., 

(May 4, 1983), unreported, (Judge Steffey); Energy Mining 

Corporation, 7 FMSHRC 1908, 1919 (Nov. 1985) (Judge Lasher); 

Southwestern Portland Cement Company, 7 FMSHRC 2283, 2292 

(Dec. 1985) (Judge Morris); Nacco Mining Company, 8 FMSHRC 59 

(1986), review pending (Chief Judge Merlin}; Emerald Mines 

Corporation, 8 FMSHRC 324 (1986), review pending (Judge 

Melick; White County Coal Corporation, 8 FMSHRC 921 (June 9, 

1986) (Judge Melick; and Greenwich Collieries, 8 FMSHRC 1105 

(July.14, 1986) (Judge Maurer). 

Greenwich points out that the inspector was dispatched 

to the mine to look into a methane accumulation in the D-9 

1559 
area of the mine which occurred on January 9, and which was 

reported by Greenwich. Upon his arrival at the mine on 

January 10, the inspector visited the D-9 area, but issued no 

violations. Subsequently, on January 16, when he issued the 

section 104(a) citation, the inspector did not reenter the 

D-9 section before writing the citation. Still later, on 

January 17, the inspector modified the citation to a section 

104(d)(2) order, and he did so on the basis of a conversation 

with his supervisor without reentering the D-9 section. The 

decision to issue that order was made prior to the inspector's arrival at the mine on January 17. 

Greenwich points out further that the methane accumulation which occurred on January 9, 1985, was never observed or 

detected by Inspector Brunatti, and that it was dissipated on 

January 10, when he entered the D-9 section. Greenwich concludes that since no methane accumulation was in existence at 

the time the initial section 104Ca) citation and the subsequent modification to a section 104(d)(2} order took place, 

the order was invalid and should be dismissed. 

Citing United States Steel Corporation, 6 FMSHRC 1423 at 

1437 (June 1984), where the Commission held that an unwarrantable failure to comply may be established by showing tnat the 

violative condition or practice was not corrected or remedied; 

prior to the issuance of a citation or order, because of indifference, willful intent, or serious lack of reasonable care, 

Greenwich asserts that there is no evidence in this case to 

support an unwarrantable failure finding. In support of this 

conclusion, Greenwich relies on Inspector Brunatti's findings 

of "moderate negligence" with respect to the citation and 

order, and his testimony that he did not consider the alleged 

violation to be due to "indifference, willful intent, or a 

serious lack of reasonable care" on the part of Greenwich. 

With regard to the alleged violation of section 75.316, 

Greenwich submits that MSHA has failed to establish by any 

credible evidence that Greenwich violated its ventilation 

plan. Greenwich asserts that the testimony of foreman Endler 

clearly indicated that the ventilation was in compliance with 

plan review No. 25 which was in effect at the time of the 

citation. Greenwich points out that Mr. Endler, using various 

exhibits, clearly demonstrated that government Exhibit 3-A was 

the same as operator's Exhibit 4. He indicated that operator's Exhibit 4 showed main intake air coming up the righthand entry, reduced air flow coming up the belt entry, and 

return air going down the left-hand entry shown in Exhibit 4. 

He further testified that the ventilation demonstrated in that 

exhibit was the same ventilation as cited by Inspector 

1560 
Brunatti as not being in compliance with the ventilation plan. 

The citation, later modified to an Order, was ultimately terminated when Greenwich submitted a print to MSHA which showed 

ventilation going in the direction required in the citation 

and order of January 16 and 17, respectively. Greenwich submits that no such submission to MSHA would have been necessary 

had the original plan required ventilation in the D-9 area as 

interpreted by Inspector Brunatti. Hence, Greenwich submits 

that MSHA failed to show a violation of the ventilation plan. 

With regard to Mr. Brunatti's allegations that the air 

ventilating the D-9 section was escaping out the return 

instead of putting all the pressure on the gob area, thus 

creating a methane build-up at the back end of the gob, 

Greenwich asserts that the testimony by foreman Endler clearly 

revealed there was a positive flow of air on the gob in the 

D-9 area. Greenwich points out that Mr. Endler's testimony 

was based upon air readings taken in the area on January 2 and 

9, and his personal observations of the area on January 9, 

which indicated a positive flow of air on the gob in the D-9 

area. Greenwich concludes that MSHA has failed to prove that 

all available air positive pressure was not put on the gob, 

thereby creating a methane build-up in the back end of the 

gob. 

In her closing oral arguments, MSHA's counsel relied on 

the testimony of Inspector Brunatti and Supervisory Inspector 

Kuzar to support a violation of the ventilation plan. With 

regard to Mr. Kuzar's testimony, I have given it little or no 

weight. Mr. Kuzar confirmed that he has no supervision over 

the No. 1 Mine, was not.in it when the citation was issued, 

and that he last visited it in 1982. His testimony in support 

of the violation is based on his familiarizing himself with 

plan review No. 25 .during the hearing, and MSHA conceded that 

he had no personal knowledge as to what prompted Inspector 

Brunatti to issue the citation. When asked about any hazard 

involved in ventilating the area cited by the inspector in the 

manner in which he claimed it was being ventilated when the 

citation issued, Mr. Kuzar responded "I wasn't there. I don't 

know. 11 

When asked about the manner in which Greenwich claims it 

was ventilating the area in question, Mr. Kuzar stated that 

he would have to observe it operating before he could comment 

on it. When asked about the effectiveness of the air flowing 

in the direction that Mr. Brunatti claimed it was flowing, on 

January 9, Mr. Kuzar responded that "conditions could change 

that 11 and that other variables have to be considered. When 

asked whether he had any reason to believe that the air flow 

1561 
as found by Inspector Brunatti could have contributed to ·the 

reported methane build-up in the D-9 area, Mr. Kuzar responded 

"No, because I don't know the condition of the entries * * * 

and airways, * * * and there's a lot of other things that come 

into play." When directly· asked whether the air flow as found 

by Inspector Brunatti had any direct relationship to the methane accumulation, Mr. Kuzar replied "I don't know. I wasn't 

there, but it could have." 

MSHA's counsel agreed that review 25 is the applicable 

plan in effect at the time the citation was issued. However, 

counsel took the position that exhibit G-3, which is "review 

26," while not the official plan that was in effect at the 

time in question, "makes it a little bit clearer," and that 

the three arrows in the upper left-hand corner of page two of 

"review 26" basically describe the direction of air coming 

down all three entries (Tr. 141-142). Counsel asserted that 

there is no dispute that the air was flowing in the direction 

claimed by Mr. Brunatti, and that the disagreement lies in 

the fact that the company believes that the direction of the 

air was in compliance with the applicable plan, and that MSHA 

believes that the direction of the air was out of compliance 

(Tr. 142). Counsel agreed with Mr. 'Brunatti's interpretation 

that the direction of air should have been down all three 

entries, rather than up two and down the third (Tr. 145, 152). 

When asked why the single arrow shown at the top lefthand corner of "review 25," .exhibit G-3(a), does not curve 

around and come down the entry, MSHA's counsel responded "it 

is MSHA's position that this is the only way, if the air is 

going that way, the only way you can ventilate the mine * * * 

is to get the air out again, is to go back down-- 11 (Tr. 154). 

Counsel asserted that the air should have gone down all three 

entries as shown in the plan print submitted to abate the 

order, exhibit 0-8 (Tr. 162). 

I take note of the fact that the citation issued by 

Inspector Brunatti fails to include any reference to the particular ventilation plan provisions allegedly violated in 

this case. I also note the fact that while in the D-9 section on January 10, the inspector did not have the ventilation plan with him, and he admitted that he was not at that 

time a ventilation specialist and had no knowledge of the 

mine ventilation system. His subsequent opinion that the 

plan had been violated was based on a review of the ventilation plans and his notations made on a portion of the mine 

map (exhibit G-2) while he was on the section on 'January 10. 

1562 
Inspector Brunatti's conclusion that the ventilation 

plan was violated was based on his findings made on 

January 10, that the air flow was misdirected in two of the 

three entries on the D-9 section as noted on the face of his 

citation. He found that in two of the entries the air was 

travelling inby, when the ventilation plan depicted the air 

flowing outby in all three entries. Mr. Brunatti also relied 

on his notes made on January 16, which reflected that 

Greenwich's safety representative and mine foreman Endler 

stated that the direction of air flow as he found it on 

January 10, was the way it was depicted on the ventilation 

plan, but contrary to the way Greenwich's engineer submitted 

it for approval. 

Mr. Brunatti testified that the applicable ventilation 

plan provision appears on the second page of exhibit G-3, at 

the ·upper left-hand corner. The plan depicts three double 

arrows showing the a.ir travelling down all three of the 

entries after exiting at the point labeled BE# 58, and out 

the return. These are the same entries noted by the inspector when he made his notations on the mine map (exhibit G-2), 

on January 10, showing the air travelling .'!:!.£two entries but 

down the third one. The plan is labeled "Review No. 26," and 

it reflects that it was submitted on February 15, 1985, and 

revised on May 31, 1985, after the citation was issued. 

Mr. Brunatti also testified that ventilation plan 

Review 25, dated August 1, 1984 (exhibit G-3Ca)), is equally 

applicable in this Gase and that it in no way changed the 

requirements depicted in plan Review No. 26. However, he 

conceded that plan Review No. 26 was not in effect at the 

time the citation issued, but that plan Review No. 25 was 

CTr. 79-80, 87). MSHA's counsel asserted that Plan No. 26 

was introduced to clarify Plan No. 25 and that it was a "more 

helpful drawing of what was indicated in Government Exhibit 

G-3 (a) , and that no change.s were made in the plans (Tr. 

116-117). 

Greenwich's counsel asserted that the critical issue in 

this case focuses on the interpretation placed by Inspector 

Brunatti on the significance of the double-headed arrow 

depicted at the upper left-hand corner of ventilation plan 

Review 25, exhibit G-3(a), the ventilation plan which was in 

feet at the time the citation was issued on January 16. 

Counsel argued that review 25 and exhibit 0-2, which is part 

of a pri~t submitted at the time review 25 was submitted, 

consistently show the direction of air flow going .'!:!.£ two 

entries and down the third entry. Counsel argued that these 

exhibits show the direction of intake air coming in the 

1563 
right-hand entry, reduced air coming up the low-low belt 

entry, and return air coming out the left-hand entry (Tr. 

124, 139). 

After careful review of all of the testimony and evidence 

adduced in these proceedings, I cannot conclude that MSHA has 

carried its burden of proof in establishing a violation of the 

ventilation plan by a preponderance of the credible evidence 

in support of its case. The ventilation plan provision relied 

on by the inspector in support of his initial citation (review 

No. 26), was not in effect at the time it issued, and the fact 

that Greenwich's engineering department may have submitted a 

subsequent revision depicting the direction of .air down all 

three entries is irrelevant. · Any suggestion by MSHA that the 

applicable plan No. 25, which was in effect at the time the 

citation issued, must be interpreted to show the direction of 

air down the three entries, as clearly shown in review No. 26, 

is rejected. 

I further find that Greenwich's testimony and evidence 

is more credible, and that it has established that it was 

following the applicable ventilation plan requirements of 

ventilation review plan No. 25, August 1, 1984, as depicted 

in exhibits G-3(a) and 0-2. Those exhibits clearly and consistently show the air flow going up two entries and down the 

third, precisely as found by the inspector when he made his 

notes on January 10, while on the D-9 section. 

With regard to MSHA's allegations that Greenwich's failure to maintain positive air pressure on the gob contributed 

to the methane build-up at the back of the gob, Inspector 

Brunatti testified that when he tested the air in the D-9 

area on January 10, he found quantities of 16,948 and 

10,505 CFM's at two locations, and 5,000 CFM's ventilating 

the gob area. In his opinion, 5,000 CFM's is not positive 

pressure on the gob. However, Mr. Brunatti confirmed that he 

issued no citation on January 10, for lack of positive air 

pressure on the gob even though he considered this condition 

to be a violation of the law. He explained that he issued no 

violation because he detected no methane over 2 percent. He 

also testified that the air readings he took on January 10, 

were in compliance and that there was in fact a positive air 

flow coming out of the regulator. 

Mine foreman Endler produced copies of several mine examiner and foreman reports reflecting recorded air readings for 

the D-9 intake and return on January 2, 9, and 10, 1985, indicating 29,aso, 6,762, 10,080, 5,875, 26,460, 7,104, and 

2,881 CFM's at the locations noted. Mr. Endler concluded 

1564 
that there was "roughly" 13,000 CFM's of air available to 

ventilate the gob, and while he could not state that all of 

this air was going through the gob, it was available for that 

purpose. He confirmed that the ventilation pattern for the 

area was the same on January 2 and 9, and that the gob was 

being positively ventilated. He also confirmed that the accumulated methane in question was flushed out after two checks 

were installed at the back end of the gob and then taken down 

after the methane was reduced to 1.2 percent. Inspector 

Brunatti agreed that as long as the majority of air is coursed 

to the gob, the ventilation is ideal. 

I cannot conclude that MSHA has established that 

Greenwich failed to maintain positive pressure on the gob, 

thereby resulting in the build-up of methane. Aside from 

Inspector's Brunatti's opinion that this was the case, I can 

find no credible facts to support his speculative opinion. 

In fact, Mr. Brunatti admitted that he issued no citation for 

these alleged conditions, was unaware of any methane build-up 

at the back end of the gob from January 10-17, found less 

than 2 percent methane on January 10, while on the D-9 section, all of his air readings were within MSHA's requirements, 

and he found positive air flow coming through the regulator. 

In addition, he conducted no inspection of the D-9 section 

subsequent to his visit there on January 10, when he made some 

notes on a portion of the mine map, and he admitted that he 

had no knowledge of the ventilation conditions on January 16. 

With regard to Greenwich's arguments concerning the modification of the contested citation to an unwarrantable failure 

order, I agree with the rationale of the cases cited in 

support of the proposition that a section 104(d)(2) order may 

only issue upon an inspection of the mine. However, on the 

facts of this case, even if I were to find a violation of section 75.316, I would vaGate the inspector's unwarrantable 

findings and modify the order to a section 104(a) citation, 

and I would do so on the basis of a total lack of credible 

evidence or facts to support any unwarrantable failure on 

Greenwich's part. As noted earlier, Inspector Brunatti candidly admitted that he did not consider Greenwich's actions 

to be willful, or the result of indifference or a serious 

lack of reasonable care. 

ORDER 

In view of the foregoing findings and conclusions, 

Greenwich's contest IS GRANTED, and the contested section 

104(d)(2) Order No. 2255733-01, Janury 17, 1986, citing an 

1565 
alleged violation of 30 C.F.R. § 75.316, IS VACATED, and 

MSHA's civil penalty proposal IS DISMISSED. 

Distribution: 

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

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 CCertif ied Mail) 

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

Box 367, Ebensburg, PA 15931 (Certified Mail) 

/f b 

15·66 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

BETHENERGY MINES, INC., 

Contestant 

CONTEST PROCEEDING 

OCT 161986 

v. Docket No. PENN 86-287-R 

Citation No. 2695988; 8/20/86 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Livingston Portal 84 

ORDER OF DISMISSAL 

Appearances: R. Henry Moore, Esq., Rose, Schmidt, Chapman & 

Hasley, Pittsburgh, Pennsylvania, for 

Contestant1 

Robert M. Cohen, Esq., Office of the Solicitor, 

Department of Labor, Arlington, Virginia, for 

Respondent. 

Before: Judge Melick 

contestant requests approval to withdraw i~s Contest in 

the captioned case. Under the circumstances he ein, permis~ 

sion to withdraw is granted. 29 C.F.R. § 2700. 1. The case 

is therefore dismissed. n ; . 

~ ~ I ' 

Gary lick / 

/Admini trative ~w Judge I 

Distribution: 

R. Henry Moore, Esq., Rose, Schmidt, Chapman, Duff & Hasley, 

900 Oliver Building, Pittsburgh, PA 15222-25369 (Certified 

Mail) 

Robert M. Cohen, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

{Certif;ied Mail) 

rbg 

1567 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80204 OCT 171986 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

ON BEHALF OF 

DuWAYNE SCHAFER, 

Complainant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . Docket No. CENT 85-89-D 

Glenharold Mine 

DECISION 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Complainant; . 

Gregory Lange, Esq., Richardson, Blaisdell, 

Isakson and Lange, Hazen, North Dakota, 

for Respondents; 

Deborah Fohr Levchak, Esq., Office of the General 

Council, Basin Electrical Power Cooperative, 

Bismarck, North Dakota, 

for Respondents. 

Before: Judge Lasher 

This proceeding was initiated on May 20, 1985, by the filing 

of a discrimination complaint by William E. Brock, Secretary of 

Labor, on behalf of DuWayne Schafer (herein "Schafer"). The 

Secretary's complaint, as twice amended, alleges that Schafer was 

reprimanded in violation of Section 105(c) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seg., (Supp. 

v., 198l)(herein "the Act") and seeks as a remedy therefor one 

day's back pay with interest, and correction of Schafer's 

employment record including removal of the reprimand. 

In addition, the Secretary prays that a $2,000.00 civil penalty 

be assessed against Respondent pursuant to Section 110 of the 

Act. 

PRELIMINARY FINDINGS 

The preponderant reliable and probative evidence, based on 

the testimony and documentary evidence received at the formal 

adversary herein and pleadings, establishes the following: 

1568 
The Glenharold mine, a large surface coal mine CT. 366), in 

November, 1984, and at all times material herein, while owned 

by Respondent Basin Cooperative Services (herein "Basin") was 

operated, supervised and controlled by Respondent Consolidation 

Coal Co. (herein "Consolidation"). At the hearing, it was 

conceded that both Respondents are subject to the Act and the 

Commission's jurisdiction. Since Consolidation operated, 

supervised and controlled the mine CT. 286) it was the "operator" 

at the times pertinent herein, and as the record demonstrates, 

directly responsible for any violation of the Act by its 

management personnel which occurred during the period in 

question. l; The superintendent of the mine in November, 1984, 

and at alltimes material herein was Marvin Suess, an employee 

of Consolidation CT. 416-418). 

In November 1984, Schafer, an employee of Consolidation, was 

a heavy equipment operator (sometimes referred to as a "blade 

operator"), who regularly operated a Cat. No. 16 Motor Grader, 

referred to in the record as the "G-4". At the times pertinent 

here, the Glenharold Mine utilized three motor graders 

("blades"); the one directly involved in this proceeding was a 

standby for use when the other 2 were being repaired and is 

referred to in Respondents's mining jargon as the "G-3"; it is 

similar to that depicted in Exhibit 17 CT. 31-34). The G-3 has 

disc brakes and can travel up to speeds of 7-8 MPH in fourth gear 

CT. 123) and 28 MPH in eighth gear. 

During the relevant time period the mine was operated around 

the clock - three 8-hour shifts; the G-3 blade was subject to use 

on each shift. 

On November 12, 1984, Schafer's usual G-4 blade was being 

repaired and his assigned task was to operate the G-3 grader on 

the afternoon shift (4 .p.m. to midnight) doing reclamation work 

on the surface ("top") of section 5 of the mine consisting of 

removing overburden and dumping it in an area shown as the 

"spoils" area on the depiction marked Exhibit 3-A. This required 

him to operate his diesel-powered grader along a mile-long 

inclined roadway CT. 45, 59, 191, 401-402, 414) between the 

highwall on the south side of the pit and the spoils area. Other 

vehicles, such as scrapers, pickups and haulage trucks, were also 

traveling along the roadway. (T. 36-46, 58). It was very dark 

(T. 46). There was a 4-block distance where there were no berms 

with a 30-foot straight-down drop if the blade had gone over the 

side CT. 55-57). 

1/ 30 u.s.c. § 802(d); Consolidation Coal Company v. Secretary 

(4th Cir., unreported decision; March 13, 1986). 

1569 
, . At the beginning of his shift on November 12, Schafer 

performed his usual safety check of the blade and noticed some 

lights thereon were not working and that a mirror was missing. 

He called his foreman, Dean Bray CT. 61, 369) who sent out an 

electrician who fixed the lights and brought out a mirror which 

Schafer installed. When the electrician left, Schafer operated 

the blade for about 3 hours CT. 61, 62) and noticed "the brakes 

were not holding well" CT. 46, 136). The brakes were getting 

worse each time he used the brakes, according to Schafer (T. 

46-47). Schafer described the problem as follows: 

"A. Well you would go to step on the brakes and, it would 

take awhile before they would grab and then it wouldn't 

stop like it should. Normally if you slam on the brakes, it 

will stop. 

x x x x x x x 

A. You should be able to slide the tires on it. 

Q. What does that mean? 

A. Lock up the brakes so the tires don't go around on it. 

You should be able to to stop down on the brakes and the 

tires lock right up, they don't go around. 

x x x x x x x 

A. Well until the tires stop -- from the time you step on 

the brakes until the tires stop turning, shouldn't be more 

than one to two seconds. 

x x x x x x x 

Q. Now on November 12, what were the problems with the 

brakes that you experienced? 

A. They had -- I noticed that they were considerably worse, 

so I run it that way for a part of the shift. 

Q. What do you mean by considerably worse, what happened 

when you stepped on the brakes? 

A. It was -- the pedal would go to the floor and it was 

taking considerably longer until they would grab. It was 

taking approximately five seconds from the time you'd step 

on the pedal until they would grab, and then you would only 

coast to a stop, it wouldn't stop it like -- you know, or 

lock up the wheels or anything. It would just kind of coast 

to a stop. 

Q. How far did you go from the time you stepped on the 

brakes until the time the equipment stopped -- how much 

time? 

A. I would say on a flat surface with it warmed up and 

everything, from the time they would actually start grabbing 

-- it'd be five seconds from the time you'd step on the 

brake approximately till they would grabi from the time it 

would grab until it would stop, a minimum of 20 feet --

minimum. 

Q. That was on a level surface? 

A. Right, in fourth gear, which is approximately seven miles 

an hour. I don't really know for sure, that's just my 

guess. 

Q. How fast were you traveling on that particular evening? 

1570 
A. Anywheres from -- depending on what type of situation I 

was in, anywheres from second to fourth gear while I was 

blading. 

Q. And do you have any ideal how many miles per hour that 

would be? 

A. Well like I say, fourth gear I think is approximately 

seven miles an hour, seven to eight." CT. 47-49). 

On November 12, Schafer operated the G-3 from about 5 p.m. 

to 8 p.m. during which time the last 4 transmission gears, 

numbers 5 through 8, became inoperative and a ball joint on the 

steering axle broke. CT. 62, 137). At approximately 9 p.m. he 

tagged out the G-3 CT. 65, 66 171,; Ex. 8) and took it to the 

repair shop after calling the shift foreman, Dean Bray and 

telling him that the transmission was out, that the ball joint 

had broken and that the brakes needed to be adjusted CT. 65, 138, 

139). Bray told him to take it to the shop. At the shop, 

Schafer reiterated to the shop foreman for that shift, Rich 

Schneider, the three items which needed repair. 

Tagging out equipment is an equipment operator's means of 

alerting management that the equipment is unsafe CT. 413). 

Schafer's safety concerns as to the brakes were thus communicated 

to management personnel both orally and in writing. · 

· ·At a speed of 7 MPH (approximately the top speed of the G-3 

with the top 4 gears of the transmission out) the G-3 would 

travel 20-40 feet over a 5-second period after the brakes were 

applied before it would stop in some of the conditions Schafer 

was operating in on November 12 depending on whether the roadway 

was flat or inclined CT. 69, 140, 141). Part of the area of 

roadway Schafer was working was inclined CT. 43-45, 58-59, 63, 

68, 191, 195, 198-200). 

Consolidation's Tag-out Procedure, reflected in a 2-page 

memorandum from "Mike Quinn" to "all employees" dated January 8, 

1981, as a "Safety Topic for the week of January 19, 1981" (Ex. 

4), provides as follows: 

"PROCEDURE FOR TAGGING OUT DEFECTIVE EQUIPMENT" 

In order to insure that defective equipment is not operated 

and that equipment is not needlessly taken out of service, 

the following procedure should be followed when placing a 

"DO NOT OPERATE" tag on a piece of equipment. 

1. Any individual can tag out a piece of equipment. However, the individual should know enough about the 

machine to determine if it is safe. 

2. If you place a "DO NOT OPERATE" tag on equipment, you 

must: 

A. Immediately inform your foreman that you have done 

so. 

1571 
, 

B. Write on the· tag exactly why it should not be 

oparated. 

c. Put your name, the date, and the time on the tag. 

D. Turn in a safety maintenance request and note that 

the equipment has been tagged out of service. 

3. To remove a 11 00 NOT OPERATE 11 tag: 

A. Anyone can remove the tag if the defect has been 

fixed. It should be noted on the copy of the safety 

maintenance request sheet that it has been fixed. 

B. The tag should not be removed until the defect is 

fixed or it is determined by one of the following people 

that the defect does not merit taking the equipment out 

of service. 

1. Safety Director 

2. A member of the Safety Committee 

3. The individual that placed the tag 

4. A Foreman 

a. If a Foreman or the Safety Director removes the 

tag prior to the repair of the defect, an explanation should be given to the person who 

tagged the equipment out or a member of the 

Safety Committee. If there is no mutual agreement that the tag should be removed, the issue 

shall be considered a Health and Safety Dispute 

under Article III, Section (0) of the Contract. 

c. If the tag is removed prior to repair of the defect, 

-it should be noted why and by whom on the safety maintenance request. 

D. In some instances the use of a defective piece of 

equipment is permissible if it is done under limited 

circumstances and with an awareness of the defect. If 

this becomes necessary, the circumstances and precautions taken should be noted. An Example: The brakes 

don't work on the polecat. It is parked by bucket hardware that needs to be loaded onto the two ton truck. 

Without moving the truck someone blocks the wheels and 

used the hoist. 

Company policy effective January 19, 1981. 

s/ Marvin R. Suess 

MARVIN R. SUESS 

SUPERINTENDENT 

1572 
The frontside of the tag (Ex. 8) which Schafer placed on the 

steering wheel of the G-3 at the time provided as follows: 

"DANGER 

EQUIPMENT NEEDS REPAIR 

SIGNED BY S/ DuWayne Schaf er 

DATED 11-12-84 

The back side of the tag provided: 

"DANGER 

DO NOT REMOVE THIS TAG 

Left steering cylinder has broken ball joint 

Brakes need adjusting 

SEE OTHER SIDE" (Note: The capitalized wording reflects the standard printed portion 

of the tag form; lower case is the 

part filled in by Schafer in his 

handwriting) 

Subsequently, in handwriting, the word "Repaired" was put in 

by Lee Brown, repair shop foreman, behind the word "ball joint" 

and behind the word "adjusting" the following note was made: 

"Miles Dochtor checked out and they seemed safe to him. LB. 2; 11-13-84" . -

Miles Dochtor's testing of the brakes was performed on a 

level surface CT. 338). Miles Dochtor's report back to Lee Brown 

was that there was a "slight pause" on the brakes, "maybe a 

couple of seconds or something". He did tell Mr. Brown how fast 

he had driven the G-3. Dochtor indicated he thought the brakes 

were safe and also that he believed the G-3's brakes needed 

repair (T. 339, 340). Because Brown thought the G-3 was needed, 

he did not then repair· the brakes but sent it back out for 

operation (T. 340), removed the tag and gave it to his supervisor, Merle Anderson CT. 341, 391). According to Mr. Brown it 

"very seldom" happens that he removes a tag b~fore all repairs 

are completed (T. 342). In fact, the only tag Brown had even 

taken off a machine was Schafer's first tag on the G-3 CT. 351). 

This constitutes a change in Respondent's procedures which I find 

Schafer could not have anticipated. 

~/ The hand written initials of Lee Brown, the repair shop 

foreman on the next shift, i.e. midnight to 8 a.m. on November 

13, 1984 CT. 67, 306). Miles Dochtor was a repair shop mechanic 

CT. 86, 334). Neither Lee Brown or Dochtor were members of the 

Safety Committee CT. 85, 86). 

1573 
After leaving the G-3 blade in the shop for repair, Schafer 

operated a scraper for the rest of his November 12 shift (T. 68, 

387). 

On the following day, November 13, 1984, Schafer returned to 

the mine to commence work on the 4 p.m. to midnight shift. .The 

G-3 was at the job site and Schafer performed his usual safety 

check, 3; drove the G-3, and "realized that the brakes were the 

same as-they had been the night before." CT. 68, 142). He 

called the shop foreman for that shift (T. 384), Rich Schneider, 

on his radio and asked him if there was any plan to repair the 

brakes. Schneider said that they didn't want to repair it until 

after repairs on the G-4 were completed CT. 68, 477, 478). 

Schafer asked what happened to the tag he had put on it the night 

before and Schneider said he knew nothing about it CT. 68-70, 

111, 146). Schneider didn't say, and Schafer did not know, when 

the G-4's repairs were due to be completed CT. 146). Management 

did have "plans" to repair the G-3's brakes CT. 147, 277) but did 

not want to make such repairs until after the G-4's repairs were--

completed (T. 68, 86, 365, 384-386, 477-478, 527-528) which was 

anticipated to be on Wednesday, November 14 (T. 384). 

Schafer than called Dean Bray, his foreman, at approximately 

4:30 p.m. and asked him to bring him another tag for the blade. 

Bray said nothing but after a while he came to where Schaf er was 

and asked Schafer to take a pickup and go fuel a .light plant. 

Bray told Schafer he would get him a tag later. Schafer then 

fueled up the light plant, and found a tag in the pickup which he 

then, about 5 p.m. (T. 172, 173), put on the G-3 blade between 7 

p.m. and 8 p.m. CT. 109) Bray asked Schafer if the G-3 was in 

too bad shape to take to the repair yard. Schafer said he could 

bring it there (a distance of 5 or 6 miles) in slow speed (T. 

70-72, 389, 390). Bray did not mention opposing putting a tag on 

the blade at that time CT. 70-72) or that it wasn't company 

policy to put a second tag on the machine CT. 72). When Bray 

arrived for work on November 13, he did not ask anyone if the 

blade had been repaired the night before, but "assumed that it 

had been taken care of or it wouldn't be out there again" (T. 

403-404). 

The tag which Schafer put on the G-3 on November 13, 1984 

(Ex. 9) was on the same printed tag form as Ex. 8 and provided on 

the front side: 

"DANGER 

EQUIPMENT NEEDS REPAIR 

SIGNED BY s/ D.M. Schafer 

Date 11-13-84 

7:00 p.m. II 

1/ Employees were required to check their equipment before 

operating it CT. 418-419). 

1574 
The rear side of the tag provided: 

DANGER 

DO NOT REMOVE THIS TAG 

Brake [sic] do not 

operate properly 

Do not grab right 

away or hold very well. ~/ 

SEE OTHER SIDE" 

Schafer's reason for putting the second tag on the G-3 was 

that he "felt that it was still as unsafe as it was before to 

operate and they had done nothing about it to make it any 

better." (T. 73). Schafer was aware at the time that the tags 

prevented others from using the equipment (T. 73). If the 

operator of a blade felt it was unsafe, the method used to alert 

management was placing a tag on it CT. 413, 458). 

At approximately 9 p.m., Schafer took the G-3 to the repair 

shop and went into the "warehouse" where four foreman were 

sitting having coffee, Rich Schneider, Larry Klinsworth, Dean 

Bray and Kenny Redka, and told them that the "next time somebody 

takes that tag off -- some foreman takes that tag off, some 

foreman is going to be in trouble." CT. 76). 5/ . 

At this point in time, no foreman or anyone in management 

had told Schafer why the brakes had not been repaired, why the 

tag had been removed, who had removed it (T. 77, 82, 104, 

108-112, 308-310, 341, 358, 359, 463, 476, 477, 506-507) or given 

any explanation other than Schneider's statement to him that they 

did not want to fix the G-3 until the G-4's repairs had been 

finished. CT. 77, 82,' 308-309, 312, 527). As noted previously, 

the G-3's brakes were scheduled for repairs in "a day or so" 

thereafter, after the G-4 blade came out of the repair shop CT. 

308, 312-313) • 

Schafer also had not been advised: (1) that a member of the 

Safety Committee had reviewed the G-3's brakes as required by 

Article III, Section (i) of the union contract (Ex. 19, T. 81, 

82, 409), the pertinent portion of which is set forth subsequent4/ The wording of the handwritten part of this tag filled in by 

Schafer does not reflect that he was aware that the first tag had 

been removed by management or that management had checked the 

brakes and found them satisfactory; nor does its tenor show 

rancor or reflect any knowledge of any events concerning the G-3 

after he left it at the repair shop the previous evening. 

5/ This is Schafer's account. According to Dean Bray, the only 

party to the conversation who testified besides Schafer, Schafer 

said that if any of the foreman present had removed the tag it 

"would be" their "ass" (T. 396). On this limited issue I credit 

Bray's account as being the more likely in view of the overall 

circumstances and Schafer's emotional state at the time. 

1575 
ly herein. Nor had Schafer been advised (2) that the G-3 was 

safe to operate in particular areas of the mine or under 

specified conditions CT. 77, 82, 308-311, 359, 407, 408, 464, 

507). 

In this connection it should again be noted that 

Respondent's own procedure for tagging out Defective Equipment 

{Ex. 4) provides: 

"The tag should not be removed until the defect is fixed or 

it is determined by one of the following people that the 

defect does not merit taking the, equipment out of s~rvice. 

1. Safety Director 

2. A member of the Safety Committee 

3. The individual that placed the tag 

4. A Foreman 

A. If a Foreman or the Safety Director removes the 

tag prior to the repair of the defect, an explanation should be given to the person who 

tagged the equipment out or a member of the 

Safety Committee. If there is no mutual agreement that the tag should be removed, the issue 

shall be considered a Health and Safety Dispute 

under Article III, Section (0) of the Contract." 

(emphasis added} 

After Schafer took the G-3 to the shop, he asked Dean Bray 

who had removed the first tag. Bray said that he wasn't sure, 

and told Schafer to eat his lunch CT. 407) and they would talk 

about it after lunch. 6; Bray then discussed the matter with 

Rich Schneider CT. 408) and "tried to find out just exactly what 

had happened on graveyard shift when they fixed it the night 

before" CT. 391). Schneider told him that foreman Lee Brown had 

removed it and that Brown and Dochtor had "checked it out." Bray 

then requested Schafer to run the G-3 since "there wasn't any 

real hazard if he was blading and doing his job", and asked him 

if "he didn't think he could run it for one more shift and then 

by the next day G-4 would have been ready." Schafer refused to 

operate it. (T. 391, 409). If the G-4 had not come out of the 

repair shop at that point, it was management's "intention" to 

"continue to use" the G-3 CT. 527-528). 

During the lunch break, and before Bray asked Schafer to run 

the G-3 for one more shift, Bray and Schneider tested the G-3's 

brakes while running the G-3 in 4th gear and found that there was 

~/ At this point, according to Mr. Bray, he "had no reason" to 

believe the condition of the G-3's brakes "were any other" than 

what Schafer told him they were (T. 407-408), that is, that the 

brakes were not safe to operate CT. 408). 
a 2 or 3 second hesitation before the brakes grabbed (T. 392) 

with the G-3 traveling 10 to 20 feet before coming to a stop (T. 

393-395, 412). Mr. Bray could render no opinion how far the G-3 

would have traveled after application of the brakes had there 

been no "hesitation" problem CT. 395). Again, there is no 

evidence in the record that Schaf er was told at any time, that 

the G-3 was considered safe to operate in certain specified 

areas. 

The conversation with Schafer after the lunch break, at 

approximately 9:30 p.m. (T. 78, 83), was initiated when Mr. Bray 

came up to Schafer and told him that "Schneider and I looked at 

that blade and we decided the brakes aren't that bad and so 

you'll have to run it" CT. 78, 83, 181-183). Schafer asked Bray 

if anyone from the safety committee had looked at the G-3, Bray 

said "no, Rich and I looked at it." Schafer said they needed 

someone from the safety committee to look at it and that this had 

been standard procedure in the past (T. 79, 80). Bray told 

Schafer that he didn't "need any member of the safety committee, 

that if a foreman tells you that its safe to operate, you have 

to operate it" CT. 83). Schafer was familiar with the union 

contract (Ex. 19) as he had been a member of the safety committee 

for 2-3 years and had been chairman of the safety committee for 

approximately one year. Schafer's understanding of the contract 

safety procedure was as follows: 

"The procedure was that if the safety committee decided 

-- according to the contract, if the safety committee 

decided it was okay, you should run it; if you didn't, then 

you still have the option of calling in MSHA to check it 

out. If at that point MSHA decided it was safe to run anyway, then you were subject to reprimand •. If they decided it 

was unsafe, then they would have to repair it." CT. 80). 

No member of the safety committee was advised or given an 

explanatipn by management why the first tag was removed CT. 

79-82, 84, 409}. 

At the beginning of Lee Brown's shift on November 14th (at 

approximately midnight), Schafer conversed with Brown about the 

G-3. This occurred after Schafer's shift on November 13 and 

after Schafer had put the second tag on the G-3. Brown advised 

Schafer that Miles Dochtor had checked the brakes (after the 

first tag) and that Miles had said the G-3 was safe to operate. 

Brown had not called a member of the safety committee to check 

the G-3 at this point CT. 347). 

When he arrived for work on the midnight to 8 a.m. shift 

(the shift following Schafer's) on November 14, 1984, Lee Brown 

noticed the G-3 was in the shop again with a tag on it and he and 

Mark Winn, a pit foreman, both test drove the G-3 CT. 343). Both 

drove the G-3 on the haul road but again on flat level surfaces. 

Neither were safety committee members. There again was 11 a slight 

1577 
pause 11 of "two or three seconds" after the brakes were applied 

before they stopped the G-3, allowing the G-3 to travel more. than 

10 feet CT. 343-345). The pause or delay in the brakes grabbing 

was not a "common" symptom of brake wear (T. 363). 

On November 14, after these tests by Brown and Winn, the 

brakes on the G-3 were repaired CT. 348) by replacing all the 

seals and discs thereon CT. 362). After such repair, the old 

brakes are thrown away (T. 364). In the case of the G-3 some of 

the brake pads which were removed were seen to have completely 

worn away CTr. 365). Mine superintendent Suess was told that the 

brakes "were worn but they weren't totally out"(T. 531). 

Schafer's understanding of the safety procedure was based on 

Article III, Section (i) of the union contract (Ex. 19) which is 

entitled 11 Preservation of Individual Safety Rights" CT. 81). It 

provides: 

"(l) No employee will be required to work under conditions 

he -has reasonable grounds to believe to be abnormally and 

immediately dangerous to himself beyond the normal hazards 

inherent in the operation which could reasonably be expected 

to cause death or serious physical harm before such condition or practice can be abated. When an employee in good 

faith believes that he is being required to work under such 

conditions, he shall notify his supervisor of such belief. 

Unless there is a dispute between the employee and management as to the existence of such condition, steps shall be 

taken immediately to correct or prevent exposure to such 

condition utilizing all necessary employees, including the 

involved employee. 

(2) If the existence of such condition is disputed, the 

employee shall have the right to be relieved from duty on 

the assignment in dispute. Management shall assign such 

employee to other available work not involved in the dispute and the employee shall accept such assignment at the 

higher of the rate of the job from which he is relieved and 

the rate of the job to which he is assigned. The assignment 

of such alternative work shall not be used to discriminate 

against the employee who expresses such belief. If the existence of such condition is disputed, at least one member 

of the Mine Health and Safety Committee shall review such 

condition with mine management within four (4) hours to determine whether it exists. 

(3) If the dispute involves an issue concerning compliance 

with federal or state mine safety laws or mandatory health 

or safety regulations, the appropriate inspection agencies 

shall be called in immediately and the dispute shall be 

settled on the basis of the inspectors' findings, with both 

parties reserving all rights of statutory appeal. Should 

1578 
the federal or state inspectors find that the condition complained of requires correction before the employee may return to his job, BCS shall take the corrective action indicated immediately. Upon correction, the complaining employee shall return to his job. If the federal or state 

inspectors do not find a condition requiring correction, 

the complaining employee shall return to his job immediately. 

(4) For disputes not otherwise settled, a written grievance 

may be filed,. and the dispute shall be referred immediately 

to arbitration. Should it be determined by an arbitrator 

that an abnormally unsafe or abnormally unhealthy condition 

within the meaning of this section existed, the employee 

shall be paid for all earnings he lost, if any, as a result 

of his removing himself from his job. In those instances 

where it has been determined by an arbitrator ~hat an employee did not act in good faith in exercising his rights 

under the provisions of this Agreement, he shall be subject 

to appropriate disciplinary action, subject, however, to his 

right to file and process a grievance. 

(5) None of the provisions of this section relating to compensation for employees shall apply where BCS withholds or 

removes an employee or employees from all or any area of a 

mine, or where a federal or state inspector orders withdrawal or withholds an employee or employees from all or 

any area of a mine. However, this section is not intended 

to waive or impair any right to compensation to which such 

employees may be entitled under federal or state law, or 

other provisions of this Agreement. 

(6) The provisions of this section shall in no way diminish 

the duties or powers of the Mine Health and Safety Committee. 11 (Emphasis supplied) 

After Schafer finished his lunch on November 13, Bray 

assigned Schafer to operate a scraper CT. 183) and Schafer did so 

through the end of the shift. At the end of the shift, another 

foreman, Mark Wynn, advised Schafer that it was Lee Brown, repair 

shop foreman CT. 84, 305) for the shift following Schafer's, who 

had removed the first tag. Schafer then spoke to Lee Brown and 

asked him what he was doing taking the tag off. Brown told him 

that he and Miles Dochtor had checked out the G-3 and decided it 

was good enough to run. Brown indicated that the brakes could 

not be fixed by "adjusting" them and that the brakes had to be 

taken apart and new discs put in, and that they needed the G-3 

until the other blade was repaired. Schafer had not seen it 

occur before that a foreman simply removed a tag and he had not 

previously seen Respondent's tag-out procedure (Ex. 4) CT. 87, 

88, 93, 150, 156) nor had another miner, Edwin Whetham CT. 214). 

The only procedure Schafer was aware of was Article III, Section 

Ci) of the union contract CT. 95). 

1579 
The hazards which were posed by operating the G-3 with defective brakes in the area where Schafer was working on November 

12 and November 13 were persuasively described by the Secretary's 

witness, Edwin Whetham, a dozer operator who was employed at the 

mine during the pertinent period and who actually observed CT. 

199) the defective condition of the G-3's brakes: 

"Q. What would you believe could happen if he wasn't able 

to stop, what kind of things? 

A. Well I think he could have gotten run into with a 

scraper or if he would have tried to dodge off, he could 

have went over the edge of the embankment, and if he had 

tried, rather than stop and back up, tried to pull off the 

~ide, he could have went over the edge and down the incline 

,,or into a mudhole or whatever. 

Q. And what kind of injury could result in going over the 

incline or --

A. Well he could have got rolled over and he could have got 

injured pretty good in a roll over sliding down the incline. 

That's pretty dangerous I would say. 

Q. Is it possible he could have been killed? 

A. Oh, yeah, it's possible, yeah." (T. 201) 

This description of the potential dangers posed by Schafer's 

continued use of the G-3 with its defective brakes are generally 

supported in the record and consistent with the conditions and 

terrain in the area where Schafer was assigned to work during the 

period in question. 

On November 14, when Schafer arrived for work, the G-3 was 

being torn apart for repairs and he operated the G-4 blade on 

that date {T. 97, 184, 437-439). At the beginning of this shift 

Rich Schneider and Dean Bray told Schafer that they felt he had 

not followed procedure shutting the blade down and tagging it out 

and that he would probably be reprimanded CT. 98, 415). Schafer 

became aware at this time that on the preceding shift {day shift) 

on November 14, members of the safety committee had checked out 

the G-3 CT. 98, 434). This, of course, was after his second 

tag-out CT. 526). 

On the evening of November 14, Schafer asked Foremen Bray 

and Schneider, after they had advised him he was to receive a reprimand, to drive him to the shop so that he could call MSHA. 

After first refusing, Bray and Schneider relented and drove him 

to the repair shop, telling him he would have to do it on his own 

time. Schafer made several calls, and while he was doing so, Mr. 

Suess arrived and told him it would be on his own time and that 

he would have to pay for every phone call. When Schafer was 

unable to reach the MSHA inspector at his home (T. 178) Suess 

told him he would have to go home to make further phone calls, 

and to either go back to work or go home. Schafer returned to 

work. Subsequently, an hour's time was deducted from his 

1580 
paycheck for this period, amounting to $16.61 (T. 287), which is 

the only pay Schafer lost from the entire episode CT. 100-103, 

177). 

On November 15, 1984, Mike Quinn, Respondent's safety 

director, told Schafer he was to get a letter of reprimand, and 

shortly thereafter Quinn came back with Marvin Suess and Suess 

handed Schafer the reprimand (Ex. 11; T. 99-100). Although the 

parties stipulated CT. 287) that the undated reprimand was issued 

on November 16, the evidence shows it was delivered to him on 

November 15. 

On the morning of November 15, 1984, Schafer posted a copy 

of Article III Ci) of the union Contract on the union bulletin 

board CT. 479-481, 534; 537) (one of three) near the bath house 

(T. 422) with the following notation which he had written at the 

bottom thereof (Ex. 12; T. 540): 

.. This shows Marv's policy on taking equipment out of service 

contradicts this section of the contract. His policy is ~ 

joke and a scare tactic for those gullible enough to be 

taken in by it. 

Signed: a miner concerned for safety" 

Schafer prepared and posted this document (T. 432-433; Exo 

12) after he learned he was to be reprimanded CT. 530, 540), 

after Mr. Suess had commenced the process of reprimanding him (T. 

422, 443, 488, 494, 530, 540), and for the following reason: 

.. I wanted to make everybody aware that it's not the way it 

had been done and it was in violation of past practice and 

custom and according to the contract; and not to be intimidated by it, because that's all I felt it was, was a way of 

intimidating everybody and taking away their right to remove themselves from a dangerous situation or shut anything 

down." CT. 53 7) • 

·On November 15, 1984, Schafer received the following letter 

of reprimand (Ex. 11) from Marvin R. Suess, Glenharold Mine 

Superintendent: 

Mr. DuWayne Schafer 

Box 1253 

Wilton, ND 58579 

RE: Tag-out Procedures 

DuWayne: 

Safety rights of employees and the right to safe working 

conditions are the highest priority items at Glenharold 

1581 
Mine6 but they must not be abused by either the employees or 

the employero Consol and BCS have great respect for tag-out 

procedures and have always wanted all equipment to be 

operable and safe, but there comes a time when the operation 

of equipment could be better, yet not unsafe to operate. If 

there exists an unsafe condition it should be tagged-out 

following the company procedures. At that point the 

employee is saying that the equipment is abnormally 

hazardous and could cause immediate danger to the operator. 

No employee shall be discriminated against for utilizing · 

this procedure. · 

A memo posted on the bulletin board indicated "Marv's policy 

is a joke"~ I 1 m not real sure what you were referring to 

since an unsafe piece of equipment has always gotten 

repair when it was unsafe to operate or where it was 

apparent it was dangerous to operate. We have had several 

ca~es where an employee tagged-out equipment that was not 

unsafe to operate and this must stop. Should this continue 

then all respect for tagged equipment will be lost. 

After a complete investigation of G-3 Motor Grader, which 

you tagged-out twice on November 12th and 13th, your local 

union Safety Committee, Mike Quinn, several additional 

mechanics, several foremen, and I concluded that G-3 was not 

unsafe to operate. It was explained to you that G-3, our 

spare motor grader, was to be used until G-4 was repaired at 

which time the reclamation blade operators would again 

operate G-4 full-time. The areas in which G-3 were to be 

used were safe areas to operate such a blade. 

rom ::iur investigationQ we have concluded that you have 

abuseL~'. our procedure tagging equipment, and you have 

... led to follow the guidelines of the BCS-UMWA Agreement of 

You did not act in good faith in exercising your 

~ and are therefore issued this written reprimand for 

t orementioned items. 

:::::6er t.o provide a e worlc place I ask that you refrain 

:: ::-Jm suse of company tag-out procedures, refrain from 

1582 
posting memos that are false, and abide by the rights 

provided in the Surf ace Coal Wage Agreement of 1984 to 

resolve any problems you may believe exist. 

Regretfully submitted, 

s/ Marvin R. Suess, 

Glenharold Mine Superintendent" "!./ 

Marvin Suess, in his position as mine superintendent, 

initiated, drafted, signed and issued the reprimand to Schafer, 

and was the official in Respondent's management hierarchy 

primarily and effectively responsible for determining that 

Schafer should be reprimanded (T. 418, 441-446, 499, 508-511). 

The decision to reprimand Schafer was made on November 14, 1984, 

in the late afternoon (T. 442, 443, 530). Mr. Suess could not 

say whether it was on November 14 or November 15 that he became 

7/ (a) It should be noted that the phrases "abnormally hazardous" 

and immediate danger" used by Mr. Suess in the first paragraph of 

this undated reprimand letter CT. 521-523), while possibly 

recognizable as established mine safety concepts and jargon, 

appear to invoke the language of Article III, Section (i)(l) of 

the contract Grievance Procedure (Ex. 19) set forth above. In 

its landmark Pasula case, infra, the Federal Mine Safety and 

Health Review Commission noted with respect to what I believe and 

conclude are analogous and applicable "refusal to work" 

principles that such contractual language permits refusals to 

work in only what mi9ht be called an "abnormal. imminent danger 11 

and declined to construe that Act to limit a miner's refusal to 

work to only such conditions. 

Cb) Close analysis of the reprimand letter reveals (a) that its 

primary thrust is Schafer's alleged "abuse" of the tag-out procedure, and (b) that it fails to precisely describe how Schafer 

did so CT. 103). Nor does it explain to Schafer how he "failed 

to follow" the 1984 contract. It can be inferred that the 

"abuse" Mr. Suess had in mind was generally that Schafer tagged 

out a piece of equipment that was not unsafe. Significantly, the 

timing of events, Schafer's knowledge of them, and their 

interplay with the specific rights of miners under the tag-out 

procedure and grievance procedure and the requirements thereof 

applicable to both miners and management was not delineated. 

Also, Mr. Suess did not discuss the matter with Schafer before 

issuing this reprimand (T. 497). There is no evidence that 

Schafer was ever told why Respondent concluded the G-3 was safe 

to operate, or which "areas" Respondent thought it was safe to 

operate in. Schafer was told, though, that management wanted to 

operate the G-3 until the G-4 was out of the repair shop. 

Cc> At the hearing, Mr. Suess could not say, assuming arguendo 

that the only thing Schaf er did wrong was abusing the tag-out 

procedure, whether or not Schafer would have been reprimanded CT. 

508-510, 478). 
aware of Schafer's "Marv's policy" is a "a joke" notation at the 

bottom of the copy of ART III of the Union Contract posted on the 

bulletin board (T. 445; Ex.·12). 

Mr. Suess at first conceded that Schafer's first tag-out was 

proper CT. 425), but only because the steering mechanism was defective CT. 425). Mr. Suess took the position, however, that 

with respect to the G-3's brakes, the first tag-out by Schafer 

was not in "good faith" CT. 449-450). Yet, when the brakes were 

ultimately removed for repairs Mr. Suess who was present in the 

repair shop did not examine them closely and professed not to 

have been curious about their condition CT. 490-491). I find 

this consistent with the discriminatory frame of mind I attribute 

to Respondent in this matter. The net effect.of Respondent's 

various failures to follow its past practices and tag-out 

policies in this esposode was, along with its premature 

initiation of disciplinary action, a provocation to Schafer and a 

discouragement of his taking a required, protected safety 

measure. 

Mr. Suess took the further position that the second tag-out 

was improper on the following basis stated at the hearing: 

"Q. Okay. When Mr. Schafer came back on shift on the 

evening of the 13th, following removal of the first tag, he 

disputed removal of that tag with his foreman and placed a 

second tag on it~ Was that, in your opinion, proper? 

x x x x x x x x 

A. I believe he should have then gone through his grievance 

procedure since management had already made the determination that it was safe to operate. I do not deprive the 

man of removing himself from that piece of equipment, but 

by tagging it out, it also did not allow us to utilize anybody else on the piece of equipment" CT. 425-426). 

<emphasis supplied) 

An important follow-up in Mr. Suess's position occurred 

subsequently in his testimony: 

Q. Okay. When do you think he was not -- acting in bad 

faith --- what did he do that you think was in bad faith? 

A. In the fact that he ran it from four o'clock until 

the steering broke before the brakes became an issue. Yet 

the brakes didn't change at all. And then tagging it the 

second day, knowing what has been done -- what had been 

inspected. And then also riding that motor grade in that 

1584 
fourth gear with the mold board up and the ripper up, to me 

if the brakes were that bad, it should have never been rode, 

it should have been towed to the shop. CT. 450). ~/ 

ULTIMATE FINDINGS, 

CONCLUSIONS AND DISCUSSION 

In order to establish a prima facie case of discrimination 

under section 10.5 ( c) of the Act, a complaining miner bears the 

burden of production and proof to establish (1) that he engaged 

in protected activity and (2) that the adverse action complained 

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

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 

2797-2800 (October 1980), rev'd on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir., 

1981)): and 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. If an operator cannot rebut the 

prima facie case in this manner it may nevertheless affirmatively 

defend by proving that Cl) it was also motivated by the miner's 

unprotected activities, and (2) it would have taken the adverse 

action in any event for the unprotec~ed activities alone. The 

operator bears the burden of proof with regard to the affirmative 

defense. Haro v. Magma Copper Co., 4 FMSHRC 1935, 1936-38 

(November 1982). The ultimate burden of persuasion does not 

shift from the complainant. Robinette, 3 FMSHRC at 818 n. 20. 

See also Baich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983): 

and Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59 (D.C. 

Cir. 1984)(specifically approving the Commission's PasulaRobinette test). The Supreme Court has approved the National 

~/ Mr. Suess's misunderstanding and rationalizing of the 

sequence in which certain crucial events occurred must be 

underscored at this juncture: the record is overwhelming that 

when Schaf er put on the second tag he had not been advised that 

management CMr. Brown) had determined that the brakes were safe 

or otherwise informed of management's position. Mr. Suess subsequently conceded that Schafer did not know that management had 

evaluated the equipment before he put on the second tag CT. 

463-464, 476-477, 507). Further, Mr. Suess was not sure, even at 

the time of the hearing, whether any Safety Committeeman had been 

advised of management's determination CT. 464, 477, 507). These 

facts, among other things, place Respondent in contravention of 

Section 3(b)(4)(a) of its own Tag-Out Procedure. Even so, Mr. 

Suess reprimanded Schafer and steadfastly held to the position 

that Schafer had abused the tag-out procedure, even on the first 

tag-out with respect to the brakes CT. 449-450). While assuming 

this posture it is significant that Mr. Suess did not undertake 

to ascertain the brakes' condition after they were removed in the 

repair shop CT. 491). 

1585 
Labor Relations Board's virtually identical analysis for discrimination cases arising under the National Labor Relations Act. 

The essence of Respondent's defense appears to be that 

Schafer, on both tagouts, was not in good faith and was 

unreasonable in his position that the G-3's brakes were unsafe, 

and that the tagouts were thus not "protected activities." 

Respondent's basis for asserting that Schafer was not in good 

faith or reasonable relies heavily on the fact that its personnel 

made checks of the G-3 and determined it to be safe for use under 

restricted conditions and at certain locations. However, the 

facts that these tests were made and the decisions made by 

Respondent's management were either (1) not communicated to 

Schafer or (2) were made after Schafer had attached the second 

tag on the machine. It is clear also that the joint test that 

management made with the safety committee was performed after the 

second tagout (T. 514}. Respondent failed to establish that 

Schafer was told that management felt the G-3 was safe to use in 

certain areas or that he should not use the G-3 in inclined areas. 

Yet Mr; Suess also indicated that "99 times out of 100 11 , management concurred with a miner's assertion that equipment was unsafe 

CT. 518). Thus, in this episode, Respondent broke a very strong 

pattern and did not communicate its position or findings to 

Schafer before his second tagout. 

Tagging out equipment believed to be unsafe is a safety 

activity protected by the Act and required (T. 519). Schafer's 

belief that the brakes on the G-3 were defective and rendered 

operation of the G-3 unsafe on both November 12 and November 13, 

1985, was reasonable CT. 503-504) in good faith, 9; and calculated to protect himself and other operators using the G-3 from 

safety hazards. This was borne out by various of his actions at 

the time including demonstrating the defective brakes to a fellow 

employee and listing such on both tags. That the brakes were 

actually unsafe is shown by the condition they were found in 

after their removal, the considerable "pause" in their operation, 

and the distances the G-3 traveled after the brakes were applied. 

There is no prohibition, .express or implied, in Respondent's 

tag-out procedure, against tagging out equipment believed to be 

defective more than once. The essence of a proper tag-out is a 

miner's reasonableness and good faith in believing equipment is 

unsafe. Indeed, Schaf~r was obliged to tag-out the G-3 since a 

miner's failure to tag out unsafe equipment subjects his employer 

to sanctions under the Act for violations of the safety standards 

(T. 458). Respondent's contentions that Schafer "abused" the 

.2,/ See Secretary ex rel. Pratt v. River Hurricane Coal Company, 

Inc., 5 FMSHRC 1524 (1983). 

1586 
tag-out procedure and thu.s was not engaged in a protected 

activity is not established in the record. 10; What is clear, 

as previously noted, is that Respondent being fully aware of 

Schafer's safety concerns did not follow its own tagout 

procedures. 

Respondent, admittedly desirous of keeping the G-3 in 

operation for productivity reasons, took disciplinary (adverse) 

action against Schafer for his engagement in the protected 

activity described above. Its belated contention that Schafer 

should have removed the tag himself after he was advised that 

management considered the brakes safe CT. 477-478) is pretextual. 

Management personnel removed the tag the night before and no 

reason having any merit was submitted why it could not have 

removed the second tag had it chosen to do so. 11; The mine 

superintendent, who investigated the matter before reprimanding 

Schafer, did not bother to ascertain Schafer's position CT. 497-

498), the basis for his belief that the brakes were unsafe, or 

his state of knowledge, before reprimanding him. The mine 

superintendent, Mr. Suess, did concede that Schafer "probably" 

would not have been reprimanded for the allegedly improper 

unprotected activity of putting the "Marvin's policy is a joke" 

note on the bulletin board CT. 509-510). The record shows, and I 

have found, that the reprimand process was initiated before 

Schafer posted the note. Respondent clearly failed to establish that it would have taken the adverse action in any event 

for Schafer's alleged unprotected activities alone. Rather, in 

reprimanding Schafer, Respondent appears to have been motivated 

by Schafer's protected activity in tagging out the G-3 and its 

10/ Mr. Suess's ipse dixit that Schafer "abused" the tag-out 

procedure aside, Respondent failed to persuasively show Schafer 

was proceeding in bad faith in the tag-outs. I infer from the 

fact that Respondent did limit the G-3's use to certain areas 

that it considered the G-3's brakes unsafe for use in other areas. 

Compounding the essential unreasonableness of its position, there 

is no evidence that Respondent ever told Schafer he was not to 

use the G-3 in certain areas before the second tag-out. 

11/ By taking this position, and by failing to recognize that a 

"dispute" as to safety of the G-3 existed, it was Respondent's 

management which blocked the operation of Art. III, Section (i) 

of the Union Contract. Thus, the matter was not "reviewed" by 

management and "at least one member" of the Safety Committee 

within 4-hours, as required by the contract. Respondent, 

instead, let Schafer know with considerable alacrity that he was 

to be dispiplined. From this, its strong desire to keep the G-3 

in production, its failure to follow its own procedures, the 

fundamental unfairness in its position vis a vis Schafer, and the 

transparency of some of its arguments as previously noted, I 

infer that its motivation was discriminatory. Houser v. Northwestern Resources , 8 FMSHRC 883 at 886. 

1587 
patent displeasure in his taking the G-3 out of operation before 

the G-4 was out of the repair shop. Accordingly, it is concluded 

that Respondent failed to establish any rebuttal or affirmative 

defense afforded under the Act or by precedent. Specifically, it 

failed to establish by reliable, probative, or convincing evidence that Schafer's tag-out actions were not protected, that the 

reprimand was in no part motivated by Schafer's two tag-outs, or 

that it would have reprimanded Schafer for unprotected activities 

alone. A violation of Section 105(c) of the Act is found to have 

occurred. 

LOSS OF PAY 

The Secretary claims that Schafer is entitled to reimbursement of $16.61, representing one hours pay. Schafer was docked 

for this time-which apparently was used to call fellow employees 

to get the phone number of an MSHA Inspector on the evening of 

November 14, 1984 - after he was advised he was to receive a reprimand. 

The Secretary failed to establish Schafer's entitlement to 

reimbursement. Very little evidence was adduced on this question. 

No urgency or necessity for his attempting to call the inspector 

at this time was shown, nor was it shown why Schafer could not 

have made the calls on his own time at the conclusion of the 

shift on the following day. Schafer was advised in advance that 

he would be charged for the time he was utilizing, but was 

allowed by his management to take the time to do so. 

It is concluded from the thin record on this point, that 

Schafer's loss of this pay was not an expected or normal result 

from the discriminatory action of Respondent and an award 

therefor is denied. 

PENALTY ASSESSMENT 

As noted above, the violation of section lOS(c) of the Act 

occurred when Respondent Consolidation was the operator of the 

Glenharold mine. The parties stipulated that there were no 

previous violations of Section 105(c) during the pertinent 2-year 

period preceding the subject violation (T. 291). I have 

previously determined that Consolidation is a large mine operator 

and the parties further stipulated that assessment of a penalty 

would not adversely affect its ability to continue in business 

CT. 287). In this matter the concept of prompt abatement of the 

violation has no specific relevance in view of the Respondent's 

good faith assertion of the legality of its position, and the 

complexity of the legal issues involved. Prompt abatement here 

would amount ,to the surrender of its right to assert its own 

position and to a hearing on the merits. 

The remaining statutory assessment factors, negligence and 

gravity, also require some conceptual transposition from the 

ordinary meanings thereof in matters involving violations of 

discrete safety and health standards to a discrimination 

1588 
violation. With respect to the seriousness of the viola~ion, the 

adverse action taken here against the complaining miner, as in 

many discrimination cases, could have the effect of discouraging 

the taking of protected safety activity by other miners in the 

future. While there is no basis to question the sincerity of 

Respondent's concern for the viability of its tag-out procedures 

generally, with respect to the two tag-outs by Schafer here I 

have concluded that Respondent's response to such was discriminatory. I find no credible basis in the record to conclude that 

Schaf er or other miners were in the past the subject of 

oppressive measures to discourage safety activities. As 

evidenced by Schafer's actions themselves, and by the absence of 

other probative evidence, the instant adverse action was not 

taken in such a background of intimidation as to dishearten 

justified, reasonable, and required safety activity of miners in 

the future. Accordingly only a moderate degree of gravity is 

attributed to this violation. 

The concept of negligence has no direct applicability to 

this particular matter. The adverse action was taken wilfully 

and thus the broader idea of the culpability of Respondent's 

managment in reprimanding Schafer is to be considered. In this 

connection it is first noted that because there was no showing 

that an "explanation" was ever given to either Schafer or a 

safety committeeman concerning the removal of the first tag, and 

it does not otherwise appear that such was the case, Respondent 

did not establish that it was in compliance with its own tag-out 

procedures. While charging Schafer with "abuse" of the tag-out 

procedure in various respects it appears that if there was any 

deviation therefrom, it was on the part of Respondent's 

management. Schafer, who took safety - calculated action in 

putting the second tag on the G-3, had done so without it having 

been explained to him what had taken place by the repair shop 

with respect to the first tag the night before. Nevertheless, 

the mine superintendent, with apparent knowledge of this CT. 

463-464), proceeded to reprimand him. 

Since a member of management, in this case Brown, the repair 

shop foreman, had taken off the first tag, either he or any other 

foreman could have taken off the second tag had it wished to do, 

so on the second night, before or after informing Schafer of 

their testing and determination that the brakes were safe. It 

was Respondent's management, by not following its own procedures 

(T. 463-464), who thwarted the dispute from going to resolution 

through the grievance procedure by Cl) taking the position that 

Schafer, not it, should have removed the second tag (T. 477 

after being notified of management's determination, and (2) 

letting it be known to Schafer in advance and nearly immediately 

that he was to be disciplined. During Schafer's shift on 

November 13 and after the second tag was placed on the G-3, 

nothing prevented Respondent from following its own procedures 

by: 

1589 
(1) removing the second tag as it had done the night 

before, 

(2) advising Schafer that it had checked the brakes and 

considered them safe, and, 

(3) if Schafer persisted in his position that the brakes 

were unsafe, 

Ci) advising him that there was a safety dispute, 

which under both the union contract and the Tagout 

Procedure, must be resolved through the Contract 

Grievance Procedure CART. III Ci>, 

and (ii) assigning him to other work. 

In reviewing the foregoing and the entire record it is found 

that Respondent's motivation in the discipline of Schafer was 

willful and retaliatory. Respondent gave him no audience before 

taking the action. It allowed no disagreement whatsoever with 

its determination that the brakes were safe, even though any such 

determination or belief was never communicated to Schaf er as to 

the first tag-out and-as to the second tag-out-was firmed up by 

further, testing after the second tag was placed on the G-3. 

After weighing the above assessment considerations, it is 

concluded that a penalty of $1,000.00 is appropriate. 

ORDER 

1. The written reprimand of Complainant Dewayne Schafer 

dated November 16, 1984, shall be removed by both Respondents 

from his employment records and all references thereto in other 

of Respondents' records shall be expunged. 

2. Respondent Consolidation shall pay the costs and 

expenses reasonably incurred by Complainant in connection with 

the institution and prosecution of this proceeding. 

3. Counsel are directed to immediately confer and attempt 

to agree on the amount due under paragraph 2 and, if they can 

agree, to submit a statement thereof to me within 20 days of the 

date of this decision. If they cannot agree, Complainant shall, 

within 30 days of the date of this decision, file a detailed 

statement of the amount claimed, and Respondent shall submit a 

reply thereto within 20 days thereafter. This decision shall not 

be final until I have issued a supplemental decision on the 

amount due under paragraph 2. 

4. Respondent Basic, the current owner and operator of the 

Glenharold Mine, shall post a copy of this decision on the 

appropriate bulletin board at the subject mine which is available 

to all employees for a period of 60 days. 

5. Respondent Consolidation shall pay the Secretary a 

penalty of $1,000.00 within 30 days of the date of this decision. 

~~Ld,~ft- Michael A. Lasher, Jr. 

Administrative Law Judge 

1590 
Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 ~·ederal Building, 1961 Stout Street, Denver, co 80294 

(Certified Mail) 

Gregory Lange, Esq., Richardson, Blaisdell, Isakson & Lange, 206 

Central Avenue N., Hazen, ND 58545 (Certified Mail) 

Deborah Fohr Levchak, Esq., Office of General Counsel, Basin Electric 

Power Cooperative, 1717 E. Interstate Avenue, Bismarck, ND 58501 

(Certified Mail) 

/bls 

1591 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

LONNIE SMITH, 

v. 

RECO, INC., 

DILLARD SMITH, 

v. 

RECO, INC., 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 1 71986 

Complainant 

Respondent 

Complainant 

Respondent 

. . 

. . 

DISCRIMINATION PROCEEDINGS 

Docket No. VA 86-7-D 

Docket No. VA 86-9-D 

DECISION 

Appearances: Hugh F. O'Donnell, Esq., Client Centered Legal 

Services of Southwest Virginia, Inc., Castlewood, 

Virginia, for Complainant Lonnie Smith; William B. 

Talty, Esq., Talty & Gillette, Tazewell, Virginia, 

for Complainant Dillard Smith; Robert B. Altizer, 

Esq., Gillespie, Hart, Altizer & Whitesell, Tazewell, Virginia, for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Complainants Lonnie Smith and Dillard Smith, brothers, were 

employed by Respondent Reco, Inc. (Reco) from about 1977 until 

November 26, 1985. Each claims that on the latter date he was 

discharged because of activity protected under the Federal Mine 

Safety and Health Act (the Act). Because the two complaints 

arose out of the same incident or incidents, the two cases have 

been consolidated for the purposes of hearing and decision. 

Pursuant to notice, the cases were called for hearing on July 8, 

1986 in Bluefield, west Virginia. Dillard Smith and Lonnie Smith 

testified for Complainants; Steve Williams and Don Bowman 

testified on behalf of Respondent. All parties were afforded the 

opportunity to file post hearing briefs. Respondent filed a 

brief; Complainants did not. I have considered the entire record 

and the contentions ·of the parties, and make the following 

decision. 

1592 
FINDINGS OF FACT 

1. On November 26, 1985, Respondent was in the business of 

selling and servicing mine batteries. Part of its business 

required it to go into underground coal mines to service 

batteries. 

2. Complainants Dillard and Lonnie Smith were employed by 

Respondent beginning in 1977 or 1978. Their duties were to 

service and maintain mine batteries. Dillard Smith had prior 

experience working with mine batteries, but Lonnie Smith did not 

have such prior experience. Neither of them worked in underground coal mines prior to working for Respondent. 

3. Both Dillard and Lonnie Smith were required at times to 

work repairing batteries in underground coal mines. During 1985, 

Dillard worked approximately 49 hours, and Lonnie worked approximately 50 hours in underground mines. Each performed more than 

40 hours of underground work in the 6 months prior to the termination of their employment. 

4. Dillard was paid $6.75 per hour as of November 26, 1985. 

Lonnie was paid $6.35 per hour. Each received an additional 

$2.00 per hour while working underground in coal mines. They 

each worked approximately 40 hours per week. 

5. In November 1979, Dillard Smith received MSHA approved 

training for underground work and received a certificate upon 

completion of the course. He did not have any refresher training 

or any other training related to working underground after 

November 1979. 

6. Lonnie Smith. never received any training related to 

working in underground mines. 

7. In June 1985, Dillard Smith asked Steve Williams his 

foreman, about refresher training for himself, and about training 

for Lonnie. Williams nodded but did not reply. Dillard had 

inquired at an MSHA office and was told that his training certificate had expired, and he needed 40 hours additional training. 

8. On some occasions Dillard and Lonnie Smith were accompanied by mine personnel when they serviced batteries in underground mines. On other occasions they worked alone. 

9. On November 26, 1985, Dillard and Lonnie Smith were 

working on batteries at Respondent's shop. At about 9:00 a.m., 

Steve Williams approached and told Dillard that he had a service 

call. Dillard asked if it was in an underground mine and 

1593 
Williams said it was. Dillard told Williams that he was not 

going. Williams then said: "Change your clothes ahd you know 

where the door's at." (Tr. 31). Dillard changed from his work 

uniform, turned in his car keys and credit card and left the 

premises. Neither he nor Williams said anything further. 

10. After Dillard left, Williams turned to Lonnie Smith. 

Lonnie said he was not going underground anymore. Williams told 

him to get his clothes and hit the door. Lonnie then left. 

11. Dillard Smith applied for unemployment compensation 

after he left Reco. He drew benefits for 26 weeks. His health 

insurance policy was terminated on the day he left. He returned 

to the mine site on November 26, 1985 to get his paycheck. He 

was told by the office secretary that it had been mailed the 

previous day. He did not contact or attempt to contact any other 

Reco official concerning his termination. He told the office 

secretary to inform Jack Pyatt, the company president, that he 

left because he did not want to go underground because his 

training had expired. Dillard began working for a janitorial 

service company about July 1, 1986. He is earning $3.35 per hour 

and works 30 hours per week. 

12. Lonnie Smith was unemployed for 5 months after leaving 

Reco. He has worked since, setting up house trailers and earns 

$4.50 per hour. His health insurance was cancelled when he left 

Reco and in December, 1985 he and his family incurred medical 

bills totalling approximately $600. 

13. Lonnie Smith never complained to Reco about his lack of 

training. He did not tell anyone at Reco why he refused to go 

underground. 

14. On November 26, 1985, Reco decided to terminate its 

mine battery sales and service business. The decision followed a 

discussion with the State of Virginia Labor Department officials 

concerning a list of health and safety violations cited following 

an August, 1985 inspection. The State officials agreed not to 

issue citations if Reco terminated its mine battery business 

within a week. The company agreed and the business was terminated December 6, 1985. 

15. Respondent continued in business after December 6, 1985 

solely to sell its spare parts inventory and make deliveries on 

repairs completed prior to December 6. Foreman Steve Williams 

was laid off December 18, 1985, as was the office secretary. One 

other employee remained until March, 1986 helping to clean the 

building, trying to get it ready for sale or lease. At the time 

of the hearing, the only people on Reco's payroll were 

1594 
Don Bowman, Vice-President-General Manager and a person who 

cleans the off ice, working about 2 hours a week. 

ISSUES 

1. Whether Complainants were miners and Respondent an 

operator under the Federal Mine Safety and Health Act? 

2. Whether Complainants were discharged because of activity 

protected under the Act? 

3. If so, to what relief are Complainants entitled? 

CONCLUSIONS OF LAW 

A. Jurisdiction 

1. Respondent was an "operator" to the extent that it 

performed services at coal mines and, as such, was subject 

to the provisions of the Mine Safety and Health Act. 

Section 3(d) of the Act defines operator as "any 

owner, lessee, or other person who operates, controls or 

supervises a coal or other mine or any independent contractor performing services or construction at such mine." 

2. Complainants were "miners" to the extent that they 

worked in coal mines. (Section 3Cg) of the Act.) Whenever 

Complainants w~nt to coal mines to service batteries, they 

were miners, and were protected by the Act. 

3. Insofar as Respondent was an operator and Complainants were miners, I have jurisdiction over them and the 

subject matter of this proceeding. 

Respondent's entire business involved the sales and 

servicing of mine batteries for coal mines. Although most 

of its work was performed at its own facilities, the work it 

did at the mine sites was not "rare and r.emote" as was that 

of the electric power company in Old Dominion Power Company 

v. Donovan, 772 F.2d 92 (4th Cir. 1985). When Respondent's 

employees went into underground coal mines, they were 

subject to the same hazards as miners who produced coal. 

They are entitled to the same protection under the Mine Act. 

B. Protected Activity 

1. Complainants' refusal to perform underground work 

because they had not received mandatory health and safety 

training was activity protected under the Act. 

1595 
A miner has the right under section 105(c) of the Act 

to refuse to work, if he has a good faith, reasonable belief 

that it is hazardous. Secretary/Pasula v. Consolidation 

Coal Co., 2 FMSHRC 2786 (1980), rev'd on other grounds sub. 

nom. Consolidation Coal Co. v. Marshall, 633 F.2d 1211 (3rd 

Cir. 1981); Secretary/Robinette v. United castle Coal Co., 3 

FMSHRC 803 (1981); Simpson v. Kenta Energy, Inc., 8 FMSHRC 1034 

(1986). 

Section 115 of the Act requires each operator to have . 

a health and safety training program which must provide as a 

minimum that miners with no underground experience receive 

no less than 40 hours of training if they are to work underground, and all miners shall receive no less than 8 hours of 

refresher training every 12 months. Complainants' refusal 

to work underground without the required training was therefore reasonable, and there is no evidence that it was other 

than in good faith. 

I do not determine in this proceeding whether 

Respondent is responsible for providing the requisite 

training for its employees. Respondent contends that if a 

violation occurred, it is that of the mine operator, not 

Respondent. But in either case, training was not provided, 

and Complainants were justified in their refusal to work 

underground without it. See Secretary/Robinette, supra. 

c. Adverse Action 

1. Complainants were discharged because of their 

refusal to work underground. 

Respondent contends that Complainants were not discharged, but voluntarily quit. I accept the testimony of 

Complainants as to what they were told by their foreman 

Steve Williams and conclude that they were discharged. 

D. Communication of Safety Concerns 

1. Complainants did not communicate their safety 

concerns to the operator. 

Where reasonably possible, a miner refusing work must 

ordinarily communicate or attempt to communicate to some 

representative of the operator his belief that a safety or 

health hazard exists. Secretary/Dunmire and Estle v. 

Northern Coal Co., 4 FMSHRC 126 (1982); Simpson v. Kenta 

Energy, Inc., supra. 

1596 
It was clearly reasonably possible for Complainants to 

tell Williams that they ref used to work underground because 

they lacked training. They did not do so. Dillu.rd Smith's 

request for training some .:1.onths previously cannot be converted into a notification of safety concerns at the time of 

the work refusal. The fact that Respondent was aware of 

blatant safety violations does not, according to the Commission, excuse the failure to communicate. Simpson v. Kenta 

Energy, Inc., supra. 

Dillard Smith did communicate his safety concerns to 

the office secretary the day after his discharge and asked 

her to tell the company president, Jack Pyott. Mr. Pyatt 

was present during the hearing, but did not testify. I 

assume that the message was given him. Is this adequate 

communication? Respondent has already decided to cease 

operations, so it would not have been possible for it to 

"address the perceived danger. 11 Simpson, supra. I conclude 

that under the circumstances of this case, the communication 

of safety concerns to the operator on the day after the 

miners' discharge did not satisfy the Dunmire and Estle and 

Simpson test. 

2. Therefore, Complainants were not discharged for 

activity protected under the Act and no violation of section 

105Cc) has been established. 

ORDER 

Based on the above findings of fact and conclusions of law, 

the complaints of Dillard Smith and Lonnie Smith, and these 

proceedings are DISMISSED. 

1~ #:1¥1?~ cf ~~~;s A. Broderick 

Administrative Law Judge 

1597 
Distribution: 

Hugh F. O'Donnell, Esq., P.O. Box 147, Castlewood, VA 24224 

{Certified Mail) 

William B. Talty, Esq., P.O. Box 599, Tazewell, VA 24651 

{Certified Mail) 

Robert B. Altizer, Esq., Gillespie, Hart, Altizer and Whitesell, 

P.C., P.O. Box 718, Tazewell, VA 24651 (Certified Mail) 

slk 

1598 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W, COLFAX AVENUE. SUITE 400 

DENVER, COLORADO 80204 OCT 201986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RIVER CEMENT COMPANY, 

Respondent 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 86-91-M 

A.C. No. 23-00188-05518 

Selma Plant Quarry & Mill 

ORDER OF DISMISSAL 

Before: Judge Morris 

Respondent has moved to dismiss the above case for the 

reason that the Secretary's PETITION FOR ASSESSMENT OF CIVIL 

PENALTY was not timely filed. 

In his memoranda filed in the case the Secretary does not 

concede the facts but he states that his petition "may" have been 

filed beyond the 45 day period as required by Commission Rule 

27(a), 29 C.F.R. § 2700.27(a). The Secretary also asserts that 

the respondent has failed to show any prejudice. The Secretary 

has not filed any affidavits nor has he denied certain relevant 

facts that appear as a matter of record. 

These facts are that the appeal process was initiated on 

April 24, 1986 with a notice of contest (notice of contest form). 

The Secretary filed his petition on June 16, 1986 (time/date 

stamp on petition in file). 

In support of his position the Secretary states as follows: 

Although his petition may have been beyond the 45 day 

limitation recited at 29 C.F.R. 2700.27, the Secretary 

asserts that this resulted from miscalculation of time 

periods in the normal processing of this type of case in 

the office of the Secretary's counsel. This miscalculation 

occurred due in part to inadvertence by the Secretary's representative and in part due to the fact that the respondent 

seQt at least three separate responses to the notice of 

proposed penalties. Based on the date stamp of May S, 1986, 

on the last of the three letters from respondent, the Secretary' a calculated a due date of June 19, 1986. The Petition 

was actually filed on June 11, 1986, a mere two days beyond 

the due date alleged by respondent in his motion. 

1599 
While it appears that the Secretary's petition may have been 

filed two days beyond the 45 day period, it is also apparent 

that respondent has demonstrated no prejudice to himself as 

a result. 

Discussion 

The applicable case law is contained in Salt Lake County 

Road Department (1981) and Medicine Bow Coal Company, 4 FMSHRC 

882 (1982). 

In these cases the Commission ruled that a two tier test 

exists in a late filing situation. The initial test requires the 

Secretary to show adequate cause to support ·his late filing. In 

Salt Lake and Medicine Bow the Secretary's excuse of insufficient 

clerical help was accepted as minimally adequate. The .second 

test is that dismissal could be required, notwithstanding 

adequate cause, when an operator demonstrates prejudice caused by 

the delayed filing. 

In view of the Commission's pronouncements it is necessary 

to examine the record to determine whether the Secretary has established adequate cause. 

As a threshold matter it appears that the appeal process 

commenced with a notice of contest dated April 24, 1986. 

Under Commission Rule 27{a), 29 C.F.R. § 2700.27(a), the 

Secretary was obliged to file his petition within 45 days. The 

45 day period expired on June 9, 1986. The Secretary filed his 

petition on June 16, 1986 which was 53 days af.ter receiving the 

notice of contest and 7 days late. 

In justification of the late filing the Secretary basically 

states it was due to "inadvertence by the Secretary's representative" and due to the fact that "respondent sent three separate 

responses to the notice of the contest". 

Inadvertence does not constitute justification for the late 

filing of a complaint. 

The letters relied on by the Secretary all post-date the 

notice of contest of April 24. The 45 day period began to run 

after receipt of the April 24 notice. 

In Medicine Bow an issue was presented as to whether the 

filing time for penalty proposals should be augmented by the 5 

1600 
days that Commission Rule 8(b), 29 C.F.R. § 2700.8(b) allows for 

filing documents in response to those served by mail. The 

Commission ruled "[t]he 45-day period in Rule 27 is a sufficient 

amount of time to allow for the processing of mail" ••• further 

••• Rule 8(b) does not apply to the Secretary's filing of penalty 

proposals" 4 FMSHRC at 884. 

For the foregoing reasons I conclude that the Secretary 

failed to show adequate cause to justify the late filing of his 

petition. 

Accordingly, I enter the following: 

ORDER 

CENT 86-91-M is dismissed. 

r is 

ive Law Judge 

Distribution: 

Tobias B. Fritz, Esq., Office of the Solicitor, U.S. Department 

of Labor, 911 Walnut Street, Room 2106, Kansas City, MO 64106 

(Certified Mail) 

Bradley s. Hiles, Esq., Peper, Martin, Jensen, Maichel & Hetlage, 

720 Olive Street, 24th Floor, St. Louis, MO 63101 <Certified 

Mail) 

1601 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 0CT2o 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RIVER CEMENT COMPANY, 

Respondent 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 86-127-M 

A.C. No. 23-00188-05520 

Docket No. CENT 86-128-M 

A.C. No. 23-00188-05521 

Selma Plant Quarry & Mill 

ORDER OF DISMISSAL 

Before: Judge Morris 

Respondent has moved to dismiss the above cases for the 

reason that the Secretary's PETITION FOR ASSESSMENT OF CIVIL 

PENALTY was not timely filed. 

In his memoranda filed in the case the Secretary does not 

concede the facts but he states that his petition "may" have been 

filed beyond the 45 day period as required by Commission Rule 

27(a), 29 c.F.R. § 2700.27(a). The Secretary also asserts that 

the respondent has failed to show any prejudice. The Secretary 

has not filed any affidavits nor has he denied certain relevant 

facts that appear as a matter of record. 

These facts are that on June 27, 1986 respondent filed its 

notice of contest in each of these cases. (Notice of contest form 

in each file). The Secretary filed his petitions with the 

Commission on September 3, 1986. (Time/date stamp on petition in 

file). 

In support of his position the Secretary states as follows: 

Although his petition may have been beyond the 45 day 

limitation recited at 29 C.F.R. § 2700.27, the Secretary 

asserts that this resulted from miscalculation of time 

periods in the normal processing of these cases in the 

office of the Secretary's counsel. This miscalculation resulted from two factors. First, a delay in processing was 

encountered at the Civil Penalties Processing Unit CCPPU) 

of the Mine Safety and Health Administration in Arlington, 

Virginia due to a change in policy being implemented in 

that office at the time the respondent's Notice of Contest 

and Request for Hearing in these matters was received. Due 

.1602 
to this unusual delay in processing at the CPPU and the 

resultant delayed arrival of the case file to the office of 

the Secretary's counsel, the date stamp of July 11, 1986 on 

the Request for Hearing Form was inadvertently picked up as 

being the date the Request for Hearing was received in the 

CPPU (it being in line with the time factor usually involved 

in this type of case from the time of receipt of the Request 

for Hearing at the CPPU until the receipt of the file in 

the office of the Secretary's counsel}. Based upon the date 

stamp of July 11, 1986 the Secretary calculated a due date 

of August 29, 1986, which is eighteen days beyond the due 

date alleged by respondent in its motion. 

While it appears that the Secretary's petition may have 

been filed eighteen days beyond the 45 day period, it is 

also apparent that respondent has demonstrated no prejudice 

to itself as a result. 

Discussion 

The applicable case law is contained in Salt Lake County 

Road Department, 3 FMSHRC 1714 (1981), and Medicine Bow Coal 

Company, 4 FMSHRC 882 (1982}. In these cases the Commission 

ruled that a two-tier test exists in a late filing situtation. 

The initial test requires that the Secretary to show adequate 

cau$e to support his late filing. In Salt Lake and Medicine Bow 

the Secretary's excuse of insufficient clerical help was accepted 

as minimally adequate. The second test is that dismissal could 

be required, notwithstanding adequate cause, when an operator 

demonstrates prejudice caused by the delayed filing. 

In view of the Commission's pronouncements it is necessary 

to examine the record to determine whether the Secretary has 

established adequate cause. 

As a threshold matter it appears that the appeal process 

commenced with a notice of .contest on June 27, 1986. Under 

Commission Rule 27Ca) 29 C.F.R. § 2700.27(a} the Secretary was 

obliged to file his petition within 45 days. The 45 day period 

expired on August 11, 1986. The petitions were in fact filed on 

September 3, 1986 which was 68 days after receipt of the notice 

of contest and 23 days late. 

In justification of the late filing the Secretary basically 

states it was due to a "change in policy" at his off ice at the 

Civil Penalties Processing Unit and by a subsequent misreading of 

a date stamp. 

The "change in policy" was not further explained and may 

have some meaning for the Secretary but it fails to present the 

judge with any facts to justify the late filing. In addition, I 

do not see how a "change in policy" could affect a long standing 

filing requirement. 

1603 
In addition, the Secretary also states that a date stamp of 

July 11, 1986 was inadvertently relied on to calculate a date of 

August 28, 1986. 

In Medicine Bow the Commission specifically rejected the 

Secretary's reliance on such internal date stamps describing it 

as "internal bureaucratic processing" 4 FMSHRC at 884, footnote 

5. 

For the foregoing reasons, I conclude the Secretary has 

failed to show adequate cause to justify the late filing of his 

petitions. 

Accordingly, I enter the following: 

ORDER 

1. CENT 86-127-M is dismissed. 

2. CENT 86-128-M is dismissed. 

Law Judge 

Distribution: 

Judith c. Hastings, Esq., Office of the Solicitor, U.S. Department of Labor, 911 Walnut Street, Room 2106, Kansas City, MO 

64106 (Certified Mail) 

Bradley S. Hiles, Esq., Peper, Martin, Jensen, Maichel & Hetlage, 

720 Olive Street, 24th Floor, St. Louis, MO 63101 (Certified 

Mail) 

/bls 

1604 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEATLH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

HELVETIA COAL COMPANY, 

Respondent 

October 21, 1986 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-193 

A.C. No. 36-00917-03625 

Lucerne No. 6 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

The Solicitor has filed a motion to approve settlements of the 

two violations involved in this case. The originally assessed 

penalty for each violation was $750, for a total of $1,500. The 

proposed settlement for each violation is for $425, for a total of 

$850. 

Citation No. 2695543 was issued for violation of 30 C.F.R. § 

75.301 because an excessive amount of methane was detected in the 

mine. Citation No. 2696487 was issued, also for violation of 

30 C.F.R. § 75.301, because an inadequate amount of oxygen was 

detected in the mine. 

The Solicitor's motion discusses both violations in light of 

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

Federal Mine Safety and Health Act of 1977. The Solicitor 

represents that a reduction in the proposed penalties is justified 

because both gravity .and negligence were less than originally 

thought. The violations were detected during a preshift examination 

following a weekend shutdown of the mine. The problems had developed 

during the 48-hour shut-down period when no miners were in the mine 

and the operator was not required to make preshift examinations. 

The Solicitor also represents that the methane accumulation took 

place in an area where none had been before. 

The representations and recommendations of the Solicitor are 

accepted. 

· Accordingly, the motion to approve settlements is GRANTED and 

the operator is ORDERED TO PAY $850 within 30 days of the date of 

this decision. 

• 

Paul Merlin 

Chief Administrative Law Judge 

1605 
Distribution: 

David T. Bush, Esq., Office of the Solicitor, U.S.' Department of 

Labor, Rm 14480-Gateway Bldg., 3535 Market Street, Philadelphia, 

PA 19104 (Certified Mail) 

Edward J. Onuscheck, Vice President, Helvetia Coal Company, 655 

Church St., Indiana, PA 15701 (Certified Mail) 

Michael H. Holland, Esq., UMWA, 900 15th St., N.W., Washington, D.C., 

20005 (Certified Mail) 

/sc 

1606 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

October 21, 1986 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRAION, ON BEHALF OF 

JOHN W. BUSHNELL, 

Complainant 

v. 

CANNELTON INDUSTRIES, INC., 

Respondent 

. . 

. . 

. . 

. . 

. . 

Docket No. WEVA 85-273-D 

HOPE CD 85-1 

Pocahontas I 3 and f 4 Mines 

DECISION 

Appearances: Jonathan M. Kronheim, Esq., Office of the 

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

VA, for Complainant; 

Larry W. Blalock, Esq., and Michael J. 

Bommarito, Esq., Jackson, Kelly, Holt & 

O'Farrell, Charleston, WV, for Respondent. 

Before: Judge Fauver 

This action was brought by the Secretary of Labor under 

§ 105Cc)(l) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801, et. ~, to recover lost pay alleged 

to be due John w. Bushnell for reduction of his pay rate 

after a transfer while he was a Part 90 employee. The 

Secretary also seeks a civil penalty for the alleged 

violation of that section. 

On July 17, 1986, the parties' motion to submit this 

case on a stipulated record and briefs without a hearing was 

granted. 

On September 23, 1986, after receipt of the parties' 

briefs, my secretary called the attorneys for the parties and 

asked the following question at my request: 

Please see if you can stipulate 

whether or not Mr. John Bushnell, 

at any time after notice of his Part 

90 status in 1972 and before September 17, 

1984, was transferred as a result of 

exposure to respirable dust. 

The attorneys' reply is a letter from counsel for Respondent dated September 29, 1986, in which counsel states that 

1607 
counsel for the Secretary stipulates to the facts stated in 

the letter. Accordingly, that letter is incorporated as a 

stipulation in the record. 

FINDINGS OF FACT 

The pertinent facts are set forth in stipulations submitted by the parties on July 15, 1986, and September 29, 

1986. In brief, John w. Bushnell was an employee of the 

Respondent for approximately 17-years. Respondent was 

informed of Mr. Bushnell's Part 90 status in 1972. He 

transferred to a less dusty job in January 1980, by exercising his Part 90 rights. He remained a.Part 90 miner at 

all times pertinent to this action. On September 16, 1984, 

Mr. Bushnell was employed as a dispatcher, earning $113.28 

for an eight hour shift. On September 17, 1984, Mr. Bushnell 

was transferred from his dispatcher position to that of 

general inside laborer, as a result of a realignment of the 

Respondent's work force due to economic conditions. Mr. 

Bushnell's occupation code was changed from code 365 to code 

116 and his pay reduced to $104.78 for an eight hour shift. 

Mr. Bushnell was laid off on October 1, 1984, for economic 

reasons. Mr. Bushnell suffered a loss of wages of $161.14 as 

a result of the reduction of his pay rate in connection with 

his transfer from dispatcher to general inside laborer. The 

Secretary seeks to recover $161.14 in lost pay plus interest 

thereon, and proposes a civil penalty in the range of $100 to 

$150 for Respondent's failure to maintain Mr. Bushnell's pay 

rate when he was transferred. 

OPINION 

The Secretary's regulations, at 30 CFR § 90.103, provide 

in pertinent part that: 

Cb) Whenever a Part 90 miner is transferred, 

the operator shall compensate the miner at 

not less than the regular rate of pay 

received by that miner immediately before 

the transfer. 

The regulations, at 30 CFR § 90.2, define "transfer" as 

"any change in the occupation code of a Part 90 miner." 

Thus, whenever a Part 90 miner has a change in his occupation 

code, the regulation require that he be paid at not less than 

the regular rate of pay received prior to the change. 

The preamble to 30 CFR § 90.103, states that the Part 90 

regulations were promulgated by the Secretary out of 

a concern that a large percentage of miners eligible for the 

Part 90 program were not participating. After receiving 

testimony and written comments, the Secretary attributed this 

.lack of participation to significant economic sacrifices that 

1608 
miners were forcea to make on entering the program. For this 

reason the Part 90 rules provided eligible miners with 

additional economic protection, including a guarantee against 

reduction in pay resulting from a transfer.l/ The 

Secretary's reasoning demonstrates an intent to safeguard the 

health of Part 90 miners, consistent with their protection 

provided by the Act. The regulations are therefore 

reasonably related to the purposes of the Act and should be 

sustained as valid. Mourning v. Family Publications Service, 

Inc., 411 U.S. 356, 369 (1973); United Mine workers v. 

KI'ei?pe, 561F2d1258~ 1263 {7th Cir. 1977). 

John Bushnell was an eligible Part 90 miner when his 

occupational code was changed without retention of the rate 

of pay he received prior to the change. Such action is 

contrary to the plain language of the regulation, which 

establishes a Part 90 miner's right to such pay retention, and 

constitutes interference with a protected right. It is therefore discriminatory pursuant to § 105(c)(l) of the Act, in 

the same manner that failure to compensate a Part 90 miner at 

his previous rate after a transfer to a less dusty environment would be discriminatory.~/ 

I therefore hold that John w. Bushnell was unlawfully 

discriminated against by Respondent for engaging in the 

exercise of rights protected by§ 105(c)(l) of the Act. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Respondent shall pay to John W. Bushnell $161.14 in 

lost wages resulting from the cut in pay that occurred 

because of his transfer. Interest shall be added to the back 

pay retroactively and shall accrue until the date of payment. 

The interest shall be computed in accordance with the Commission's rulings concerning interest. Payment shall be made 

within 30 days of this Order. 

1/ See 30 CFR §§ 90.12, 90.103 and 45 Fed. Reg. 80761, 

80763, 80766 (1980). 

~/ The rights of Part 90 miners are specifically designated 

for protection under§ 105(cJ(l) of the Act. "No person 

shall ..• interfere with the exercise of the statutory rights 

of a miner ••• because such miner ••• is the subject of 

medical evaluations and potential trans under a ~tandard 

published pursuant to Section 101 .••• " 30 u.s.c. § 815Cc)(lJ. 

1609 
2. Respondent is ASSESSED a civi1 penalty of $25 for 

the violation found above, and shall pay such penalty within 

30 days of the date of this Order. 

Distribution: 

-ed.~ lz:t.<..({.)~ William F~r Administrative Law Judge 

Jonathan M. Kronheim, Esq., Office of the Solicitor, u.s. 

Department of Labor, 4015 Wilson Boulevard, Room 1237A, 

Arlington, VA 22203 (Certified Mail) 

Mr. John W. Bushnell, Box 26, Kimball, WV 24858 (Certified 

Mail) 

Larry W. Blalock, Esq., and Michael J. Bommarito, Esq., 

Jackson, Kelly, Holt & O'Farrell, P.O. Box 553, Charleston, 

WV 25322 (Certified Mail) 

Mr. Wiliam C. Miller, Cannelton Industries, Inc., 1250 One 

Valley Square, Charleston, WV 25301 (Certified Mail) 

Mr. Ronald Schell, MSHA, U.S. Department of Labor, 4015 

Wilson Boulevard, Room 829, Arlington, VA 22203 (Certified 

Mail) 

kg 

1610 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

TONY WILEY, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 4 1986 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. KENT 86-99-D 

SAMOYED ENERGY COMPANY, INC., 

Respondent 

PIKE CD 86-11 

DECISION 

Appearances: JoAnn Harvey, Esq., Appalachian Research and 

Defense Fund of Kentucky, Inc., Prestonsburg, 

Kentucky, for Complainant; 

James P. Pruitt, Jr., Esq., Pruitt and de 

Bourbon, Pikeville, Kentucky, for Respondent. 

Before: Judge Melick 

This case is before me upon the complaint by Tony Wiley 

under section 105(c)(3) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et~, the "Act," alleging 

that he was discharged from Samoyed Energy Company, Inc. 

(Samoyed) on December 31, 1985, in violation of section 

105 Cc) ( 1) of the Act.!:_! . 

In order for the complainant to establish a prima facie 

violation of section 105(c)(l) of the Act he must prove by a 

preponderance of the evidence that he engaged in an activity 

protected by that section and that his discharge was motivated 

in any part by that protected activity. Secretary on behalf 

of Pasula v. Consolidation Coal Company, 2 FMSHRC 2786 (1980), 

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

Marshall, 663 F.2d 1211 C3d Cir. 1981). The operator may 

rebut the prima facie case by showing either that no protected 

activity occurred or that the adverse action was not motivated 

in any part by protected activity. 

~/ Section 105(c)(l) of the Act provides in part as follows: 

No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination 

against or otherwise interfere with the exercise of the statutory rights of any miner, ••• in any coal or other mine subject to this Act because such miner, ••• has filed or made a 

complaint under or related to this Act, including a complaint 

notifying the operator or the operator's agent, ••• at the 

coal or other mine of an alleged danger or safety or health 

violation in a coal or other mine • • • or because of the 

exercise by such miner, ••. on behalf of himself or others of 

any statutory right afforded by this Act. 

1611 
If an operator carinot rebut the prima facie case in 

this manner it nevertheless may defend affirmatively by 

proving that (1) it was also motivated by the miner's unprotected activities, and (2) it would have taken the adverse 

action in any event for.the unprotected activities alone. 

The operator bears the burden of proof with regard to the 

affirmative defense. Haro v. Magma Copper Company, 4 FMSHRC 

1935 (1982). The ultimate burden of persuasion does not shift 

from the complainant. Donovan v. Stafford Construction 

Company, 732 F.2d 954 (0.C. Cir. 1984); Boich v. FMSHRC, 719 

F.2d 194 (6th Cir. 1983). The Supreme Court has approved the 

National Labor Relations Board's virtually identical analysis 

for discrimination cases arising under the National Labor 

Relations Act. NLRB v. Transportation Management Corp., 462 

U.S. 393 (1983). 

In this case Mr. Wiley alleges that he made periodic 

complaints notifying the operator's agent, Preparation Plant 

Supervisor Don Burgraff, of alleged dangers at its mine. In 

particular he alleges as protected activity the reporting of: 

(1) the tramming of a D-6 bulldozer on a low-boy trailer in 

such a way that the blade of the bulldozer obstructed his 

view in the rear view mirrors creating a danger in making 

turns without a flagman or escort; (2) the operation of the 

bulldozer in the refuse area during particularly muddy conditions and supporting the truck beds with the bulldozer 

blade to keep the trucks from turning over while dumping; (3) 

operating the dump trucks and bulldozer over a gas line 

without sufficient fill material to protect the gas line; and 

(4} the absence of a heat tube or other heating device in the 

bulldozer cab during cold weather. 

With respect to the first allegation, Wiley maintains 

that he began complaining about those conditions in early 

November and then "every day" thereafter. With respect to 

the second allegation, Wiley maintains that he complained to 

Burgraff about the mud every time it rained and every evening 

after "it would happen." His last complaint in this regard 

was allegedly made to Burgraff the Friday before his discharge 

when Burgraff was at the refuse site as they were supporting a 

truck with two bulldozers. Wiley also testified that he complained "every day" to Burgraff that "something would have to 

be done about the gas line." Wiley maintains that he sent his 

complaints by way of the truck drivers to Burgraff throughout 

the day. With respect to the fourth allegation Wiley maintains 

that he complained to Burgraff "every day it was cold" about 

the inadequate heat in the bulldozer. 

Truck driver Greg Pack worked with Wiley during relevant 

times. Pack confirmed that he had talked to Burgraff several 

1612 
times on behalf of both Wiley and himself concerning the need 

for fill material to cover the gas line and about the unsafe 

conditions on the access road to the refuse site. He also 

conveyed Wiley's complaints about the lack of heat in the 

bulldozer and the need for a heat tube. 

Burgraff acknowledged in his testimony that Wiley had 

complained to him about road conditions at the refuse site 

and, in particular, about the need for fill to cover the gas 

line. Wiley had also complained· to him about the lack of 

heat on the bulldoze~. Burgraff denied however that Wiley 

had ever complained to him about the operation of the low-boy. 

In the absence of corroboration of the latter alleged complaint and of Burgraff's denial Cin contrast to his unqualified acknowledgement of the other complaints} that such a 

complaint about the operation of the low-boy was made to him 

I do not £ind sufficient evidence that the complaint was in 

fact communicated to Burgraff as alleged. 

It is clear however that the remaining complaints by 

Mr. Wiley concerning allegedly dangerous conditions were 

communicated at some point in time to Burgraff. Wiley's 

testimony in this regard is corroborated in essential 

respects by both Greg Pack and Burgraff himself. Accordingly 

I find that the complainant has met the first element of a 

prima facie case and that indeed he was engaged ·in a protected reporting of alleged dangers at the mine site to an 

agent of the mine operator. 

The Complainant also maintains that his discharge was 

motivated by that protected activity. In support of this 

causal relation he cites evidence that he made repeated 

safety complaints and that the rea~on given to him by mine 

management for his-discharge i.e., absence without calling 

in, was inconsistent with what he was told was company policy. 

It is not disputed that Wiley was absent from work on 

December 30, 1985 and that he failed to notify his employer 

of this anticipated absence. Wiley says that he was ill that 

day with arthritis and therefore went to see his doctor. 

When he showed up for work on December 31, he presented a 

doctor's excuse to Burgraff. Wiley maintains that his first 

supervisor at Samoyed, Frank Price, told him only that if he 

missed a day of work and did not call in he "had better bring 

in a doctor's excuse" the first day back. Price testified at 

hearing and fully corroborated Wiley's testimony in this 

regard. 

Clifford Marenko, Samoyed's president testified that it 

was Samoyed policy that if an employee expected to be absent 

from work because of illness he was required to call in or · have someone call on his behalf to notify the mine. Marenko 

admits that he never told Wiley of this policy. Marenko 

1613 
testified that after Wiley failed to show up on December 30, 

and had not called in, he met with Don Burgraff and William 

Higginbotham to discuss the situtation. Greg Pack who 

car-pooled with Wiley was also absent that day and at the 

time of the meeting it was thought that he too had not called 

in. Pack was also therefore discharged at that meeting. 

Marenko felt that Wiley's absence without calling in 

was "the last thing that I could tolerate". In deciding to 

discharge Wiley, Marenko also considered however that Wiley 

had previously been tardy on several occasions and had failed 

to obtain hard toe safety shoes. Marenko had previously 

warned Wiley that he could be fired for not wearing safety 

shoes. Marenko testified that he had discharged approximately 10 other employees over a period of 2 to 3 years for 

failing to call in when sick. 

Don Burgraff also participated in the decision to 

discharge Wiley and Pack. He too believed that it was 

company policy to call in when sick. He decided that Wiley 

should be discharged based on the fact that he failed to call 

in sick that day, that he had not obtained safety shoes as he 

had been told to do, that he had been tardy on a number 

occasions and that there was "some question" about his work 

ability. Wiley's absence on December 30th was a particular 

problem because it necessitated the shut down of the preparation plant until a substitute bulldozer operator could be 

transferred to the refuse site. Burgraff denied that this 

discharge was the result of safety complaints. 

According to Marenko and Burgraff, Greg Pack was subsequently reinstated when it was discovered that someone had in 

fact called the security guard on his behalf early on the 

morning of December 30, to advise that he would not report to 

work that day because of illness. When Pack was rehired he 

was warned by Burgraff that it was-necessary for him to call 

in if he was sick to give advance notice. 

In finding that Wiley did not suffer an unlawful 

discharge in this case I have considered that other employees 

of Samoyed <including the complainant's witnesses Greg Pack 

and Joe Alston) had co~plained of two of the three allegedly 

dangerous conditions that Wiley himself had complained of and 

suffered no apparent retaliation. I have also considered 

that other employees (10 or 11 employees over the previous 2 

or 3 years according to the undisputed testimony of Marenko) 

had also been discharged for the same reason given to Wiley 

i.e. for failing to call in and notify the mine operator of 

absence because of illness. Other employees similarly 

situated were thus treated in the same manner as Wiley. 

Indeed I therefore conclude that the mine operator has 

rebutted the complainant's case by showing that the adverse 

action was not motivated in any part by the protected 

1614 
ac~ivity. In any event the evidence is sufficient to show 

that Samoyed would have discharged Mr. Wiley for his 

unprotected activities alone. Haro, supra. 

In reaching these conclusions I have not disregarded 

the evidence that Wiley had not been specifically told of the 

company policy requiring employees to call in when sick. 

Such a policy is, however, one that the ordinary working man 

would be expected to know without the necessity of being told. 

This is particularily true where the employee is working in a 

critical job (as was Wiley) and where his absence would cause 

considerable disruption of his employer's business. The 

credible evidence is that it is also the accepted industry 

practice for employees to call in when anticipating an 

absence due to illness. 

In any event there is no evidence that the officials 

responsible for discharging Wiley were even aware that he had 

not been informed of that policy. Thus I cannot ascribe any 

animus from the fact that Wiley was discharged at least in 

part based on a policy about which he had not been 

specifically informed. 

Under the circumstances 

discharge herein must be den± 

Distribution: 

Judge 

Mr. Tony Wiley, H .. C. 87, Box 40 , Thelma, KY 41260 

(Certified Mail) 

JoAnn Harvey, Esq., Appalachian Research and Defense Fund of 

Kentucky, Inc., 205 Front Street, Prestonsburg, KY 41653 

(Certified Mail) 

James P. Pruitt, Jr., Esq., Pruitt And de Bourbon Law Firm, 

P.O. Box 39, Pikeville, KY 41501 (Certified Mail) 

rbg 

1615 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 24, 1986 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

. . 

. . Docket No. SE 86-111 

A. C. No. 01-01247-03713 

No. 4 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

The parties have filed a joint motion to approve a 

settlement of the one violation involved in this case. The 

proposed settlement was the· subject of conference calls on 

October 1 and October 7, 1986 between the Solicitor, operator's 

attorney, and the Judge. At the conference calls the violation 

was discussed at length. The originally assessed penalty for 

this violation was $725. The proposed settlement is for $200. 

The joint motion discusses the violation in light of the six 

criteria set forth in section llO(i) of the Federal Mine Safety 

and Health Act of 1977. Citation No. 2192194 was issued for violation of 30 C.F.R. § 70.100 because an excessive concentration 

of coal dust was detected in the operator's mine. The parties 

represent that the violation was much less serious than was 

originally thought because all exposed miners were adequately 

protected by ~espirators. A reduction in the penalty below $200 

is not justified, however, because the operator failed to abate 

the violation in as timely a manner as could have been expected. 

The representations and recommendations of the parties are 

accepted. 

Accordingly, the motion to approve settlement is GRANTED and 

the operator is ORDERED TO PAY $200 within 30 days of the date of 

this decision. 

- Paul Merlin 

Chief Administrative Law Judge 

1616 
Distribution: 

William Lawson, Esq., Office of the Solicitor, U. s. Department 

of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL 

35203 (Certified Mail) 

Harold D. Rice, Esq., Robert Stanley Morrow, Esq., Jim Walter 

Resources, Inc., P. o. Box C-79, Birmingham, ~L 35283 

(Certified Mail) 

H. Gerald Reynolds, Esq,., Jim Walter Corporation, P. O. Box 

22601, Tampa, FL 33622 (Certified Mail) 

/gl 

1617 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. CotORAOO 80204 OCT 311986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION CMSHA), 

Petitioner 

Docket No. WEST 86-86-M 

A.C. No. 42-01927-05502 15J 

v. 

SANDERS CONSTRUCTION, INC., 

Respondent 

Gilbert Mine #1 

DECISION 

Appearances: Margaret Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner. 

Before: Judge Morris 

This is a civil penalty proceeding initiated by petitioner 

against respondent in accordance with the Federal Mine Safety and 

Health Act bf 1977, 30 U.S.C. § 801 et~· The civil penalties 

sought here are for the violation of mandatory standards 

promulgated pursuant to the Act. 

After notice to the parties, a hearing on the merits 

commenced in Las Vegas, Nevada on August 26, 1986. At the 

hearing counsel for the petitioner advised the judge that the 

parties had reached an amicable settlement. 

The citations, the standards alleged violated, the original 

assessments and the proposed dispositions are as follows: 

Citation No. 

2361156 

2361157 

2361159 

2361171 

2361175 

Standard 

C.F.R. Title 30 

56.6047 

56.6047 

56.6090 

56.6047 

56.18020 

Original 

Assessment 

$500 

500 

500 

500 

500 

Disposition 

$500 

500 

500 

500 

vacate 

I have considered the proposed settlement and I find it is 

reasonable and in the public interest. 

Accordingly, I enter the following: 

1618 
ORDER 

1. The settlement is approved. 

2. The following citations and proposed penalties are 

affirmed: 

Citation No. 

2361156 

2361157 

2361159 

2361171 

Penalty 

$500 

500 

500 

500 

3. Citation 2361175 and all penalties therefor are vacated. 

4. Respondent is ordered to pay the sum of $2,000 within 40 

days of the date of this decision. 

Law Judge 

Distribution: 

Margaret Miller, Esq., Office of the Solicitor, U.S. Department 

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

80294 (Certified Mail) 

Kent Winterholler, Esq., Sanders Construction, Inc., Parsons, 

Behle & Latimer, 185 South State Street, P.O. Box 11898, Salt 

Lake City, UT 84147-0898 {Certified Mail) 

/bls 

1619 
1620 

* U.S, GOVERNMENT PRINTING OFFICE 1986; 491-223/53108