APRIL 

COMMISSION DECISIONS 

04-01-86 

04-18-86 

Minerals Exploration Company 

Westmoreland Coal Company 

ADMINISTRATIVE LAW JUDGE DECISIONS 

04-01-86 

04-02-86 

04-03-86 

04-04-86 

04-04-86 

04-07-86 

04-07-86 

04-08-86 

04-09-86 

04-09-86 

04-10-86 

04-10-86 

04-17-86 

04-21-86 

04-21-86 

04-22-86 

04-23-86 

04-23-86 

04-24-86 

04-28-86 

04-28-86 

04-28-86 

04-30-86 

Homestake Mining Company 

Big Horn Construction Co. 

Wilmot Mining Company 

Pyro Mining Company 

Anderson Milling Company 

Helvetia Coal Company 

Secretary of Labor for Earl Kennedy & Larry 

Collins v. Raven Red Ash Coal Corp. 

Jim Walter Resources, Inc. 

Ann Riley Owens v. Monterey Coal Co. (Order) 

Secretary of Labor for Larry Collins v. 

Raven Red Ash Coal Corp. 

Emery Mining Corporation 

Secretary of Labor for John Kline v. 

Consolidation Coal Company 

Youghiogheny & Ohio Coal Company 

Consolidation Coal Company 

Otis Elevator Company 

Don Keen, et al v. Garden Greek Pocahontas Co. 

Banner Coal Company, Inc. 

FMC Corporation 

A.D. Bracken v. Apline Construction Co. 

David Ratliff v. Bethenergy Mines, Inc. 

Westmoreland Coal Company 

Secretary of Labor for Kevin Smith v. 

Consolidation Coal Company 

Mid-Continent Resources 

WEST 81-189-RM 

WEVA 82-152-R 

CENT 85-20-M 

WEST 84-134-M 

LAKE 85-47 

KENT 83-212 

WEST 85-85-45-M 

PENN 86-43 

VA 85-32-D 

SE 85-36-R 

LAKE 86-33-D 

VA 85-5-D 

WEST 86-56-R 

WEVA 85-226-D 

LAKE 85-74-R 

WEST 85-169 

WEVA 85-278 

VA 86-4-D 

VA 85-26 

WEST 84-117-RM 

CENT 85-132-D 

KENT 85-108-D 

WEVA 82-152-R 

WEVA 86-69-D 

WEST 85-34 

Pg. 4 77 

Pg. 491 

Pg. 495 

Pg. 506 

509 

Pg. 517 

Pg. 520 

524 

Pg. 526 

Pg. 568 

Pg. 598 

Pg. 602 

Pg. 604 

Pg. 605 

Pg. 606 

Pg. 612 

Pg. 620 

Pg. 622 

Pg. 628 

Pg. 631 

Pg. 642 

Pg. 643 

645 

Pg. 647 

Pg. 648 

APRIL 

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

Emerald Mines Corporation v. Secretary of Labor, Docket No. PENN 85-298-R. 

(Judge Melick, March 5, 1986) 

The following case was denied for review during the month of April: 

Secretary of Labor, MSHA v. Youghiogheny & Ohio Coal Company, Docket No. 

LAKE 85-37. (Judge Maurer, March 7, 1986) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 1, 1986 

MINERALS EXPLORATIOP COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Docket No, WEST 81-189-RM 

BEFORE: Backley, Lastowka and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This case arises under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (1982), and involves two related proceedings. 

The first is a consolidated contest by Minerals Exploration Company 

("Minerals") of an imminent danger withdrawal order issued pursuant to 

30 U.S.C. § 817(a) and a civil penalty proceeding dealing with an alleged 

violation by t1inerals of 30 C.F.R. § 55.3-5 (1984). That matter was 

presided over by Commission Administrative Law Judge John A. Carlson. 

The second proceeding, heard on an interlocutory basis by former Commission Administrative Law Judge Jon D. Boltz, involves Minerals' motion 

for sanctions against officials of the Department of Labor's Mine Safety 

and Heal th Administration (''MSHA") and the Secretary of Labor's trial 

counsel for alleged improprieties in prosecuting the proceeding before 

Judge Carlson. In an unpublished order issued on April 7, 1982, prior 

to Judge Carlson's decision on the merits, Judge Boltz denied Minerals' 

motion for sanctions. Approximately one year later, Judge Carlson 

issued his decision upholding both the imminent danger withdrawal order 

and the citation and the judge assessed a civil penalty. 5 FMSHRC 669 

(April 1983)(ALJ). Following Judge Carlson's decision, Minerals filed 

with the Commission a petition for discretionary review primarily 

challenging Judge Boltz's order denying sanctions. 'J:_/ 

'J:_f The Commission is an independent adjudicatory agency established to 

resolve legal disputes arising under the Mine Act. 30 U.S.C. § 823. 

The Commission is not a part of and is in no way connected with the 

Department of Labor or the Mine Safety and Health Administration. 

477 
The crucial issues before us concern allegations of impropriety on 

the part of MSHA officials and counsel for the Secretary. For the 

reasons set forth below, we affirm Judge Roltz's order denying sanctions 

and we affirm Judge Carlson's decision on the merits. At the same time, 

we express our strong disapproval and, as appropriate, serve warning 

with respect to some of the activities of certain MSHA officials and the 

Secretary's trial counsel. 

I. 

Facts and Procedural History 

At the time of the operative events in this case, Minerals operated 

the Sweetwater uranium project, a large surface uranium mine located 

near Rawlins, Wyoming. The underlying case arose in connection with a 

citation and imminent danger withdrawal order issued in February 1981 by 

MSHA to Minerals for allegedly violating section 55.3-5 by permitting 

loose, overhanging rock on the east wall of the C-1 pit. 2/ A hearing 

on the merits of the citation and withdrawal order was held before Judge 

Carlson in April 1981, and was continued until June 29, 1981. 

Prior to resumption of the hearing, a telephone conference call was 

held on June 22, 1981, among Judge Carlson, Anthony Weber, counsel for 

Minerals, Phyllis Caldwell, counsel for the Secretary, and Revelyn 

Suter, President of the Progressive Mineworkers Union ("the Union"), 

representative of miners at the Sweetwater mine. The conference call 

was initiated by Judge Carlson for the purpose of discussing the TJnion's 

written request that Union Secretary Daphne Hamilton be permitted to 

appear at the hearing to "help make sure that the facts are correctly 

represented." During the call, Ms. Suter expressed concern that falsified documents would be introduced by Minerals at the hearing. Attorney 

Weber subsequently testified that due to a bad connection he could not 

hear Sutervs end of the conference call. Weber did understand, however, 

2/ Former section 55.3-5 provided: 

Mandatory. Men shall not work near or under dangerous 

banks. Overhanging banks shall be taken down immediately 

and other unsafe ground conditions shall be corrected 

promptly, or the areas shall be barricaded and posted. 

30 C.F.R. § 55.3-5 (1984). In January 1985, this provision was replaced 

by 30 C.F.R. § 56.3005 (1985), which is virtually identical. 

478 
through the comments of Judge Carlson, whom he could hear, that the 

Union was concerned over possibly falsified documents being used by 

Minerals at the hearing. 3 

Later that same day, following the conference call, attorney Caldwell 

received a telephone call from the MSHA sub-district office covering the 

Sweetwater mine, informing her that a letter had been received from 

Union Secretary Hamilton making similar allegations that falsified 

documents would be introduced at the hearing. As a result of that phone 

call, Caldwell and her supervisor, Senior Attorney James Barkley, arranged 

for an MSHA investigation into the claims of document falbification. 

MSHA Special Investigator Jerry Thompson was assigned to the task. 

Inspector Thompson began talking privately with Minerals drafting department employees and, by the next day, June 23, 1981, learned that Brian 

Baird was the Minerals draftsman who had worked on original drawings of 

the C-1 pit -- drawings that had become the focus of the inspector's 

investigation. Caldwell directed Inspector Thompson to interview Baird. 

The inspector visited Baird's home in the Rawlins area on Sunday, 

June 28, 1981, the day before the resumption of the hearing before Judge 

Carlson. Thompson identified himself as an MSHA special investigator 

and stated that he wanted to ask Baird questions about the documents to 

be used at the hearing the next day in the Denver. Baird indicated that 

the drawings of the C-1 pit originally had been completed from survey 

notes but later had been changed, supposedly upon the basis of visual 

observations. Baird showed Thompson one of the original drawings and 

told him that there were other original drawings at the mine. Baird 

expressed concern that the modified drawings were not accurate. Before 

Thompson left Baird's home, he obtained a written statement from Baird 

regarding the changes in the drawings. 

3/ During the call, Weber made comments which led other participants 

in the conversation to believe that he was threatening with discharge 

Union representatives Suter and Hamilton (who were then on sick-leave 

status with Minerals) if they participated in the hearing. Weber's 

comments became the focus of several additional proceedings. Prior to 

the resumption of the hearing on June 29, 1981, the Secret~ry filed with 

Judge Carlson a letter seeking the institution of disciplinary proceedings against Weber. Judge Carlson referred this letter to the 

Commission and the Commission referred the matter to Commission Administrative Law Judge Paul Merlin for disciplinary proceedings. The matter 

was resolved, based on stipulations, at a hearing before Judge Merlin. 

The judge admonished Weber concerning his remarks but held that no 

further disciplinary proceedings were warranted. Disciplinary 

Proceeding (Minerals Exploration Co.), 3 FMSHRC 1919, 1920-21 (August 

198l)(ALJ). The Secretary also initiated a discrimination case against 

Minerals based on this incident. FMSHRC Docket No. WEST 82-38-DM. That 

case eventually was settled by the parties. 

479 
The hearing on the merits reconvened in Denver on June 29, 1981. 

Prior to the taking of testimony, counsel for the Secretary presented 

Judge Carlson with the letter requesting disciplinary proceedings against 

Minerals' counsel, Weber (n. 3 supra). On the afternoon of June 29, 

Minerals began its defense by presenting the testimony of Project Manager 

Larry Dykers. Mr. Dykers testified about the plan map covering the C-1 

pit. After Weber moved for introduction of the drawing, counsel for the 

Secretary, Barkley, requested voir dire. Barkley established that the 

map originally had been drawn by Baird and, as presented at the hearing, 

showed the existence of a safety bench on the east wall of the C-1 pit. 

Barkley then objected to the admission of the map as "irrelevant because 

it would seem to be a document that may have been falsified to the point 

that it is irrelevant." M. Tr. 472. 4/ Barkley indicated that he was 

prepared to subpoena Minerals' entire drafting department to testify 

concerning the alleged falsification. 

Weber reacted with surprise but expressed a willingness to bring 

the Minerals employees to the hearing in order to resolve the matter. 

It was then 5:00 p.m. and the judge suggested an adjournment -- but only 

until the afternoon of the following day. Weber did not request a 

longer continuance or object to this procedure. This procedural decision 

set into motion the main series of events which led to the present 

litigation. 

Barkley requested subpoenas for Minerals' employees and documents. 

The judge issued signed subpoenas in blank to Barkley. The evidence 

indicates that the parties never reached any understanding as to the 

individuals who would be subpoenaed. Barkley conferred with Inspector 

Thompson concerning the Minerals employees to be subpoenaed. They 

agreed that Thompson and another MSHA Inspector, Merrill Wolford (who 

had issued the underlying citation and imminent danger order), were to 

drive 250 miles to Rawlins to serve the subpoenaed individuals. Thompson 

telephoned Baird from Denver to inform him that he would be subpoenaed 

that evening to appear at the hearing in Denver the following day. 

Thompson asked Baird to inform the other draftsmen that they would be 

subpoenaed. Thompson inquired as to whether Baird had brought home his 

original drawings of the C-1 pit. Baird replied that he had not. 

Thompson told Baird not to worry because he would be bringing a subpoena 

requiring Baird to obtain the original documents. 

At approximately 1:30 a.m. on June 30, 1981, the two inspectors 

arrived in the Rawlins area and began serving the subpoenas. Apart from 

Baird, they served four Minerals employees, all of whom refused an offer 

of transportation to Denver. The inspectors reached Baird's home at 

3:00 a.m., and then proceeded to the mine offices, some 40 minutes away, 

to obtain original drawings of the C-1 pit. Baird questioned the propriety 

of taking the documents from the mine, and Thompson replied that the 

subpoena required that action. 

4/ For purposes of this decision, transcript citations to the hearing 

before Judge Carlson on the merits are designated M. Tr. Transcript 

citations to the hearing before Judge Boltz on Minerals' Motion for 

Sanctions, are designated s. Tr. 

480 
The inspectors and Baird arrived at the mine offices at 4:00 a.m. 

After finding several mine entrances to be locked, the party finally 

found one that was unlocked. They proceeded to Baird's desk, where 

Baird picked up a cardboard tube containing the drawings. They then 

drove to Denver. The other subpoenaed Minerals employees went to work 

later in the morning of June 30 and they attempted to gather all documents 

possibly relevant to the C-1 pit. They then flew to Denver in two 

company chartered planes. 

Barkley met with Baird on the morning of June 30, 1981, upon the 

latter's arrival in Denver. Baird again expressed concern about his 

removal of the documents from the mine and Barkley told him "not to 

worry about it." S. Tr. 842. Later that morning, Barkley arrived at 

the Commission's Denver office, where the hearing was being held. He 

instructed Inspector Thompson to locate two of the subpoenaed witnesses, 

who worked in the drafting department, so that he could talk with them. 

Those two individuals told Barkley that the modifications in the drawings 

were based upon good faith subjective judgment. Barkley stated that 

"people had gone to jail trying to take refuge in subjective judgment." 

Dickey Affidavit at 4; Hill Affidavit at 6-7. 

When the reconvened hearing commenced, Barkley announced that he 

would present all his evidence through Baird, and excused the other four 

subpoenaed employees. During the course of Baird's testimony, Barkley 

used the drawings that Baird had obtained from Minerals' office. These 

documents were entered into evidence without objection from Weber. At 

the conclusion of Baird's testimony, Weber requested and Judge Carlson 

permitted a continuance to allow Weber to respond on the matter of 

possible document falsification. After the close of the hearing, and 

upon request from Barkley, the judge ordered that the documents which 

had been produced in response to the subpoenas be kept in the hearing 

room overnight. The parties agreed that the next morning Minerals' 

employees would separate the documents into relevant and irrelevant 

categories. The Secretary's counsel was to arrive later in the morning 

for document inspection. 

The following morning, Weber departed from the Denver area and left 

Minerals' Project Manager Dykers, who is not a lawyer, in charge of the 

document separation and production process. Dykers decided that the 

daily reminder diaries that some of the employees had brought did not 

have to be produced. Those employees returning to the mine that morning 

took their diaries with them. Barkley and other representatives of the 

government arrived later in the morning and proceeded to review the 

documents, including those separated out by Minerals as irrelevant, 

During the examination of the documents, it was realized that the 

daily diaries were not present. Dykers indicated that they had been 

determined to be irrelevant and had been given to the employees returning 

to Rawlins. At Barkley's insistence, Dykers agreed to try to retrieve 

the diaries from the Minerals employees at the Denver airport. Dykers 

succeeded, and when the diaries were returned to the Commission offices, 

Barkley took them into a separate room for examination. Barkley subsequently 

refused to return the diaries to Minerals for a period of months, despite 

repeated requests from Minerals. 

481 
The hearing on the merits did not resume as anticipated. Initially, 

the delay was because of the Secretary's request for disciplinary proceedings against Weber. After that matter was concluded, Minerals filed 

in September 1981 the motion for sanctions that is the primary subject 

of this review. That motion was transferred to then Judge Boltz because 

of the possibility that Judge Carlson might be called as a witness. The 

hearing on the sanctions motion covered four days (November 9-12, 1981), 

and Judge Boltz issued his order denying sanctions on April 7, 1982. 2 ./ 

In his decision denying Minerals' motion for sanctions, Judge Boltz 

found that Inspector Thompson had not coerced Baird's written statement 

and that Inspectors Thompson and Wolford had not acted improperly by 

serving the subpoenas and by entering the mine property with Baird in 

order to obtain the subpoenaed documents. The judge also determined 

that there was no impropriety on the part of counsel for the Secretary 

in conducting an independent investigation of the falsification allegations without notifying Minerals' counsel, in examining the subpoenaed 

documents that Minerals had designated as irrelevant, and in retaining 

and refusing to return the daily reminder diaries of Minerals' employees. 

The judge concluded that he found "nothing in the conduct of counsel for 

the Secretary or in the conduct of Inspectors Thompson and Wolford that 

was improper in the circumstances of this case." Slip op. 8. 

Subsequently, on September 15, 1982, following negotiations between 

the parties, a joint motion for decision on the merits based on the 

existing record was filed with Judge Carlson. The judge issued his 

decision on the merits on April 6, 1983. In finding a violation, Judge 

Carlson did not utilize the record from the hearing before Judge Boltz 

on sanctions. Judge Carlson indicated that he was "not prepared to hold 

whether or not the drawings were 'falsified'," because "such a holding 

(was] not necessary to reach a proper decision on the merits of the 

case. 11 5 FMSHRC at 676. The judge stated: 

I did find Baird an earnest and believable witness 

with no discernible motive for dissembling. At 

the very best, the process by which the final set 

of drawings came about betrays a subjectivity, a 

flexibility, which robs them of any weight favorable to Minerals. Beyond that, even if the modified 

drawings were accepted as accurate, they would not 

persuade me of the absence of violation. 

Id. Finding that other evidence independently supported a finding of 

violation, the judge concluded that Minerals had violated section 55.3-5 

and that the imm~nent danger order had been issued appropriately. 

5/ Minerals petitioned the Commission for discretionary review of 

Judge Boltz's order denying its motion for sanctions. The Commission, 

treating Minerals' petition as one for interlocutory review, denied the 

request without prejudice to renew after final disposition of the case 

by Judge Carlson. 

482 
II. 

Disposition of Minerals' Assertions 

of Improprieties 

On review, Minerals repeats the assertions of governmental impropriety 

raised before Judge Boltz. Minerals argues that it was prejudiced by 

the actions of MSHA officials and counsel for the Secretary and requests 

vacation of the civil penalty and dismissal of the proceeding. Minerals 

contends that these sanctions are necessary to deter the government from 

future impropriety and illegality, and to prevent the tainting of Commission 

proceedings. We examine separately each assertion of impropriety. 

A. Minerals' objections concerning the Secretary's initial 

investigation into the possible falsification of evidence 

1. The general propriety of the Secretary's investigation 

Minerals contends that it was improper for the Secretary to authorize 

and direct between June 22 and 28, 1981, a "secret" investigation involving 

interviews with employees of the opposing party without advising the 

judge and opposing counsel. Minerals argues that such actions violated 

Commission discovery procedure and opened the door to unethical conduct. 

As Judge Boltz noted, the time period for completion of discovery 

under Commission Procedural Rule 55, 29 C.F.R. § 2700.55, had expired on 

June 22, 1981. However, when charges surfaced during the June 22 conference call that falsified evidence might be introduced, it was wholly 

appropriate for both parties' attorneys -- as responsible advocates and 

as officers of the court -- to pursue the matter. We hold that at that 

juncture of the case, in light of the nature of the allegations, either 

party could have proceeded properly by requesting the reopening of 

discovery (see 29 C.F.R. §§ 2700.55(a) & (b)), or by investigating the 

allegations-.~Within the adversarial framework of Commission trial 

proceedings, there is no general bar against investigations by either 

party into possible new evidence whose existence is suggested during the 

course of a trial. 

We reject the contention that Minerals' counsel, Weber, was not on 

notice as to the existence of the falsification problem and the likelihood 

that the opposing party would have a vital interest in determining the 

truth of the allegation. As noted above, Weber was made aware from the 

comments of Judge Carlson during the conference call that the Union was 

raising an issue concerning his client's possible falsification of 

evidence. Weber should have been alert to the obvious implications of 

such a charge. 

Thus, we discern no impropriety in the fact that the Secretary 

decided to investigate further the Union's allegations of falsified 

evidence. We note, however, certain ethical constraints relevant to 

such private inquiries. The American Bar Association ("ABA") Model 

Code of Professional Responsibility provides in relevant part: 

483 
During the course of his representation of a 

client a lawyer shall not ••• communicate or 

cause another to communicate on the subject of 

the representation with a party he knows to be 

represented by a lawyer in that matter unless he 

has the prior consent of the lawyer representing 

such other party •••• 

DR 7-104(A)(l)(l980 ed.). Cf. ABA, Model Rules of Professional Conduct, 

Rule 4.2 (1983). These model rules prohibit communications with an 

opposing "party" without the other lawyer's consent. We do not find it 

necessary in the present context to adopt formally these particular 

model rules or to construe the full scope of the term "party." Here, 

the Minerals employees contacted during the Secretary's private investigation appear to have been non-managerial draftsmen lacking substantial 

organizational responsibility. Moreover, we are mindful of the important 

purpose of these contacts and of the unusual circumstances of this case. 

For present purposes, we remind the Commission Bar of the need to be 

respectful of the ethical provisions cited above and of the developing 

law in this area. Cf. Massa v. Eaton Corp., 39 FEP 1211 (D. Mich. 

1985). On the basi°'S""of the foregoing, we agree with Judge Boltz that 

there was no general impropriety in the Secretary's undertaking his 

investigation into allegations of evidentiary falsification. 

2. Whether Inspector Thompson coerced Baird's 

written statement 

Minerals contends that Inspector Thompson coerced Baird's written 

statement during their meeting at Baird's home. The evidence shows that 

Inspector Thompson identified himself to Baird as an MSHA special investigator and indicated that he wanted to discuss the drawings which were to 

be presented at the hearing in Denver. Inspector Thompson also told 

Baird that a refusal to talk with him could be construed as assisting in 

an attempt to cover up the falsification. 

Judge Boltz found that Baird's statement was not coerced. The 

interview with the MSHA investigator occurred in Baird's home and was 

conducted in the presence of his wife. It lasted 45 minutes and unfolded 

in a conversational atmosphere. Baird himself displayed a generally 

cooperative attitude, although he experienced some understandable discomfort 

in supplying information that he believed might reflect badly on his 

employer. He volunteered a drawing from his portfolio and made free-hand 

sketches to help the inspector understand the modifications made to the 

drawings. On the other hand, Thompson's statement that a refusal to, 

talk with him could imply guilt was overbearing and a reflection of poor 

judgment. We disavow such investigative tactics, but we conclude that 

this errant statement did not coerce a statement from Baird. Accordingly, 

in consideration of the totality of the circumstances, we find that 

substantial evidence supports Judge Boltz's conclusion that Baird's 

statement was not coerced. 

484 
3. Barkley's use of Baird's statement at the reconvened 

hearing 

Minerals asserts that Barkley's use of the products of the Secretary's 

investigation into the allegations of falsified evidence at the reconvened 

hearing was improper. Minerals a,rgues that Barkley introduced Baird's 

statement in a theatrical effort to disrupt its case by interrupting the 

hearing and catching Minerals by surprise. The surprise in question was 

not the type removed by the procedural rules or cases cited by Minerals. 

The surprise was collateral--that is, it was intended as an attack on 

the credibility of evidence. There was no change in the theory of the 

case upon which either side was proceeding. Moreover, given the fact 

that Weber was aware of the falsification allegations as of June 22, 

1981, it strains credulity to believe that Barkley's production of 

Baird's statement could have come as a complete surprise to Minerals. 

B. Mineral's objections to the subpoena process 

Minerals' next major claims of impropriety focus on the subpoena 

process, which began at the recess of the hearing on June 29, 1981, 

following the introduction of Baird's statement. It is obvious that 

this juncture of the hearing was an unfortunate turning point, and most 

of the additional allegations of misconduct can be traced to the failure 

of the parties and the judge to evaluate adequately a practical and just 

method for proceeding with the case and resolving the complication that 

had arisen. The judge's late afternoon decision to allow a continuance 

of only one-half day when the witnesses and documents to be subpoeanaed 

were 250 miles away in Rawlins, Wyoming, was ill-conceived. Sound 

judicial practice requires that sufficient time be provided for the 

issuance, service of, and compliance with subpoenas. Such practice will 

avoid serving subpoenas in the middle of the night, that require witnesses 

to travel with subpoenaed documents 250 miles to a hearing the next 

afternoon. However, we must observe that Weber's lack of protest and 

his acquiescence in this procedure seriously undercut Minerals' present 

objections. 

1. Subpoenas in blank 

Minerals challenges the judge's issuance of subpoenas in blank to 

Barkley. The issuance of subpoenas in blank is authorized by Fed. R. 

Civ. P. 45(a), which applies nso far as practicable 11 to Commission 

proceedings. 29 C.F.R. § 2700.l(b). Therefore, we perceive no error in 

the judge's issuance of blank subpoenas although such practice must be 

governed by careful discretion. 

2. Scope of the subpoenas 

Minerals n:ext objects to the scope of the subpoenas duces tecum, in 

that they covered documents relevant to the entire C-1 pit from December 

11, 1980, rather than being limited to the section of the east wall of 

the C-1 pit at issue from the later date of citation in February 1981. 

485 
Relevance is the touchstone in analyzing the proper scope of a subpoena 

or discovery request. We have no trouble concluding that the request 

was relevant, especially in the context of a possible falsification of 

documents. In any event, even if the subpoena was overbroad, the 

appropriate remedy for Minerals was to object on the basis of irrelevance 

or burdensomeness. 29 C.F.R. § 2700.58(c). However, trial counsel for 

Minerals failed to object to the scope of the subpoenas. Accordingly, 

we find no error. 

3. Service of the subpoenas 

Minerals also objects to the service of the subpoenas in the middle 

of the night and by an interested party. As a general legal proposition, 

there is no prohibition against either of these occurrences, although 

obviously better and preferable practice calls.for service during normal 

hours. This is particularly so in a situation like the present, in 

which a reasonable continuance could have been granted without prejudice 

to either party. The subpoenas then could have been served during 

normal hours and the subpoenaed individuals would have had sufficient 

time to travel the 250 miles to the hearing in Denver. As a matter of 

policy, we do not encourage or favor service of ComMission subpoenas in 

the middle of the night absent genuine emergency or extraordinary circumstances, which were not present here. 

However, the clear inconvenience attendant upon the service conducted 

in this case does not render the service improper or illegal. Again, it 

must be emphasized that Weber, counsel for Minerals, failed to object 

and failed to urge an alternate timetable. We are also influenced by 

the fact that all hut one of the subpoenaed Minerals employees was 

notified by telephone in the early evening of June 29, 1981, that they 

were to be subpoenaed to appear at the hearing in Denver the following 

day. 

Notwithstanding the above, we are compelled to observe and disapprove the heavy-handed manner in which Thompson proceeded. The record 

indicates that he represented himself in a manner causing several of the 

subpoenaed witness to believe that they were being confronted by an 

agent of the Federal Bureau of Investigation. S. Tr. 278, 280, 312, 

410, 443, 444. Moreover, several of these witnesses testified that 

Thompson 1 s early morning intrusion caused genuine fear and intimidation. 

S. Tr. 253, 254, 346, 347, 413. 

As to Minerals' objection to service by an interested party, Commission Procedural Rule 58(a) governing subpoena service states that a 

subpoena "may be served by any person who is not less than 18 years of 

age. 11 29 C.F.R. § 2700.58(a). Inasmuch as Rule 58(a) does not prohibit 

service by an interested party (assuming Inspector Thompson to be such a 

party), we find no irregularity in service of the subpoenas by Inspector 

Thompson. 

486 
4. Entry of Inspectors into Minerals' mine offices 

Minerals challenges Judge Boltz's finding that there was no impropriety in the actions of Inspectors Thompson and Wolford in connection 

with Baird's removal of drawings from the mine office at approximately 

4:00 - 4:30 a.m. on the morning of June 30, 1981. The Secretary argues 

that the inspectors did nothing illegal and that it was Baird who took 

the documents as required by the subpoena. Our review of the record, 

however, convinces us that Baird would not have travelled to the mine 

and taken the documents on his own. In the early hours of June 30 when 

the inspectors served Baird with the subpoenas and proceeded with him to 

the mine offices, Baird questioned the propriety of taking the documents 

from the mine and Thompson replied that the subpoena required it. To 

this extent, the entry and taking of the documents may be viewed as the 

action of MSHA. Thus, the next question is whether the removal of the 

documents was illegal or otherwise improper. 

In deciding this question, control or custody of documents as well 

as ownership is critical in the determination of the propriety of document 

production under subpoena. Service on one who has control of documents 

may be sufficient as against the owner. See, e.g., Mattie T. v. Johnston, 

74 F.R.D. 498, 502 (N.D. Miss. 1976), and authorities cited. However, 

the present case is different from the control involved in the cases 

relied upon by the Secretary. In those cases, the person subpoenaed 

exerted substantial control over the documents. Here, the evidence 

shows that Baird's control over the drawings was nominal, encompassing 

only the requirements of his immediate work assignment. In short, the 

subpoena did not allow Baird to take the documents without the permission 

of his superior. Thus, Judge Boltz's conclusion that there was no 

impropriety on the part of the inspectors in removing the drawings from 

Minerals' mine offices is erroneous. We are particularly disturbed by 

the MSHA inspectors' middle-of-the-night entry into private mine offices, 

without identification to appropriate agents of the operator. We strongly 

denounce Thompson's abuse of authority and reiterate our disapproval of 

the ill-controlled subpoena process agreed to by the parties. 

Despite our conclusion that the exhibits were improperly obtained, 

we find no prejudice to Minerals. The outcome on the merits rested on 

adequate, independent grounds. Accordingly, we deem it inappropriate 

to invoke the extreme remedy of dismissal of the proceedings on the 

merits. 

C. Mineral's objections to counsel's conduct after service 

of the subpoenas 

1. Barkley's treatment of the subpoenaed Minerals employees 

Minerals argues that counsel for the Secretary, Barkley, improperly 

questioned two of its employees who had been subpoenaed and that Judge 

Boltz failed to address this objection. Dealing with the latter assertion 

first, we note that although Judge Boltz did not address this objection 

487 
directly he resolved it indirectly when he found that counsel for the 

Secretary had not abused the Commission subpoena power and that the 

persons subpoenaed were witnesses for MSHA. Slip op. 7. 

As to the merits of this particular contention, Minerals' argument 

is focused on Barkley's meeting with two subpoenaed Minerals draftsmen 

in advance of the resumption of the hearing on June 30, 1981, to discuss 

their testimony. These individuals were subpoenaed as MSHA's witnesses. 

While the authority for the issuance of subpoenas is through the Commission 

(30 U.S.C. § 823(e) & 29 C.F.R. §§ 2700.54(a), .57 & .58), witnesses 

appear on behalf of the party requesting the subpoena. Because the 

draftsmen were witnesses for MSHA, it was reasonable and proper for 

Barkley to attempt to interview them before they gave their testimony. 

Minerals also argues that Barkley improperly threatened the two 

employees by commenting that people had gone to jail trying to take 

refuge in subjective judgment. However, no one who heard Barkley's 

remark indicated that it was an assertion of an action to be taken or a 

prediction of events to follow. Although Barkley's comment was clearly 

improper and ill-chosen, evidencing a lack of understanding of proper 

prosecutorial conduct, it did not constitute an improper threat of 

criminal prosecution. 

2. Barkley's release of the subpoenaed witnesses 

Minerals' allegations of misconduct as to the release of the subpoenaed witnesses involves more comments by Barkley which Minerals 

asserts misled Judge Carlson. Immediately after Barkley's discussion 

with the two draftsmen discussed above, the hearing resumed. Barkley 

informed Judge Carlson that he would present all of his evidence through 

Baird and, therefore, was excusing the remaining subpoenaed witnesses. 

Barkley's stated reason for this action was effectively that the testimony 

of the other witnesses woμld be cumulative. This explanation was a 

distortion or the facts known to Barkley and certainly beneath the level 

of candor reasonably expected of an officer of the court. As Barkley 

explained at the sanctions hearing, the real reason for his excusing the 

other witnesses was that they had given him a "very pat kind of response 

or defense to their involvement." S. Tr. 800. Barkley should not have 

represented otherwise to the judge. 

3. Barkley's examination and retention of subpoenaed documents 

Minerals next argues that Judge Boltz erred in finding no impropriety 

in Barkley's examining all the produced documents, including those 

separated out by Minerals as irrelevant, on July 1, 1981, and that it 

was improper for Barkley to take and refuse to return for a period of 

months the daily reminder diaries of the Minerals employees. 

All of Minerals' witnesses testified that because they were pressed 

for time at the mine on the morning of June 30, they gathered all possibly 

relevant documents to take to Denver to be sorted out later. In general, 

488 
absent permission, one party has no right to examine the opposing party's 

documents to ascertain what is properly obtainable. However, the record 

indicates an utter lack of clear agreement between the parties as to how 

the documents would be produced and examined. Indeed, this dispute over 

the documents occurred largely because of the absence of Weber from the 

document production activities. At the recess of the hearing on June 

30, the parties agreed to meet the next morning to exchange and examine 

documents. Nevertheless, prior to the document exchange Weber departed 

Denver and left in charge Dykers, a Minerals employee who is not an 

attorney. Weber did not explain to the judge or to counsel for the 

Secretary his intention to depart before the document examination took 

place. At the very least, we find it surprising that an attorney would 

allow documents to be produced to opposing counsel without first approving 

their release. Furthermore, Weber failed to give Dykers any instructions 

regarding the actions that should have been taken if a dispute arose. 

Given Weber's abdication of his adversarial responsibility, we cannot 

find wrongdoing in Barkley's examination of the produced documents. 

We do not agree, however, with Judge Boltz's conclusion that there 

was no impropriety in Barkley's taking and refusing to return the diaries 

of the subpoenaed employees. A subpoena duces tecum does not allow 

retention of the originals of subpoenaed documents without permission. 

Whatever may be argued about the scope of the subpoena or the agreement 

of the parties, it is clear that Minerals did not agree to give the 

originals of the diaries to MSHA. In fact, the record supports the 

opposite conclusion. Minerals emphatically requested their return and 

the request should have been honored. Barkley was without authority to 

take and withhold the diaries and his actions are extremely troubling. 

Notwithstanding this conclusion, we do not perceive any fatal prejudice 

to Minerals' case on the merits in this instance as a result of Barkley's 

actions. In finding a violation, Judge Carlson noted that he relied on 

other unrebutted evidence and that the diary entries were too vague to 

be used. 5 FMSHRC at 676 n. 3. 

D. Minerals' request for sanctions 

We have detailed our serious concern regarding several aspects of 

the conduct of certain Department of Labor employees. Most troubling 

are Barkley's taking and retention of documents belonging to the operator, 

his misrepresentation to the judge as to the reason that he was excusing 

witnesses, and Thompson's abuse of authority, his middle-of-the-night entry 

into mine offices, and his taking mine documents. The record also 

indicates that Weber's performance as Minerals' counsel significantly 

contributed to the disruptions and in fact to some of the allegations of 

improprieties now raised by Minerals. We have noted further the procedural 

mismanagement of some aspects of this case by the Commission judge. 

Minerals supports its arguments that sanctions should he imposed by 

relying primarily on criminal cases involving the Fourth and Fifth 

Amendments involving defendants' motions to exclude improperly obtained 

evidence, and on a series of cases involving defendants' attempts to 

have criminal indictments dismissed because of alleged prosecutorial 

489 
misconduct during grand jury investigations. We do not find these cases 

controlling. As we have emphasized, Judge Carlson's decision on the 

merits rests on adequate, independent grounds apart from the drawings 

taken from the mine and the improperly retained diaries. Furthermore, 

even courts dealing with the possible dismissal of criminal indictments 

have required a showing that the alleged prosecutorial misconduct has 

materially prejudiced the defendant's case. See, e.g., Laughlin v. 

Unites States, 385 F.2d 287, 292 (D.C. Cir. 1967).----X:s explained above, 

·we cannot conclude that the objectionable conduct of the Secretary's 

representatives prejudiced Minerals' case on the merits, or affected the 

substantive outcome of the citation and withdrawal order contest. We 

believe, however, that the noted serious deficiencies in the performance 

of the Secretary's personnel must be addressed. We find it appropriate 

in this instance to address those deficiencies by strongly urging the 

Secretary of Labor to review the noted objectiqnable performance by his 

employees a~d to take appropriate remedial action to ensure that such 

conduct by his representatives will not be repeated. 

Accordingly, under all the circumstances of this case, we conclude 

that sanctions or disciplinary proceedings before the Commission are 

inappropriate. 

III. 

Conclusion 

For the reasons set forth herein, we decline to impose the severe 

sanction of dismissal sought by Minerals. We affirm Judge Carlson's 

decision, and on the bases discussed above, we affirm Judge Boltz's 

order denying sanctions against the Secretary. !:_/ 

Nelson, Commissioner 

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

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

powers of the Commission in this matter. 

490 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 18, 1986 

Docket No. WEVA 82-152-R 

WEVA 82-369 

WESTMORELAND COAL COMPANY 

BEFORE: Backley, Doyle, Lastowka, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This case arises under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act"). The issue is whether 

a Commission administrative law judge abused his discretion by failing 

to reduce, in his decision on remand, the civil penalty imposed for a 

violation of 30 C.F.R. § 75.202, a mandatory roof control standard. For 

the following reasons we conclude that the judge's penalty assessment 

constitutes an abuse of discretion. 

The complete factual background of this case is set forth in our 

decision remanding this matter to the judge. 7 FMSHRC 1338 (September 

1985). It is sufficient to note here that in his initial decision the 

judge found that the foreman for Westmoreland Coal Company ("Westmoreland") 

had knowledge of the violative condition but failed to correct it "through 

indifference or lack of reasonable care." The judge concluded that the 

violation was the result of the "unwarrantable failure of the operator 

to comply with the law and .•• of gross negligence." 5 FMSHRC 132, 137 

(January 1983)(ALJ). Considering this negligence finding, and the other 

statutory civil penalty criteria set forth in section 110 (i) of the Mine 

Act, 30 U.S.C. § 820(i), the judge assessed a civil penalty of $8,000. 

5 FMSHRC at 137. The Commission granted Westmoreland's petition for 

review. 

491 
On review, the Commission found that the judge's conclusion that 

the violation was the result of Westmoreland's "unwarrantable failure" 

not only "lack[ed] substantial support in the record" but was "contrary 

to the overwhelming weight of the evidence." 7 FMSHRC at 1342. The 

Commission stated that it "[could] not conclude that the foreman's 

actions in allowing the work to proceed represent[ed] the degree of 

aggravated conduct intended to constitute an unwarrantable failure under 

the Act." The Commission also stated that "the violation .•. did not 

result from Westmoreland's indifference, willful intent, or serious lack 

of reasonable care." 7 FMSHRC at 1342. Consequently, the Commission 

reversed the judge's unwarrantable failure finding. The Commission 

concluded, "[b]ecause the judge's penalty assessment rested in part on 

his determination that the foreman acted with indifference and without 

reasonable care, the case is remanded to the judge for reconsideration 

of the amount of civil penalty in light of our decision." 7 FMSHRC at 

1343. 

On remand, the judge acknowledged that the case was before him for 

the purpose of reconsideration of the amount of the civil penalty in 

light of the Commission's finding that the violation was not the result 

of Westmoreland's "indifference, willful intent, or serious lack of 

reasonable care." 7 FMSHRC at 1647 (October 198S)(ALJ). The judge 

revised his original finding that the violation was caused by Westmoreland 1 s "gross negligence" and concluded instead that Westmoreland was 

negligent. 7 FMSHRC at 1648. In spite of his conclusion that the 

degree of Westmoreland's lack of care was less than originally found, 

the judge again assessed a civil penalty of $8,000. 

A Commission judge is accorded broad discretion in assessing civil 

penalties under the Mine Act. This exercise of discretion, however, is 

not unbounded. The penalty must reflect proper consideration of the 

statutory penalty criteria. Sellersburg Stone Co., 5 FMSHRC 287, 290-94 

(March 1983), aff'd 736 F.2d 1147 (7th Cir. 1984). When a judge's 

penalty assessment is at issue on review, the Commission must determine 

whether the penalty is supported by substantial evidence and whether it 

is consistent with the statutory penalty criteria. Pyro Mining Co., 6 

FMSHRC 2089, 2091 (September 1984). When the Commission, using this 

standard, has concluded that the penalties assessed do not properly 

reflect the penalty criteria, it has assessed new penalties as warranted 

by the record. In some instances the resulting assessments have been 

higher, e.g., Pyro Mining Co., supra, in others, the assessments have 

been lower, e •. , United States Steel Corp., 6 FMSHRC 1423 (June 1984). 

In all instances, the objectives have been the same: fidelity to the 

record and effectuation of the enforcement scheme of the Act. 

Here, the judge modified his prior finding of "gross negligence" in 

light of our conclusion that the violation did not result from \·.restmoreland' s "indifference, willful intent, or serious lack of reasonable 

care." His determination of an appropriate penalty to be assessed 

necessarily should have been affected by his finding of a lesser degree 

of negligence. Instead, the judge imposed the same penalty without 

change. The judge's failure to modify the penalty in accordance with 

his modified findings is unsupportable and an abuse of discretion. 

492 
In considering the other statutory penalty criteria, the judge 

found that the violation reflected a high degree of gravity, that 

Westmoreland was a large operator, that Westmoreland had a fairly 

substantial history of previous violations, and that Westmoreland's 

ability to continue in business would not be affected by the penalty 

imposed. 5 FMSHRC at 137. These findings, which were not disturbed on 

remand, are supported by substantial evidence. Based upon these findings, 

and upon the finding of a lesser degree of negligence, we conclude that 

a civil penalty of $5,000 is appropriate. 

Finally, the violation of 30 C.F.R. § 75.202 was alleged i~ an 

order issued under section 104(d)(l) of the Act. 30 U.S.C. § si4(d)(l). 

Westmoreland requests that we modify the section 104(d)(l) order to a 

citation issued under section 104(a), 30 U.S.C. § 814(a), because of our 

previous reversal of the judge's finding of 11unwarrantable failu~e." 7 

FMSHRC at 1342. We conclude that the requested modification is appropriate. 

See Consolidation Coal Co., 4 FMSHRC 1791, 1794 (October 1980). 

Accordingly, we vacate the judge's assessment of a penalty of 

$8,000 for the violation of 30 C.F.R. § 75.202 and assess a civil penalty 

of $5,000. Further, we modify the subject order issued under section 

104(d)(l) to a citation issued under section 104(a). ]:_/ 

J8yce~Doyle, Commi~ 

~ames A. Lasto~ 

+L~ L. Clair Nelson, Commissioner 

1/ Chairman Ford did not participate in the consideration or disposition 

of this case. 

493 
Distrihution 

John A. Macleod, Esq. 

Crowell & Moring 

1100 Connecticut Ave,, NW 

Washington, D.C. 20036 

Barry Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Scott L. Messmore, Esq. 

Westmoreland Coal Company 

P.O. Drawer A & B 

Big Stone Gap, Virginia 24219 

Administrative Law Judge Gary Melick 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

494 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 April 1, 19 8 6 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HOMESTAKE MINING COMPANY, 

Respondent 

. 

. 

. 

. 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 85-20-M 

A.C. No. 39-00055-05537 

Homestake Mine 

DECISION 

Appearances: Margaret Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Robert A. Amundson, Esq., Amundson, Fuller & 

Delaney, Lead, South Dakota, 

for Respondent. 

Before: Judge Lasher 

This matter arose upon the filing of a Petition for Assessment of Civil Penalty by Petitioner on February 13, 1985, 

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

Act of 1977, 30 u.s.c. Section 820(a) (herein the Act). 

Petitioner seeks assessment of a penalty against Respondent for 

violation of 30 C.F.R. 57.9-16 l; which was described in Citation 

No. 2097700 ~ssued August 29, 1984, as follows: 

"On the 2150 level the main haulage line was not being 

maintained in a safe condition the rail was loose with 

the track spikes being pulled loose, fish plates loose 

at the joints and track ties rotted creating a safety 

hazard to persons who must use the main line to haul the 

man trip, hauling personal (sic) to and from work places. 

Heavy equipment travels the line hauling ore and materials to and from work areas a person could be seriously 

injured should the haulage motor derail." 

17 This regulation provides: 

"Roadbeds, rails, joints, switches, frogs, and other 

trackage elements on railroads subject to the control 

of the operator shall be designed, installed and maintained in a safe manner consistent with the speed and 

type of haulage." 

495 
On August 31, 1984, the Citation was rnodif ied to read: 

11 0n the 2150 level main haulage line a section of railroad from the stairway entranance (sic) to the Green 

light at the curve and another area from H2 fan to the 

34a Sill x-cut was not being properly maintained in a 

safe condition. The rail and rail spikes was pulled 

loose from the track ties Fish plate Bolts loose, track 

ties rotted to a point that spikes would not hold and 

in some areas the rail was starting to lean to one side. 

This condition creates a safety hazard for the motor 

person who must travel this haulage line to haul personal (sic} to and from work places on the mantrip. Deliver 

materials and supplies to and from work places. The 

motorperson must also haul with a 6 ton motor 6-10 ore 

cars with a capacity of 3 tons each. A train derailment 

could cause serious injury to persons who must travel 

this rail line many times during a shift." 

The Citation, issued under Section 104(a) of the Act, also 

charged that the violation was 11 significant and substantial" 

(herein 11 8 & S 11 ). 

In Secretary v. Consolidation Coal Company, 6 FMSHRC 189 

(1984), the Commission held that S & s findings may be made in 

connection with a citation issued under Section 104(a) of the Act. 

Considering this ruling in conjunction with U.S. Steel Mining 

Company, 6 FMSHRC 1834 (1984), where the mine operator was allowed to contest S & S findings entered on Section 104(d)(l) 

citations in a penalty case, it is concluded that S & S findings 

contained in a Section 104(a) Citation similarly are properly 

reviewable in this penalty proceeding. 

The matter came on for hearing in Lead, South Dakota on 

November 13, 1985. Both parties were ably represented. 

The Secretary contends that Respondent did not maintain the 

track in question in a safe manner, that the track in question 

was deteriorating and in need of repair, that Respondent should 

have known that the track was not being properly maintained and 

was unsafe, that such violation was S & S, and that the penalty 

assessment of $276.00 originally proposed administratively by the 

Secretary should be assessed. 

Respondent contends that the safety standard cited, 30 

C.F.R. 15.9-16 is unconstitutionally vague, i.e., that it does 

not give a mine operator fair notice of what is required to 

maintain track in a safe manner consistent with speed and type of 

haulage. Respondent also maintains that the Secretary failed to 

prove a violation, and in the alternative if a violation is established that Respondent was not negligent in its commission, 

that the violation was not S & S , and that the gravity thereof 

was slight. 

496 
The pertinent factual events commenced on August 29, 1984, 

when MSHA Inspector Jeran C. Sprague issued Citation No. 2097700 

on a regular inspection of the Homestake Mine, during which he 

was accompanied by Fred Bichler, shift foreman. (Tr. 14, 209). 

The track on the 2150 level of this underground mine-where 

the violation was observed by the Inspector-runs from one end of 

the level to the other for approximately one mile and is used for 

the transportation of men as well as materials (Tr. 15, 16, 60, 

150). The Inspector felt that approximately 3000 feet of track 

was not being properly maintained ~nd that 800 feet was in "bad 

repair". (Tr. 61, 170). There is approximately 400 miles of 

track in the entire mine (Tr. 91). However, only three levels 

were inspected on the lday the Citation was issued. 

On the inspection day the Inspector observed Granby 

ore-haulage cars on the track: these cars are approximately 7' 

long, 5' wide and 5' high, carry 3-5 tons of ore, and are pulled 

by 6-ton motors (locomotives)(Tr. 13, 16, 160, 174). In 

addition, the motors also pull man cars which are used to 

transport 4 to 8 miners to and from their workplace at the 

beginning and end of the shift (Tr. 18-21, 65, 150, 198, 204, 

210, 327). Both ore-haulage cars and man cars move on iron 

wheels and both are braked by the motor (Tr. 19, 79). The length 

of track described in the Citation was "zero-grade", that is, 

level (Tr. 17~-176). 

Reliable and probative evidence of record established that 

the following defects in the track existed at the time of 

Inspector Sprague's inspection: 

1. Loose rail (Tr. 24, 162-164, 188, Ex~ P-1). At one area 

(near the H-2 fan) the track was spread more than 19 inches which 

could cause derailment (Tr. 187, 188, 337). 

2. An area along a wood track tie where the tie had been 

moving back and forth (Tr. 26; Ex. P-2). 

3. An area of track where a track spike was "pulled out" 

and was not holding the rail in place on one side and where a 

track spike on the opposite side of the rail was missing (Tr. 27, 

28; Ex. P-3). 

4. Areas of track where the wood track ties were rotted and 

where track spikes were entirely missing on one track tie {Tr. 

28, 29, 84, 85, 187, 188; Ex. P-4). In abating the violative 

conditiorl of the track, Respondent's track repairman, Dennis 

Willuweit, replaced 25 to 35 ties out of a possible 480 present 

in the 1000 foot section he worked on (Tr. 154, 172, 173, 201). 

497 
5. An area of track where the rail was misaligned because 

the f ishplates 2; intended to hold two joint sections together 

were loose (Tr.-29, 81, 133, 134; Ex. P-5). 

6. A fishplate - broken in the middle - at an area of track 

where two sections of rail were joined together with a deteriorated flange used to spike the rail (Tr. 30, 184, 185, 231; Ex. 

P-6). As to this condition, Respondent's witness, track repairman Dennis Willuweit, conceded that the "worst place" a fishplate 

could break was in the middle and that "with a fishplate broken 

right in the middle, the joint could move enough to let a car 

derail" (Tr. 184-186). 

7. An area of track where the top flange of a piece of rail 

was completely worn away and could break any time (Tr. 31, 

278-283; Ex. P-7). 

8. An area of track where the bolts holding a fishplate 

were loose and also deteriorated to a point that the threads were 

"gone" so that the bolts could not be tightened (Tr. 31; Ex. 

P-8). 

9. Rust, rotted ties, loose spikes and deterioration were 

prevalent in various of the track areas mentioned above (Tr. 32, 

73, 91, 94, 95, 185, 198-200, 215, 226, 233, 234). Inspector 

Sprague summed up the general condition of the track in question 

as follows: 

"For the most part, there was either a loose section; spikes 

missing; ties rotted out. There had been some areas on the far 

end that had been repaired, some new installation" (Tr. 32, 33). 

It is concluded from considerable probative evidence of 

record showing the general condition of the track that it was not 

being properly maintained and that work was not being done to 

keep the track in a safe, manner CTr. 33, 35, 51, 66, 67, 96, 97, 

212, 213, 226, 236). This situation had been allowed to continue 

tlfor quite some time" (Tr. 35). Mine management knew or should 

have known of the defective conditions since they travelled the 

area daily and the condition had been reported to them CTr. 

47-49, 213, 220, 274). Also, as part of his inspection, Inspector Sprague talked to a motorman and other miners who 

indicated that the track had been in such condition .. for quite 

some time". The motorman reported to Inspector Sprague that he 

2/ A fishplate is a piece of angle iron approximately 3/4" 

Ihick, 18 11 long and 1-1/2" wide which has four bolt holes. Fishplates, who purpose is to keep rail in alignment so that the 

joints don't separate or move from side to side, are bolted to 

each side of a rail CTr. 30, 63, 270). 

498 
was being derailed on a daily basis, "sometimes 3 and 4 times a 

shift" and that he had not seen a trackman (track repairman) on 

the 2150 level in months (Tr. 35-38). 

Normally derailments result because of the condition of the 

track (Tr. 82, 83, 206, 292). Inspector Sprague gave this explanation of the cause of derailments: 

"Just the normal condition of the track, with the 

f ishplates being broken, not holding the joints together; 

no track spikes in the ties; the rotted condition of 

ties, which would, in no way, hold the rail in position, 

and it could very easily cause misalignment of the joints 

which could cause derailment." (Tr. 41). 

Derailments are a relatively common occurrence at this mine 

(Tr. 38, 82, 205, 261, 291). Usually, when a derailment occurs, 

the equipment simply drops off the track (Tr. 83, 188, 283). 

According to the Inspector, if the motor were to derail it would 

probably stop instantly. On the other hand, if an ore car were 

to derail, the motorman might travel half a mile before becoming 

aware of it (Tr. 84). In this connection it should also be noted 

that there were 3 curves in the track on the 2150 level which the 

motorman could not see around (Tr. 191, 205). 

The track in question is 18-gauge, that is, the distance 

between the rails is 18 inches CTr. 22, 79, 155). The rails 

themselves are 20 to 25 feet in length and are attached by spikes 

to wood ties placed at 2-foot intervals along the track (Tr. 30, 

41, 61, 62, 88, 285). Track gauge must spread to 19-20 inches 

before derailment occurs, i.e., the equipment drops between the 

rails (Tr. 155-158, 282); derailment can also occur if the rails 

move inward to a gauge of 17 inches. Should this happen, the 

equipment would drop .off to the outside of the rail (Tr. 158, 

197). . 

As indicated heretofore the hazard posed by the track 

detects described by the Inspector - the existence of which were 

for the most part admitted by Respondent - was derailment of Cl) 

the motor (locomotive>, (2) the trailing haulage cars, and/or (3) 

the trailing man cars (Tr. 38, 39, 41, 42, 86, 292). Derailments 

usually occur because of such track conditions (Tr. 82, 83, 206, 

292, 294, 295), and it was very likely that such derailments 

(accidents) would occur (Tr. 38, 41, 52, 106. 179, 187-188, 203, 

205-206, 325, 334). 

Track conditions and defects which cause derailments are 

unsafe (Tr. 69, 114, 204-205, 236, 337-339, 343). Thus, should a 

derailment occur when miners were being hauled on a man car 

(mantrip) the miners could have been injured from being thrown 

around in the man car, from being thrown out of the man car, from 

499 
being pinched between the man car and the rib, and/or being run 

over (Tr. 41-43, 110-112, 236, 316-317). In addition, similar 

injur:es could occur to a motorman while engaged in rerailing 

derailed equipment (Tr. 43-46, 87, 109, 110) and to persons 

standing or walking along the track at the time of a derailment 

(Tr. 45, 113, 132, 195, 204). Such injuries could be serious or 

even fatal (Tr. 46, 111-113, 314-317) and were reasonably likely 

to occur as a result of a derailment (Ct. Exs. 1 and 2; Tr. 46, 

132, 161-162, 198-200, 204-206, 240-244, 333-334, 347-348). 

30 C.F.R. § 57.9-16 mandates that the track be maintained in 

a safe manner consistent with speed of haulage. The estimates of 

various witnesses and sources had considerable range. Although 

at the hearing Respondent's witnesses testified that Respondent's 

"policy" was that the motormen would not travel faster than-or 

should slow down to (a) 2 mph (Tr. 151) or (b) 2 to 3 mph (Tr. 

178), or (c) 4 mph (Tr. 179, 325), in correspondence to the 

Secretary's counsel and to the undersigned prior to the hearing 

{Ct. Exs. 1 and 2), Respondent's Director of Safety and Health 

indicated that the following was one of the issues upon which it 

built its case: 

" ••• Speed of travel of the locomotive and cars would 

never exceed 10 miles per hour with normal speed being 

5-7 miles per hour." 

Even accepting Respondent's evidence at the hearing that the 

speed was 2, 3, or 4 mph, and I do not so find, the record establihes that the speed actually was left to the judgment or 

discretion of the motorman who was supposed to slow down when men 

were seen walking along the track or where track defects were 

noted (Tr. 179, 203). It is clear that there were curves in the 

2150 level track where the motorman could not see what was ahead 

(Tr. 191, 204-205). In its post-hearing brief Cp. 3) Respondent 

characterizes the speed at from 2-10 mph, and concedes that the 

speed could be up to 10 mph. (Ct. Exs. land 2~ Tr. 116, 242). 

Finally, Inspector Sprague guessed the speed at 6-7 mph (Tr. 22, 

71), and the Secretary's expert witness, Michael Sheridan, based 

his opinion on a speed of 5-7 mph (Tr. 117).~his latter speed 

is well-supported in the evidence and provide~ a reasonable 

foundation for the opinions and findings based thereon, particularly those of the Secretary's witnesses relating to the question 

of the safety of the 2150 level track. Further, in the background of the entire record, the opinion of Inspector Sprague as 

to the bearing of the speed factor on the question of track 

safety is persuasive: 

"It doesn't really matter what speed you're going. If 

the rail is in a deteriorating condition, it could fall 

off at any time. I don't think speed really has a bearing on it, as far as whether you go off the track or how 

many could go off the track. 11 (Tr. 97). 

500 
The speed factor is found less decisive than the regulation's 

second requirement that the track be maintained in a safe manner 

consistent with "type of haulage". In this connection, evaluation of the testimony of Respondent's witnesses reflects that 

the quality of track maintenance varied throughout the mine and 

that the track in areas of the mine where there was greater 

production were better maintained (Tr. 179, 198-200 203, 273-274, 

292, 319-320) than the track on the 2150 level and areas where 

there was less production. The testimony of Mr. Willuweit in 

this connection is significant: 

"JUDGE LASHER: Do you have an opinion of whether or not 

the 2150 section--area of track that you performed these 

repairs on after the citation was issued--whether that at 

that time, was any different from most of the other track 

areas of the mine? 

THE WITNESS: It was was-- it was a lot different than areas 

that are used for mass haulage, where they have to move a 

lot of rock, but it was similar to a lot of other areas of 

the mine, where your use is minimal. 

JUDGE LASHER: Okay. You're saying that, at this time, this 

area of this track was used for what? 

THE WITNESS: Basically, it was used to haul four to eight 

men into their work area and out, and haul a few supplies 

to them and haul a little bit of rock occasionally, and that 

was it. 

x x x x x x x x x x x x 

JUDGE LASHER: So are you saying it was in a state of higher 

repair than the areas that haul the ore? - or less repair? 

THE WITNESS: Less repair. 

JUDGE LASHER: And why would that be? 

x x x x x x x x x x x x 

THE WITNESS: It's not carrying the traffic. And if you 

have a timber track off, and you're going at a reasonable 

speed, basically it is--it is an in inconvenience. 

Now, in an area where you are trying to get some work done 

and you're trying to move rock and you have wrecked cars, 

or derailments, then they start costing you money because 

then they are affecting production; they're not affecting 

just one man. Instead of moving 300 to 400 ton of rock 

501 
that day, if they have derailments they may only move half 

the rock, and that fects the output of the rock at the 

mine, so the levels where they have--where they move a lot 

of rock, or where they move a lot of men, they move a lot 

of supplies, they have to keep that in a lot better condition than you have to keep the levels where they just 

don't use the track much." (Tr. 198-200). 

The 1977 Mine Act is remedial legislation intended to 

promote the sa of miners. It would seem that the regulation's provision that track be maintained in a manner 

consistent with "type of haulage" if anything contemplates a 

higher standard of maintenance on track where miners primarily 

are being transported - such as the 2150 level - rather than the 

lesser standard evidenced in this record. It is concluded on the 

basis of the various findings above that the rails and track 

elements on the 2150 level were not maintained in a safe manner 

consistent with the speed and type of haulage and that the 

violation cribed in the Citation did occur. 

We next take up Respondent's contention that the cited 

regulation is unconstitutionally vague and fails to give the mine 

operator " ir notice" of what is required to maintain track "in 

a safe manner consistent with the speed and type of haulage". 

Such is found to lack merit and is rejected. Safety standards 

such as 30 C.F.R. § 57.9-16 cannot be considered in a vacuum. 

Generally when a safety regu1ation is examined for meeting due 

process certainty requirements, it must be looked at "in light of 

the conduct to which it is applied." Ray Evers Welding Co. v. 

OSHRC, 625 F.2d 726, 732 (6th Cir. 1980). General terms such as 

"unsafe" or "dangerous" appear frequently in federal safety and 

health standards. This approach has been recognized as necessary 

where narrower terms would be too restrictive. Standards, that 

is to say, must often be made "simple and bri in order to be 

broadly adaptable to myriad circumstances." Kerr McGee 

Corporation, 3 FMSHRC 2496 Cl981). In Alabama By-Products 

Corporation, 4 FMSHRC 2128 (1982) the issue was whether the 

Secretary could enforce a similarly worded standard requiring 

machinery to be kept in "safe operating condition." The 

Commission established the following test: 

[I]n deciding whether machinery or equipment is in safe 

or unsafe operating condition, we conclude that the 

alleged violative condition is appropriately measured 

against the standard of whether a reasonably prudent 

person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any 

facts peculiar to the mining industry, would recognize 

a hazard warranting corrective action within the purview 

of the applicable regulation. 

502 
Applying this test to the situation here, it is clear that a 

reasonably prudent person familiar with the circumstances extant 

on the 2150 level, including any facts peculiar to the mining 

industry, would have recognized a hazard warranting corrective 

action. The track defects were numerous. At least two of the 

defects documented by the Inspector were admitted by Respondent's 

witnesses to have been susceptible of causing a derailment in and 

of themselves {Tr. 184-186, 187, 188, 231). The evidence of 

general deterioration of the area of track involved and lack of 

maintenance thereon was substantial. A considerable body of 

reliab evidence in this record demonstrates the potential of 

such track conditions, singly or in combination, to cause 

derailments, and of derailments to cause significant injuries or 

even fatalities. The Secretary met its burden of establishing a 

nexus between the widespread track problems and the effect such 

would have on the safe operation of equipment on the track. As 

the Commission has noted in other contexts, and contrary to the 

general thrust of Respondent's argument, the cited regulation, 

requiring maintenance of a mine part in a safe manner, is aimed 

at the elimination of potential dangers before they actually 

become present dangers. Here, some of the track conditions were 

shown to have already become present dangers. See Secretary v. 

Pittsburg & Midway Coal Mining Company, 8 FMSHRC 4, 6 {1986). 

Respondent's vagueness challenge is rejected. 

The final question raised by Respondent is whether the 

subject Citation cited a violation which was "of such nature as 

could significantly and substantially contribute to the cause and 

effect of a ••. mine safety or health hazard" as that phrase is 

used in the Act. 

The Commission has held that a violation is properly designated S & S "if, based on the particular facts surrounding 

that violation, there exists a reasonable likelihood that the 

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

reasonably serious nature." Cement Division, National Gypsum 

Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 

FMSHRC 1, 3-4 (January 1984), the Commission explained: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety standard; 

(2) a discrete safety hazard--that is, a measure of 

danger to safety--contributed to by the violation; {3) a 

reasonable likelihood that the hazard contributed to will 

result in an injury; and {4) a reasonable likelihood that 

the injury in question will be of a reasonably serious 

nature. 

The Commission subsequently explained that the third element 

of the Mathies formula "requires that the Secretary ~stablish a 

503 
reasonable likelihood that the hazard contributed to will result 

in an event in which there is an injury," U.S. Steel Mining Co., 

6 FMSHRC 1834, 1836 (August 1984), and also emphasized that, in 

accordance with the language of section 104(d){l), it is the 

contribution of a violation to the cause and effect of a hazard 

that must be S & S. See 6 FMSHRC at 1836. 

It has previously been determined that a violation occurred, 

that the failure to maintain the track in a safe manner contributed to the cause and effect of a s ety hazard, i.e., a 

derailment accident, that it was likely that such derailments 

would result in injuries, and that there was at least a reasonable likelihood that such injuries would be of a reasonably 

serious nature or fatal. The record indicates several injuries, 

including a severed finger, which resulted, directly or indirectly, from derailments in the past. The fact that more 

serious injuries - or fatalities - have so far been avoided is 

fortunate, but not determinative. Secretary v. Ozark Mahoning 

Company, 8 FMSHRC , Docket No. LAKE 84-96-M, (decided 

February 28, 1986). See also Secretary v. U.S. Steel Mining Co., 

Inc., 7 FMSHRC 327, 329 (1985). It is concluded that the violation was properly designated S & S. 

There remains the determination of an appropriate penalty. 

Based on stipulations of record, it is found that the Respondent 

is a large gold mine operator (Tr. 221) with a payroll of 

approximately 1,350 employees at its mine near Lead, South 

Dakota; that a reasonable penalty assessment will not jeopardize 

its ability to continue in business; and that upon notification 

of the violation it proceeded in good faith to promptly abate the 

violative conditions cited (Tr. 8, 9, 93). The Secretary's 

evidence with respect to Respondent's history of violations 

reflects 253 violations during the 2-year period prior to the 

issuance of the subject citation. Absent further explication or 

characterization thereof in the record, and in view of the mine's 

size it is concluded that such is a moderate history of prior 

violations and that such mandatory penalty assessment criterion 

should provide no basis for increasing the penalty amount 

otherwise warranted. Based on the findings specified above it is 

further found that (1) this was a relatively serio~s violation 

and (2) that Respondent's management was aware ~f the defective 

condition of the track at the 2150 level and failed to exercise 

reasonable care in not recognizing the hazards posed thereby and 

in not maintaining the track in a safe manner. This constitutes 

ordinary negligence. 

After weighing these various assessment considerations and 

it appearing that Respondent's belief that the various defective 

track conditions did not amount to unsafe track was sincerely 

advanced, a penalty of $300.00 is found to be appropriate. 

504 
ORDER 

Citation No. 2097700 is affirmed in all respects. 

Respondent shall pay the Secretary of Labor within 30 days from 

the date hereof the sum of $300.00 as and for a civil penalty. 

Distribution: 

~~)t#b d', M~;v fa_ 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

Robert A. Amundson, Esq., Amundson, Fuller & Delaney, 203 W. 

Main, P.O. Box 898, Lead, SD 57754 (Certified Mail) 

/blc 

sos 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 April 2, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BIG HORN CONSTRUCTION CO., 

BERNARD BANKS, 

BRUCE PARKER, 

JAMES WAGAMAN, 

Respondents 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 84-134-M 

A.C. No. 48-00155-05502 K28 

Docket No. WEST 85-170-M 

A.C. No. 48-00155-05503 A K 28 

Docket No. WEST 85-171-M 

A.C. No. 48-00155-05504 A K28 

Docket· No. WEST 85-172-M 

A.C. No. 48-00155-05505 A K28 

(Consolidated) 

Alchem Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Morris 

These consolidated cases are civil penalty proceedings 

initiated by the petitioner against the respondents pursuant to 

Section 110 of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 820. 

Prior to a hearing the petitioner filed a motion seeking · 

approval of a settlement agreement entered into 9Y the parties. 

lo The agreement lects that at the time of the alleged 

violations respondent Big Horn Construction Company (Big Horn) 

was the corporate contractor-operator of the Alchem Mine, a trona 

mine in Sweetwater County, Wyoming. Further, respondent Bernard 

Banks (Banks) was acting as master mechanic at the mine and as 

agent for Big Horn; respondent Bruce Parker (Parker) was acting 

as foreman at the mine and as an agent for Big Horn; and 

respondent James Wagaman (Wagaman) was acting as project manager 

at the mine and as an agent for Big Horn. 

2. In WEST 84-134-M respondent Big Horn is charged under 

section llO(a) of the Act, in Citation No. 2083234 and Order No. 

2083235, with violating the mandatory safety standard published 

at 30 C.F.R. ~ 57.14-36. 

3. In WEST 85-170-M respondent Banks is charged under 

section llO(c) of the Act with knowingly authorizing, ordering, 

or carrying out the two foregoing violations as an agent of Big 

Horn. 

506 
4. In WEST 85-171-M respondent Parker is charged under 

section llO(c) of the Act with knowingly authorizing, ordering, 

or carrying out the same two violations as an agent of Big Horn. 

5. In WEST 85-172-M respondent Wagaman is charged with 

knowingly authorizing, ordering, or carrying out the same two 

violations as an agent of Big Horn. 

6. The citations, the original assessments and the proposed 

dispositions for the violations of 30 C.F.R. § 57.14-36 are as 

follows: 

Citation & 

Order 

Res2ondent Number Assessment Settlement 

Big Horn 2083234 $ 800 $ 800 

2083235 1,000 1,000 

Banks 2083234 500 375 

2083235 600 450 

Parker 2083234 600 450 

2083235 700 525 

Wagaman 2083234 700 525 

2083235 800 600 

The proposed settlement constitutes a payment in full of the 

originally proposed civil penalties against Big Horn and a 25% 

reduction of the originally proposed civil penalties against the 

three individual respondents. 

Discussion 

In support of their proposed settlement the parties have 

submitted information relating to the statutory criteria for 

assessing civil ~enalties as set forth in 30 u.s.c. § 820(i). 

I have reviewed the proposed settlement and I find it is 

reasonable as well as in the public interest. The agreement 

should be approved. 

Accordingly, I enter the following: 

ORDER 

1. The settlement agreement is approved. 

2. Citation No. 2083234 and Order No. 2083235, as modified, 

are affirmed as to the respondents in all consolidated cases. 

3. In WEST 84-134-M the proposed civil penalty of $1,800 

against respondent Big Horn is affirmed. 

4. In WEST 85-170-M a civil penalty of $825 is assessed 

against respondent Bernard Banks. 

507 
5. In WEST 85-171-M a civil penalty of $975 is assessed 

against respondent Bruce Parker. 

6. In WEST 85-172-M a civil penalty of $1,125 is assessed 

against respondent James Wagaman. 

Law Judge 

Distribution: 

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

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

David C. Jones, Esq., Big Horn Construction Company, 1000 Kiewit 

Plaza, Omaha, NE 68131 (Certified Mail) 

/blc 

508 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 3, 198G 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WILMOT MINING COMPANY, 

Respondent 

. . 

. . 

: 

: 

DECISION 

Docket No. LAKE 85-47 

A.C. No. 33-02929-03505 

North Mine 

Appearances: Patrick M. Zohn, Esq., Office of the Solicitor, 

U.S. Department of Labor, Cleveland, Ohio, for 

Petitioner; 

Before: 

Thomas Eddy, Esq., Eddy & Osterman, Pittsburgh, 

Pennsylvania, for Respondent 

Judge Fauver 

The Secretary of Labor brought this action for civil 

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

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

considered the hearing evidence and the record as a whole, 

I find that a preponderance of the substantial, reliable, 

and probative evidence establishes the following: 

FINDINGS OF FACT 

1. At all relevant times, Respondent operated a strip 

mine known as North Mine, which produced coal for sale or 

·use in or substantially affecting interstate commerce. 

2. On May 25, 1984, at about 2:00 p.m., a vehicle 

accident occurred in the 001-0 pit of the North Mine, 

resulting in the death of John D. Schrock, who was the pit 

foreman. 

3. Schrock was operating a Terex 72-41 front-end 

loader on a pit road that had a 20% grade. As he was exiting 

the pit, he stopped about 100 feet from the pit bottom and 

began to back up, to make room for a descending coal truck. 

Schrock's vehicle rolled backward downhill, went off the 

road, struck the face of the highwall, and rolled over. 

509 
4. The vehicle did not have a rollover protactive 

structure. The cab roof was crushed and Schrock was fatally 

injured when the vehicle rol over. 

5. The vehicle rolled downhill and went out of control 

because did not have adequate brakes. 

6. On May 24, 1984, the day before the accident, 

Schrock his regular vehicle, a 510 International Harvester 

front-end loader, in the pit so that a part could be removed 

for repair. A short time before May 24, Schrock told the 

General Manager, Harold Bain, that he was having starter 

trouble on his 510 International Harvester. Bain that 

whenever Schrock was ready, he would take the starter to 

Dover "and the electrial people rebuild" it (Tr. 86). 

He also said that a 910 Caterpillar was available Schrock's 

use and that, when the starter finally gave out, Schrock 

should "go to the garage, and the 910 Caterpillar" (Tr; 

86). However, Schrock decided to use another vehi as a 

substitute, a Terex 72-41 front-end loader. 

7. The Texex 72-41 loader was not equipped with a 

rollover protective structure. Schrock's regular vehicle, 

the 510 International Harvester, and the vehicle by 

Bain, the 910 Caterpillar, were both equipped with a rollover 

protective structure. 

8. Schrock made several trips into the pit with the 

Terex 72-41 loader on May 25. At about 7:00 a.m., the pit 

crew went to their work areas. Schrock met Glen Shoup, a 

front-end operator, at pit about 7:20 a.m., and 

discussed plans for loading coal from the pit. Shortly 

thereafter, Schrock used the Terex 72-41 loader in the pit 

to clear overburden from the coal seam so Shoup could load 

coal into coal trucks. Schrock left the pit about 10:00 

a.m., using the Terex 72-41 loader for transportation, and 

drove to another part of the mine. He returned with the 

loader to continue the clearing process in the pit two other 

times, and t to travel to other areas of the mine. 

9. On May 25, not very long before the accident, Bain 

saw Schrock with the Terex 72-41 loader near the road to the 

pit and gave him the employees' paychecks to deliver in the 

pit. He knew, or by the exerc of reasonable judgment 

should have known, that Schrock would use the Terex loader 

to go into the pit to deliver the checks. Bain also knew 

that the Terex 72-41 loader did not have a rollover protective 

structure. 

510 
10. About 1:45 p.m., Schrock drove the Terex 72-41 

loader to the parking area near the entrance to the pit. He 

saw a mechanic, Ralph Hoover, and told him that he was 

having brake trouble. Hoover went to get tools to check the 

brakes, but Schrock drove off before Hoover could inspect 

the brakes. Schrock then drove into the pit, where the 

accident occurred about 2:00 p.m. 

11. Bain was in charge of annual refresher training at 

the mine. However, he conducted no refresher training in 

1982, in 1983, or in 1984 up to the date (May 26) when the 

Federal inspection team requested to see the annual refresher 

training records. Bain did not provide refresher training 

in those periods because in his opinion there were not 

enough miners to justify the expense of a training class. 

12. Following an investigation of the fatal accident; 

Federal Mine Inspector Ray Marker issued three citations 

charging violations of mandatory safety standards: 

a. Citation 2327028, charging a 

violation of 30 C.F.R. § 48.28 

(requiring a minimum of 8 hours 

annual refresher training for 

each miner) • 

b. Citation 2327029 charging a 

violation of 30 C.F.R. § 77.403a(a) 

(requiring rollover protective 

structures on front-end loaders) . 

c. Citation 2327030, charging 

a violation of 30 C.F.R. 

§ 77.1605(b) (requiring adequate 

brakes on mobi equipment) . 

13. Respondent is a small operator. At the time of the 

citations, Respondent employed 14 miners, producing about 300 

tons of coal a day. 

14. In each instance, Respondent made a good faith 

fort to achieve rapid compliance after a violation was 

charged in the above-cited citations. 

511 
15. In the 2-year period before the citations 

involved here, Respondent had three paid violations at 

the North Mine. 

DISCUSSION WITH 

FURTHER FINDINGS 

Citation 2327028 

This citation alleges that Respondent's 14 miners did 

not receive the required 8 hours refresher training in 1982 

or 1983, in violation of 30 C.F.R. § 48.28(a), which provides: 

Each miner shall receive a minimum 

of 8 hours of annual refresher training as 

prescribed in this section. 

Respondent acknowledges that there was no refresher 

training of its miners in 1982 or 1983, but it argues, among 

other things, that: 

(1) The regulation impliedly requires that 

a miner be employed at least 12 months 

to be covered by the annual refresher 

training provision. 

(2) The Secretary has not shown that any 

of the 14 miners was a covered miner, 

ioe., not an exempt supervisor, and 

was employed at least 12 months 

without training. 

This argument is not persuasive. The Secretary made a 

prima facie case a violation by showing that 14 miners 

were employed at the time of the inspection, that the mine 

was a going concern in 1982 and 1983, and that no refresher 

training was conducted for any miner in 1982 or 1983. Respondent 

did not rebut this prima f acie case by any evidence that 

there were no covered miners in 1982 or 1983 or that the 

required training was in fact conducted. Instead, Respondent's 

evidence showed that refresher training was not conducted 

for over two years because the General Manager was waiting 

for a larger employment body (than just a few miners) to 

justify, in his opinion, the expense of refresher training. 

512 
However, the training regulation requires annual training 

for "each miner," and does not provide' an exemption based on 

the number of miners employed. 

Respondent further argues that the regulation is 

unconstitutionally vague as to the type refresher training 

required. This argument is rejected. Section 48.28(a) 

requires refresher training "prescribed in this section," 

and section 48.28(b} spells out in ample detail the type of 

refresher training required. 

Finally, Respondent contends that the proposed penalty 

of $500 is "grossly excessive and unreasonable as a matter 

of law." This contention is apparently based upon the 

ground that Schrock, as a supervisor, was not subject to the 

refresher training requirement and, therefore, a violation 

of section 48.28(a) had no connection with the fatal accident. 

This argument does not render the violation nonserious. The 

requirements of section 48.28 are at the heart of a preventive 

safety and health program for miners. Failure to provide 

the required training (see section 48.28(b}) could jeopardize 

each miner and expose other persons to dangers that could 

result from a failure to follow the safety, health, and job 

rules involved in the refresher training. Respondent has 

demonstrated a negligent, lax, and wholly unjustified attitude 

toward this mandatory and important safety and health training 

requirement. Considering all of the six criteria for civil 

penalties in section llO(i) of the Act, I find that a penalty 

of $500 is appropriate for this violation. 

Citation 2327029 

This citation charges a violation of 30 C.F.R. § 77.403a(a), 

which requires that "All rubber-tired •.. front-end loaders 

••. that are used in surface coal mines or the surface work 

areas of underground coal mines shall be provided with 

rollover protective structures ..•• " 

It is undisputed that Schrock operated a front-end 

loader that had no ROPS, drove it into the pit, and was 

fatally injured when the vehicle rolled over and crushed 

him. 

Respondent contends, among other things, that: 

513 
1. John Schrock willfully acted in 

contravention of his job responsibilities 

as mandated by the operator when he operated 

the Terex loader in the pit. 

2. This act of malfeasance was unforseeable by 

the operator. 

3. John Schrock risked injury only to himself 

by operating the Terex in the pit. 

4. The operator was not negligent as a matter 

of law. 

I find that the General Manager knew that Schrock was 

operating a vehicle without ROPS when he gave Schrock paychecks 

to be delivered in the pit and that he knew or should have 

known that it was probable that Schrock would drive that 

vehicle (the Terex) into the pit to deliver the paychecks. 

Respondent was therefore negligent in allowing Schrock to 

the Terex in the pit. 'Because of the gravity of 

s violation, I find that this conduct was gross negligence. 

Apart from Bain's action in allowing Schrock to 

the Terex into the pit, Schrock himself was grossly negligent 

driving the Terex into the pit. Because Schrock was 

a sor representing Respondent, his gross is 

imputed to Respondent. 

The gravity of this violation -- ,operating 

in a coal pit without ROPS -- is most 

the event of an accident, a rollover could 

death or serious injury of the vehicle driver. 

Considering all of the six criteria in 

for assessing civil penalties, I find that a 

of $2,000 is appropriate for this violation. 

Citation 2327030 

a front-end 

because, 

in the 

llO(i) 

penalty 

This citation charges a violation of 30 C.F.R. § 1605(b), 

which provides: 

514 
Mobile equipment shall be equipped with 

adequate brakes, and all trucks and front-end 

loaders shall also be equipped with parking 

brakes. 

About 15 minutes before the fatal accident, Schrock 

drove the Terex front-end loader into the equipment parking 

area and told a mechanic that he was having brake problems. 

However, before the mechanic could get his tools and come 

back to examine the brakes, Schrock drove off and entered 

the pit knowing he had defective brakes. A careful test 

of the brakes after the accident showed that the brakelines, 

wheel cylinder and hydraulic brake fluid lines were all 

intact, i.e., they had not leaked because of the accident, 

but the master cylinder and auxiliary brake cylinder 

were very low in brake fluid. When the brakes were tested·· 

on level ground, it took 36 feet to stop with the amount of 

fluid found after the accident, but when fluid was added to 

the normal level, it took only five to ten feet to stop. 

On a steep road, such as the pit road with a 20% grade, the 

Terex loader would have virtually no brakes at all. At the 

hearing, the General Manager, Bain, testified that Schrock's 

act of driving the Terex on the pit road, with effectively 

no brakes, was, in Bain's opinion, tantamount to suicide. 

Schrock knew that the brakes were defective, and told 

the mechanic about the problem. However, for some unknown 

reason he drove off before the mechanic could inspect the 

brakes. 

I find that Schrock 1 s act of driving the Terex into the 

pit with known defective, brakes was an act of gross negligence 

which greatly endangered himself and other persons who 

might have been injured in an accident involving the 

Terex. Because of his supervisory position, Schrock's 

gross negligence is imputed to R~spondent. 

Considering all of the six criteria in section llO(i) 

for assessing penalties, I find that a civil penalty of 

$5,000 is appropriate for this violation. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction in this proceeding. 

2. Respondent violated 30 C.F.R. § 48.28(a) as charged 

in Citation 2327028. Respondent is ASSESSED a civil penalty 

515 
of $500 for this violation. 

3. Respondent violated 30 C.F.R. § 77.403a(a) as 

charged in Citation 2327029. Respondent is ASSESSED a civil 

penalty of $2,000 for this violation. 

4. Respondent violated 30 C.F.R. § 77.1605(b) as 

charged in Citation 2327030. Respondent is ASSESSED a 

civil penalty of $5,000 for this violation. 

ORDER 

Respondent shall pay the above civil penalties in the 

total amount of $7,500 within 30 days of this Decision. 

Distribution: 

/.1Ji..,;__ ~v~· ~illiam Fauver 

Administrative Law Judge 

Patrick M. Zohn, Esq., U.S. Department of Labor, Office of 

the Solicitor, 881 Federal Office Building, 1240 East Ninth 

Street, Cleveland, OH 44199 (Certified Mail) 

John D. Eddy, Eaq., Eddy & Osterman, 1430 Grant Building, 

Pittsburgh, PA 15219 (Certified Mail) 

kg 

516 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 4, 1986' 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PYRO MINING COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 83-212 

A.C. No. 15-10339-03516 

No. 11 Mine 

Appearances: Carole M. Fernandez, Esq., Office of 

the Solicitor, U.S. Department of 

Labor, Nashville, Tennessee, for 

Petitioner; 

Steven P. Roby, Esq., Pyro Mining Company, 

Providence, Kentucky, for Respondent 

Before: Judge Fauver 

This case was remanded by the Sixth Circuit Court of 

Appeals for reconsideration of the civil penalty assessments 

and for findings on the factors whether the penalties assessed 

would affect Pyro's ability to continue in business and 

whether Pyro demonstrated good faith in attempting promptly 

to abate the violations. 

I find from the record that, with regard to each of the 

charges, Respondent abated the violative condition promptly 

after receiving notice from MSHA. Therefore, there was good 

faith in attempting to achieve prompt abatement of the 

violations; I considered this fact in my original assessments. 

I also find from the record that Respondent is a large 

operator, a fact which I considered in my original assessments. 

At the time of the citations, the No. 11 mine employed 288 

miners and had a daily production of 3,500 tons. Pyro No. 

11 is one of many mines owned by Pyro Mining Company. 

517 
Financial hardship or an adverse business impact of 

civil penalties is an affirmative defense, but such was not 

raised by Respondent. Respondent made no claim or argument, 

nor was there any evidence or indication, that any penalties 

asses would have an adverse effect upon Pyro's ability to 

continue in business. Indeed, Respondent acknowledges the 

absense of such defense in its brief on remand, by stating 

that it "will not be submitted that Pyro ·Mining Company will 

be unable to continue in business or that it must cut back 

its operation by paying either the $7,000.00 originally 

proposed to be assessed or the $12,000.00 actually assessed" 

(Resp. Br. p . 2) . 

In summary, I find that: 

{l) Good faith was demonstrated by 

Respondent in attempting to 

achieve prompt abatement of 

each relevant violation after 

notice of the violation by MSHA. 

(2) The civil penal assessed 

in this case will not have 

an adverse ect on 

Respondent's ability to continue 

in business. 

Both of the above facts are clear as a matter of record, and 

they were considered by me reaching my original penalty 

assessments. The civil penalties assessed in my original 

decision as to the violations affirmed by the Sixth Circuit 

are therefore not changed this decision on remand. 

With respect to the remaining charge {Citation 2075924), 

for a violation of 30 C.F.R. § 75.1725(a), the Court reversed 

my finding of gross negligence and indicated that no negli~ence 

could be found since I found that Respondent was not negligent 

before the accident occurred. 

of negligence does not preclude a finding of a 

violation under this statute. I find that Respondent violated 

the standard as charged because a defective transformer 

was used before and after the accident, up to the MSHA 

notified Respondent of the violation. In compliance with the 

Court's decision, I find that this violation was not due to 

518 
negligence by the operator. Inasmuch as negligence is one 

of the six statutory criteria for a civil penalty, the absence 

of negligence warrants a major reduction in my original penalty 

of $5,000 for this violation. In full consideration of the 

other five statutory criteria, including my original finding 

of high gravity of this violation, which contributed to a 

fatality, I find that a penalty of $1,000 is appropriate 

for this violation, · 

In summary, on remand I ASSESS Respondent the following 

civil penalties: 

Citation 

2075924 

2075231 

2075232 

2075233 

ORDER 

Civil Penalty 

$1,000 

7,000 

5,000 

200 

$13,200 

WHEREFORE IT IS ORDERED that Respondent shall pay the 

above-assessed civil penalties in the total amount of 

$13,200 within 30 days of this Decision. 

Distribution: 

t);u,,;,.._ ~VU\._ William Fauver 

Administrative Law Judge 

Carole M. Fernandez, Esq., U.S. Department of Labor, Office 

of the Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashvil 

TN 37230 (Certified Mail) 

Steve Robey, Esq., The Traders Building, 608 East Main 

Street, Providence, KY 42450 (Certified Mail) 

kg 

519 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 80204 

April 4, 1986 

SECRETARY OF LABOR, 

MINE SA~ETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ANDERSON MILLING COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 85-45-M 

A.C. No. 42-01760-05504 

Anderson Milling 

DECISION 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Mr. J.L. Anderson, Anderson Milling Company, Woods 

Cross, Utah, 

E.E..Q se. 

Before: Judge Morris 

This case, heard under the provisions of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., Cthe 

Act), arose from an inspection of respondent's lime processing 

plant on September 7, 1984. On that date a federal mine 

inspector issued a citation for the violation of a safety 

regulation promulgated by the Secretary of Labor pursuant to the 

Act. The respondent, Anderson Milling Company, contested the 

Secretary's petition for the imposition of a civil penalty. 

The case was heard in Salt Lake City, Utah on February 12, 

1986 with both sides presenting evidence. Neither parties 

desired to file post-trial or other post-hearing submissions. 

Issues 

The issues are whether respondent violated the regulation; 

is so,.what penalty is appropriate. 

520 
Citation 2358836 

The above citation alleges respondent violated 30 C.F.R. 

§ 56.14-1. The cited regulation provides as follows: 

§ 56.14 Use of Equipment 

Guards 

56.14-1 Mandatory. Gears; sprockets; chains, drive, 

head, tail, and takeup pulleys; flywheels; couplings; 

shafts; sawblades; fan inlets; and similar exposed 

moving machine parts which may be contacted by persons, 

and which may cause injury to persons, shall be guarded. 

Summary of the Case 

On the day of his visit to the worksite Edward Cordovo Soto, 

a federal mine inspector, found that the head pulley of respondent's elevated conveyor should have been guarded. Pinch 

points were formed where the conveyor belt goes over the roller 

{Tr. 13-15). The pinch points were an arm's length, about 18 

inches, from an adjacent platform that provided access to the 

area (Tr. 14, 15). The operator's employees indicated there had 

been some spills; in addition, wire and wood could have become 

entangled in the machinery (Tr. 14). Maintenance would also be 

performed in the area of the pinch points (Tr. 15, 16). 

Witness Anderson, citing his answer filed in the case, 

testified that other federal inspectors had not considered the 

pinch points to be a problem (Tr. 30). In addition, this 

particular item had been previously approved for safety (Answer). 

The company has been accident free. 

This particular conveyor only runs six minutes out of 24 

(Tr. 28, 31). 

Discussion 

The evidence establishes that the pinch points were exposed 

moving parts. Further, a workman doing maintenance would be 

within 18 inches of this hazard. He could become entangled in 

the pinch points. The potential for a fatality or serious injury 

existed in these circumstances. 

Respondent also asserts that a previous MSHA inspector 

approved the lack of a guard at this location. In short, respondent invokes the doctrine of collateral estoppel against MSHA. 

I have previously refused to apply the doctrine in similar 

circumstances. MSHA inspectors have different areas of ex521 
pertise; another inspector may not believe this condition was a 

violation of the regulation. The doctrine of collateral estoppel 

cannot be invoked to deny miners the protection of the Mine 

Safety Act. Servtex Materials Company, 5 FMSHRC 1359 (1983); 

Kennecott Minerals Company, 6 FMSHRC 2023, 2028 (1984). See also 

the Corrunission decision concerning estoppel in King Knob Coal 

Company, Inc., 3 FMSHRC 1417 (1981). 

The citation should be affirmed. 

Determination of an Appropriate Penalty 

Section llOCi) of the Act requires the Commission, in 

penalty assessments, to consider the operator's size, its 

negligence, its good faith in seeking rapid compliance, its 

history of prior violations, the effect of a monetary penalty on 

its ability to remain in business, and the gravity of the 

violation itself. 

The evidence shows that respondent is quite small with only 

one or two employees. It further shows that the operator's 

negligence is low inasmuch as the photographs indicates this 

location is not open and obvious. The operator established good 

faith in that it rapidly abated .the violative condition. The 

company had four prior violations in the two-year period before 

September 6, 1984. The evidence further indicates that the 

company discontinued operations for a two month period beginning 

the week before the hearing. This was an annual downturn. The 

gravity of the violation is severe if an accident should occur. 

On balance, I deem that a penalty of $25 is appropriate. 

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. Respondent violated 30 C.F.R. § 56.14-1. 

3. The contested citation should be affirmed and a penalty 

assessed therefor. 

ORDER 

Based on the foregoing facts and conclusions of law I enter 

the following order: 

1. Citation 2358836 is affirmed. 

522 
2. A civil penalty of $25 is assessed. 

3. Respondent is ordered to pay the sum of $25 to MSHA 

within 40 days of the date of this decision. 

Distribution: 

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

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

80294 {Certified Mail) 

Mr. J. L. Anderson, Anderson Milling Company, 2116 South 750 

West, Woods Cross, UT 84087 (Certified Mail) 

/blc 

523 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 7, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HELVETIA COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-43 

A. C. No. 36-00917-03607 

Lucerne No. 6 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

The Secretary of Labor has 

settlement reached in this case 

assessed penalty was for $900. 

$600. 

moved for an approval of the 

with the operator. The original 

The proposed settlement is for 

One violation is involved. On August 26, 1985, a Mine 

Safety and Health Administration inspector discovered that there 

were no self-rescuer devices stored in the No. 4 intake entry, the designated intake escapeway for this mine. The inspector 

issued Citation No. 2406371, charging a violation of 30 C.F.R. 

§ 75.1101-23. Section 75.1101-23 provides, in part, that an 

operator submit a plan for emergency evacuation procedures with 

its local MSHA District Manager. Section 75.1714-2(e) provides 

that this plan for emergency evacuation procedures may assign an 

area where the self-rescuer devices are to be stored. This section applies when the self-rescuers are to be stored more than 25 

feet away from where the miners are working. In this case the 

assigned area was the No. 4 intake entry. The self-rescuers had 

been stored, instead, in an area known as the "kitchen," where 

the miners took their breaks and stored their personal items. 

After the citation was issued, the self-rescuers were immediately moved to the proper intake escapeway. 

The violation was serious. In an emergency, the miners 

might have difficulty locating their self-rescuers. However, the 

Solicitor advises that in this case the miners were aware that 

the self-rescuers were stored in the kitchen. The kitchen was in 

an air-intake area and it was the designated gathering point for 

miners in case of emergency before entering the intake escapeway. 

Accordingly, g~avity is somewhat less than originally thought 

and the recommended settlement remains a substantial amount which 

accords with the statutory purposes. I also determine that the 

sett 1 ement ·is proper In 1 i ght of the rest of the criteria in 

section llO(i) as represented by the Solicitor. 

524 
Accordingly, the proposed settlement is Approved and the 

operator is OROERED TO PAY $600 within 30 days of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

David T. Bush, Esq., Office of the Solicitor, U. S. Department of 

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

Philadelphia, PA 19104 (Certified Mail) 

William M. Darr, Esq., Helvetia Coal Company, Box 729, Indiana, 

PA 15701 (Certified Mail) 

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

Washington, DC 20005 (Certified Mail) 

I g l 

525 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 7, 1986 

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

: 

: Docket No. VA 85-32-D 

: MSHA Case No. NORT CD 84-7 

EARL KENNEDY, 

LARRY COLLINS, 

v. 

Complainants 

: 

: Mine No. 1 

. . 

: 

. . RAVEN RED ASH COAL 

CORPORATION, . . 

Appearances: 

Before: 

Respondent . . 

DECISION 

Sheila K. Cronan, Esq., Office of the 

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

Virginia, for the Complainants~ 

Daniel R. Bieger, Esq., Copeland, Molinary & 

Bieger, Abingdon, Virginia, for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed 

by the complainants against the respondent pursuant to section 

105(c) of the Federal Mine Safety and Health Act of 1977. The 

complainants contend that they· were· discharged from their 

employment with the respondent because of their purported 

refusal to work under unsupported roof. The respondent maintains that the complainants voluntarily quit their jobs and 

were not discharged for refusing to work under the alleged 

unsafe roof conditions. A hearing was held in Abingdon, 

Virginia, and while MSHA filed a posthearing brief, the respondent did not. I have considered MSHA's arguments, as well as 

the arguments made by the respondent's counsel during the 

hearing. 

526 
Issues 

The issue presented in this case is whether or not the 

complainants were in fact discharged for refusing to work 

under unsafe conditions. Assuming a finding of a violation 

of section 105(c) of the Act, an additional issue is the 

amount of the civil penalty which should be imposed on the 

respondent for the violation. 

Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 301 et seq. 

2. Sections 105(c)(l), (2) and (3) and llO(a) and Cd> 

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

§§ 815(c)(l), (2) and (3). 

3. Commission Rules, 29 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties stipulated to the following: 

1. The respondent was the owner and operator of the 

mine in question. 

2. The respondent was a corporation under laws of the 

State of Virginia, and the mine was subject to the Act. 

3o The complainant Larry Collins was employed by the 

respondent as a scoop operator from August 13 to August 23, 

1984, and was a "miner" as that term is used in the Act. 

4. The complainant Earl Kennedy was employed by the 

respondent as a scoop operator from August 14 to August 23, 

1984, and was a "miner" as that term is used in the Act. 

5. As of August 2 3, 19 84·, the daily coal production at 

the subject mine was 250 tons. 

6. The mine is a non-union mine. 

Complainants' Testimony and Evidence 

Roger Lee Clevenger testified that he is employed by 

MSHA as a mine inspector and roof control specialist working 

out of the Grundy field office. He testified as to his background, experience, and duties and confirmed that he has 

527 
inspected the mine. He identified the mine as a drift mine 

with one working section, and stated that mining is done by 

the continuous miner method (Tr. 8-11). 

Mr. Clevenger identified exhibit C-1 as the approved 

mine roof-control plan and he confirmed that he assisted the 

respondent in the formulation of the plan. He confirmed that 

an initial plan providing for full roof bolting for a full 

pillar recovery was first formulated for the mine in question 

in approximately April, 1983, and at that time the mine was 

operated by the Virginia-West Virginia Mining Company. The 

August, 1984, plan is fully applicable to the present 

owner-respondent, and the prior plan simply reflected ownership by Virginia-West Virginia. He confirmed that he updated 

the plan to reflect ownership by Raven Red Ash Coal Corporation, and that he conducted a mine inspection in connection 

with the plan on August 3, 1984, at which time the mine was 

operating with a continuous miner engaged in retreat mining 

(Tr. 11-14). 

Mr. Clevenger explained the procedures involved in 

retreat pillar extraction, and he stated that once the mine 

is advanced on either 60 or 70 foot centers, the pillars are 

extracted on the retreat cycle in an effort to remove all of 

the coal. He identified exhibit C-2 as the applicable full 

pillar recovery portion of the current plan (Tr. 16). He 

explained the mining sequence required by the plan, and confirmed that Plan A, Number 1 is the applicable plan provision 

relevant to this case. He also confirmed that the different 

plan provisions which may be used depend on the direction the 

operator determines to use when approaching the pillars for 

removal (Tr. 14-20). 

Mr. Clevenger explained the roof bolting procedures and 

sequences while cutting the pillar blocks and splits, and he 

confirmed that for each 16 feet of coal which is removed, at 

least 15 36-inch roof bolts on 4-foot centers should be 

installed, not exceeding 4 feet from the rib. The roof bolts 

are required to be installed in the areas marked 1, 2, 3, and 

4 pursuant to the roof bolting patterns shown on page 12 of 

the plan and pillary recovery plan No. 3 (Tr. 20-23). He 

confirmed that roof support posts are not used because of the 

dimensions of the mining machine operating in the pillar 

splits (Tr. 23-23). He stated that no miners are ever permitted to advance inby the last permanent roof supports except 

to install temporary support (Tr. 24). He also confirmed that 

at no time are scoop operators ever permitted to work inby 

528 
permanent roof support (Tr. 25). If they do, they would 

expose themselves to the dangers and hazards of a roof fall 

since they would be under unsupported roof (Tr. 25). 

Mr. Clevenger stated that in the course of a regular 

mine inspection, an inspector will check to determine whether 

or not roof bolts are installed in the pillar splits (Tr. 26). 

However, if the entire row of pillars have been removed, the 

top begins to fall and an inspector would not venture beyond 

the permanent supports to ascertaiu whether the bolts were 

installed. The roof would fall to the breaker posts, and an 

inspector could not readily observe from a safe distance 

whether or not the pillars had been bolted (Tr. 27). 

On cross-examination, Mr. Clevenger testified that he 

last visited the mine on August 13, 1984, when the roof plan 

was changed from one mine company to the present one, and 

that he issued no citations. At the time of his prior visit 

in April, 1983, the mine was operated under the name of 

Virginia-West Virginia Mining Company (Tr. 28). 

Mr. Clevenger stated that if pillar recovery work were 

taking place on August 23, 1984, the roof would be subject to 

fall at any time, and its likely that it would fall at any 

time, including the next day. However, he had no knowledge 

that the roof fell between August 23 and 24, and he did not 

know whether or not MSHA Inspector Ron Matney found any roof 

violations if he were at the mine on August 24 (Tr. 30-31). 

Mr. Clevenger stated that in the event coal is removed 

from a pillar split without the installation of temporary 

roof support, a violation would occur. Temporary supports 

would include timbers or jacks, and if the coal is removed, 

either temporary or permanent roof support should be 

installed. If the coal which has been removed is more than 

4 feet from the face back to the permanent roof support, the 

support should be installed to within 4 feet of the working 

face of the pillar split. If the pillar split is mined all 

the way through, at least 32 bolts should be installed in the 

pillar split to support the two cuts of coal CTr. 34). 

Mr. Clevenger stated that if additional cuts are to be 

taken in a pjllar split after the temporary supports are 

installed, permanent supports must then be installed. If the 

cut is more than 5 feet inby the permanent support, it would 

be a violation not to install additional permanent support 

(Tr. 35). Mr. Clevenger confirmed that in pillar recovery 

work, planned roof falls are expected, and it is not unusual 

for a row of pillars to be removed one day, and for the roof 

529 
to fall the next (Tr. 35). He also confirmed that under the 

plan, temporary roof support must be installed within 

5 minutes after a cut of coal has been removed, and the temporary support remains in place until such time as the permanent 

support is installed. In such a case, the only time anyone is 

permitted inby the temporary support would be to install permanent support (Tr. 36-37). Mr. Clevenger confirmed that he has 

rio personal knowledge of the facts surrounding the complaints 

filed in this case (Tr. 37). 

Larry Collins testified that he has been a miner since 

1979, and that prior to August, 1984, he worked as a scoop 

operator at the Jewell Ridge Coal Company, but was laid off 

in 1983. He was hired by the respondent on August 14, 1984, 

and mine superintendent William Brewster hired him. He initially worked on the first shift, but then worked the second 

shift from 2:30 p.m. to 11:00 p.m. He was paid $70 a day, 

and his supervisor was section foreman Hubert Sweeney. 

Mr. Collins stated that he received no training regarding 

roof control plans. He confirmed that he was employed by the 

respondent as a scoop operator and that the mine was engaged 

in pillar recovery when he was employed there. Referring to 

exhibit C-2, a part of the roof-control plan, he explained 

that "Plan A" was being followed and that the pillar split 

shown as 1, 3, 5 was mined all the way through without any 

roof bolting taking place. The miner would then mine all of 

the numbered wing cuts as shown by numbers 6-13 without any 

roof bolting taking place. 

Mr. Collins stated that during his 2 weeks of employment 

with the respondent, or a total of 8 shifts, no roof bolts 

were ever installed on the pillar split where he was working, 

and he never observed the roof-bolting machine in operation. 

He explained that the continuous-mining machine was remotely 

controlled, and that as the scoop operator it was his job to 

follow the continuous miner in order to load out the coal and 

take it to the belt for transportation out of the mine. During this process he was required to be under unsupported roof, 

and at times he would be 12 to 8 feet inby and under unsupported roof, and that this was true for the entire 2 weeks of 

his employment with the respondent. 

Mr. Collins stated that during his 

respondent some rocks fell on his scoop 

and that he received "a few stratches." 

Mr. Sweeney and Mr. Sweeney stated that 

bad• II 

530 

employment with the 

from some roof bolts 

He reported this to 

"it don't look that 
Mr. Collins stated that on one occasion during his employment with the respondent, the lights on his scoop went out. 

He reported this to Mr. Sweeney and .suggested to Mr. Sweeney 

that the scoop be taken out of service and repaired. 

Mr. Sweeney directed him to operate the scoop anyway, and 

that if he didn't, he would fire him. Although Mr. Collins' 

believed that operating the scoop without lights posed a 

hazard to the miners because he would be unable to see them, 

he followed Mr. Sweeney's order and continued to operate the 

scoop without lights. 

Mr. Collins stated that on August 23, 1984, he and 

Mr. Earl Kennedy were working under bad top and that they 

were required to work beyond permanent supports where the 

roof had not been bolted. The roof was cracking and popping, 

and he told Mr. Kennedy that he was not going to take his 

scoop under the unsupported roof. He and Mr. Kennedy then 

spoke to Mr. Sweeney and informed him that they would no 

longer work under unsupported roof. Mr. Sweeney informed 

them that if they refused to continue to work they were no 

longer needed. At that point, Mr. Collins and Mr. Kennedy 

left the mine. 

Mr. Collins stated that when he and Mr. Kennedy returned 

to the mine the next day to pick up their pay, an MSHA inspector who he did not know was at the mine office with mine 

superintendent William Brewster, and after discussing the 

matter with him, he and Mr. Kennedy decided to file a complaint the next day. 

Mr. Collins stated that after he and Mr. Kennedy left 

the mine on August 23; 1984, the mine continued to operate 

until April, 1985, when it was closed. Mr. Collins confirmed 

that after he was fired by Mr. Sweeney, he attempted to find 

.other employment, but could not find a job until April, 1985, 

when he went to work with the Coon Branch Construction Company 

where he is now employed and earning $80 a shift (Tr. 38-60). 

On cross-examination, Mr.· Collins stated that he previously worked at the mine in 1983 when it was operated by 

Mr. Dave Jordan under the corporate name of Virginia-West 

Virginia Coal Company. He was employed for 3 or 4 weeks as a 

scoop operator but voluntarily quit. 

Mr. Collins confirmed that he never saw or read the 

respondent's roof-control plan. He also confirmed that while 

operating his scoop behind the continuous-mining machine his 

531 
scoop batteries would be under unsupported roof, and since he 

was positioned ahead of the batteries, he too would be under 

unsupported roof. 

Mr. Collins stated that he was not.aware of any roof 

falls in the mine on August 23 or August 24, 1984, and that 

the incident concerning the lack of lights on his scoop 

occurred on the third day of his employment at the mine. 

In response to further questions, Mr. Collins stated 

that prior to his present employment with Coon Branch 

Construction, he worked for 2 weeks with the Bartlett Tree 

Trimming Company earing $4 an hour. He confirmed that he 

received no state unemployment benefits because he had used 

up all of his eligibility prior to his employment with the 

respondent. 

Mr. Collins reiterated that during his employment with 

the respondent the entire coal pillars would be mined without 

any roof bolts being installed, and it was his view that this 

was a common practice. He confirmed that he never filed any 

safety complaints concerning this practice (Tr. 60-80). 

Earl Kennedy testified that he was hired to work at the 

respondent's mine by Mr. William Brewster, the mine superintendent. He was hired on August 13, 1984, as a second shift 

scoop operator, and was paid $70 a shift. His supervisor was 

foreman Hubert Sweeney, and his last day of employment was 

August 23, 1984. 

Mr. Kennedy stated that during his employment with the 

respondent he was engaged in pillar retrieval work splitting 

pillar blocks of low coal. He identified exhibit C-2 as the 

applicable roof-control plan for pillar extraction, and he 

confirmed that "Plan A" as shown on· the plan was being 

followed. 

Mr. Kennedy stated that during his work shifts at the 

mine he never observed any roof bolts installed while the 

pillar splits were being mined. Although a roof-bolting 

machine was in the area, it was backed out of the way and he 

never saw it used to bolt the roof. 

Mr. Kennedy stated that he operated a scoop and was 

required to follow the remotely controlled continuous miner 

while the pillar was being mined. He would maneuver the 

scoop under the miner boom in order to load out the coal to 

the tail piece. He operated the scoop while lying on his 

532 
back, and there were occasions when he would make three or 

four trips following the miner under unsupported roof. 

Mr. Kennedy stated that during his work shift on 

August 23, 1984, he observed a roof bolt which had dislodged 

along the last row of roof bolts and a large rock approximately 30 feet long had slipped down with the bolt. He 

pointed out this condition to Mr. Sweeney, and he "shimmed 

out the roof bolt" and instructed him to continue working. 

Mr. Sweeney instructed him to take his scoop and pull it in 

beyond the bolt and up to the miner, and when he refused, 

Mr. Sweeney told him "to pick up my bucket and go home." 

Mr. Kennedy and Mr. Collins then left the mine, but returned 

the next day to pick up their pay. 

Mr. Kennedy stated that when he and Mr. Collins returned 

to the mine on August 24, 1984, an MSHA inspector was at the 

office speaking with mine superintendent Bill Brewster. 

Mr. Kennedy advised the inspector that he and Mr. Collins had 

been fired the previous day for refusing to work under unsupported roof. When the inspector asked Mr. Brewster about the 

matter, he told the inspector to speak with Mr. Sweeney about 

the matter. After the inspector 1 t, Mr. Brewster told 

Mr. Kennedy that he and Mr. Collins "had no leg to stand on 

because they had always worked the mine that way." Mr. Kennedy 

returned to the mine a week later, and he discussed the matter 

further with Mr. Brewster and advised him that he was afraid of 

the roof conditions. Mr. Kennedy and Mr. Collins then filed 

their complaints with MSHA. 

Mr. Kennedy stated that after he was fired by the respondent he was unemployed for approximately a month and a half, 

but then found a job with the Cumberland Coal Company earning 

$80 per shift. He worked for Cumberland for 5 weeks and then 

went to work for the Tripple G Coal Company earning $70 to 

$110 per shift. He was subsequently laid off and has been 

unemployed since September 1, 1985 (Tr. 81-94). 

On cross-examination, Mr. Kennedy testified that while 

operating his scoop behind the continuous-mining machine he 

would be positioned approximately 2 to 3 feet from the machine 

dipper, and the pillar which was being split was approximately 

40 to 50 feet deep. 

With regard to the rock which had broken loose between 

two roof bolts at the last row of roof bolts, Mr. Kennedy 

stated that the continuous-mining machine ripper head was 

causing the rock to vibrate. 

533 
Mr. Kennedy stated that as the scoop operator he was 

expected to follow behind the continuous-mining machine for a 

distance of some 12 feet in order to load out the coal being 

cut by the miner. The dipper of his scoop would be under the 

miner boom. He confirmed that under the roof-control plan 

the continuous miner can only legally proceed for a distance 

of 20 feet under unsupported roof (Tr. 95-108). 

William Brewster testified that he was employed by the 

respondent as the mine superintendent until the last week of 

March, 1985, when the mine was "worked- out" and closed. He 

confirmed that Mr. Dave Jordan was then the owner of the mine 

and that he also owned and operated several other mines. 

Mr. Brewster identified exhibit C-3 as a copy of a statement that he made to MSHA special investigator Dewey Rife 

during his investigation of the complaints filed by 

Mr. Kennedy and Mr. Collins. Mr. Brewster confirmed that 

Mr. Sweeney told him that he fired Mr. Kennedy because "he 

did not want to pull coal" and that Mr. Collins simply quit. 

Mr. Brewster stated that Mr. Sweeney denied that 

Mr. Kennedy and Mr. Collins were ever required to work under 

unsupported roof. Mr. Brewster stated further that he was in 

the mine daily and that he never observed any pillars split 

when the roof in the area had not been roof bolted (Tr. 

109-112). 

On cross-examination, Mr. Brewster testified that he has 

23 years of underground mining experience. He confirmed that 

Mr. Kennedy and Mr. Collins returned to the mine the day after 

they were fired and informed him that Mr. Sweeney had fired 

them because he wanted them "to run coal" and they refused. 

Mr. Brewster stated that he offered to rehire Mr. Kennedy and 

Mr. Collins but they refused his offer and stated that "they 

would find another excuse to fire them." 

Mr. Brewster stated that on August 24, 1984, MSHA Inspector Ronald Matney was at the mine and had conducted an inspection that day. Mr. Brewster stated that he could recall no 

roof citations being issued that day by Mr. Matney, nor could 

he recall any roof falls in the mine. 

Mr. Brewster stated that at all times while he was underground on the first shift the 40 foot long pillar splits were 

always bolted and he has never instructed anyone to work under 

unsupported roof. He also stated that during the period 

August 14 through August 23, 1984, the roof bolter was being 

used on the day first shift. He confirmed that one of his 

534 
sons worked during that shift as a scoop operator, and that 

another son worked as a mechanic's helper. Mr. Brewster 

stated that he would not jeopardize their safety, or any other 

miners safety, by requiring them to work under unsupported 

roof. 

Mr. Brewster stated that he subsequently offered 

Mr. Kennedy his job back a second time but that he refused. 

He also stated that Mr. Kennedy asked him for a lay-off slip 

so that he could draw unemployment, but he refused to give it 

to him. 

In response to further questions, Mr. Brewster identified 

exhibits C-4 through C-8 as citations issued by Inspector 

Matney on August 23, 24, and 29, 1984, and he confirmed that 

he was with Mr. Matney during his inspections and that the 

citations were served on him. 

Mr. Brewster stated that the continuous-mining machine 

is 35-1/2 feet long, and the scoop is 25 feet long. Under 

the circumstances, he did not believe that it was possible 

for the scoop operator to be under unsupported roof since the 

pillar splits were 40 feet long (Tr. 121-128). 

In response to further questions, Mr. Brewster reviewed 

copies of several citations issued at the mine by Inspector 

Matney (exhibits C-4 through C-8) and he stated that he could 

not remember all of them. However, he confirmed that he knows 

Inspector Matney, has observed Federal mine inspectors in the 

mine, has received citations from them, and is familiar with 

the citation forms (Tr. 138-139). He identified his name on 

the citation forms, and he specifically recalled a citation 

issued on August 24, 1985, and confirmed that he was present 

when it was issued. The citation was issued because the wing 

that was left in the pillar split was too narrow and extra 

support posts had to be installed (Tr. 141). He also conceded 

that he had personal knowledge of at least some of the other 

citations issued by Mr. Matney, including one which was issued 

for 15 dislodged roof bolts in a return hallway (Tr. 142}. 

However, he explained that it is not unusual for roof bolts to 

be dislodged in a hallway because of the low coal, and that a 

hallway is not located on an active working pillar (Tr. 146). 

In response to a question as to whether it was possible 

for a scoop operator to be under unsupported roof, 

Mr. Brewster responded as follows (Tr. 147-148): 

JUDGE KOUTRAS: Mr. Brewster, I've just got a 

couple of questions and then we'll let you go. 

535 
In response to a question by Mr. Bieger, he 

asked you how long the continuous-mining 

machine was and you said approximately thirty 

two and a half feet and he asked you about the 

scoop and you said twenty five feet. Then he 

said, well under those circumstances then would 

it be possible for one to be under unsupported 

roof for a distance of thirty five feet and 

your answer was that's true. So I assume that 

-- what about for a distance of sixty feet, or 

fifty feet? Let's assume that under your mining plan your mining cycle that they mined for 

a distance of forty five, fifty, sixty feet 

without bolting, without roof bolting. Okay. 

A. Alright. 

JUDGE KOUTRAS: Of any kind. Is it possible 

that either the scoop operator or the 

continuous-mining machine operator would be 

under unsupported roof at any time when they 

go back in the mine? 

A. Let's see. The miner would have to go 

inby the - the miner would have to go inby 

back to the controls is twenty foot where the 

deck is, okay. And from there on back to the 

deck is about six more foot, twenty six. Okay. 

And the scoop operator sits about, approximately twelve foot from the end of the scoop. 

So that gives you twenty six, thirty six, he'd 

have to go thirty eight foot before he would 

be inby the roof supports. 

JUDGE KOUTRAS: Okay. 

A. The miner would have to go at least thirty 

eight foot deep. 

JUDGE KOUTRAS. So if it mined a sixty foot 

distance, with absolutely no roof bolts, then 

he would be under unsupported roof wouldn t 

he? 

A. Right. 

And at (Tr. 158): 

BY MR. BIEGER: 

536 
Q. The Judge asked you what if/they were mining for sixty feet would somebody be under 

that many feet of unsupported roof and you 

said well, yes, but how big were the -- the 

blocks were only forty to forty five feet, 

right? 

A. Approximately, yeah. 

Q. So when you're pulling pillars and the 

pillar is forty to forty five feet, you don't 

have a situation where they are mining sixty 

feet, is that right? 

A. Right. 

Mr. Brewster stated that normally the continuous miner 

would not go beyond the end of the pillar being extracted 

because the roof could fall on the miner. He denied that he 

was under any pressure to produce coal, and confirmed that in 

pillar extraction on his section the maximum distance that is 

mined would be 40 feet (Tr. 160). 

Mr. Brewster confirmed that he worked the day shift and 

would not be in the mine during the afternoon or night shift 

when the complainants were working. He stated that he would 

not be underground with the complainants, and he would not be 

aware of any instances where the pillars were not bolted. He 

confirmed that his testimony concerning the bolting of pillars 

would only apply to his day shift, and that he had no knowledge about the night·shift. When asked whether it was possible that the night shift was mining pillar splits without roof 

bolting, he replied "It's possible" (Tr. 150). 

Mr. Brewster stated that when the complainants returned 

to the mine the day after their termination, he discussed the 

matter with them and offered them their jobs back, and the 

inspector was present when this occurred (Tr. 151). Hespecifically recalled the complainants telling him (Brewster) 

that Mr. Sweeney expected or directed them to work under 

unsupported roof and when they refused to do so he told them 

to "pick up their buckets and go on down the road," or words 

to that effect CTr. 151). Mr. Brewster stated that his reaction to these statements by the complainants was that 

Mr. Sweeney could not lay them off for refusing to work under 

unsupported roof (Tr. 152). Mr. Brewster stated further that 

he discussed the matter with Mr. Sweeney, and his testimony 

537 
regarding the discussions which took place is as follows (Tr. 

152-154): 

JUDGE KOUTRAS: Did you discuss it with 

Mr. Sweeney? 

A. Yes. 

JUDGE KOUTRAS: Well, what did he tell you 

about it? 

A. Well, he told me that they was sitting 

down at the mouth of the break talking and the 

best I can remember, he told me he hollered at 

them and I believe the Kennedy boy come on up 

there and he got on to him and he told him if 

he wasn't going to pull coal to go on to the 

house. And they went on. 

JUDGE KOUTRAS: Well, what's that mean. I 

mean, there's a lot -- I don't understand why 

Mr. Sweeney would just tell them -- what were 

they doing? Goofing off or not working or 

what? 

A. That's the way I understood it, just a 

goofing off. 

JUDGE KOUTRAS: And, Mr. Sweeney told them if 

they weren't going to pull coal, just to go on 

home and you -- why would you of fer them their 

jobs back then? After they told you their 

side of the story? 

A. Well, if Hubert wronged them, I mean 

that's the right thing to do. 

JUDGE KOUTRAS: Which one -- well, if 

Mr. Sweeney tells you that he told them to go 

home because they were goofing off and didn't 

want to work, and the two men told you that 

that 1 s not true, that Mr. Sweeney expected 

them to work under unsupported roof, and that's 

why he told them to go home, who would you tend 

to believe? Or, how would you resolve that 

obvious conflict? 

A. Rephrase that again. 

538 
JUDGE KOUTRAS: Well, what I'm saying is 

Mr. Sweeney told you one thing and the two men 

told you something else, right?. 

A. Uh-hum. 

JUDGE KOUTRAS: So, without even talking to 

Mr. Sweeney, you told the two men to come back 

to work. 

A. I said if that's the way it was, come on 

back out to work. When they come to work, I 

would have had to have talked it over with 

Hubert, you know. 

JUDGE KOUTRAS: Okay. And by that time you 

had talked it over with Mr. Sweeney? 

A. No. I didn't even know nothing about it 

until they come and told me. 

JUDGE KOUTRAS: After the two men left, did 

you then talk to Mr. Sweeney? 

A. Right. 

JUDGE KOUTRAS: And Mr. Sweeney told you that 

they just didn't want to work or what? 

A. That's what he told me. He said they was 

down there at the mouth of the breaker talking 

and he hollered at them and one of them, I 

believe Kennedy, come on up there and he told 

him if they wasn't going to pull coal, to go 

on to the house. Now, that's what he told me 

happened. 

JUDGE KOUTRAS: Okay. Did you ask Mr. Sweeney 

about what Mr. Kennedy and Mr. Collins had 

told you? That he expected them to work under 

unsupported roof? 

A. No, he didn't tell me anything like that. 

JUDGE KOUTRAS: Did you mention it. Did you 

ask Mr. Sweeney whether there was any truth in 

what these two men told you? 

539 
A. Yeah. I told him what they said and he 

said it wasn't true. 

Mr. Brewster stated that neither the complainants or 

their crew ever complained to him about any lack of roof bolting or unsafe conditions, and he was not aware of any rock 

ever falling on Mr. Collins' machine. He confirmed that 

Mr. Sweeney never complained about the complainant's work, 

and that he (Brewster) hired Mr. Kennedy because he had the 

reputation of being a good scoop man (Tr. 156). 

Hubert Sweeney, testified that he was employed by the 

respondent as an underground section foreman on the second 

shift and that he was laid off on March 15, 1985, when the 

mine "worked out" and was closed. Prior to this time he 

worked at the mine in 1982 when it was operated as the 

Virginia-West Virginia Coal Mine, and it was owned by Mr. Dave 

Jordan, the respondent's owner. 

Mr. Sweeney confirmed that Mr. Kennedy and Mr. Collins 

worked for him as scoop operators on the second shift. He 

denied that he directed them to work under unsupported roof 

or that he fired them for refusing to do so. He stated that 

during the shift on August 23, 1984, he observed Mr. Kennedy 

and Mr. Collins sitting in their equipment talking and he 

told them that if they did not want to "pull coal" to go home. 

He stated that he fired them for "goofing off." 

Mro Sweeney confirmed that he was interviewed by MSHA 

special investigator Dewey Rife on September 20, 1984, during 

his investigation of the complaints and he admitted telling 

Mro Rife that Mro Collins and Mr. Kennedy quit their jobs and 

that he did not know what happened to cause them to quit (Tr. 

160-165). 

Mr. Sweeney testified as follows with respect to the 

circumstances under which the complainants left their jobs 

CTr. 166-170): 

JUDGE KOUTRAS: Why did these two men quit, 

Mr. Sweeney? 

A. Sir, I don't know why they quit. They 

were down at the break a talking. They didn't 

want to pull no coal and I told them if they 

couldn't do no better than that they might as 

well go home. One got to preaching that I 

fired him and the other one, he didn't -- I 

540 
don't know why, he jut walked on out of the 

mines. 

JUDGE KOUTRAS: Tell me about this. What were 

they doing, talking? What are you talking 

about. Were they taking their break or what? 

A. I couldn't hear them. Yes, they was sitting on the scoop. You have to crawl on your 

knees and hands and I hollered down to where I 

could hear them and they was -- seen them a 

sitting down there in the break a talking. 

JUDGE KOUTRAS: Just chit-chatting? 

A. Just chit-chatting, right. 

JUDGE KOUTRAS: And you told them what now? 

A. If they couldn't do no better than that 

they might as well get their buckets and go on 

home. 

JUDGE KOUTRAS: What did they tell you? 

A. They didn't tell me nothing. They just 

got in the scoop. I crawled right back towards 

the face and I asked the other scoop man where 

he was at and said why, they've done gone home. 

And when I come outside they had done went home. 

Or otherwise they was still outside a waiting 

on a ride but they quit. 

JUDGE KOUTRAS: That was the last you saw of 

them? 

A. Yeah, that's the last I saw after they 

crawled on the outside. 

JUDGE KOUTRAS: Did you tell anybody that the 

two men had quit? 

A. Si~? 

JUDGE KOUTRAS: Did you tell anybody at the 

mine that these two men had quit? 

A. Yes, I told the others. 

541 
JUDGE KOUTRAS: Who did you tell? 

A. I don't -- a fellar by the .name of Bill 

Asbury. He's not here, him and the miner 

operator. 

JUDGE KOUTRAS: Did you tell the mine superintendent, Mr. Brewster? 

A. Yes, the next day. 

JUDGE KOUTRAS: What did you tell him the next 

day? 

A. I told him they quit and I said I don't 

know why. They was no reason, they gave me no 

reason. 

JUDGE KOUTRAS: Did you tell Mr. Brewster you 

fired them? 

A. Yes, sir. I told him that I told them if 

they couldn't do no better than what they was 

doing 1 laying on the scoop, to get their 

bucket and go. 

JUDGE KOUTRAS: Well, did you fire them or did 

they quit? 

Ao Wellu I guess you'd call it firing them. 

They just took off going on outside. I guess 

you 1 d call it firing them. 

JUDGE KOUTRAS: Have you ever had any miners 

in your experience leave a job under similar 

circumstances? 

A. No, s , I haven't. 

JUDGE KOUTRAS: Isn't that a little unusual? 

A. Unless they'd be sick or something. 

JUDGE KOUTRAS: I mean it's a little unusual 

for two men to just up and quit because the 

supervisor told them to get on with working, 

to stop talking? 

542 
A. Well, I guess they got the impression that 

I fired them. 

* * * * * * * 

JUDGE KOUTRAS: Does it seem kind of unusual 

to you for them to just get up and take off? 

A. It seemed to me like they don't want to 

work. They tried to get me to get them a 

cut-off slip the night before that. I got the 

impression they don't want to work. 

JUDGE KOUTRAS: What's a cut-off slip? 

A. That's a slip where you could draw 

unemployment. 

JUDGE KOUTRAS: The night before? 

A. The night before, sir. 

JUDGE KOUTRAS: Well, tell me about that? How 

did they expect you to give them a slip the 

night before? 

A. They just wanted me to lay them off. 

JUDGE KOUTRAS: Well, now if you laid them off 

or fired them, were they eligible for 

unemployment? 

A. I don't know, sir. 

JUDGE KOUTRAS: You mean the night before these 

two men come up to you and asked you for an 

unemployment slip? They got tired of working 

and they wanted to draw unemployment? 

A. Yes, sir. They wanted to draw unemployment. Didn't want to work. 

JUDGE KOUTRAS: The story I'm hearing is these 

two men didn't want to work under unsupported 

roof and you kind of suggested that if they 

didn't want to work under unsupported roof 

pulling coal, they might as well go on home? 

543 
A. I've never sent nobody out, sir, out from 

under roof supports. 

JUDGE KOUTRAS: Did you ever suggest or say 

anything to them that would lead them to 

believe that? 

A. No, sir. 

going to put 

never had no 

except these 

them right. 

While you're in the mine, I ain't 

nobody's life in danger. I've 

problem with men all my life 

two. I don't know why. I treated 

Didn't cuss them out or nothing. 

JUDGE KOUTRAS: Had you known these two men 

before they came to work? 

A. No, sir. The first time. 

JUDGE KOUTRAS: And they had worked for you 

how long? A couple of days or what? 

A. Yeah, a couple of days, or maybe three. 

Mr. Sweeney denied that roof bolting was never done on 

his section, and he stated that he always followed the 

roof-control plan. He explained the bolting process and 

denied that his crew ever cut all the way through a pillar or 

worked under unsupported roof while cutting coal (Tr. 172). 

He conceded that he was not always present while the continuous miner was operating, and that when he was present he would 

always position himself next to the continuous miner (Tr. 174). 

Terry Kennedy testified that he is Earl Kennedy's brother 

and that he has been employed with the Island Creek Coal 

Company for 7 years. He stated that while he was laid off 

from that job he worked for the respondent as a scoop operator 

and timber man on the second shift for 2 days on August 13 and 

14v 1984, and that Hubert Sweeney was the shift foreman. 

Mr. Kennedy stated that during the 2 days he worked on 

the second shift the coal pillars were split down the middle 

straight through and that the continuous miner would then 

pull out and mine the right and left wings. During this time 

he never saw any roof bolts installed on the mined pillar 

splits and the roof-bolting machine was never used. Although 

he was never required to work under unsupported roof while 

pulling the pillars he did so anyway in order "to keep his 

job." He stated that Mr. Sweeney knew he was working under 

unsupported roof. 

544 
Mr. Kennedy stated that he discussed the roof conditions 

with Mr. Sweeney and informed him that he was jeopardizing 

the safety of the miners by not roof bolting the pillars. He 

stated that Mr. Sweeney informed him that since the mine was 

a "small truck mine" they could "get by with just about anything" (Tr. 174-182). 

Jerry Kennedy testified that he is currently unemployed 

and has 11 years of mining experience. He stated that he is 

not related to the complainant and that he was employed by 

the respondent from August 13, 1984 to August 23, 1984, as a 

second shift scoop operator and timber man, and he confirmed 

that shift foreman Hubert Sweeney was his supervisor. 

Mr. Kennedy stated that during his employment with the 

respondent he was engaged in pillar work and he indicated 

that after the pillar was "timbered up" the continuous-mining 

machine would go in and cut the pillar split until it was 

mined through to the end. As the timber man he would be in 

and out of the pillar while it being mined and at no time did 

he ever observe roof bolts being installed in the pillar. 

Although a roof bolter was on the section, he never observed 

it being used to pin the roof. 

Mr. Kennedy stated that during his shift on August 23, 

1984, he overheard Mr. Sweeney tell Mr. Earl Kennedy that "if 

you can't do that I don't need you after this shift." He 

heard Mr. Kennedy reply "if you don't need me than you don't 

need me now." Mr. Kennedy stated that he had no idea what 

Mr. Sweeney and Earl Kennedy were discussing. He stated that 

he observed scoop operators working unner unsupported roof 

and that this was a common occurrence on the second shift 

during his employment at the mine (Tr. 184-188). 

On cross-examination, Mr. Kennedy stated that he first 

met Mr. Earl Kennedy and Mr. Collins when he went to work for 

the respondent. He confirmed that he quit his job on 

August 23, 1984, because he didn't like the pay and the 

height of the coal. He stated that he never complained about 

the roof conditions or the lack of roof bolting. He also 

confirmed that Hubert Sweeney was married to his cousin (Tr. 

188-198). 

Bobby Mullins testified that he is employed by the 

Rocking-R Coal Company and that he has 12 years of underground 

mining experience. He confirmed that he was employed by the 

respondent for 3 weeks during August, 1984. He worked on the 

first shift as a miner and pinner helper. He stated that 

545 
Mr. Brewster was the mine superintendent and that he was underground every day during the day shift. 

Mr. Mullins stated that he worked at the faces pulling 

pillars, and that during his employment at the mine he never 

saw the roof bolter used to install roof bolts on the pillars 

(Tr. 199-202). 

On cross-examination, Mr. Mullins confirmed that he grew 

up with Earl Kennedy. He stated that he quit his job with 

the respondent after Mr. Brewster threatened to fire him. He 

explained that he and several other miners were pulling a 

miner cable with a scoop and it separated. Since he was the 

"cable man," Mr. Brewster held him responsible for the cable 

separating and when he informed him that he would be fired, 

he quit before Mr. Brewster could fire him (Tr. 202-206). 

Respondent's Testimony 

David B. Jordan, testified that he was the President and 

part-owner of the Raven Red Ash Coal Corporation and he confirmed that the mine was closed down in March of 1985. He 

stated that he usually goes underground in his mines every 2 

or 3 months. He stated that he has personally never fired 

any of his employees and that he has never directed anyone to 

fire any employee. 

Mr. Jordan confirmed that he was at the mine in question 

on August 24, 1984, delivering the payroll and he learned at 

that time that Mr. Sweeney had fired Mr. Kennedy and 

Mro Collins for "refusing to pull coal. 11 Mr. Jordan stated 

that MSHA Inspector Ronald Matney was at the mine on 

August 24u 1984, and that he discussed the matter with him. 

Mr. Matney had conducted an inspection that day and except 

for some loose roof bolts on the haulage road Mr. Matney 

assured him that "everything looked fine" underground. 

Mr. Jordan stated that no one had ever complained to him 

about unsafe working conditions underground. He confirmed 

that he has not paid any of the civil penalty assessments 

reflected in MSHA's computer print-out, exhibit C-9, because 

he could not afford it. He also confirmed that he was in the 

process of working out a "settlement" with the Department of 

Justice to pay those penalties (Tr. 219-224, 226). 

Mr. Jordan stated that the No. 1 Mine where the complainants were employed is mined out and that it closed in March, 

1985. He confirmed that he just opened a new mine, and when 

asked about the financial condition of his company, he 

546 
responded "I guess we're in no worse or no better shape than 

half the coal companies in Buchanan County" (Tr. 227). 

Mr. Jordan was of the opinion that the complainants quit 

their jobs, and he alluded to a prior proposed settlement 

offer by MSHA to compensate one of the complainants, and that 

if he agreed, the case would be dropped. He stated that had 

he believed the complainants were fired for working under 

unsafe conditions, he would have not contested the complaints 

(Tr. 229). 

Mr. Jordan confirmed that since he was not underground 

from day to day, he would not know how Mr. Sweeney operated 

his section, and while he believed that it was possible that 

the complainants were terminated for reasons which they have 

testified to in this case, he would have no knowledge of this 

one way or the other {Tr. 231). He stated that he chose to 

believe Mr. Sweeney, Mr. Brewster, and Inspector Matney (Tr. 

231). He disclaimed any knowledge as to the complainants' 

motives in claiming that they were fired for refusing to· work 

under unsupported roof (Tr. 235). 

Mr. Clevenger was recalled as the court's witness, and 

he stated that assuming the two complainant's were engaged in 

mining an entire 40-foot block of coal continuously while in 

their scoops, they could be 4 to 6 feet past permanent roof 

supports. If the entire coal block is mined without pulling 

out and bolting after cutting 20 feet, a violation of the 

roof-control plan would result because the plan stipulates 

that the maximum depth of the coal being mined should not 

exceed 20 feet without bolting. In addition, the remote controls for the miner may not advance beyond permanent roof 

support (Tro 251-252)0 

Mr. Clevenger stated that he has been in the mine several 

times and has never received any complaints with respect to 

the mining procedures (Tr. 253). Tn response to questions 

from respondent's counsel, Mr. Clevenger stated as follows 

(Tr. 254-255): 

Q. Do you remember before when I asked you 

when you're pulling timbers, if you pull one 

is it likely that they have a roof fall the 

very next day and you said it's quite possible 

that the could have a roof fall at anytime? 

A. Yes, sir. I said that. 

Q. Well, doesn't that seem -- doesn't it surprise you that not only -- that if you can go 

547 
and mine backwards and forwards in all these 

pillars for nine days and never put the first 

bolt in and never have a major ·roof fall? 

Isn't that pretty much impossible? 

A. It'd be according to the type of strata 

that you've got. 

Q. Yeah, I know it would be, but if it's quite 

possible that it would fall the next day --

A. I don't know that this has been done. 

Q. Well, I'm just asking you a hypothetical 

question. 

A. Right, you're asking a theory. 

Q. Isn't it unusual, if as you say, that the 

roof could fall the very next day, isn't it 

unusual that you would mine all of these 

pillars right and left for two weeks and never 

put the first bolt in and never have a roof 

fall? Isn't that pretty incredible? 

A. If it's being done, yes. 

Q. Okay. 

A. There's no set time when a pillar fall 

would come because you have to put additional 

support, timbers, until you get enough weight 

to override these timbers --

Q. Right. I understand that.· 

A. -- it's pretty well hold itself. 

Mr. Clevenger explained the roof bolting pattern and 

sequence for the mine, and he indicated that if no roof bolts 

were installed in certain areas during the period from 

August 13 to 23, it was possible that Inspector Matney did 

not see the areas because of the roof falls and he would not 

venture inby the breaker posts (Tr. 257-259). In the event 

one cut of coal was taken when Mr. Matney was in the mine, 

temporary supports would have been installed, but no bolting 

was required until that cut was completed and a second one 

begun. If Mr. Matney was there the entire day, he would have 

548 
been aware of what the mining procedures were and what work 

was being done (Tr. 262). 

MSHA Inspector Ronald C. Matney did not testify at the 

November 13, 1985, hearing in this case. However, by agreement of the parties, his deposition was taken on November 14, 

1985, and it has been filed and made a part of the record in 

this case. 

Mr. Matney stated that he has been employed by MSHA as a 

coal mine inspector since October 1, 1978. He testified as 

to his background, training, and experience, and confirmed 

that he is familiar with the respondent's mine. He stated 

that Mr. David Jordan was the president and owner of the Raven 

Red Ash Coal Company, and that the mine at one time operated 

under the corporate name of Virginia-west Virginia Coal 

Corporation. He confirmed that Mr. Jordan was the president 

and owner of both corporations, and that during his inspections at the mine when they were under both corporate names he 

observed Mr. Jordan there. He also observed Mr. Bill Brewster 

and Mr. Hubert Sweeney at the mine when it operated under the 

name of Virginia-West Virginia Coal Corporation (Tr. 3-6). 

Mr. Matney stated that he inspected the respondent's No. 

1 Mine four times a year, and that depending on the conditions of the mine, the inspection takes from 3 to 5 days to 

complete. He confirmed that he began an inspection of the 

mine on August 24, 1984, and that he was accompanied by 

Mr. Brewster. Mr. Matney stated that he arrived at the working face area of the mine at approximately 9:20 a.m., and day 

shift personnel were at work. Work had started approximately 

2 hours earlier, and after checking the face area he proceeded 

to the area where employees were working removing coal. He 

observed that a split or pillar block of coal approximately 

20 feet had been removed and the crew had moved back to the 

next line of crosscuts to begin a new phase of mining across 

the working faces. He confirmed that he issued a violation on 

the cut of coal that had been taken because the respondent was 

not complying with its roof-control. plan for pillar extraction. 

The plan required that a 10-foot block of coal be left on each 

side of the pillar split as a means of roof support, and he 

found that instead of leaving a 10-foot wing for support, the 

wing of coal which was left was between 4 and 8 feet. Under 

the circumstances, Mr. Matney issued a section 104(a) "significant and substantial" citation charging the respondent with a 

violation of mandatory section 75.200, for failure to comply 

with the roof-control plan. Mr. Matney stated that the respondent did not contest the citation (Tr. 7-12). 

549 
Mr. Matney stated that during his inspection he looked 

at the pillar areas which had been mined on previous shifts 

and from his position at the pillar breaker line he shined 

his light back into the area in an attempt' to observe what 

had been done. He did not venture beyond the pillar breaker 

line because of the "danger of the conditions of the roof." 

However, from his vantage point at the breaker line he coulq 

not see anything because the roof had collapsed "up next to 

the breaker line," and he could not determine whether the 

previous shift had installed roof bolts in the pillar splits. 

The coal had been mined out and the "roof was collapsed 

solid" up to the breaker line (Tr. 13). 

Mr. Matney stated that after completing his underground 

inspection on August 24, he returned to the surface at approximately 12:00 to 1:00 p.m., in the company of Mr. Brewster 

and they proceeded to the mine off ice. While standing in the 

office doorway, Mr. Collins and Mr. Kennedy came by and 

Mr. Matney asked them "how they were doing." Mr. Kennedy 

responded "not so good," and when asked why by Mr. Matney, 

Mr. Kennedy informed him that Mr. Sweeney had fired them the 

previous evening "for not hauling coal out from unsupported 

roof that was broke." Mr. Matney stated that he commented to 

Mr. Brewster that he could not fire anyone "for unsafe work 

practices," and that there was a possibility that Mr. Kennedy 

and Mr. Collins could file discrimination charges against the 

respondent. Mr. Matney also stated that he informed 

Mr. Kennedy and Mr. Collins that he had inspected the faces 

and found "no violations that they had done" (Tr. 14-15). 

Mr. Matney stated that when he mentioned the fact that 

Mr. Kennedy and Mr. Collins could file a discrimination 

charge, Mr. Brewster attempted to contact Mr. Sweeney underground and stated to Mr. Kennedy and Mr. Collins "if its like 

you say it is, you'll get your jobs· back." At that point in 

time, Mr. Matney left the mine office to return to his own 

office, and he did not know whether Mr. Brewster contacted 

Mr. Sweeney. Mr. Kennedy and Mr. Collins were still at the 

office when Mr. Matney left. Mr. Matney stated that 

Mr. Jordan was not at the mine that day, and that at no time 

has he had any conversations with Mr. Jordan about the 

incident (Tr. 16). 

On cross-examination, Mr. Matney stated that there was 

no doubt in his mind that he did not speak with Mr. Jordan on 

August 24 while at the mine. He stated that according to the 

legal identity files maintained in his MSHA office, Mr. Jordan 

was the president of both the Virginia-West Virginia Coal 

Company and the Raven Red Ash Coal Company, and that when he 

550 
filed his reports Mr. Jordan was listed as the corporate president of both companies (Tr. 16-18). 

Mr. Matney stated that a remote controlled miner was 

used to cut the pillar block of coal which he observed on 

August 24. One cut of coal approximately 20-feet wide by 

20-feet deep had been taken out of the pillar and jacks had 

been set and a roof bolter was present and was about to begin 

the roof bolting cycle. He issued the citation because additional roof supports were required to be installed due to the 

subnormal roof conditions which resulted from not leaving 

enough coal for roof support. He drew a diagram of the block 

of coal being mined, and he explained how the pillar was cut 

and split and bolted and timbered (deposition exhibit-A; Tr. 

22-26). 

Mr. Matney stated that the respondent had no advance 

knowledge that he would inspect the mine on August 24, and 

that it is illegal for anyone to advise an operator of a· 

scheduled inspection. He stated that at the time he observed 

the pillar which had been cut, no roof bolting had actually 

taken place, but the safety jacks had been set and the roof 

bolting machine was in place ready to bolt the roof (Tr. 27). 

Mr. Matney stated that the last previous inspection of 

the mine was probably conducted 2 months prior to August 24, 

but he could not recall whether pillar work had been done at 

that time. Although he issued a citation for dislodged roof 

bolts during his August inspection, he could not recall issuing any citations during his previous inspection (Tr. 29). 

The dislodged bolts in question were in a crosscut hallway, 

and he explained that they are usually dislodged because the 

miner is too big for the low coal being mined (Tr. 30). 

Mr. Matney stated that he did not discuss the respondent's pillar extraction procedures with Mr. Brewster, and he 

confirmed that because of the roof falls he could not determine whether roof bolting had been done during prior shifts. 

He stated that such falls are ·normal in pillar retrieval mining and that the roof is supposed to fall (Tr. 32). Mr. Matney 

reiterated that he heard Mr. Brewster state that if Mr. Sweeney 

fired Mr. Collins and Mr. Kennedy because of their refusal to 

work under unsupported roof, they would get their jobs back 

(Tr. 33). 

Mr. Matney stated that a wing of coal could be mined in 

25 minutes, and that it would take approximately 2 to 3 hours 

to mine a pillar. Two working shifts could probably extract 

five pillars of coal. He explained that the roof is falling 

551 
behind the areas where the coal has been extracted. Timbers 

are a means of temporary support for the roof, and after the 

coal is extracted roof bolts and timbers will not support the 

weight of the roof, and any resulting roof falls are "controlled falls" (Tr. 37}. He believed it was possible or probable to pull a number of pillars over a period of time without 

installing roof bolts, but he would not recommend it (Tr. 38). 

Findings and Conclusions 

In order to establish a prima facie case of discrimination 

under section 105(c) of the Mine Act, a complaining miner bears 

the burden of production and proof to establish (1) that he 

engaged in protected activity and (2) that the adverse action 

complained of was motivated in any part by that activity. 

Secretary on behalf of Fasula v. Consolidation Coal Company, 

2 FMSHRC 2768, (1980), rev'd on other grounds sub. nom. 

Consolidation Coal Company v. Marshall, 663 F.2d 1211 C3d Cir. 

1981); and Secretary on behalf of Robinette v. United Castle 

Coal Company, 3 FMSHRC 803 (1981). Secretary on behalf of 

Jenkins v. Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984). 

The operator may rebut the prima facie case by showing either 

that no protected activity occurred or that the adverse action 

was in no way motivated by protected activity. If an operator 

cannot rebut the prima facie case in this manner it may nevertheless affirmatively defend by proving that (1) it was also 

motivated by the miner's unprotected activities alone. The 

operator bears the burden of proof with regard to the af firmative defense. Haro v. Magma Copper Company, 4 FMSHRC 1935 

(1982). The ultimate burden of persuasion does not shift 

from the Complainant. Robinette, supra. See also Boich v. 

FMSHRC, 719 F.2d 194 (6th Cir. 1983); and Donovan v. Stafford 

Construction Company, No. 83-1566, D.C. Cir. (April 20, 1984) 

(specifically-approving the Commission's Fasula-Robinette 

test). See also NLRB v. Transportation Management Corporation, 

U.S. , 76 L.Ed.2d 667 (1983). 

The issue in this case is whether or not the complainants 

were discharged by the respondent because of their reluctance 

or refusal to perform work as scoop operator.s under unsupported roof. MSHA's position is that the complainants were 

fired for refusing to work under unsafe roof conditions (Tr. 

248 and posthearing brief). Although the respondent did not 

file any posthearing arguments, I assume from the arguments 

made by counsel on the record during the course of the hearing 

in this case that its position is that the complainants either 

quit their jobs voluntarily or they were discharged by second 

shift foreman Hubert Sweeney because of their "goofing off" on 

the job or refusing "to pull coal." 

552 
The respondent produced no mine records documenting the 

separation of the two complainants •. Mr. Jordan testified 

that Mr. Brewster told him that the two had quit, and that 

Inspector Matney told him that they were fired by Mr. Sweeney 

"for refusing to pull coal" (Tr. 220-221). Mr. Jordan was 

also of the opinion that the two men quit (Tr. 229). 

During his direct testimony, Mr. Brewster testified that 

Mr. Sweeney told him that he fired Mr. Kennedy because "he 

did not want to pull coal, 11 and that Mr. Collins simply quit. 

On cross-examination, Mr. Brewster stated that Mr. Sweeney 

told him that he told Mr. Collins and Mr. Kennedy to "go on 

to the house," and that he (Brewster) was led to believe that 

Mr. Kennedy and Mr. Collins did not want to pull coal and 

that Mr. Sweeney told them to go home because they were "goofing off." 

Mr. Sweeney's testimony as to whether he fired Mr. Collins 

and Mr. Kennedy, or whether they quit is inconsistent. 

Mr. Sweeney first testified that he fired the two for "goofing 

off" after he observed them sitting in their equipment talking. 

He then testified that he told at least one other man on the 

shift that the two had quit and that he told Mr. Brewster that 

they had quit and that he had fired them. When specifically 

asked whether he had fired them or whether they quit, 

Mr. Sweeney responded "Well, I guess you'd call it firing them. 

They just took off going on outside. I guess you'd call it 

firing them" (Tr. 168). 

Mr. Sweeney admitted that when he was interviewed by an 

MSHA inspector on September 20, 1984, during the investigation of the discrimination. complaints, he told the inspector 

that Mr. Collins and Mr. Kennedy quit their jobs, and that he 

(Sweeney) had no knowledge as to why they quit. Mr. Sweeney's 

prior denials of any knowledge as to why the two complainants 

left their jobs raises a question in my mind as to his credibility. If Mr. Sweeney had just cause to discharge the 

complainants, it seems to me that h.e would have told the 

investigating inspector his side of the story as to why the 

two men left their jobs rather than denying any knowledge of 

the incident. 

Both Mr. Kennedy and Mr. Collins were consistent in their 

assertions that they had been fired by Mr. Sweeney. The statements to this effect, made to Inspector Matney and Mr. Brewster 

the day following their termination, are consistent, and both 

Mr. Brewster and Mr. Matney confirmed that Mr. Kennedy and 

Mr. Collins told them that Mr. Sweeney fired them. Further, 

553 
their testimony during the hearing that they had been fired by 

Mr. Sweeney is likewise consistent. 

After careful consideration of all of the testimony in 

this case, I conclude and find that on August 23, 1984, 

Mr. Collins and Mr. Kennedy were fired from their jobs as 

scoop operators by Mr. Hubert Sweeney, respondent's second 

shift foreman, and that their termination was not the result 

of voluntary quits on their part. 

Mr. Brewster confirmed that he had never received any 

complaints about the complainants' work performance. He confirmed that he initially hired Mr. Kennedy because of his 

reputation as a good scoop man, and that Mr. Collins was hired 

because he had worked at the mine in a previous occasion and 

Mr. Brewster believed that he could operate a scoop (Tr. 156). 

Mr. Sweeney testified that the complainants had only worked 

for him for 2 or 3 days before they were terminated, and he 

was under the impression that they did not want to work ·(Tr. 

169). Other than this opinion by Mr. Sweeney, there is no 

evidence that the complainants were other than good employees, 

nor is there any evidence that they had ever complained to 

mine management or to any MSHA inspectors about any hazardous 

job conditions or safety infractions. 

During the course of the hearing, mine operator Jordan 

suggested that since Inspector Matney had just been underground and ass~red him that "everything looked fine," the 

assertions by the complainants that they were asked or 

required to work under unsupported roof is incorrect. However, I take note of the fact that Mr. Sweeney did not advise 

management that he terminated the complainants until the next 

day. Significantly, after Mr. Jordan and Mr. Brewster were 

made aware of the terminations, and after Inspector Matney 

advised Mr. Brewster of the possibl·e ramifications of the 

terminations, including a possible discrimination complaint 

by the complainants, Mr. Jordan and Mr. Brewster did not go 

underground to ascertain the facts or to determine or attempt 

to determine whether the area where the two individuals were 

working was in fact roof bolted. Mr. Brewster and Mr. Jordan 

apparently opted to believe Mr. Sweeney's explanation that he 

fired the complainants because they did not want to work. I 

find it rather strange that mine management, once alerted by 

a Federal inspector on the scene of the possible ramifications 

of the discharge, would not immediately ascertain all of the 

facts so as to protect itself from any possible discrimination 

claims. 

554 
Mr. Brewster worked the day shift and he would not be in 

a position to observe the working conditions during the evening shift which was supervised by Mr. Sweeney (Tr. 149-150). 

Mr. Brewster conceded that it was possible that the night 

shift could have been mining and splitting pillars without 

roof bolting {Tr. 150). However, since he was not underground 

during the night shift, he would have no way of personally 

knowing that this was the case, and he stated that no one on 

the night shift, including Mr. Collins or Mr. Kennedy, ever 

complained to him about the lack of roof bolting or hazardous 

conditions (Tr. 154-155). 

Mr. Jordan testified that he may have been underground 

once every 3 or 4 months in response to calls from the superintendent concerning adverse mining conditions CTr. 219). He 

confirmed that due to his absence from the underground mine 

on a day-to-day basis, he would have no way of knowing how 

Mr. Sweeney operated the section. While it was possible that 

Mr. Collins and Mr. Kennedy are correct in their assertions 

that pillars were pulled without roof support, Mr. Jordan 

stated that he had no personal knowledge that this was the 

case (Tr. 230-231). 

Mr. Brewster asserted that during the period from 

August 14 to 23, 1984, the roof bolter was used on the first 

day shift. He also asserted that his two sons worked on that 

shift as a scoop operator and mechanic's helper, and that he 

would not jeopardize their safety by requiring them to work 

under unsupported roof. While these assertions may be true, 

the fact is that Mr. Collins and Mr. Kennedy worked the evening shift under Mr. Sweeney's supervision, and Mr. Brewster 

had no knowledge as to how Mr. Sweeney worked his shift. 

Under the circumstances, I find Mr. Brewster's assertions as 

to what may have transpired during his day shift to be irrelevant to the question concerning what Mr. Sweeney expected his 

shift to do, or whether or not the claims by Mr. Collins or 

Mro Kennedy that they were expected to work under unsupported 

roof are supportable by credible evidence. 

Mr. Jordan claimed that he spoke with Mr. Matney after 

discussing the matter with Mr. Brewster, and that Mr. Brewster 

informed him that the two men were going to file a complaint. 

Mr. Jordan also stated that Mr. Brewster advised him that 

Mr. Sweeney had fired Mr. Collins and Mr. Kennedy for "refusing to pull coal." Given these circumstances, I find it 

rather peculiar that Mr. Jordan did not go underground to 

ascertain precisely what had happened. If all of the principals were readily available a day after the discharge, it 

occurs to me that the natural thing for Mr. Jordan to have 

555 
done was to go underground with the inspector while the events 

were fresh in everyone's mind in order to view the areas which 

had been mined on the second shift the day before in order to 

ascertain all of the facts. Further, since Mr. Collins and 

Mr. Kennedy were readily available at the mine on August 24, I 

also find it rather peculiar that Mr. Jordan did not speak 

with them to ascertain their side of the events leading to 

their termination. I also find it rather strange that neither 

Mr. Jordan or Mr. Brewster spoke with any other members of 

Mr. Sweeney's shift to ascertain all of the facts. None of 

these individuals were called to testify on behalf of the 

respondent. 

Mr. Jordan explained that he made no further inquiry 

because he assumed that Inspector Matney's comments that his 

inspection on August 24 detected nothing wrong with the conditions underground led him to believe that everything "had to 

be right" (Tr. 263). Mr. Matney denied speaking to Mr. Jordan 

when he encountered Mr. Collins and Mr. Kennedy at the mine 

office the day following the discharge. During their testimony, Mr. Brewster, Mr. Collins, and Mr. Kennedy did not mention that Mr. Jordan was present at the mine office on 

August 14, when Inspector Matney encountered the two men, and 

Mr. Brewster stated that he spoke with Mr. Sweeney after 

Mr. Collins and Mr. Kennedy left (Tr. 153). Mr. Matney testified that there was no doubt in his mind that he did not speak 

to Mr. Jordan on August 24, 1984. 

Mr. Jordan stated that he could ascertain from the mine 

map and work shift records the mine areas which had been mined 

during the period August 3 to 24, 1984. I assume that those 

records would reflect the mine conditions in those areas, and 

that they would also possibly reflect whether or not certain 

areas had been bolted as the mining sequence took place. However, the respondent produced no records in this regard, nor 

did it call any witnesses for testimony in this case. All of 

the witnesses were either subpoenaed or called by MSHA, and 

Mr. Jordan, who was present at the hearing, was called as the 

court's witness. Although Mr.· Sweeney mentioned that two other 

miners were present on the shift when he fired Mr. Collins and 

Mr. Kennedy, they were not called as witnesses, and the respondent produced no testimony or evidence from any other miners 

who may have also worked on the evening shift when Mr. Collins 

and Mr. Kennedy were fired. 

In view of the foregoing, I have given little consideration to Mr. Jordan's defense that Inspector Matney assured 

him that everything was in order underground on the morning 

after the terminations. While it is true that Mr. Matney was 

556 
underground on the morning after the terminations of 

Mr. Collins and Mr. Kennedy, he testified that he could not 

tell whether any roof bolting had been done because pillar 

work had begun in a new area and he could not safely observe 

what had been done on prior shifts because the roof had 

fallen in up to the pillar break line. 

I have also given little weight to the testimony by 

Mr. Jordan and Mr. Brewster with regard to the roof bolting 

practices or other conditions which may have existed on the 

second shift during the periods when the complainants were 

working on that shift. For the reasons stated earlier, I 

conclude and find that Mr. Brewster and Mr. Jordan had little 

or no presence underground during the second working shift 

and were in no position to personally observe any of the prevailing working or mine conditions during that shift. 

Complainant Larry Collins testified that during his 

employment on the second shift, entire coal pillars were· mined 

without any roof bolts ever being installed, and that this was 

a common practice. Complainant Earl Kennedy testified that 

during his employment on the second shift a roof bolter was 

present on the section but it was backed up out of the way and 

he never observed it being used to install roof bolts while 

the pillar splits were being mined. 

Terry Kennedy, Earl's brother, testified that for the 

2 days he worked on the second shift on August 13 and 14, 

1984, no roof bolts were ever installed and the roof bolting 

mahine was never used. Terry Kennedy testified further that 

while no one ever directed him to work under unsupported roof, 

he did so anyway "to keep his job." He also asserted that he 

told Mr. Sweeney that the safety of the miners was being jeopardized by not roof bolting, and that Mr. Sweeney replied that 

since the mine was a small operation they "could get by with 

just about anything." 

Jerry Kennedy, who is unrelated to the complainant, testified that during his employment on the second shift from 

August 13 to 23, 1984, he never observed the roof bolter in 

use or the roof being bolted. He testified that the pillars 

would be mined through to the end without any pillar roof 

bolting taking place, and that he observed scoop operators go 

under unsupported roof, and that this was a "common 

occurrence." 

Bobby Mullins, who work the day shift as a pinner helper, 

testified that during his employment underground for 3 weeks 

557 
in August, 1984, he never observed the roof bolter in use 

installing roof bolts on the pillars. 

The only testimony which directly contradicts the testimony of the complainants and the two corroborating witnesses 

who worked the same shift as the complainants with respect.to 

whether or not roof bolting was ever done during the retreat 

pillar extraction process on the second shift is that of 

second shift foreman Hubert Sweeney. Mr. Sweeney testified 

that the roof was always bolted in accordance with the roof 

plan. 

Mr. Sweeney confirmed that during MSHA's investigation 

of the complainants, he told MSHA special investigator Dewey 

Rife that Mr. Collins and Mr. Kennedy quit their jobs and 

that he (Sweeney) did not know why they had quit. At the 

hearing, Mr. Sweeney testified that he did not know why the 

complainants had quit and later admitted that he fired them 

for "goofing off" or not wanting to work. I find Mr. Sweeney's 

testimony to be inconsistent, and his failure to fully disclose 

to the special investigator all of the relevant facts concerning the terminations leads me to conclude that his testimony in 

this case is less than credible. Further, Mr. Sweeney was the 

second shift foreman and the safety of his crew was his responsibility. In these circumstances, I believe it is reasonable 

to conclude that any testimony by Mr. Sweeney must be viewed in 

light of a natural interest on his part not to put himself in a 

position of being held personally accountable for any adverse 

results which may flow from exposing miners to hazardous mining 

conditions or practices, or from any ~laims of discriminatory 

discharges. 

After careful consideration of all of the testimony 

regarding the asserted absence of any roof bolting on the 

second shift during the complainants employment with the 

respondent, I find the testimony of the complainants and the 

corroborating witnesses to be credible and it supports a conclusion that roof bolting was not being accomplished on the 

second shift during all times relevant to the complaint. 

During their employment at the mine on the second shift 

the complainants were working in low coal and were engaged in 

retreat coal pillar extraction. Such pillar extraction is in 

itself potentially more hazardous than normal mining because 

it includes self-induced roof falls behind the areas from 

which the coal has been removed, and the full natural roof 

support of the coal pillar which at one time served to support 

the roof has been removed or lessened because of the removal 

of the coal. 

558 
Mr. Kennedy testified that while operating his scoop he 

would be lying on his back, and Mr. Sweeney stated that after 

speaking with Mr. Collins and Mr. Kennedy underground about 

their "chit-chatting," he had to "crawl" out of the area on 

his hands and knees. Mr. Brewster testified that because of 

the low coal it was not unusual for roof bolts to become dislodged. Under all of these circumstances, I believe it is 

reasonable to conclude that the low coal heights posed an 

additional potential hazard to the complainants who were 

expected to work in these areas. Coup·led with my fin ding 

that roof bolting was not being done during the pillar extraction process on the second shift, I conclude that during their 

employment on the second shift, the complainants were exposed 

to a serious hazard of a potential unplanned roof fall with 

resulting serious injuries. 

Since I have concluded that the pillar splits were not 

roof bolted on the second shift during the complainants'· 

employment on that shift, I also conclude and find that as 

scoop operators, Mr. Kennedy and Mr. Collins were necessarily 

required to work under unsupported roof and that section foreman Sweeney expected them to. In addition to the testimony 

of Mr. Collins and Mr. Kennedy that they were under unsupported roof when they operated their scoops, Mr. Brewster confirmed that assuming the pillars were not bolted, the scoop 

operators would be operating under unsupported roof. During 

his explanation of the respondent's roof-control plan and the 

procedures for pillar extraction, Inspector Clevenger stated 

that the cutting of a pillar for a distance of 20 feet without 

pulling out and bolting would violate the respondent's roofcontrol plan, and if the scoop operators worked the entire 

40-foot pillar continuously with no bolting taking place, they 

would be 4 to 6 feet past permanent roof supports. Scoop operator Jerry Kennedy (not related to Earl), testified that it 

was a common occurrence for scoop operators to work under 

unsupported roof on the second shift. 

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

work is protected under section 105(c)(l) of the Act if it 

results from a good faith belief that the work involves safety 

hazards, and if the belief is a reasonable one. Secretary of 

Labor/Pasula v. Consolidation Coal Company, 2 FMSHRC 2786, 

2 BNA MSHC 1001 (1980), rev'd on other grounds, sub norn 

Consolidation Coal Company v. Marshall, 663 F.2d--r2°ll"C3rd Cir. 

1981); Secretary of Labor/Robinette v. United Castle Coal 

Company, 3 FMSHRC 803, 2 BNA MSHC 1213 (1981); Bradley v. Belva 

Coal Company, 4 FMSHRC 982 (1982). Secretary of Labor v. 

Metric Constructors, Inc., 6 FMSHRC 226 (Feb. 1984), aff'd sub 

559 
nom., Brock v. Metric Constructors, Inc., 3 MSHC 1865 

(11th Cir. 1985). Further, the reason for the refusal to work 

must be communicated to the mine operator. Secretary of 

Labor/Dunmire and Estle v. Northern Coal Company, 4 FMSHRC 126 

(1982). 

I find the testimony of the complainants that they 

informed shift foreman Sweeney on August 23, 1984, that they 

would not continue to work under unsupported roof to be credible. Mr. Collins testified that at the time of the refusal, 

the roof was cracking and popping. Mr .• Kennedy stated that 

prior to his work refusal, he observed a dislodged roof bolt 

and a large rock approximately 30 feet long which had slipped 

down with the bolt. After Mr. Sweeney "shimmed out the roof 

bolt," he instructed Mr. Kennedy to continue working his scoop 

beyond the slipped rock and up to the miner, but Mr. Kennedy 

refused. Mr. Collins testified that after discussing the situation further, he informed Mr. Kennedy that he would no longer 

work under unsupported roof, and that he and Mr. Kennedy· so 

informed Mr. Sweeney. 

Mr. Sweeney confirmed that he observed Mr. Kennedy and 

Mr. Collins sitting in their scoops at the pillar break carrying on a discussion. He then confronted them, and after some 

discussion, the two men left the mine. Mr. Sweeney subsequently first testified that he informed Mr. Brewster that the 

two had quit for no reason. He then testified that he informed 

Mr. Brewster that he had fired them for "goofing off." 

Mr. Brewster's subsequent offers to Mr. Kennedy and Mr. Collins 

to come back to work raises a strong inference in my mind that 

Mr. Brewster had some doubts about their termination, and that 

their contention that they were fired for refusing to work 

under unsupported roof has a ring of truth about it. 

As discussed earlier, at the time of the discharges, the 

conditions which existed while the complainants were engaged in 

pillar extraction work presented a serious hazard of a potential unplanned roof fall. Further, Mr. Collins testified that 

he previously experienced rock falling on his scoop, that he 

was required to operate the scoop with malfunctioning lights, 

and that the roof was cracking and popping. Mr. Kennedy testified that a large rock had slipped out of the roof at the point 

where the roof had been bolted at the pillar break, and Terry 

Kennedy testified that he had previously informed Mr. Sweeney 

that the lack of roof bolting on the pillars was jeoparadizing 

the safety of the miners. Given all of these circumstances, I 

560 
conclude and find that the complainants refusal to continue to 

work under unsupported roof on August 23, 1984, was justified. 

I further conclude and find that the complainants had a good 

faith, reasonable belief that continuing to work inby permanent 

roof support was hazardous. 

The record in this case establishes that the complainants 

were satisfactory employees and had never been disciplined 

about their work. As a matter of fact Mr. Brewster confirmed 

that he hired them because of their reputation as good scoop 

operators. Further, there is no evidence that the complainants 

ever filed any safety complaints with MSHA or with mine 

management, or that they were considered troublemakers or 

malingerers. 

The testimony and statements of Mr. Sweeney and 

Mr. Brewster concerning the termination of the complainants 

is inconsistent, and I have given it little weight. As indicated earlier, Mr. Sweeney's testimony that the two men quit, 

and his later statement that he fired them casts doubts as to 

his credibility. Likewise, Mr. Brewster's prior statements 

to the MSHA investigator, and his testimony at the hearing, 

indicates an inconsistency as to his understanding of whether 

the complainants were fired for cause or voluntarily quit 

their jobs. Contrasted with this testimony, is the consistent statements of the complainants, both during the hearing, 

and in their prior contacts with the MSHA investigator, 

Inspector Matney, and mine management, that they were fired 

by Mr. Sweeney because they refused to work under unsupported 

roof. 

I conclude and find that the preponderance of the evidence and testimony adduced in this proceeding establishes 

that Mr. Kennedy and Mr. Collins were fired by shift foreman 

Sweeney because of their refusal to continue to work as scoop 

operators under unsupported roof. I further conclude and 

find that the work refusal by the two complainants was protected activity under the Act, and that their discharge by 

the respondent for this reason constitutes a violation of 

section 105(c)Cl) of the Act. 

The Relief Due the Complainants 

Mr. Kennedy testified that after his discharge by the 

respondent on August 23, 1984, he was unemployed for approximately a month and a half. He then found a job with the 

Cumberland Coal Company earning $80 a shift, and worked there 

for 5 weeks. He then went to work for the Tripple G coal 

Company earning $70 to $110, but was subsequently laid off 

561 
and has been unemployed since September 1, 1985 (Tr. 81-94). 

He worked continuously for Cumberland and Tripple G, until 

his lay off from the latter company, and then worked for 

approximately a month and a half at the Rookie Coal Company 

until his lay-off on September 1, 1985 (Tr. 94). 

Mr. Collins testified that after his discharge by the 

respondent on August 23, 1984, he attempted to find other 

employment but could not find a job until April, 1985. He 

confirmed that he received no unemployment benefits because 

he had used up all of his eligibility.for such benefits. He 

stated that he found a job in April, 1985, with the Coon 

Branch Construction Company where he is presently employed 

earning $80 per shift. Prior to this current employment, he 

worked for 2 weeks with the Bartlett Tree Trimming Company 

earning $4 an hour, but was laid off (Tr. 68-69). 

The respondent opted not to file any posthearing arguments or to otherwise file any arguments mitigating its . 

liability in these proceedings. In its posthearing brief, 

MSHA asserts that the remedial goal of section 105(c) is "to 

restore the [victim of illegal discrimination] to the situation he would have occupied but for the discrimination." 

Bailey v. Arkansas-Carbon Co. & Walker, 3 MSHC 1145, 1150 

Cl983)~ Secretary on behalf of Dunmire and Estle v. Northern 

Coal Co., 2 MSHC 1585, 1595 Cl982). MSHA states that unless 

compelling reasons point to the contrary, the full measure of 

reli should be granted to an improperly discharged employee, 

including back pay with interest. Bailey v. Arkansas-Carbona 

Co. & Walker, at 1150-1151. Since in this case the complainants were fired for engaging in protected activity, MSHA 

asserts that they must be made whole for any loss they suffered as a result of the discrimination, including full back 

pay. MSHA points out that the respondent bears the burden of 

proof with regard to any allegation of willful loss of pay. 

Secretary v. Metric Constructors, Inc., 3 MSHC 1259, 1265 

(1984), aff'd sub nom. Brock on behalf of Parker v. Metric 

Constructors, me.~ MSHC 1865 {11th Cir. 1985). 

MSHA points out that at the time Mr. Brewster offered 

the complainants their jobs back, they rejected the offer 

because they believed Mr. Sweeney would again require them to 

work under unsupported roof. Mr. Collins testified that when 

Mr. Brewster offered to take them back, he stated "We'll forget thi's ever happened." When Mr. Collins questioned whether 

they would again be required to work under unsupported roof, 

562 
Mr. Brewster responded "that's the way we do it" (Tr. 57), 

and when Mr. Collins asked for another work assignment, 

Mr. Brewster refused. 

Mr. Kennedy testified that he and Mr. Collins advised 

Mr. Brewster that they would take their jobs back as long as 

they were not required to work under unsupported roof. He 

stated that Mr. Brewster replied "that 1 s the way we always . 

work," and that if they did not return to work they did not 

have a "leg to stand on" (Tr. 91). 

I take note of the fact that at the time Mr. Brewster 

made the of fer to the complainants to return to work, he did 

so in the presence of an MSHA inspector and after an inquiry 

by the inspector as to whether the complainants had in fact 

been fired for refusing to work under unsupported roof. 

Mr. Brewster testified that when he made the offer, the complainants refused and commented that the company would find 

another excuse to fire them. Mr. Brewster also testified 

that when he made the offer, it was contingent on his speaking with Mr. Sweeney to ascertain why he had fired the complainants. He subsequently was told by Mr. Sweeney that the 

complainants were fired for "goofing off," and he obviously 

believed Mr. Sweeney's version of the incident. 

In view of the foregoing, I agree with MSHA's arguments 

that the reluctance of the complainants to accept 

Mr. Brewster's conditional offer to return to work, in the 

circumstances then presented, did not constitute a willful 

loss of pay on their part. I also agree with MSHA that the 

respondent has not established a willful loss or pay which 

would entitle it to mitigate its liability or obligation to 

make the complainants whole. 

Mine operator Jordan testified that the No. 1 Mine was 

completely mined out and closed in March, 1985 (Tr. 227-228). 

He confirmed that his company reopened a new mine on 

October 15, 1985, but he was not aware that any employees who 

worked at the old No. 1 Mine are now employed at his new operation (Tr. 237). The hiring of new employees is left to the 

mine superintendent Leeland Hess, and he identified the mine 

foremen as Jim Cook and Gerald Hess (Tr. 237). 

Mr. Sweeney testified that he is unemployed, and that he 

left his employment with the respondent on March 15, 1985 

(Tr. 161). Mr. Brewster testified that he is currently 

employed by the Vesta Mining Company, and that he left the 

respondent's employ during the last week of March, 1985, 

because the No. 1 Mine "was mining out" (Tr. 110-112). 

563 
The back pay provisions of section 105(c), like the corresponding provisions of Title VII of the Civil Rights Act, 

appear to be modeled on section lO(c) of the National Labor 

Relations Act, 29 u.s.c. § 160(c). Cf. Albemarle Paper Co. 

v. Moody, 422 U.S. 405, 419 (1985). Questions arising under 

it should therefore be resolved by reference to NLRB precedent. Id. The general rule is that back pay is the difference between what the employee would have earned but for the 

wrongful discharge and his actual interim earnings. OCAW v. 

NLRB, 547 F.2d 598 (D.C. Cir. 1976). In practice, this means 

gross pay minus net interim earning equals the award. Respondent, of course, is responsible for complying with applicable 

state and Federal laws on withholding. Cf. Social Security 

Board v. Nieratko, 327 U.S. 358 (1946). 

MSHA asserts that since the respondent did not present 

any evidence that the complainants would have been discharged 

prior to the closing of the mine for non-discriminatory reasons, it has not met its burden of proof, and that back pay 

should be awarded to the complainants at the rate of $70 per 

day for the period from August 23, 1984 until the March 31, 

1985. Taking into account the testimony of Mr. Collins and 

Mr. Kennedy with respect to their periods or unemployment and 

employment subsequent to their discharge, MSHA states that 

Mr. Kennedy is entitled to back-pay compensation in the amount 

of $2,170, with interest, which includes pay for Friday, 

August 24, 1984, and $350 per week for the next 6 weeks. With 

regard to the compensation for Mr. Collins, MSHA states that 

he is entitled to back-pay in the amount of $10,600, with 

interest, which includes pay for Friday, August 24, 1984, and 

$350 per week for the next 31 weeks with a deduction of $320 

for his earnings with the tree trimming company. MSHA states 

that interest for both complainants should be determined in 

accordance with the Commission approved formula set out in 

Secretary, ex rel Bailey v. Arkansas-Carbona Co. & Walker, 

3 MSHC 1145 (1983); 5 FMSHRC 2042, 2050. 

ORDER 

The respondent IS ORDERED to pay to the complainant Earl 

Kennedy the sum of $2,170, less any amounts normally withheld 

564 
pursuant to state and Federal law, with interest to the net 

back-pay award at a rate of 9 percent until it is paid.~/ 

The respondent IS ORDERED to pay to the complainant Larry 

Collins the sum of $10,600, less any amounts normally withheld 

pursuant to state and Federal law, with interest to the net 

back-pay award at a rate of 9 percent until it is paid.l/ 

Payment is to be made to both complainants within thirty 

C30) days of the date of this decision and order. 

Civil Penalty Assessment 

On the basis of my prior findings and conclusions, the 

respondent's discharge of the complainants was in violation 

of section 105(c)(l), and a civil penalty assessment may be 

levied against the respondent for the violations. 

MSHA argues that the violation was very serious, and it 

requests a civil penalty assessment in the range of $1,000 to 

$1,200. I agree that the violations were serious. The respondent's discharge of the complainants for refusing to work 

under unsupported roof constitutes a negligent disregard for 

their safety, and the respondent has advanced no arguments in 

mitigation of the violations. 

The record reflects that the respondent is a small mine 

operator, and the No. 1 Mine is now closed. However, mine 

operator Jordan is still in business and operates other mines. 

The respondent has not established that the payment of a civil 

penalty in the amounts suggested by MSHA will adversely affect 

its ability to continue in business, and I conclude that it 

will not. 

1/ This is the current adjusted prime rate used by the 

Internal Revenue Service for underpayments and overpayments 

of tax. Rev. Ruling 79-366. The NLRB also uses this figure 

to compute interest on back pay awards. Florida Steel Corp., 

231 N.L.R.B. No. 117, 1977-78 CCH NLRB Para. 18,484; North 

Cambria Fuel Co., Inc., v. N.L.R.B., 645 F.2d 177 (3rd Cir. 

1981); Secretary ex rel Bailey v. Arkansas carbona Coal & 

Walker, 5 FMSHRC 2042, 2050 (Dec. 1983). 

565 
MSHA has submitted exhibits C-9 and C-10, two computer 

print-outs listing the assessed violation history for the 

Raven Red Ash Coal Corporation No. l· Mine for the period 

August 23, 1982, to August 22, 1984 (C-9), and the violations 

history for all mines controlled by Mr. David Jordan for the 

period August 23, 1982, to August 22, 1984, (C-10). Exhibit 

C-9 reflects 42 section 104Ca) citations and one section 

104(a)-107{a) order for which the respondent was assessed 

$3,130, and has paid nothing. Exhibit C-10 reflects 157 section 104(a) citations and three orders for which the respondent was assessed $7,069, and has paid· $1,255. 

During the course of the hearing, the respondent objected 

to any consideration of violations issued prior to August 

1984, on the ground that the mine was owned by a different 

corporation, the Virginia and West Virginia Coal Corporation, 

and that Mr. Jordan was not the owner of that company. MSHA 

submitted information to the contrary by letter and enclosures 

of January 9, 1986, and the respondent filed nothing in . 

response to that information and has not rebutted MSHA's assertion that Mr. Jordan was the owner and controller of both corporations. In an order issued by me on February 13, 1986, the 

respondent's objections were overruled, and I concluded that 

the compliance history of the Raven Red Ash Coal Corporation, 

as well as the prior corporate entity for the No. 1 Mine, both 

of which were owned and operated by Mr. Jordan, are relevant 

to any civil penalty assessment levied in this proceeding. My 

interlocutory ruling in this regard is herein REAFFIRMED. The 

respondent has had ample opportunity to challenge, the accuracy 

of the information contained in the computer print-outs, but 

it has not done so. 

I take note of the fact that while the respondent has 

been assessed civil penalties for its prior infractions of 

the mandatory safety standards promulgated by MSHA under the 

Act in Part 75, Title 30, Code of Federal Regulations, it has 

made few payments. According to the computer codes reflected 

on the print-outs, most of the assessments have been the subject of MSHA demand letters for payment, and many have ended 

up as default judgments filed in the United States district 

court. Although Mr. Jordan is still in business and operating other mines, he has apparently failed to meet his obligations in paying civil penalties, and I have considered this 

in the civil penalty assessed for the violation in question. 

I have also considered the fact that the respondent has not 

previously been the subject of discrimination complaints or 

violations of section 105(c)(l) of the Act. 

566 
In view of the foregoing, and after consideration of the 

civil penalty criteria found in section llO(i) of the Act, I 

conclude and find that a civil penalty assessment of $1,000 

is reasonable and appropriate for the violations which are 

the subject of these proceedings. 

ORDER 

The respondent IS ORDERED to pay a civil penalty in the 

amount of $1,000 for the violations in question, and payment 

is to be made to MSHA within thirty {3.0) days of the date of 

this decision and order. 

.,/'~~istrative ~~~ Law Judge 

Distribution: 

Sheila K. Cronan, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Room 1237A, 

Arlington, VA 22203 (Certified Mail) 

Daniel R. Bieger, Esq., Copeland, Molinary & Bieger, P.O. 

Box 1296, Abingdon, VA 24210 (Certified Mail) 

/f b 

567 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 8, 1986. 

JIM WALTER RESOURCES, INC., 

Contestant 

: CONTEST PROCEEDING 

: 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

: Docket No. SE 85-36-R 

Order No. 2482922: 12/4/84 

. 

. 

: No. 4 Mine . . 

. 

. 

. . 

: CIVIL PENALTY PROCEEDINGS 

: 

Docket No. SE 85-62 

A.C. No. 01-01247-03641 

Docket No. SE 85-123 

: A.C. No. 01-01247-03664 

: 

No. 4 Mine 

: Docket No. SE 85-109 

A.C. No. 01-01401-03597 

. . 

Docket No. SE 85-124 

A.C. No. 01-01401-03607 

No·. 7 Mine 

DECISIONS 

Appearances: 

Before: 

Robert Stanley 'Morrow and Harold D. Rice, 

Esqs., Jim Walter Resources, Inc., Birmingham, 

Alabama, for Contestant/Respondent; 

George D. Palmer, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Birmingham, Alabama, for 

Respondent/Petitioner. 

Judge Koutras 

568 
Statement of the Proceedings 

These proceedings concern civil penalty proposals filed 

by the petitioner against the respondent pursuant to section 

llOCa) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 820(a), seeking civil penalty assessments for 

four alleged violations of certain mandatory safety standards 

found in Part 75, Title 30, Code of Federal Regulations. 

Docket No. SE 85-36-R is a contest filed by Jim Walter 

Resources, Inc., challenging the legality of section 104(d)(2) 

Order No. 2482922, which is the subject of civil penalty 

Docket No~ SE 85-62. 

The respondent filed timely answers contesting the proposed civil penalties and hearings were held in Birmingham, 

Alabama. The parties waived the filing of posthearing proposed findings and conclusions. However, all oral arguments 

made by counsel on the record during the course of the hearings have been considered by me in the adjudication of these 

cases. 

Issues 

The critical issue presented in these proceedings is 

whether or not the respondent is obliged to maintain its ventilation line curtains within 10 feet of all faces, or only 

the working faces from which coal is being extracted or was 

most recently extracted. 

In determining the amount of a civil penalty assessment, 

section llO(i) of the Act requires consideration of the following criteria: Cl) the operator's history of previous violations, (2) the appropriateness of such penalty to the size 

of the business of the operator, (3) whether the operator was 

negligent, (4) the effect on the operator's ability to continue in business, (5) the gravity of the violation, and (6) 

the demonstrated good faith of the operator in attempting to 

achieve rapid compliance after notification of the violations. 

1. 

Pub. L. 

2. 

3. 

4. 

Applicable Statutory and Regulatory Provisions 

The Federal Mine Safety and Health Act of 1977, 

95-164, 30 u.s.c. § 801 et ~· 

Section llQ(i) of the 1977 Act, 30 u.s.c. § 820Ci). 

30 C.F.R. § 75.316. 

Commission Rules, 29 C.F.R. § 2700.l et seg. 

569 
Stipulations 

The parties stipulated to the f·ollowing: 

1. The respondent is the owner and operator of the subject mine. 

2. The respondent and the mine are subject to the jurisdiction of the Federal Mine 

Safety and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction in these cases. 

4. The MSHA Inspectors who issued the 

subject orders or citations were authorized 

representatives of the Secretary. 

5. A true and correct copy of the subject orders or citations were properly served 

upon the respondent. 

6. Copies of the subject orders or citations and determinations of violations at 

issue are authentic and may be admitted into 

evidence for purpose of establishing their 

issuance, but not for the purpose of establishing the truthfulness or relevance of any statements asserted therein. 

7o The imposition of civil penalties in 

these cases will not affect the respondent's 

abili~y to continue in business. 

8. The alleged violations were abated in 

good faith. 

9. The respondent's history of prior 

violations is average. 

10. The respondent is a medium-size mine 

operator. 

The violations in issue in these proceedings are as 

follows: 

570 
Docket Nos. SE 85-62 and SE 85-36-R 

Section 104Cd)(2) 11 S&S 11 Order No. 2482922, was issued at 

2:10 p.m., on December 4, 1984, and it cites a violation of 

mandatory safety standard 30 C.F.R. § 75.316. The condition 

or practice is described as follows: 

The companies (sic) approved ventilation 

plan was not being complied with in that the 

curtain line in No. 2 entry on the No. 13 section measured 24 feet from the face. They had 

turned a crosscut from the No. 2 entry toward 

the No. 1 entry on the curtain line side leaving the No. 2 entry 24 feet from the deepest 

penetration. The companies Csic) approved 

ventilation plan states that the line brattice 

shall be maintained within 10 feet of the area 

of deepest penetration of all faces in all 

working places inby the last open crosscut at 

all times, except while roof bolting and servicing as stated in the plan. 

Docket No. SE 85-109 

Section 104(d)(2) 11 S&S 11 Order No. 2481092, was issued at 

11:02 a.m., on April 8, 1985, and it cites a violation of 

mandatory safety standard 30 C.F.R. § 75.316. The cited condition or practice is described as follows: 

The current approved ventilation methane 

and dust control plan was not being complied 

with on the No. 11 section (011-0) in that the 

line curtain was 19 feet from the point of 

deepest penetration of the face of the No. 2 

entry. The plan requires line· curtain be maintained within 10 feet of all working places 

inby the last open crosscut at all times. 

Docket No. SE 85-124 

Section 104(a) "S&S" Citation No. 2347351, was issued at 

2:20 p.m., on April 13, 1985, and it cites a violation of 

mandatory safety standard 30 C.F.R. § 75.503. The condition 

or practice is described as follows: 

The Joy model 12, S/N 3524 and approval 

No. 2G-33344A-00 being operated in the faces 

of the No. 6 active section to cut and load 

coal from these faces was not being maintained 

571 
in permissible condition in that an opening in 

excess of .004 inches was observed in the lid 

of the control box. 

Section 104(d)(2) "S&S" Order No. 2482911, was issued at 

6:00 a.m., April 13, 1985, and it cites a violation of mandatory safety standard 30 C.F.R. § 75.316. The condition or 

practice is described as follows: 

The current approved ventilation and methane and dust control plan was not being complied with in the No. 3 entry on the No. 6 

section. The line brattice was measured to be 

34 feet from the face of the No. 3 entry. The 

plan states that line brattice shall be maintained to within 10 feet of the area of deepest 

penetration of all faces in all working places 

inby the last open crosscut at all times except 

while roof bolting. Roof bolting was not being 

performed in the entry and a distance greater 

than 10 feet has not been granted by the MSHA 

District Manager. 

Docket No. SE 85-123 

Section 104(d)(2) "S&S" Order No. 2346556, was issued at 

9:40 a.m., on April 15, 1985, and it cites a violation of 

mandatory safety standard 30 C.F.R. § 75.316. The cited condition or practice is described as follows: "The approved 

ventilation methane and dust-control plan was not being complied with in the No. 5 entry crosscut right in that the line 

brattice was 17 feet from the face. The approved plan 

requires that line brattice be maintained to within 10 feet 

of all working places." 

The parties stipulated that the issue concerning the 

alleged violations of mandatory safety standard 30 C.F.R. 

§ 75.316, and the contestant/respondent's approved ventilation and methane and dust-control plan are identical to the 

issue presented in the case of MSHA v. Jim Walter Resources 

Inc., Docket No. SE 85-42, decided by on 

September 27, 1985, 7 FMSHRC 1471. The parties agreed that 

the issue presented is that stated by Judge Broderick at 

7 FMSHRC 14 74, as follows: "Whether respondent is obliged to 

maintain line curtain within 10 feet of all faces, or only 

the face from which coal is being extracted or was most 

recently extracted?" 

572 
The parties also stipulated and agreed that the 11 face 11 

issues with respect to the ventilation plans in all of these 

cases are identical and that my dispositive determination of 

this issue in Docket No. SE 85-109, is dispositive of all of 

the subject cases. The parties also agreed and stipulated 

that the alleged violations are accurately deacribed and evaluated in the appropriate sections of the respective orders and 

that the preconditions of the respective orders (unwarrantable 

failure, no 11 clean11 inspection, etc.) are met if the "face" 

issue determination is made in favor of MSHA's-Position. 

In the prior decision by Judge Broderick, he concluded 

that the respondent was in violation of its approved ventilation plan by failing to maintain line curtain within 10 feet 

of the face in the No. 3 entry on the No. 4 section in the 

No. 4 Mine. His dispositive ruling (conclusion of law) is 

stated as follows at 7 FMSHRC 1474-1475: 

3. The approved ventilation, methane and 

dust control plan in effect at the subject 

mine on November 13, 1984 required that line 

curtains be maintained within 10 feet of all 

faces in all working places. A "coal face" is 

defined in A Dictionary of Mining, Mineral and 

Related Terms, U.S. Department of the Interior 

( 19 68 > as 

a. The mining face from which 

coal is extracted by longwall, 

room, or narrow stall system. 

Nelson. b. A working place in a 

colliery where coal is hewn, won, 

got, gotten from the exposed face 

of a seam by face workers. 

Pryor, 3. 

This definition obviously is not limited to 

the time during which coal is actually being 

extracted. It includes working faces as well 

as faces from which coal has been or will be 

extracted. The language of the approved plan 

is all inclusive and clearly includes entry 

No. 3 cited in this case. The obvious purpose 

of the changes made in 1972 was to go beyond 

the requirement of 30 C.F.R § 75.302-l(a) that 

line brattice be installed no more than 10 feet 

from active working faces. All faces, including idle faces, are covered by the plan. The 

reason for their inclusions is the unusually 

573 
high methane liberation in the mine. Respondent argues that the requirement is onerous 

and that it has not been enforced by MSHA 

prior to 1984. Neither of these arguments can 

affect the interpretation of the wording of 

the plan, and I reject them. 

MSHA's Testimony and Evidence 

With regard to Order No. 2482922, issued in civil penalty 

Docket No. SE 85-62 and contest Docket No. SE 85-36-R, Order 

No. 2482911 issued in civil penalty Docket No. SE 85-124, and 

Order No. 2346556, issued in SE 85-123, the parties agreed 

that MSHA need not present testimony from the inspectors who 

issued those orders since their testimony would be the same as 

the inspector who issued Order No. 2481092 in civil penalty 

Docket No. SE 85-109. The parties agreed that all of these 

orders present common issues of the application and enforcement of mandatory standard section 75.316, and the respondent's ventilation plan {Tr. 90-92; 256-258). 

MSHA Inspector Judy McCormick confirmed that she 

inspected the No. 7 Mine on April 8, 1985, and issued Order 

No. 2481092, {Docket No. SE 85-109). She identified exhibit 

G-3 as a sketch of the underground scene and confirmed that 

it accurately portrays the condition she cited. She stated 

that coal was being mined at the point shown by an "X" on the 

sketch and that the violation occurred at point "Y" where the 

face had been penetrated. The line curtain depicted by the 

dotted line was located 19 feet outby that "Y" face, and 

since the ventilation plan required that the curtain be maintained to within 10 feet of all faces, she issued the 

violation (Tr. 96). 

Ms. McCormick stated that the hazard presented in not 

having the curtain to within 10 feet of a face is the possibility of methane accumulations at the "Y" face, and she noted 

the direction of the air ventilating the entry by the arrows 

shown on the sketch (Tr. 98). ·She confirmed that the ventilation plan, exhibit G-1, at page 10, requires that a minimum 

of 17,000 cubic feet of air reach the end of the line brattice 

where coal is being cut. Since coal was not being cut at the 

"Y" face, only 7,000 cubic feet of air was required at that 

location (Tr. 98-99). 

On cross~examination, Ms. McCormick stated that she made 

a methane test and found less than one percent of methane at 

the "Y" face, and she confirmed that her interpretation of 

the plan was made to prevent a potential buildup of methane, 

574 
and that was the reason why she believed the line curtain 

should have been installed to within 10 feet of the face in 

question (Tr. 101). She confirmed that all of the area shown 

on the sketch was idle at the time of her inspection, and 

that the most recently mined area was at the point marked 11 X11 • 

She estimated that the respondent had turned away from the 

point marked "Y" and began mining toward the point marked "X" 

several days earlier than the day of her inspection (Tr. 

101-102). 

Ms. McCormick defined a "working face" as an area from 

which coal is extracted on the mining cycle. She stated that 

the law does not provide a legal definition of the term 

"face," and she would "guess" that it means an area from which 

coal is to be extracted or is being extracted (Tr. 102). She 

stated that since the area shown as "Y" had been penetrated, 

she would consider it a "face" requiring line brattice to 

within 10 feet. Had the area not been penetrated, and 

although respondent defines it as a "rib," she would still 

"theoretically" consider it to be a "face" because coal will 

in the future be extracted from that location. She confirmed 

that anywhere that coal is planned to be extracted would be a 

"face" subject to the ventilation plan requirement for line 

brattice (Tr. 104-106). 

Ms. McCormick confirmed that she made no smoke tube test 

in the "Y" face area to determine the amount of ventilation 

or air circulation in that area (Tr. 110). She explained 

that the violation was issued for failure to maintain the 

line brattice to within the required distance of that face 1 

and not for a failure to maintain proper air velocity (Tr. 

112-113)0 

Ms. McCormick stated that the areas marked "X" and "Y" 

on the sketch are both working places. She indicated that 

the area marked "X" is penetrated for approximately 50 feet, 

and that area "Y" is penetrated for some 8 feet. In both 

instances, "X" and "Y" would both be the deepest penetration 

working faces of working places (Tr. 117). 

Ms. McCormick stated that while "X" and "Y" are both 

working places, mining could not take place simultaneously at 

those locations because two miners would be operating on one 

split of air, and that is not permissible. She considers 

both "X" and "Y" to be "working places," but not "working 

faces," and since the ventilation plan addresses "faces of 

working places," she considers both locations to be "faces of 

working places" (Tr. 120). 

575 
Ms. McCormick confirmed that at the time of the inspection, a brattice curtain was within the required 10 feet of 

the "X" working face where coal had .last been cut (Tr. 121). 

Although she could test for air movement at location "Y," and 

the total air intake into the No. 2 entry, she would have no 

way of determining the amount of air flowing into area "Y" 

(Tr. 122). She confirmed that abatement was achieved by 

advancing the curtain at an angle as shown on the sketch, 

(Tr. 126), and she conceded that this presented a possible 

hazard because there would be a visibility problem between 

the mining machine and shuttle car, and to some extent the 

respondent would be forced to operate through the curtain. 

However, she explained that this problem was created by turning the crosscut as depicted on the sketch, and that had it 

been turned from the side to the left of the "Y" area the 

problem would not exist (Tr. 124). 

William H. Meadows, MSHA supervisory mining engineer, 

testified that he is a graduate professional mining engineer, 

and that he has engaged in the review and approval of mine 

ventilation plans since 1969. He stated that the ventilation 

plan changes concerning the respondent's No. 4 and No. 7 Mines 

occurred in 1972 after a frictional methane ignition occurred 

in the No. 3 Mine. The ignition occurred when a continuousmining machine was scraping the bottom after a line curtain 

was taken down after the working face was mined. A citation 

was issued for a violation of section 75.316, but after a 

determination was made that coal was not being mined and that 

the line brattice was within 10 feet of the working face, the 

violation was voided and the case was dismissed. He confirmed 

that he was called upon to furnish his expert opinion in that 

case, and on the basis of the facts of that case, he concurred 

in the decision that a violation could not be supported. 

Mr. Meadows stated that as a result of the prior litigation, the language of the ventilation plan for the No. 3 Mine 

was changed, and the words "working faces" were changed to 

reflect a requirement that "all faces" would in the future be 

required to have line curtains· installed to within 10 feet. 

The requirement that line curtains "be maintained to within 

10 feet of the area of deepest penetration of all faces in 

all working places inby the last open crosscut except while 

roof bolting and servicing as stated in the plan" was also 

included in all subsequent plans approved by MSHA for the 

No. 4 and No. 7 Mines. 

Mr. Meadows confirmed that the term "faces" is not 

defined by MSHA's regulations. In his opinion, one has to 

assume from the history and literature on the subject of mine 

576 
ventilation that the requirement for maintaining line brattices to within 10 feet of the face implies that they be so 

maintained at all mine faces, including idle faces. 

Mr. Meadows pointed out that the respondent's old ventilation plan simply paraphrased the requirements of section 

75.302-l(a), which required that line brattices be maintained 

to within 10 feet of the area of deepest penetration of th~ 

working face. The purpose in adding the new language was to 

distinguish between "working faces" as it existed in the law 

and plan at that time and "all faces in all working places" 

(Tr. 14 0). 

Mr. Meadows also pointed out that section 75.308 makes 

reference to methane accumulations in face areas of working 

places, and line brattices are not specifically mentioned. 

While there are regulatory definitions for the terms "working 

places" and "working faces," there is no definition of a face. 

However, he believes that one must assume a definition from 

past experience, enforcement, and research. "Faces" would 

result after one has "worked a face." Once a "working face" 

has been cut, mined, and loaded, the dropping of the word 

"working" means "it's no longer being worked, it now becomes 

a face" (Tr. 141). 

Mr. Meadows referred to a February 1969 Bureau of Mines 

pamphlet, Exhibit ALJ-1, and pointed out that the term "working face" is not used. He described the ventilation tests 

covered by the publication, and he indicated that when a continuous miner penetrates a coalbed, it extracts coal from a 

working face. When the miner ceases operation, that working 

face becomes a face, and if he were to conduct a study similar to the one covered in the publication, he would refer to 

the "working face" simply as a "face" similar to the reference made in the publication (Tr. 142-143). 

Mr. Meadows stated that the respondent's mines freely 

liberate methane at all faces, including idle faces, and that 

the mines are among the top 10 percent of all mines nationally with respect to methane liberation (Tr. 144-145). 

Ref erring to the sketch of the No. 2 entry of the No. 7 

Mine, exhibit G-3, Mr. Meadows stated that he would consider 

the areas marked "X" and "Y" as faces. If coal were being 

cut at "X" and not at "Y," he would consider the former a 

working face, and the latter an idle face. He explained that 

the reason the language "all faces" was included in the MSHA 

approval letters accompanying the respondent's ventilation 

577 
plan is to take into account the fact that in a working place 

there may be more than one face (Tr. 146). 

On cross-examination, Mr. Meadows stated that at the 

time an initial cut of coal is taken, that area becomes a 

working face. If no coal cuts are made, the area remains a 

rib until such time as a coal cut is taken. He further 

explained that if he observed coal being cut, he would consider it a working face, and if work stopped after the initial cut, he would consider it simply as a face (Tr. 151). 

When asked whether such a cut would remain a working face 

between shifts when no production is taking place, he replied 

"To me, a working face is only when you cut it, mine it, or 

load it, or the district manager specifies some other operation such as roof bolting, blasting, clean-up" CTr. 52). 

Mr. Meadows confirmed that the respondent's ventilation 

plan is one of the most stringent plans in the country. He 

agreed that while theoretically possible, due to the manner 

in which the crosscuts in question were turned, the respondent would have difficulty in maintaining a line curtain to 

within 10 feet of "Y" while cutting coal at face "X" (Tr. 

154-155). 

Mr. Meadows stated that the terms "working face" and 

"face" have different meanings to him, but he conceded that 

during his testimony in a prior case before Judge Broderick 

with respect to the term "face" he testified that "Our intention was that the line curtain would be maintained to all 

faces. You can pick the word 'working faces' or 'face'; it's 

all faces" (Tr. 159). He conceded that he did not differentiate the-terms in his prior testimony, but pointed out that 

the word "working" brings a new meaning to the term "faces" 

because of the use of that term in the regulation. He further conceded that the regulation does not use the term 

"faces" by itself (Tr. 160). 

Mr. Meadows conceded that the requirement for line brattice to be maintained to within 10 feet of all faces is not 

specifically stated in the respondent's plan in clear language, and he alluded to the plan provisions at pages 10 

through 13 where the term face is used, and indicated that "A 

face, if you want to call it a working face or a face. 

They're one in the same" (Tr. 165-167). 

Mr. Meadows confirmed that were it not for the plan provision in this case, an inspector could not cite a violation 

of section 75.302-1, at locations "X" and "Y" because there 

was no mining activity taking place at those locations and 

578 
they would not be considered "working faces" at the time of 

the inspection. If mining was taking place, then an inspector 

could cite section 75. 302-1, but at ·location "Y" no citation 

could be issued unless the district manager had designated it 

as another "working face" used for bolting, servicing, or it 

was designated as an idle face. Rather than doing this, the 

district manager elected to drop the word "working" from the 

plan, and used the phrase "all faces" (Tr. 178). 

Mr. Meadows stated that the area "Y" was mined and developed in the No. 2 entry, and while it was being mined it was 

a "working face." When mining ceased, it became a "face" 

which was required under the plan to have line brattice to 

within 10 feet. There is no plan provision to remove that 

brattice from the "Y" area. Had "Y" not been cut for a distance of 8 feet it would still technically be considered a 

"face" because it was developed as the face of the No. 2 

entry. In the event the respondent does not consider it a 

face, he suggested that it file a supplemental ventilation 

plan requesting approval not to maintain the line curtain at 

that location (Tr. 180). 

Mr. Meadows stated that a face in any mine in any place 

where future mining is planned is a potential face, but that 

he would not require a brattice at the area to the right of 

the sketch off entry No. 2 which has not actually been mined 

or cut unless it had actually been developed as a face up to 

that point (Tr. 182). He conceded that his prior testimony 

in the earlier litigation indicated that even if the respondent intended to turn right, he would still consider it a 

"face" CTr. 183). 

With regard to the method of abatement in the instant 

case, Mr. Meadows confirmed that a potential hazard is created 

by installing the line curtain to within 10 feet of the "Y" 

area as was done in this case. The hazards concern a possible 

short circuiting of the air and a visibility problem in that 

equipment will run through the curtain. Some mines use clear 

curtains so that miners can see through it (Tr. 184). However, he believed that such problems would not occur if the 

respondent had cut through from the "non-curtain side," or if 

the crosscuts had been mined from left to right (Tr. 185). In 

the instant case, the violation was issued because the inspector found that the line curtain was not maintained to within 

10 feet of "Y," which was the point of deepest penetration in 

the No. 2 entry (Tr. 189)~ 

Daryl Dewberry testified that he is the president of the 

local union, a member of the mine safety committee, and is 

579 
employed by the respondent as a continuous miner operator at 

the No. 7 Mine. He is familiar with the violation issued by 

r·nspector McCormick, and in his opinion, because of the equipment operating in the area, it would be impossible to maintain 

a line curtain to within 10 feet of face "Y" without taking it 

down. He stated that the respondent's No. 7 Mine ranks number 

two nationwide in incidents of methane ignition, and that the 

No. 3 Mine ranks number one (Tr. 191-196). 

On cross-examination, Mr. Dewberry stated that he 

believed the 8-foot cut into the "Y" f·ace was a mistake and 

that the spads were simply overcut. Normally, the rib would 

come straight across at that point. He also believed that it 

would have been more practical to turn right off the No. 2 

entry and cut from the off-curtain side because the ventilation curtain could then be maintained to within 10 feet of 

the face in all penetration areas (Tr. 202-204). 

Respondent's Testimony and Evidence 

Thomas E. McNider testified that he is the respondent's 

deputy manager for ventilation, and he confirmed that his 

duties include the development of mine ventilation plans. He 

stated that the applicable mine ventilation plans for the 

respondent's No. 3 and No. 7 Mines all make reference to working faces where actual work is being performed. He believed 

that the mine faces referred to in the plans must necessarily 

be interpreted as working faces, and that the use of the language all faces as referred to in MSHA's covering letters 

approving the plans must be construed to mean working faces 

in order to be consistent with the actual plans submitted by 

the respondent. 

Referring to the sketch of the No. 2 entry in question, 

exhibit G-3, Mr. McNider was of the opinion that the area 

marked "X" on the sketch is a working face, but that the 

cited area marked "Y" is a rib. He also believed that the 

area to the right of the developed crosscut as shown on the 

sketch, even though a potential crosscut, is in fact a rib. 

He believes there is but one working face in a working place. 

Mr. McNider stated that advancing the ventilation brattice to within 10 feet of the purported face designated "Y" 

on ~he sketch to achieve abatiment in this case constituted a 

hazard in that the brattice curtain would short circuit the 

air moving along that location. The brattice would also cut 

down on the visibility and would subject the brattice to 

being torn down by equipment moving through the area (Tr. 

216). 

580 
Mr. McNider stated that as faces are advanced, there are 

four working places and four working faces. Working faces 

are turned to establish new crosscuts. As a crosscut is 

established to the left and then advances to the right, at 

that point in time the right "rib" becomes a face and the 

previously mined "face" becomes a rib (Tr. 216). Holing 

through the crosscut as was done in this case is proper 

because the "X" area becomes the working face and the line 

curtain would be maintained to within 10 feet of that face, 

or the point of deepest penetration, and machines would not 

be running through the curtain (Tr. 218). 

On cross-examination, Mr. McNider confirmed that the 

respondent's No. 3 and No. 7 Mines were opened in the 1970's. 

He believed that the crux of the issue presented in these 

proceedings turns on the definition of the term "face." It 

is his position that the positioning of the ventilation brattice devices as referred to in the mine ventilation plans 

ref er to working faces where coal is actually being cut and 

mined, and that MSHA's position is that the requirements 

apply to all faces, including those which are idle and not 

being actively or currently mined. 

Mr. McNider stated that any methane present at point "Y" 

on the sketch would be under 1 percent, and if any is detected 

it would be cleared up. He also indicated that the majority 

of the methane at the respondent's mines is generated while 

coal is actually mined at the cutting face, and that any methane generated at the ribs is of a lesser degree and magnitude. 

He also pointed out that the majority of methane ignitions 

occur at the working face when a continuous miner is scraping 

bottom, and he could think of none which have occurred at an 

idle face. Although an ignition could ocur at an idle face, 

some work activity has to be taking place, and if this were 

the case, the face would no longer be an idle face (Tr. 227). 

Mr. Meadows was called in rebuttal, and he stated that 

there is a potential for methane build-up at an idle face 

area, and that potential ignition hazards are presented when 

work is performed in the area, or equipment and cables are 

present. He confirmed that a ventilation survey he supervised 

indicated that there were 15 methane ignitions in the No. 7 

Mine in fiscal year 1985. Assuming that the mine did not liberate methane freely, he was of the view that the term "all 

faces" would probably not be part of the mine ventilation plan 

(Tr. 242). He believed that the respondent is the only mine 

operator that has the "all faces" provision as part of its 

plan, with the possible exception of U.S. Steel (Tr. 243). 

581 
On cross-examination, Mr. Meadows stated that methane 

tests are required to be made in alL working places inby the 

last open crosscut before any equipment is brought in. He 

stated that if methane is detected and not taken care of it 

presents a potential ignition source. He stated that in the 

State of Alabama the average methane liberation in the active 

working faces while coal is being cut is 25 cubic feet per 

minute, but at the respondent's mines, the methane liberation 

at an active working face ranges from 300 to 500 cubic feet a 

minute, and under 300 cubic feet a minute at an idle face 

(Tr. 248). He conceded that he did not know how many of the 

15 ignitions that he referred to occurred at the longwall or 

whether they occurred in situations similar to the facts presented in this case. He also conceded that the 15 ignitions 

in question are not relevant to the instant case (Tr. 250). 

Discussion 

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. 

30 C.F.R. § 75.2(g) provides as follows: 

(g)(l) "working face" means any place in 

a coal mine in which work of extracting coal 

from its natural deposit in the earth is performed during the mining cycle, 

(2) "Working place" means the area of a 

coal mine inby ~he last open crosscut, 

582 
( 3) "Working section" means all areas of 

the coal mine from the loading point of the 

section to and including the working faces, 

(4) "Active workings" means any place in 

a coal mine where miners are normally required 

to work or travel1 

30 C.F.R. § 75.302, provides in part as follows: 

(a) Properly installed and adequately 

maintained line brattice or other approved 

devices shall be continuously used from the 

last open crosscut of an entry or room of each 

working section to provide adequate ventilation to the working faces for the miners and 

to remove flammable, explosive, and other 

noxious gases, dust, and explosive fumes, * * 

* (Emphasis added.) 

30 C.F.R. § 75.302-l(a) provides as follows: 

(a) Line brattice or any other approved 

device used to provide ventilation to the working face from which coal is being cut, mined 

or loaded and other working faces so designated by the coal Mine Safety Manager, in the 

approved ventilation plan, shall be installed 

at a distance no greater than 10 feet from the 

area of deepest penetration to which any portion of the face has been advanced unless a 

greater distance is approved by the Coal Mine 

Safety District Manager of the area in which 

the mine is located. (Emphasis added.) 

In Docket No. SE 85-109, Inspector McCormick issued 

Order No. 2481092 after finding that a ventilation brattice 

curtain installed 19 feet from the point of deepest penetration in the No. 2 entry (location "Y" as shown on sketch 

exhibit G-3). The inspector considered that location to be a 

face in the working place which requires the curtain to be 

installed within 10 feet as stated in the respondent's ventilation plan. The facts show that a curtain was installed 

within 10 feet of the working face (location "X" on exhibit 

G-2), where the crosscut had been mined in the direction of 

that face. The parties agreed that any dispositive decision 

based on these facts would be controlling in the remaining 

dockets, and I a8sume that the violations in the remaining 

dockets were issued after the inspectors found line curtains 

583 
installed at faces in the working places in excess of the 

10 feet provided for the plan. 

The parties are in agreement that prior to 1984, no citations were issued at the subject mines for violations similar 

to the ones involved here; that is, for failure to maintain 

line brattices to within 10 feet of an entry face, after a 

crosscut was turned. 

The requirements for installing section and face ventilation line brattice are found at page 10, paragraph 1, of the 

respondent's ventilation plan (exhibit G-1). The pertinent 

plan provision in question provides as follows: "See page 11 

for typical section and face ventilation systems for three, 

four, five and six entry sections. Line brattice shall be 

installed at a distance no greater than ten (10) feet from 

the deepest point of penetration.n 

The requirement for maintaining line brattice to within 

10 feet of all faces was not included as part of the ventilation plan submitted by the respondent to MSHA for approval. 

This provision was included in a June 7, 1984, letter from 

MSHA's acting district manager at the time the plan was 

approved, and it provides as follows: "Line bratti~e shall 

be maintained to within 10 feet of the area of deepest penetration of all faces in all working places inby the last open 

crosscut at all times except while roof bolting as shown in 

Sketches 11, 12 and 13." 

During the course of the hearing, the respondent asserted 

that MSHA's intent in requiring line brattice to within 

10 feet of all faces, including idle faces, is based on MSHA's 

belief that turning a crosscut from the line brattice side of 

the entry is not a good mining practice because the line curtain can never be maintained to within 10 feet of the working 

face of the crosscut while it is being mined during the 

curtain-side turn. 

Respondent also pointed out that its ventilation plans 

do not require that brattices be maintained to within 10 feet 

of all faces, and that this requirement has been imposed on 

the respondent by means of the ventilation plan approval 

letters containing the langt'J.age "all faces." 

Respondent's counsel confirmed that the respondent is at 

present regularly contesting all violations which are based 

on MSHA's definition of a "face," and the application of the 

10-foot line curtain requirements to that definition. 

Counsel also confirmed that the respondent has met with MSHA 

584 
to discuss its enforcement position, but no resolution has 

been reached short of issuing violations (Tr. 118). 

MSHA's counsel stated that the "all faces" language has 

been inserted by MSHA's district office consistently since 

1972 (Tr. 170-173). Respondent's counsel stated that the 

respondent has no choice in the matter when the plan is 

approved with the "all faces" proviso in it (Tr. 174). However, he also indicated that while the respondent has not in 

fact accepted this definition of a 11 face," it does not wish 

to risk a mine closure for non-compliance. He also indicated 

that the issue has never been raised until these cases were 

litigated, and it is now contesting all cases in which this 

issue is presented (Tr. 173-174). 

Respondent's counsel took the position that there is no 

intended distinction between the terms "face" and "working 

face" and that they mean the same thing. He pointed out that 

for approximately 13 years no one thought that there was· a 

distinction in the terms or that the terms had different meanings, and that the distinctions have been made by MSHA when 

it began issuing citations and orders at its mines. Counsel 

stated that "MSHA is determined that we should not turn into 

the curtain on making crosscuts, 11 and he insisted that continued compliance with the requirement that curtains be 

located within 10 feet of all faces would result in unsafe 

mining practices (Tr. 208-211). 

MSHA's counsel conceded that while the point of deepest 

penetration where the alleged violation took place was not a 

working face because no coal extraction was taking place, the 

other face where the curtain was installed was a working 

face, and that both locations were working places because 

they were inby the last open crosscut (Tr. 125-126). Counsel 

also conceded that in the absence of the phrase "all faces," 

the failure by the respondent to maintain line brattice to 

within 10 feet of a working face would constitute a violation 

of section 75.302-l(a), and any inspector who found such a 

condition would have to cite that specific standard as a violation rather than the plan. 

MSHA's counsel confirmed that the "all faces" requirement was placed in the respondent's ventilation plan because 

of the high liberation of methane. Counsel confirmed that 

the respondent's mines operate under the most stringent ventilation plans, and that the respondent is the only mine operator with such a plan provision. He conceded that the plan 

provision is there because MSHA put it there by the "cover 

sheet" or approval letter accompanying the plan (Tr. 227-228). 

585 
MSHA's counsel asserted that the "all faces" requirements 

of the plan in question would apply ·in these cases regardless 

of the amount of penetration made at the No. 2 entry face identified as "Y". He pointed out that the facts before Judge 

Broderick in the prior case indicated that there had been no 

penetration at a similar "Y" location, and very little at a 

similar "X" location, but that Judge Broderick nonetheless 

ruled that both locations were faces which required brattice 

curtains within 10 feet. Counsel also pointed out that Judge 

Broderick rejected any notion that the face which had not been 

penetrated was simply a rib (Tr. 130). In support of his position in all of these cases, counsel relies on the dictionary 

definition of the term "face" relied on by Judge Broderick 

(Tr. 130-131). Counsel conceded that if the plan had used the 

words "all working faces in all working places" instead of 

"all faces in all working places," the violations would not 

have issued in these cases {Tr. 128). 

Respondent's counsel agreed that at the point in time 

when the location "Y" was penetrated, it was in fact the face 

of the No. 2 entry. However, aside from the fact that he~~ 

believed the cutting machine had simply "overcut" by 2 feet 

and that the penetration was a "mistake," he took the position that once the machine turned away from that location and 

starting driving and cutting the crosscut, location "Y" was 

not a working face because it was not being mined and had not 

been mined for at least several days before inspector 

McCormick arrived on the scene. In counsel's view, at the 

time the in.3pector was there, location "Y" was simply a rib, 

but that eventually the crosscut would have been turned to 

the right off the entryi and the "rib" at location "Y" would 

have been mined through at some future time (Tr. 206-208). 

In the prior decision by Jud<.re·Broderick, he relied on 

the definition of a "coal·faceu as found in A Dictionary of 

Mining, Mineral and Related Terms, to support his conclusion 

that the term is not limited to the time during which coal is 

actually extracted, and that the term includes working faces 

as well as faces from which coal has been or will be 

extracted. If one were to use the definition of the term 

"faceu as found in the same dictionary, one could come to the 

opposite conclusion. The term "face" is there defined in 

part as follows: 

* * * 

away, 

face. 

other 

A point at which coal is being worked 

in a breast or heading; also working 

* * * The exposed surf ace of coal or 

mineral deposit in the working place 

586 
where mining, winning, or getting is proceeding. * * * The principal frontal surface presenting the greatest area such.as the face of 

a pile of material, the point at which material is being mined. * * * 

In the case of United States Steel Corporation v. 

Secretary of Labor, 1 FMSHRC 1024, decided August 10, 1979 by 

former Commission Judge Forrest E. Stewart, he vacated two 

alleged violations of 30 C.F.R. § 75.316, which charged that 

the operator had violated a provision of its ventilation plan 

which required line brattice to be maintained to within 

10 feet of the deepest penetration of all working faces. In 

that case, the evidence established that no coal was actually 

being cut, mined or loaded when the inspector observed the 

alleged violative conditions. Judge Stewart ruled that line 

brattice was required to be maintained to within 10 feet of 

the area of deepest penetration of all working faces only 

when coal was actually being cut, mined or loaded. 

Judge Stewart took note of the fact that mandatory standard section 75.302-l(a}, specifically requires line brattice 

at the 10-foot distance only when coal is being cut, mined or 

loaded. Since this provision clearly designated the working 

face as that place at which brattice is to be maintained, 

Judge Stewart ruled that the modifying phrase "from which 

coal is being cut, mined or loaded" specified the time at 

which brattice is to be maintained, and he concluded that all 

working faces must be provided with line brattice meeting the 

10-foot criteria during that time period. 

Judge Stewart held that the language "all working faces" 

as contained in the operator's ventilation plan clearly did 

not mean that brattice be maintained at all times in all working faces. Although the ventilation plan was silent as to 

the time when the 10-foot line brattice was required during 

advance mining, he observed that this silence could not be 

construed as adding additional requirements to those found in 

section 75.302 (a). He ruled that in order for the operator 

to be penalized for failure to maintain 10-foot line brattice 

at times other than those specified in the regulation, the 

approved plan should clearly have stated the additional 

requirements in such a way that clearly informed the operator 

of its obligations. 

Judge Stewart also observed that 

operator did not intend that brattice 

within 10 feet of the working face at 

mitted its plan to MSHA for approval. 

587 

it was obvious that the 

must be maintained 

all times when it subHe also observed that 
to construe the plan in a manner which would require 10-foot 

line brattice at all times, even when coal was not being cut, 

mined or loaded, would create a conflict with the roof-control 

plan which contained a specific exemption. He noted that the 

inspector testified that there were times when the line brattice did not have to be maintained to within 10 et of the 

face since the roof-control plan allowed the removal of line 

brattice during roof bolting operations. This provision was 

included in the roof plan because the line brattice presented 

a hazardous obstruction during bolting. The inspector mentioned one occasion on which this obstruction resulted in the 

severe injury to a miner's arm. 

Findings and Conclusions 

MSHA's position for insisting that line brattices be 

installed within 10 feet of all faces is premised on the 

theory that methane can accumulate at idle faces, as well as 

working faces, and the fact that the respondent's mines have 

a history of liberating high amounts of methane. However, 

MSHA presented no credible testimony or evidence to establish 

that hazardous methane accumulations had occurred at the face 

areas cited by the inspectors in these cases. As a matter of 

fact, although MSHA introduced evidence of a number of prior 

methane igntions at the respondent's mines, ventilation specialist Meadows did not know how many of these involved idle 

face ignitions, nor could he supply the facts and circum--~­

stances under which these purported ignitions occurred. 

Mr. Meadows conceded that the law requires that all 

faces in all working places be tested for methane, and that 

if the tests were not made, a potentially hazardous condition 

would be present (Tr. 246-247). If a test were made and no 

methane were detected, there would be no hazard. Further, if 

methane were detected within 5 to 15 minutes after a test 

indicated none present, the respondent would have to be given 

an opportunity to dispel the methane (Tr. 248). Mr. Meadows 

had no knowledge as to how many of the 15 methane ignitions 

occurred at the longwall, and assuming they all occurred at 

the longwall, he conceded that the fact that they occurred 

would not be relevant to the facts presented in these cases 

(Tr. 250). 

Respondent's ventilation manager McNider testified that 

the majority of methane ignitions which have occurred in the 

respondent's mines have occurred at the working face where a 

continuous miner was operating and scraping the mine bottom. 

He pointed out that such ignitions would not occur at an idle 

face unless some work was going on at that location, and 

588 
since no work is taking place at an idle face, an ignition is 

not likely to take place there. In his opinion, an "idle 

face" is by definition one which has· been abandoned and no 

work is taking place there (Tr. 225-227). 

Mr. Meadows confirmed that the ventilation plan change 

which occurred in 1972 was the result of litigation arising 

from a methane ignition which occurred while a mining machine 

was scraping bottom after a line curtain was taken down from 

a working face which had been mined. The respondent was 

charged with a violation of section 75.316, but the case was 

dismissed after it was determined that coal was not being 

mined at the face and that the line curtain was within 10 feet 

of the face. Mr. Meadows confirmed that he testified in that 

case and agreed that the violation could not be supported. 

I believe it is reasonable to conclude that MSHA's "all 

faces" requirement, which applies only to the respondent's 

mines, and no other mine operators nationwide, was added· to 

the plan to cover a situation where a potential methane accumulation is presented at an idle face which had been mined and 

which no longer fits the definition of "working face" as 

defined by MSHA's regulations. If it is true that methane 

accumulates at idle faces as well as working faces, MSHA's 

adoption of this plan provision only for the respondent's 

mines, and not for other mines, appears to be discriminatory. 

While it is true that the respondent's mines have a history 

of high methane liberation, I cannot conclude that in those 

mines which liberate less methane, accumulations of methane 

at idle or non-working faces do not present the same potential for methane ignitions. All mines liberate methane, and 

it seems to me that if MSHA wishes to impose an "all faces 11 

interpretation of the ventilation requirements of sections 

75.316 and 75.302-l(a), it should do so through proper rule 

making rather than imposing them on· a mine operator through 

the ventilation plan review process, or by adding such a 

requirement in a transmittal letter. 

I also believe it is reasonable to conclude that MSHA is 

not too enchanted with the mining methods utilized by the 

respondent while driving and turning its crosscuts, and that 

its insistence on maintaining line brattices to within 10-feet 

of all faces in the working places is a subtle attempt to 

force the respondent to change its mining methods. During the 

course of the hearing, MSHA's counsel denied that this was the 

case, and he simply took the position that since the all-faces 

requirement was a part of the respondent's approved plan, it 

must be followed, and he implied that the respondent "was 

stuck with the plan provision." 

589 
I take note of the fact that the 10 foot "all faces" 

line brattice requirement contains an exception for roof bolting accomplished in accordance with plan sketches 11, 12, 13. 

Although this exception may cure an otherwise contradictory 

conflict with the "all faces" requirement, the same cannot be 

said for other parts of the plan which I find to be in conflict with MSHA's asserted "all faces" requirements. These 

plan provisions specifically use the term 11 working faces." 

Since that term is specifically defined by regulation, requiring the respondent to maintain its brattice to within 10 feet 

of "all faces," a term not defined by the regulation, creates 

a confusing conflict in the application of the plan as a 

whole. 

The plan provision for installing section and face ventilation line brattice does not specifically state that a line 

brattice must be within 10 feet of a face or working face, 

and Mr. Meadows conceded that the plan itself "is not written 

specifically in the King's English that way" (Tr. 163). When 

asked for an explanation, Mr. Meadows cited paragraph 2 at 

page 10, which states in pertinent part that "A minimum of 

17,000 cubic of air shall reach the end of the line brattice 

where coal is cut, mined or loaded," and that by definition 

this means the working face (Tr. 164). He stated that the 

sketches found on page 11 depict the line curtain installation 

methods in all working places, and that the optional face ventilation system plan provisions found on page 12 depict "blowing curtains" requirements when roof and rib bolting and 

servicing take place, and that the reference to a 10 feet maximum distance from a face as shown on sketch 11, page 13, is 

from a face "no matter if you want to define it as a working 

face or a fac~," (Tr. 165). He stated that the face curtain 

requirements for use when bolting takes place depicts "10 feet 

of a face, a face, if you want to call it a working face or a 

face. They're one and the same" (Tr. 165). 

In further explanation of Mr. Meadows' testimony, MSHA's 

counsel stated that "I think the witness would construe it to 

mean at least to be consistent with his approach that what 

they really meant to say "all faces in all working places," 

and the District Manager simply set that out clearly in the 

approval" (Tr. 169). 

It seems clear to me that in that portion of the ventilation plan dealing with the installation of blowing brattice 

curtains while bolting or servicing the roof and rib, the use 

of the term "face" is clearly intended to mean working face. 

In fixing the maximum distances that a brattice curtain may 

590 
be installed, numbered paragraphs 2, 9, and 10 of the plan 

specifically use the term working face, and paragraph 10 

states that "the entire blowing curtain may be taken down 

after the permanent exhaust line curtain has been extended to 

within 10 feet of the working face." Under the circumstances, 

I conclude that all "face" references in the plan provisions 

for roof/rib bolting and servicing found at page 12, including 

the sketches found at page 13, are intended to apply only to 

the working faces. 

The respondent's ventilation and methane and dust-control 

plan contains several additional requirements for maintaining 

proper air ventilation in the mines, and in each instance, the 

plan refers to working faces. The plan requirements for dust 

control at the respondent's longwall, page 18, paragraph F, 

provides that a minimum of 18,000 C.F.M.'s of air shall reach 

the working face where coal is being mined. The plan requirements for mine maps found at page 19 requires a mine map 

reference notation for average height and air velocity, as 

required, at each working face. Page 4, paragraph 11, makes 

reference to a November 21, 1980, approved section 10l(c) modification petition permitting the respondent to use belt air 

entries for coursing intake air to active working faces. 

Inspector McCormick defined a "working face" as "an area 

from which coal is being extracted on the mining cycle." She 

stated that there is no legal definition of the term "face," 

but she guessed that it would be "the area from which coal is 

to be extracted or is being extracted." When asked whether a 

"planned" cut would be considered a 11 face, 11 she answered in 

the affirmative. When asked whether a line curtain would be 

required within 10 feet of that 11 planned11 cut, she replied 

Rno." When asked to explain her answer, she replied "theoretically, this is a rib." She explained that the fact that a 

"rib" had been penetrated, yet not !'squared off" would make 

it "a face" (Tr. 102-103). She confirmed that her understanding of MSHA's position is that a "face" is any location where 

an operator plans to extract coal (Tr. 104). If this is true, 

':hen the inspector's belief that a planned cut does n0t require 

line brattice to within 10 feet, and MSHA's position that it 

does are at odds with each other and are contradictory. 

Mr. Meadows believed that the terms "faces" and "working 

faces" mean the same thing, and he believed that the requirement for maintaining line brattices to within 10 feet of the 

face implies that they 'be so maintained to all faces, including idle faces. In support of this conclusion, Mr. Meadows 

relied on "the history and literature on the subject of mine 

ventilation. 11 The only cited literature is a February 1969 

591 
Bureau of Mines Report of Investigations 7223 entitled Face 

Ventilation in Underground Bituminous Coal Mines (exhibit 

ALJ-1). Mr. Meadows pointed out that the term "working face" 

is not used in this publication, and he indicated that once a 

continuous miner penetrates and extracts coal from a seam, it 

does so from a working face. Once the miner ceases operation, 

the working face becomes simply a face, and he would refer to 

both as a "face." 

MSHA's reliance on the publication cited by Mr. Meadows 

to support a conclusion that the phrase "all faces" includes 

idle faces as well working faces as defined in its regulations is rejected. I take note of the fact that the publication in question was published prior to the enactment of the 

1969 Coal Act and the 1977 Mine Act. While it is true that 

the article does not use the term "working face," it does 

state that the basic objective of mine ventilation is to provide an adequate supply of uncontaminated air to the working 

areas, and that the volume of methane released from an active 

face varies throughout the bituminous coal fields and cannot 

be predicted with certainty (pgs. 1, 15). Although the term 

"active face" is not further explained, there is a strong 

inference that when used in conjunction with "working areas," 

it means" active working faces. 

The practice of supplementing ventilation plans by correspondence appears to be a routine matter between MSHA and 

this respondent. In a case recently decided by me involving 

these same parties, Docket No. SE 85-48, the identical ventilation plan for the respondent's No. 4 Mine was in issue. In 

that case, in response to a July 14, 1984, approval letter 

from MSHA's acting district manager, respondent's mine manager, Ken Price, wrote a letter to the district manager 

requesting approval to "point feed" its underground air ventilation at necessary locations. That request was approved by 

a letter from the district manager, and the approved methods 

and procedures for "point feeding 11 were specifically incorporated as a supplement to the previously approved plan, and 

were in fact subsequently incorported as part of the plan 

itself when it was next reviewed. However, in the instant 

proceedings, the requirement for maintaining line brattices 

to within 10 feet of the area of deepest penetration of all 

faces has never been speci~ically made a part of the respondent's plan. It has apparently been included in the district 

manager 1·s approval letters as a 11 proviso" to the plan. I 

find this method of plan review and approval to be rather 

strange, and it supports the respondent's contention that it 

never intended the all faces interpretation or application as 

imposed by MSHA. It seems to me that had it intended to be 

592 
covered by the "all fees" provision, respondent would have 

included it in the plan submitted to MSHA. 

The respondent's contention that compliance with the 

requirement that line brattice be maintained to within 

10-f eet of all faces presents certain potential hazards is 

supported by the record. Inspector McCormick conceded that 

requiring a brattice curtain to be installed within 10-feet 

of the face which had been penetrated presented a possible 

hazard in that a visibility probl~m would be created between 

the shuttle cars and continuous miners, and they would have 

to operate through the curtain (Tr. 123). 

MSHA's ventilation specialist Meadows agreed that the 

respondent would have difficulty maintaining line brattice to 

within 10 feet of the cited face while cutting coal at the 

working face where a brattice had been installed to within 

10 feet (Tr. 154-155). Mr. Meadows also agreed that requiring the brattice within 10 feet of the cited face in question 

would present a hazard in that visibility would be curtailed 

and the air ventilation could possibly be short-circuited 

(Tr. 184-185). Safety committeeman Dewberry stated that 

because of the equipment operating in the crosscut area, it 

would be impossible to maintain the brattice within 10 feet 

of the cited face, and some of the curtain would have to be 

taken down (Tr 195). 

I conclude and find that on the facts of these cases, 

requiring the respondent to adhere to the all faces requirement imposed on it by MSHA by means of ventilation plan 

approval letters would result in exposing the miners to 

hazards and accidents stemming from their inability to clearly 

observe men and equipment moving behind the line curtains 

located in places where MSHA insists they be placed in order 

for the respondent to avoid citations. MSHA's witnesses agree 

that the potential hazards are real, and I believe that the 

recognition of these potential hazards and the safety concerns 

expressed by the respondent override any subtle attempts by 

MSHA to "nudge" the respondent· int~ changing its mining 

methods. If MSHA believes that the respondent's present mining methods are hazardous, it has an obligation to directly 

address such situations rather than imposing unworkable plan 

requirements which in the final analysis result in additional 

potential hazards. 

I further conclude and find that MSHA's application and 

interpretation of the all faces requirement it imposed on the 

respondent is inconsistent with the overall plan, as well as 

593 
mandatory standards 75.302 and 75.302-l(a). Although I realize that the respondent is not charged with a violation of 

these standards, the regulatory intent for imposing these 

requirements for the ventilation of working faces as encompassed in those standards as well as the overall plan, is to 

insure a methane free working face atmosphere where active 

mining is taking place with miners and equipment present. 

Mandatory safety standard section 75.316 requires a mine 

operator to adopt a suitable mine ventilation and methane and 

dust-control plan for its mine. Once approved by MSHA, that 

plan becomes the applicable plan required to be followed until 

such time as it is revised, revoked, or otherwise changed. A 

violation of the plan constitutes a violation of the requirements of section 75.316. I conclude and find that at the time 

the respondent submitted its plan to MSHA for approval it 

never intended that line brattice be required to be maintained 

within 10 feet of all faces. I assume that in the absence of 

this MSHA imposed requirement, the plan as submitted was· 

suitable for the mines in question. 

MSHA's attempt to impose further requirements for line 

brattices at idle "faces" or "ribs" where coal is not being 

mined or cut only at the respondent's mines would in my view 

lead to conflicting and confusing applications of the respondent's overall plan, and it would impose additional requirements on the respondent which other mine operators are not 

required to follow. I recognize the fact that section 75.316, 

provides flexibility in authorizing MSHA to require a ventilation system and methane and dust-control plan suitable to the 

prevailing conditions in a mine on a case-by-case basis. However r in these proceedings I am not convinced that MSHA has 

established that the respondent failed to follow a plan suitable to the mine conditions in question. Since the recor:cr--

here establishes that requiring the· respondent to follow the 

all faces requirement for maintaining brattice curtains would 

result in additional hazards to miners, quite the contary is 

true. In my view, the resulting hazards render the plan 

requirements unsuitable for the mines in question. Since they 

are, I find no basis for concluding that the respondent is 

required to follow them, and I further conclude and find that 

MSHA has failed to establish any violations of the cited plan 

provision in question. 

In view of the foregoing findings and conclusions, Order 

Nos. 2482922, 2481092, 2482911, and 2346556 ARE VACATED, and 

MSHA's civil penalty proposals in connection with these 

orders ARE DISMISSED. The contestant's contest in Docket No. 

SE 85-36-R (Order No. 248922) IS GRANTED. 

594 
Fact of Violation 

Docket No. SE 85-124, Citation No. 2347351 

In this case, the respondent is charged with the failure 

to maintain a continuous-mining machine in a permissible condition. The inspector found an opening in excess of 

.004 inches in the lid of the control box, and the machine 

was being used to cut and load coal from the faces. 

The parties stipulated and agreed that the citation as 

issued accurately describes and evaluates the permissiblity 

violation of 30 C.F.R. § 75.503. The inspector who issued 

the citation was not available for testimony and the petitioner's counsel stated that he was out of state of other 

MSHA business. 

Respondent does not dispute the fact that the conditons 

described on the face of the citation constitute a violation 

of section 75.503. Respondent presented no testimony or evidence with respect to this citation, and its counsel did not 

dispute the inspector's "S&S" finding. Counsel stated that 

he was only disputing the amount of the proposed civil penalty assessment proposed by MSHA ($850). The parties 

requested that I assess an appropriate civil penalty on the 

basis of the citation, the pleadings filed by the parties, 

and the statutory criteria found in section llO(i) of the 

case (Tr. 8) • 

The burden of proof in a civil penalty case with respect 

to the fact of violation and the proposed civil penalty 

assessment lies with the petitioner. In this case, the 

respondent has conceded that a violation occurred and that it 

was significant and substantial. Accordingly, the citation 

IS AFFIRMED. 

The proposed civil penalty in this case was "specially 

assessed" pursuant to MSHA's civil penalty criteria and procedures found in Part 100, Title 30, Code of Federal Regulations. However, it is clear that I am not bound by these 

assessment regulations and have jurisdiction to assess a 

civil penalty for the violation de ~· 

With respect to the six statutory criteria found in section llO(i) of the Act, the parties have stipulated to the 

following: 

595 
1. The respondent is a medium sized mine 

operator and the imposition of a civil penalty 

will not af feet the respondent '.s ability to 

continue in business. 

2. The violation was abated in good 

faith. 

3. The respondent's history of prior 

violations is average. 

I take note of the fact that abatement in this case was 

achieved within an hour and 10 minutes of the issuance of the 

violation. I also note that the inspector found that the 

violation was the result of moderate negligence on the part 

of the respondent, and that the likelihood of the occurrence 

of the event against which the standard is directed was "reasonably likely" and that two persons were exposed to a hazard. 

In this case, the inspector found an opening between the 

cover plate and control box of the continuous-mining machine 

in excess of .004 of an inch. The machine was being operated 

at the face cutting and loading coal. Testimony in connection with the other violations issued at this mine in this 

case reflects that the mine liberally releases methane and 

that methane ignitions have occurred in the mine. Under the 

circumstances, I conclude that the violation presented a possible ignition hazard and was serious. 

With regard to the respondent's history of prior violations, although the parties stipulated that the respondent 

has an "average" history of prior violations, I have no idea 

what this means. MSHA has filed no information concerning 

the respondent's history of prior violations, and I have no 

basis for determining whether an increase or decrease in the 

initial assessment is warranted. 

Civil Penalty Assessment 

In view of the foregoing findings and conclusions, and 

taking into account the requirements of section llO(i) of the 

Act, I cannot conclude that MSHA's initial assessment of $850 

for the violation in question is unreasonable. Accordingly, 

IT IS AFFIRMED. 

ORDER 

The respondent IS ORDERED to pay a civil penalty in the 

amount of $850 for section 104(a) "S&S" Citation No. 2347351, 

596 
April 13, 1985, 30 C.F.R. § 75.503. Payment is to be made to 

MSHA within thirty (30) days of the date of this order, and 

upon receipt of payment, the case is dismissed. 

h.cti~ Administrative Law Judge 

Distribution: 

Robert Stanley Morrow, Esq., Jim Walter Resources, Inc., P.O. 

Box C-79, Birmingham, AL 35283 (Certified Mail) 

Harold D. Rice, Esq., Jim Walter Resources, Inc., P.O. 

Box C-79, Birmingham, AL 35283 (Certified Mail) 

George D. Palmer, Esq., Office of the Solicitor, U.S. 

Department of Labor, 2 015 Second Avenue North, Suite 2 01., 

Birmingham, AL 35203 (Certified Mail) 

H. Gerald Reynolds, Esq., Jim Walter Corporation, P.O. 

Box 22601, Tampa, FL 33622 (Certified Mail) 

/fb 

597 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ANN RILEY 

MONTEREY 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210 

April 9, 1986 

OWENS, : DISCRIMINATION PROCEEDING 

Complainant . . v. Docket No. LAKE 86-33-D 

COAL COMPANY, . . VINC CD 85-21 

Respondent . . Monterey No • 2 Mine 

ORDER 

Respondent, Monterey Coal Company (Monterey), moves for 

dismissal or summary decision on the ground the captioned 

discrimination complaint fails to state a claim for which 

relief may be granted and therefore the Commission lacks 

jurisdiction over the subject matter. 

Complainant, a woman miner, appears pro se. She has 

filed a 32 page verified, handwritten opposition. The matter 

is set for an evidentiary hearing in St. Louis, Missouri on 

April 22, 1986. 

Monterey's motion is bottomed on the proposition that 

complainant's admitted on-the-job foot injuries were 

self-inflicted, not work related, and therefore the claim 

that· such injuries created an underground safety hazard, even 

if true, was not a protected safety related activity. At 

this stage of the proceedings, I am not called upon to 

determine the validity of Monterey's hypothesis. Complainant 

maintains her injuries were work-related -- the result of her 

good faith attempt to comply with Monterey's metatarsal 

protective shoe policy~ There is therefore a disputed issue 

of material fact. 

It is well settled that on a motion to dismiss or for 

summary judgment all facts well pleaded must be accepted 

unless it is shown there is no dispute as to the material 

facts and that movant is entitled to judgment as a matter of 

law. Commission Rule 64; FRCP 12Cb)(6), 56. Since both 

parties rely on matters outside the pleadings, Monterey's 

motion has been treated as one for summary decision. Carter 

v. Stanton, 405 U.S. 669 (1972). Verified pleadings, of 

598 
course, qualify as affidavits if, as is true of Ms. Owens 

opposition, they are based on the pleader's first-hand 

knowledge. Forts v. Malcolm, 426 F. Supp. 464, 466 (S.D.N.Y. 

1977). 

Except in the clearest of cases, the Commission does not 

look favorably on motions for summary decision as they tend 

to deprive litigants of their day in court. Missouri Gravel 

company, 3 FMSHRC 2470 (1981). This is especially true in 

pro se cases where the trial judge has a duty to satisfy 

himself all the relevant facts have been developed. Burns v. 

Asarco, 5 FMSHRC 1497, 1498 n.2 (1982). 

The applicable standard for review of a motion for 

summary decision is the same as that applicable to a motion 

for summary judgment under Rule 56. This is that: 

"A summary judgment is authorized only if 'there is no 

genuine issue as to any material fact and • • • the 

moving party is entitled to judgment as a matter of 

law.' The function of the court on a summary judgment 

motion 'is limited to ascertaining whether any factual 

issue pertinent to the controversy exists; it does not 

extend to resolution of any such issue.' Once it is 

determined that material facts are in dispute 'summary 

judgment may not be. granted,' and in 'making this 

determination doubts • • • are to be resolved against 

the granting of summary judgment.' To warrant summary 

judgment the record 'should show the right of the movant 

to a judgment with such clarity as to leave no room for 

controversy, and ••• should show affirmatively that 

the [adverse party] would not be entitled to [prevail] 

under any discernible circumstances • • • Summary 

·judgment is an extreme remedy, and under the rule, 

should be awarded only when the truth is quite clear." 

Weiss v. Kay Jewelry Stores, Inc., 470 F. 2d 1259, 

1261-62 CD.C. Cir. 1972). 

A summary decision is particularly inappropriate in 

discrimination cases where "the inferences the parties seek 

to have drawn deal with questions of motive, intent and 

subjective feelings and reactions." Empire Electronics Co. 

v. United States, 311 F. 2d 175, 180 C2d Cir. 1962). 

Finally, 

"The burden on a party moving for summary judgment is 

affirmative: 'The party seeking summary judgment has 

the burden of showing there is no genuine issue of 

material fact, even on issues where the other party 

would have the burden of proof at trial, and even if the 

599 
opponent presents no conflicting evidentiary matter.' 

(Citations omitted). That is, the moving party must 

present affirmative evidence of facts that, if true, 

would compel a judgment for that party • • • • 

In assessing whether a party moving for summary judgment 

has met his or her burden, a court must view all 

inferences to be drawn from underlying facts in the 

light most favorable to the party opposing the motion. 

(Citations omitted). McKinney v. Dole, 765 F. 2d 1129, 

1134-1135 (D.C. Cir. 1985). 

Under the Mine Act, unlawful reprisal occurs when (1) a 

miner participates in a statutorily protected activity, (2) 

an adverse employment action is taken against him or her, and 

(3) a causal connection existed between the two. Here 

complainant's verified opposition shows she participated in 

numerous acts of claimed protected activity, including the 

fact that on July 18, 1985 she reported, that due to the 

disabilities suffered to her feet while working in the No. 2 

Mine during the period July 15 to 18, she had become a hazard 

to her own safety and to that of her co-workers. With 

respect to the second element, Ms. Owens pleadings and 

opposition set forth numerous adverse actions such as Cl) 

Monterey's continuing refusal to classify her injuries as 

work-related, (2) its refusal to reimburse complainant for 

the legal expense she incurred in prosecuting her own 

workmen's compensation claim, and (3) regular and continuing 

acts of claimed job discrimination, vilification, 

retaliation, and harrassment due to an anti-women miner and 

safety animus. 

Third, it seems clear that if complainant's injuries 

were; in fact, work related as well as the proximate cause 

and justification for her refusal to work from July 18 to 29, 

1986 she has stated a claim for which relief, including 

injunctive relief, may be granted under the Mine Act if any 

of the many adverse actions alleged were motivated in any 

part by her safety complaints and activities. See, Secretary 

on behalf of Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 

126, 142 (1982); Rosalie Edwards v. Aaron Mining Co., 5 

FMSHRC 2035 {1983); Pratt v. River Hurricane Coal Company, 

Inc., 5 FMSHRC 1529 (1983) • 

• It is axiomatic that on a motion for summary decision, 

the trial judge cannot try issues of fact but only determine 

whether there are issues of fact to be tried. Once this is 

determined in the affirmative the motion must be rejected. 

This is true whether or not the case will ultimately be tried 

to a judge or a jury. 

600 
The Mine Act and its legislative history show that if 

miners are to be encouraged to be active in matters of safety 

and health, they must be protected against any possible 

discrimination which they might suffer as a result of their 

participation in enforcement of the Act. To further the 

congressional aim of making the Nation's coal mines safe 

places to work, the concept of protected activity must be so 

construed as to assure that miners will not be inhibited in 

any way from exercising the rights afforded them by law. 

Donovan v. Stafford Const. Co., 732 F. 2d 954, 960, 961 (D.C. 

Cir. 1984) 

Based on an exhaustive review of the record, I conclude 

the many issues of material fact and credibility presented 

make the granting of Monterey's motion improper, improvident 

and an abuse of discretion. 

Accordingly, it is ORDERED t Monterey's motion be, 

and hereby is, DENIED. 

Distribution: 

Thomas C. Means, Esq., Crowell & Moring, 1100 Connecticut 

Avenue, N.W., Washington, DC 20036 (Certified Mail} 

Ms. Ann Riley Owens, 910 Morrison, St. Louis, MO 63104 

CCertif ied Mail) 

dcp 

601 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 9, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL~H 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

LARRY COLLINS, 

Complainant 

v. 

RAVEN RED ASH COAL 

COR1?0RATION I 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. VA 85-5-D 

MSHA Case No. NORT CD 84-7 

Mine No. 1 

ORDER OF DISMISSAL 

Before: Judge Koutras 

This proceeding concerns a temporary reinstatement application filed by MSHA on December 26, 1984, on behalf of the 

complainant Larry Collins. The case was originally docketed as 

VA 85-5-D, and Chief Judge Merlin issued an Order on December 26, 

1984, requiring the temporary reinstatement of Mr. Collins 

pending a hearing on the merits of his complaint. No further 

action.was taken on the reinstatement, and MSHA never requested 

enforcement of Judge Merlin's order. Subsequently, on 

August 23, 1985, MSHA filed its discrimination complaint on 

behalf of Mr. Collins, as well as another miner, Earl Kennedy, 

and the cases were assigned Docket No. VA 85-32-D. 

On April 7, 1986, I issued my dispositive decision in 

Docket No. VA 85-32-D. Under the circumstances, the temporary 

reinstatement petition filed on behalf of Mr. Collins is moot, 

and this matter should be dismissed. Accordingly, the case 

docketed as VA 85-5-D is dismissed. 

4fi~L~/:~ X'dmi~~s{~ative Law Judge 

602 
Distribution: 

Sheila K. Cronan, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Room 1237A, Arlington, VA 

22203 (Certified Mail) 

Daniel R. Bieger, Esq., Copeland, Molinary & Bieger, P.O. 

Box 1296, Abingdon, VA 24210 (Certified Mail) 

/fb 

603 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE AOO 

DENVER. COLORADO 80204 A pr i l l Q 1 19 8 6 

EMERY MINING CORPORATION, CONTEST PROCEEDING 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Respondent 

. . 

. . 

DECISION 

Docket No. WEST 86-56-R 

Citation No. 2833830; 12/20/85 

Cottonwood Mine 

Appearances: Timothy M. Biddle, Esq. and Peter K. Levine, Esq., 

Crowell & Moring, Washington, D.C., 

for the Contestant; 

James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for the Respondent. 

Before: Judge Morris 

This is a contest proceeding initiated by contestant 

against the Secretary of Labor in accordance with the Federal 

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

(the Act) . 

A hearing on this case and related cases commenced on 

March 5, 1986 in Salt Lake City, Utah. 

At the hearing contestant renewed its motion to withdraw 

its Notice of Contest. No person objected to the motion. 

Pursuant to Commission Rule 11, 29 C.F.R. § 2700.11, 

contestant's motion is granted and the case is dismissed. 

Law Judge 

Distribution: 

Timothy M. Biddle, Esq., and Peter K. Levine, Esq., Crowell & 

Moring, 1100 Connecticut Avenue, N.W., Washington, D.C. 20036 

(Certified Mail) 

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

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

Colorado 80294 (Certified Mail) 

/ot 

604 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 10, 1986 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

JOHN G. KLINE, 

Complainant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 85-226-D 

MORG CD 85-7 

Loveridge No. 22 Mine 

ORDER OF DISMISSAL 

DECISION APPROVING SETTLEMENT 

Before: Judge Maurer 

The Secretary has filed a motion explaining that pursuant 

to agreement between the parties, the complainant now has received or will receive all the relief sought in this case. 

The Secretary further has moved for approval of a civil 

penalty in the amount of $200 for the violation of section 

105(c} of the Act. The Secretary further has discussed the 

proposed settlement in light of the six statutory criteria 

set forth in section 110 of the Act. Based upon my review of 

the Secretary's motion I am satisfied that the proposed 

settlement is consistent with the purposes and spirit of the 

statute. 

In light of the foregoing the proposed settlement is 

APPROVED and the operator is ORDERED TO PAY $200 within 30 

days from the date of this decision. Further, the Secretary's 

motion to withdraw the complaint of discrimination is GRANTED 

and this matter is hereby DISMISSED. 

ative Law Judge 

Distribution: 

Covette Rooney, Esq., Office of the Solicitor, u. s. Department 

of Labor, 3535 Market St., Philadelphia, PA 19104 (Certified 

Mail) 

Robert M. Vukas, Esq., Consolidation Coal Co., 1800 Washington 

Rd., Pittsburgh, PA 15241 (Certified Mail) 

yh 605 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE tAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 17, 1986 

THE YOUGHIOGHENY AND OHIO CONTEST PROCEEDINGS 

COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

: 

. . 

. . 

. . 

. . 

DECISION 

Docket No. LAKE 85-74-R 

Order No. 2330533: 4/9/85 

Docket No. LAKE 85-75-R 

Order No. 2330535; 4/9/85 

Nelms No. 2 Mine 

Appearances: Robert Kota, Esq., Youghiogheny and Ohio Coal 

Company, St. Clairsville, Ohio, for Contestant; 

Patrict M. Zohn, Esq., Office of the Solicitor, 

U.S. Department of Labor, Cleveland, Ohio, for 

Respondent. 

Before: Judge Melick 

These consolidated proceedings are before me upon the 

Notices of Contest filed by Youghiogheny and Ohio Coal 

Company CY&O) under section lOSCd) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 et~, the "Act," 

to challenge the issuance by the Secretary of Labor of two 

withdrawal orders (Nos. 2330533 and 2330535) under the provisions of section 104(d)(2) of the Act.~/ 

!7 Section 104Cd){2) provides as follows: 

"If a withdrawal order with respect to any area in a 

coal or other mine has been issued pursuant to paragraph Cl), 

a withdrawal order shall promptly be issued by an authorized 

representative of the Secretary who finds upon any subsequent 

inspection the existence in such mine of violations similar 

to those that resulted in the issuance of the withdrawal order 

under paragraph Cl) until such time as an inspection of such 

mine discloses no similar violations. Following an inspection of such mine which discloses no similar violations, the 

provisions of paragrpah Cl> shall again be applicable to that 

mine." 

Section 104(d)(l) provides as follows: 

"If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety 

standard, and if he also finds that, while the conditions 

created by such violation do not cause imminent danger, such 

violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds such 

violation to be caused by an unwarrantable failure of such 

operator to comply with such mandatory health or safety 

standards, he shall include such finding in any citation 

given to the operator under this Act." 

606 
Hearings were held concerning the merits of these orders 

on September 25, 1985, but a final decision was deferred 

pending decisions by other judges concerning the validity of 

the underlying section 104Cd)(l) citation and order that were 

conditions precedent to the validity of the orders at bar. A 

determination upholding the violations cited in the instant 

orders and a finding that the violations were caused by the 

"unwarrantable failure" of the mine operator were previously 

made by decision of the undersigned dated October 29, 1985 

(Secretary v. Youghiogheny and Ohio Coal Company, Docket No. 

LAKE 85-90, Appendix A). 

The underlying citation (No. 2331148) and order (No. 

2328954) were subsequently upheld respectively by decisions 

of Commission Judges in Youghiogheny and Ohio Coal Company v. 

Secretary of Labor, Docket No. LAKE 85-76-R (March 7, 1986, 

Judge Maurer), and Secretary of Labor v. Youghiogheny and 

Ohio Coal Company, Docket No. LAKE 85-63 (February 4, 1986, 

Judge Broderick). Accordingly the section 104(d}(2) orders 

at bar (Orders Nos. 2330533 and 2330535) are affirmed and the 

contests of those orders are dismissed. 

Distribution: 

Robert c. Kata, Esq., Y&O Coal Comp , P.O. Box 1000, St. 

Clairsville, OH 43950 (Certified Ma· ) 

Patrick M. Zohn, Esq., Office of the Solicitor, U.S. Department of Labor, 881 Federal Office Building, 1240 East Ninth 

Street, Cleveland, OH 44199 (Certified Mail) 

rbg 

607 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APPENDIX A 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DEC J 9 1985 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 85-90 

A.C. No. 33-00968-03605 

Nelms No. 2 Mine 

YOUGHIOGHENY & OHIO COAL CO., : 

Respondent 

DECISION 

Before: Judge Melick 

This case is before me on remand by the Commission on 

December 12, 1985, to "enter the necessary findings as to 

each of the six statutory penalty criteria supporting" the 

$750 penalty assessment for the violation of the regulatory 

standard at 30 C.F.R. § 75.305.1 

The violation as charged in Order No. 2330535 reads as 

follows: 

The absence of dates, times and initials indicates that the weekly examinations of the left 

and right return air courses were not being conducted. There was [sic] no entries made in the 

approved book on the surf ace that the return air 

courses had ever been examined on a weekly basis. 

Youghiogheny & Ohio Coal Company (Y&O) does not dispute 

that the cited standard requires weekly examinations to be 

performed in the left and right return air courses as alleged 

and that the person making such examinations is required to 

place his initials and the date and time at the place 

!The penalty criteria.are as follows: 

"The operator's history of previous violations, the 

appropriateness of such penalty to the size of business of 

the operator charged, whether the operator was negligent, the 

effect on the operator's ability to continue in business, the 

gravity of the violation, ·and the demonstrated good faith of 

the person charged in attempting to achieve rapid compliance 

after notification bf a violation." 30 u.s.c. § 820Ci). 

608 
examined. Y&O maintains that except for the period between 

March 13, 1985 and April 9, 1985, proper examinations had 

been made. It is not disputed however that during an underground inspection of the Nelms No. 2 Mine conducted by MSHA 

Inspector James Jeffers on April 9, 1985, neither Jeffers nor 

Y&O safety Director Don Statler were able to locate any 

dates, times or initials of mine examiners or any other 

evidence that any part of the 1,300 feet of the right and 

left air courses had ever been examined in accordance with 

the cited standara.2 

Jeffers and Statler returned to the surf ace and 

examined the books in which the examinations of the cited air 

courses were required to be recorded. Assistant Mine Safety 

Director Robert Oszust joined in the examination. At that 

time neither Don Statler nor Robert Oszust was able to show 

Jeffers any evidence of entries corresponding to inspections 

of the cited air courses. Indeed Y&O continued to admit as 

recently as when it filed its Answer in these proceedings on 

September 12, 1985, that the examinations had not been 

recorded. At the hearings in this case however, only 13 days 

later, Statler testified that entries in the record book did 

exist and that they corresponded to examinations of the air 

courses on February 6, 1985, February 16, 1985, February 21, 

1985, February 27, 1985, March 6, 1985 and March 13, 1985. 

The entries are not however so unambiguous as to permit 

the unquestioned acceptance of this testimony. Moreover the 

one person who could have clarified this matter and answered 

the more important question of whether the air courses were 

actually inspected was not called as a witness by the mine 

operator and his absence was not explained. This person was 

Bill Dennis, the fire boss who it is now purported conducted 

the first five of the examinations. Under the circumstances 

Statler's testimony in this regard is without a credible 

foundation. 

Within this framework I conclude that, with one exception, the required weekly examinations of the air courses had 

not been made from February 6, 1985-to April 9, 1985. The 

one exception is based upon Statler's testimony that he saw 

substitute Fire Boss Roy Kohler perform an examination of the 

air courses on March 13, 1985. Statler also admits however 

that he does not know whether any weekly examinations were 

performed between March 13 and April 9, 1985, and concedes 

that there were no entries in the record book corresponding 

to any examination between those dates. 

2statler testified that he found one notation pad on the outby 

side of the A Entry return regulator but there is no indication that there were any entries on that pad. 

609 
According to the undisputed testimony of Inspector 

Jeffers, the failure to conduct weekly examinations could 

lead to the accumulation of float coal dust in the cited air 

courses. Indeed it is undisputed that float coal dust was in 

fact present throughout at least 500 to 600 feet of the right 

return air course at the time of this inspection and was 

admittedly an unsafe condition and a violation of the 

standard at 30 C.F.R. § 75.400. 

According to Jeffers areas of the mine containing 

ignition sources such as electrical equipment including 

ventilation fans, a battery charger and a rock dusting 

machine, were vented directly into the air courses. He 

opined that the accumulations of float coal dust in the air 

courses could propagate fire or explosions from those areas 

exposing the seven miners working inby to serious injuries. 

Jeffers also observed that there had been a prior ignition at 

this mine of hydrogen gas from one of the battery chargers. 

Statler testified that he was not aware of such ignition 

sources but did not contravene Jeffer's testimony in this 

regard. Under the circumstances I find that the violation 

herein was quite serious. The hazard was particularly 

aggravated by the lengthy period during which the examinations had not been performed. Indeed each failure to conduct 

a weekly examination at each required location could have 

properly been charged as a separate violation subject to a 

separate civil penalty. 

The violation was also the result of operator negligence. The fact that proper examinations were not being 

perf orrned should have been obvious from the absence of 

required notations in the air courses. In addition the 

existence of admittedly violative amounts of float coal dust 

over 500 to 600 feet of the right return air course in an 

area frequented by supervisory personnel should have led to 

the discovery of this violation. Indeed Safety Director 

Statler conceded that a section foreman should have discovered the float coal dust in the air course and was 

"surprised" that it had not been found. 

In addition since both the Mine Safety Director and his 

assistant were apparently unable to determine (until the 

Safety Director testified at hearing) from the ambiguous 

entries in the record book that proper examinations of the 

air courses were being made it is apparent that at the very 

least the entries were not adequate to clearly show to management that the examinations were in fact being made. For this 

additional reason the mine operator should have been alerted 

to the problem and seen to it that the examinations were 

being made and were clearly recorded as having been made. 

The admitted absence of any entries in the record book for 

the period subsequent to March 13, 1985, should also have 

610 
been known to management in light of the requirement for 

supervisors to countersign those entries. 

In assessing the penalty in the decision below I also 

considered the undisputed evidence concerning the remaining 4 

criteria. It was stipulated that the mine operator was of 

"moderate" size and that the proposed penalties would have no 

affect on its ability to continue in business (Tr. 5). The 

undisputed history report of violations CEx. G-11) shows that 

overall the operator had a record preceding the date of the 

order at bar of 3,592 paid violations including 12 paid violations of the regulatory standard at issue. For the 2 years 

preceding the order at bar there were 515 paid violations 

including 4 paid violations of the standard at issue. This 

is not a good record. 

I also gave credit in assessing a $750 penalty for the 

operators demonstrated good faith in attempting to achieve 

rapid compliance after notification of the violation. The 

order in this case indicates on its face that both the left 

and right return air courses were subsequent! · ..examined by a 

representative of the mine operator and the r sults were 

recorded in the approved book. 

Distribution: 

Patrick M. Zohn, Esq., Office of the Solicitor, U.S. Department of Labor, 881 Federal Office Building, 1240 East Ninth 

Street, Cleveland, OH 44199 (Certified Mail} 

Robert C. Kota, Esq., The Youghiogheny & Ohio Coal Company, 

P.O. Box 1000, St. Clairsville, OH 43950 (Certified Mail) 

rbg 

611 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE. SUITE 400 

oENYER,COLORADO so204 April 21, 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEST 85-169 

A.C. No. 42-00079-03525 

Emery Mine 

DECISION 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Hal Pos, Esq., Parsons, Behle & Latimer, Salt Lake 

City, Utah, 

for Respondent. 

Before: Judge Morris 

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

Health Administration, charges respondent with violating a safety 

regulation promulgated under the Federal Mine Safety and Health 

Actf 30 U.S.C. § 801 et ., (the Act). 

After notice to the parties a hearing on the merits took 

place in Salt Lake City, Utah on February 13, 1986. 

The parties waived their right to file post-trial briefs 

and, in lieu thereof, orally argued their cases. 

Issue 

The issue is whether there was an unwarrantable failure on 

the part of the operator to comply with a ventilation regulation. 

Citation 

Citation 2503093 charges respondent with violating 30 C.F.R. 

§ 75.316. The cited regulation provides as follows: 

STATUTORY PROVISIONS 

A ventilation system and methane and dust control plan 

and revisions thereof suitable to the conditions and the 

612 
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. 

Stipulation 

At the commencement of the hearing the parties stipulated as 

follows: the air velocity at the working face was not maintained 

at the required 6000 cubic feet per minute (CFM). Respondent 

thereby violated its ventilation plan and the regulation. In 

addition, there had been no intervening clean inspection between 

a prior (d)(l) citation issued February 26, 1985 and the (d)(l) 

citation in the instant case. Finally, the parties agreed that 

the proposed penalty of $255 is appropriate if the violation was 

due to the unwarrantable failure of the operator to comply; if 

not, then the penalty should be for a lesser amount (Tr. 5-7). 

Summary of the Case 

The Secretary's Evidence 

Robert Lee Heggins, an MSHA inspector experienced in mining, 

inspected respondent on May 13, 1985 <Tr. 8-11). On this 

occasion he was accompanied by Steve Behling, the company's 

safety director (Tr. 11). When the men walked into the No. 5 

entry of 2 West Main the inspector observed that the curtain was 

partly blown in at crosscut 29 (Tr. 12, 13). As they proceeded 

further the inspector also saw that the mine curtain was sagging 

at several locations (Tr. 11, 13). Continuing on, the inspector 

noticed that a trailing cable had pulled the curtain against the 

rib causing a restriction of the air flow to the working face 

(Tr. 15). 

When he approached the face the inspector saw dust in the 

air as the shuttle car in crosscut 30 was being loaded. In his 

position he did not feel the free flow of air that one would 

normally expect (Tr. 16). The absence of the air flow and the 

condition of the curtain convinced the inspector that there was a 

failure of the air flow at the face (Tr. 16). 

After he observed the coal being loaded into the shuttle car 

the inspector attempted to take an anometer reading: the device 

would not turn. He also tested with smoke but it went up against 

the roof and did not move. He also tested at the line curtain 

and found .3990 CFM; it should have been 6000 CFM (Tr. 17). 

613 
In the inspector's opinion the placement of the curtain at 

crosscut 29 was abnormal, improper and significant because it 

disrupted the normal flow of air (Tr. 12, 13). Further, the 

curtain was sagging from the roof. This caused the air to leak. 

The curtain shouldn't have been hung in this fashion (Tr. 13, 14, 

18). The third problem contributing to the air flow restriction 

was caused by the trailing cab as the equipment made a sharp 

right turn into the working face (Tr. 32). It would be natural 

to expect a trailing cable to contact a brandish curtain in these 

circumstances. In the inspector's view the cable had been 

pulling against the curtain since this shift began, for about an 

hour to an hour and a half (Tr. 33, 34). 

The inspector watched the shuttle car being loaded for two 

to three minutes before issuing his order. In this period 

neither foreman Petty nor anyone se attempted to reestablish 

ventilation (Tr. 24). Supervisor Petty, who was in the middle of 

the dust, should have sensed a lack of air sweeping over his body. 

He should have realized there was a failure of the ventilation 

(Tr. 23). 

The violative conditions were abated by straightening the 

curtain at crosscut 29; by fixing the sagging curtain in the 

entry and by placing an object to keep the curtain from 

contacting the rib (Tr. 33-35). 

Consolidation Coal's Evidence 

Horace Petty (section foreman), David Day (miner operator), 

Richard Childs (continuous miner -Operator) and Steve Behling 

(safety supervisor) testified for respondent. 

The section foreman, Horace Petty, indicated that at crosscut 29 they had spadded the curtain to the floor two or three 

feet toward the direction of entry 6 (Joint Exhibit No. 1 illustrates the placement of the curtain). This placement was to 

prevent any shuttle cars from snagging it as they turned the 

corner. Placement of the curtain in this fashion had never 

caused a ventilation problem. The fire boss had a reading of 

17,000 CFM before the shift started mining that morning (Tr. 38, 

39, 46, 47). 

If there had been any gaps in the curtain Petty would have 

noticed them. The top is not perfectly level and there may have 

been an inch or two spacing at the top. Such openings do not 

cause much loss of air (Tr. 51, 52, 64). 

The curtain had not been pushed against the rib when Petty 

went up the entry that morning at about 7:20. The curtain was 

spadded to the top, as well as the floor, along all entry No. 5 

(Tr. 39). He went up the entry an additional three or four times 

before the violation occurred. 

614 
At about 10:00 or 10:30 a.m. Petty walked to the working 

face from behind the line curtain. He frequently took this 

approach. As he proceeded toward the face he found the curtain 

had pulled loose from the spads; it was against the rib. There 

wasn't much ventilation coming through and Petty knew he had a 

problem. He immediately came through the curtain. The miners 

were loading the shuttle car and Petty signaled them to stop (Tr. 

41, 42, 80). Since the shuttle car was loaded he directed them 

to back it away from the face. It took the operator about ten 

seconds to stop (Tr. 41, 42). As the miner was backed out MSHA 

inspector Heggins stopped them (Tr. 42). About 10 to 15 seconds 

had elapsed (Tr. 43). Petty had stopped the mining operation 

before he knew the MSHA inspector was present (Tr. 63). 

In order to reestablish ventilation after the miner was shut 

down, the employees pulled the curtain out and spadded it back to 

the floor (Tr. 52, 53). They started from the face and walked 

the whole curtain line, tightening all gaps, checking all spads 

and cracks (Tr. 55). After the gaps were fixed, after the 

restriction was removed at the corner and after the curtain was 

moved at crosscut 29 there was sufficient ventilation (Tr. 57). 

According to witness Petty the curtain, as it hung from the 

ceiling, was properly installed in the first place. They retightened it after the citation was issued in order to get the 

maximum amount of air to the face (Tr. 58). 

In Petty 1 s opinion, changing the position of the brandish 

curtain at crosscut 29 did not contribute to an increase in the 

air flow (Tr. 61). 

Closing the gaps along the curtain from the working face to 

crosscut 29 contributed an additional two or three thousand cubic 

feet of air flow (Tr. 61). The trailing cable pinching the 

curtain was the main problem. Petty had stopped to take care of 

it (Tr. 62). This particular condition was abated by moving the 

curtain back from the rib and spadding it to the floor (Tr. 62). 

David Day, a miner operator, described his activities on 

this day as well as the inspections made by the section foreman 

(Tr. 65-67). 

Shortly prior to the inspection the water line had to be 

repaired. After the line was repaired it took about 15 or 20 

seconds to finish loading the car (Tr. 68, 70). As they finished 

loading Petty came through the curtain and signaled them with his 

light to stop mining. They stopped and backed the shuttle car 

away from the continuous miner. As they were backing up Behling 

and inspector Heggins told them to stop (Tr. 68, 71). In Day's 

opinion, before the water line was fixed, the three-inch trailing 

615 
cable had not been pressing against the rib. He believed that 

after the line was fixed and as he started around the corner the 

cable snapped tight and pulled out the bottom of the curtain (Tr. 

69). At the time the citation was issued the miner was 50 to 60 

feet into crosscut 30 from entry 5 (Tr. 76-79). 

This portion of the mine is a very dry and dusty section. 

The ventilation seemed okay (Tr. 71, 76). There was no gas at 

this face CTr. 78). Day estimates 50 to 70 trips were made that 

day by the shuttle car (Tr. 74). 

At the time of the incident witness Richard Childs had been 

absent from 2 Main West for approximately 30 minutes. Upon returning he found the water line had been repaired and the shuttle 

car was 1/2 to 3/4 full. He then replaced Day as the operator 

and moved the miner back into the face and started cutting. They 

had already mined about 60 feet into crosscut 30. Childs completed filling the car in 20 to 30 seconds (Tr. 84-87, 94). 

Day motioned to Childs that the car was filled. Childs then 

saw Horace Petty shaking his light directing them to stop 

mining. He then started to back away from the face. At that 

point the MSHA inspector appeared and directed him to shut down 

the miner, which he did. There was no dust because the miner 

hadn't been operating (Tr. 87-89, 93). Childs did not notice the 

lack of air flow across his body nor did he notice any air 

problem (Tr. 92, 96). 

Other than spadding the curtain, no other precaution had 

been taken to keep the trailing cable f rorn collapsing on the 

curtain. Spadding is usually sufficient but a temporary post or 

jack had not been used to. block the curtain from moving against 

the rib (Tr. 94, 95). Childs estimated that the trailing cable 

was 1 1/2 inches thick (Tr. 99). 

Steve Behling, Consolidated's safety supervisor, accompanied 

MSHA inspector Heggins during the inspection. Behling took the 

inspector to 2 Main West because that section was probably one of 

the best in the mine (Tr. 100, 101). 

When the two men approached entry 5 no comment was made concerning the curtain at crosscut 29. The men saw the cable 

against the curtain and Behling knew there was a problem. Corning 

around the corner, Behling saw Petty waving his light to shut 

down the miner operator (Tr. 101-106). Inspector Heggins continued on and got out his anorneter. It wouldn't turn and Heggins 

said the company was under an order situation (Tr. 103). 

After the mining activity was discontinued the curtain was 

picked up and pulled out. Behling rechecked and found they still 

had no air (Tr. 105). They then started pushing the curtain out. 

At that point Heggins got an air reading of about 6100 (Tr. 105). 

616 
When Behling and Heggins got to the surface the inspector 

said he was issuing a 104(d)(l) Order. He stated that Petty 

should have known about the ventilation problem (Tr. 106, 107). 

Behling conducted his own investigation by interviewing the 

miners as well as the foreman. Behling concluded that the water 

line breakdown, the movement of the shuttle car into the 

crosscut, the almost full shuttle car, the fact that equipment is 

always backed away from the face and the actions of Petty, caused 

him to believe that there were two ways of viewing the situation 

(Tr. 109-113). He also believed that Heggins and Petty were on 

opposite sides of the curtain as they approached the face (Tr. 

111). 

As soon as Petty recognized the problem he properly shut 

down the mining operation (Tr. 111, 122). 

Even though the shuttle car cable and the obstruction had 

been removed the air was insufficient; the curtain doesn't fall 

all the way back into position (Tr. 116, 117). After the cable 

was pulled out it wasn't immediately spadded to the floor. 

To reestablish the ventilation the miners started at the 

face and went out from there. As they progressed they pushed, 

spadded down and laid chunks of coal on the curtain. Activity of 

that type would cause a lower air reading (Tr. 118, 119). 

In Behling's opinion when the shuttle car started up the 

cable moved against the curtain and pulled the spad out. The 

time interval was about 15 seconds (Tr. 121, 122). 

Discussion 

The Commission has defined the statutory term of "unwarrantable failure" to mean a violation resulting from indifference, willful intent or serious lack of reasonable care, 

Section 104(d)(l}; Westmoreland Coal Company, 7 FMSHRC 1338 

(September 1985); U.S. Steel Corp., 6 FMSHRC 1423, 1437 (June 

1984). 

In this case I find that the respondent's evidence is 

credible. In short, the MSHA inspector and the company's section 

foreman arrived at the ventilation problem from different sides 

of the brandish curtain at approximately the same time. While 

the presence of a section foreman is not necessary to establish 

an unwarrantable failure I find the violative events occurred in 

the short period of approximately 20 seconds as claimed by the 

operator. 

The Secretary argues extensively CTr. 124-131) that his 

evidence is credible and the operator's is fatally flawed. 

617 
I am not persuaded. The Secretary's evidence relies on 

three factors to establish an unwarrantable failure. These 

factors consist of the placement of the curtain at crosscut 29, 

the gaps and sagging curtain from crosscut 29 to the working 

face, and, finally, the restriction of the air flow caused by the 

cable pushing the curtain against the rib. 

Concerning crosscut 29: Joint Exhibit No. 1 illustrates the 

placement of the curtain. I am unable to see how the position of 

the curtain as shown on the exhibit could interfere with the air 

flow. The witnesses referred extensively to the exhibit 

throughout the hearing. I agree with section foreman Petty that 

the curtain placement at crosscut 29 did not affect the air flow. 

The operator had moved the curtain to that position to prevent 

the shuttle cars from snagging it as they turned at the crosscut. 

The second facet concerns the gaps or sags in the curtain. 

MSHA's evidence is not precise on this point. I credit the 

operator's evidence that the minimal spacing at the top caused 

the loss of no more than 3000 to 4000 CFM from the measured air 

flow of 17,000 CFM. 

The final asserted defect is that the curtain had been 

pushed against the rib by the trailing cable. Everyone 

recognized that this condition effectively restricted the air 

flow. I do not find it credible that this restriction could have 

existed for an hour to an hour and a half as the inspector 

asserts. I credit witness Day's contrary opinion that the cable 

snapped tight and pulled out the bottom of the curtain as the 

miner went around the corner after the water line had been fixed. 

The time involved was less than 30 seconds. 

A credibility issue also arises as to whether the inspector 

watched the mining of the coal for two or three minutes or 

whether the shuttle car was filled in 10 to 15 seconds. Petty, 

Day and Childs all confirmed the short period of time involved. 

Inasmuch as Day and Childs loaded the car they would be in the 

best position to know the extent to which it had been filled and, 

conversely, the amount of time necessary to finish loading it. 

For the foregoing reasons, I conclude that the conduct of 

the operator did not constitute an unwarrantable failure to 

comply with the ventilation regulation. Accordingly, the 

allegations of unwarrantable failure should be stricken. 

The facts and the stipulation of the parties confirm that 

the operator violated 30 C.F.R. § 75.316. Accordingly, the 

citation should be affirmed. 

Further, based on the stipulation, the evidence and the 

statutory criteria pertaining to the assessment of civil 

penalties, 30 u.s.c. § 820(i), I deem that a penalty of $100 is 

appropriate. 

618 
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. Respondent violated 30 C.F.R. § 75.316. 

3. The conduct of respondent did not constitute an 

unwarrantable failure to comply with the above regulation. 

4. Citation 2503093 should be affirmed and a civil penalty 

assessed therefor. 

ORDER 

Based on the foregoing facts and conclusions of law, I enter 

the following order: 

1. The allegation that respondent's conduct constituted an 

unwarrantable failure to comply with the regulation is stricken. 

2. Citation 2503093 is affirmed. 

3. A civil penalty of $100 is assessed. 

4. Respondent is ordered to pay to the Secretary the sum of 

$100 within 40 days of the date of this decision. 

Law Judge 

Distribution: 

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

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

80294 (Certified Mail) 

Hal Pos, Esq., Parsons, Behle & Latimer, 185 S. State Street, 

P.O. Box 11898, Salt Lake City, UT 84147 (Certified Mail) 

/blc 

619 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 21, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

OTIS ELEVATOR COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 85-278 

A.C. No. 46-01433-03501 B70 

Loveridge Mine 

ORDER APPROVING SETTLEMENT AGREEMENT 

Appearances: Howard K. Agran, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner; w. Scott Railton, Esq., 

Reed, Smith, Shaw & Mcclay, Washington, D.C., 

for Respondent. 

Before: Judge Broderick 

When the above case was called for hearing in Pittsburgh, 

Pennsylvania on March 18, 1986, Petitioner made a motion on 

the record for approval of a settlement agreement reached 

by the parties to this proceeding. 

The case involves a single citation, charging a violation 

of 30 C.F.R. § 75.511 because an unqualified person was 

performing electrical repairs on an automatic ·elevator. 

MSHA contended that the violation contributed to an injury, 

because the repairman did not notify mine management that he 

was going to work on the elevator, and a miner was injured 

while attempting to board it. The violation was originally 

assessed at $500. 

In his motion counsel states that the repairman in 

question had not taken the West Virginia examination for the 

mine electrical work, but the government does not contend 

that he is not technically qualified to do electrical repairs. 

The government is not able to state that the violation 

contributed to the injury. The government does not allege 

that the work performed by the repairman violated any mandatory 

safety standard. Respondent is a large company, has a 

history of one prior violation, and abated the instant 

violation promptly, by giving MSHA a written statement that 

the mine operator would furnish a "qualified person" to 

to accompany Respondent's mechanics when electrical work is 

performed on mine elevators. The part s agree to settle the 

case by payment of a penalty of $375. 

620 
I have considered the motion in the light of the criteria 

in section llO(i) of the Act, and conclude that it should 

be approved. 

Accordingly, the settlement is APPROVED, and Respondent 

is ORDERED to pay the sum of $375 within 30 days of the date 

of this order. 

J

MMft μ3VZJ dut/l di"-

{ James A. Broderick 

· Administrative Law Judge 

Distribution: 

Howard Agran, Esq., U.S. Department of Labor, Office of t~e 

Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

w. Scott Railton, Esq., Reed, Smith, Shaw & Mcclay, Suite 900, 

1150 Connecticut Ave., N.W., Washington, D.C. 20036-4192 

(Certified Mail) 

slk 

621 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 22, 1986 

DON KEEN, WILLIAM HENSLEY, 

HUBERT D. ROWE, ARVIL ARWOOD, 

JERRY BARRETT, KERMIT BARNART, 

and JACK COLE, . 

Complainants 

v. 

GARDEN CREEK POCAHONTAS 

COMPANY, 

Respondent 

. . 

. . 

. . 

DECISION 

DISCRIMINATION PROCEEDINGS 

Docket No. VA 86-4-D 

MSHA Case No. NORT CD 85-2 

Virginia Pocahontas No. 6 

Mine 

Appearances: Gerald F. Sharp, Esq., Castlewood, Virginia, 

for Complainants; 

Thornton L. Newlon, Esq., Campbell & Newlon, 

P.c., Tazewell, Virginia, for Respondent. 

Before: Judge Melick 

This case is before me upon the complaints by the named 

individual miners 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 each was laid-off from the Garden Creek 

Pocahontas Company (Garden Creek) on October 22, 1984, in 

violation of section 105(c)(l) of the Act.l/ They are each 

seeking back-pay from that date until they-returned to work 

on January 2, 1985, with accrued benefits and interest. 

1/ 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 operator's agent, or the 

representative of the miners at the coal or other mine of an 

alleged danger or safety or health violation in a coal or 

other mine, ••• or because of the exercise by such miner, 

• • • on behalf of himself or others of any statutory right 

afforded by this Act." 

622 
In order for the Complainants to establish a prima 

facie violation of section 105(c)(l) of the Act, they must 

prove by a preponderance of the evidence that they engaged in 

an activity protected by that section and th.at the lay-off or 

discharge they suffered was ·motivated in any part by the protected activity. Secretary' ex. rel. David Fasula v. Consolidation coal Company, 2 FMSHRC 2686 (1980), rev'd on other 

grounds sub. nom. Consolidation Coal Company v. Marshall, 663· 

F.2d 1211 (3rd Cir. 1981). See also Boitch v. FMSHRC, 719 

F.2d 194 (6th Cir. 1983) and NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), affirming burden of proof 

allocations similar to those in the Fasula case. 

The compla.,inants specifically allege that officials of 

Garden Creek threatened to lay them off and in fact subsequently laid them off for the failure of the union local, of 

which they were members, to waive as a condition of employment the "requirements of [a] safeguard and grievance settlement concerning a 'dispatcher' to control traffic on idle 

days".2/ They claim that their refusal to work without a 

full-time "dispatcher" was a protected activity and that 

their lay-off based on that work refusal was therefore in 

violation of the Act. 

It is indeed well established that a miner's exercise 

of the right to refuse work is a protected activity under the 

Act so long as the miner entertains a good faith and reasonable belief that to work under the conditions presented would 

be hazardous. Miller v. FMSHRC, 687 F.2d 194, (7th Cir. 

1982); Robinette v. United Castle Coal Company, 3 FMSHRC 803 

(1981). For the reasons set forth in this decision however, 

I do not find that the miners' work refusal in this case was 

based on such a belief. Accordingly whether or not their 

lay-off or discharge was motivated by that work refusal, 

their complaint herein must fail. 

According to Kenneth Lester, vice-president of Local 

2421 of the United Mine workers of America CUMWA) and chairman of the mine committee, he was called into a meeting on 

October 19, 1984, by mine superintendant Vern Reynolds. 

Reynolds called the meeting to announce a lay-off and to 

advise the union of the company's plans for an impending idle 

period in a non-producing status. Reynolds reportedly stated 

that the company intended to lay-off everyone except 14 of 

the union miners and that 7 of the 14 would be assigned to 

underground work during this period. 

2/ Although the duties of a "dispatcher" were never precisely defined in this case it appears that a "dispatcher" 

coordinates rail traffic in the mine. 

623 
Lester says that he then asked Reynolds who would be 

employed as the "dispatcher". Reynolds said there would be 

no "dispatcher" and that if they insisted on having a "dispatcher" there would be no undergound work at all. Lester 

then indicated that he wanted to have a union meeting to 

discuss the subject and would get back to Reynolds. A union 

meeting followed on October 21, at which the membership voted 

to insist upon the employment of a full-time "dispatcher" as 

a pre-condition for their continued underground work during 

the contemplated idle period. 

On October 22, there was another meeting with Reynolds. 

According to Lester, Local 2421 president Donny Lowe told 

Reynolds at thi·~ meeting that the union wanted a 11 dispatcher 11 

to control the underground traffic and Reynolds responded 

that under the circumstances he would then lay-off the seven 

underground men. Lester testified that Reynolds then telephoned his superior, Rufus'Fox. He overheard Reynolds state 

on the phone that the union was asking for a "dispatcher". 

Reynolds then hung-up and said he would lay-off the seven men. 

The testimony of Lester is corroborated in essential 

respects by other witnesses called by the Complainants 

including the then general mine foreman George King. King 

testified that sometime during the meeting on October 22, 

someone said there would be no one working underground 

without a "dispatcher" and Reynolds responded that there 

would then be no one working underground. In his posthearing deposition Reynolds also acknowledged that he told 

the union representatives that "we would work seven men underground with no dispatcher or we would work no men underground." The Complainants' allegations in this regard are 

ther ore ~ccepted as· an accurate accounting of events. 

The Complainants argue that their work refusal under 

the circumstances was based on a "reasonable, good faith 

beli 11 that for seven miners to work underground without a 

full-time dispatcher during the idle period would have been 

hazardous. This argument is based on their purported 

reliance upon a safeguard notice that had been issued by 

Inspector Charlie Wahles of the Federal Mine Safety and 

Health Administration (MSHA) on April 13, 1982. They 

maintain that it would have violated that safeguard to have 

continued working without the additional employment of a 

full-time dispatcher and that a violation of the safeguard 

would constitute per se a dangerous condition justifying a 

work refusal under the Act. 

I do not find however that the Complainants could 

reasonably have believed that the safeguard would have been 

violated under the circumstances. The safeguard notice, 

624 
issued by virtue of the regulatory standard at 30 C.F.R. § 

75.1403 and directed to the Virginia Pocahontas No. 6 Mine, 

reads as follows: 

The mine traffic at this mine has been under the 

direction of a dispatcher in the past,. however 

since the mine has been in a non-producing 

status, the dispatcher has been eliminated. 

several persons are still employed on each shift 

in different areas of the mine {approximately 35). 

Man trips and other mine traffic have been 

operating to and from the sections and other work 

areas with no assurance that they have a clear 

road. Trris is a notice to provide safeguards 

requiring that man trips or other mine traffic be 

under the direction of a dispatcher or other 

competent person designated be the operator and 

that man trips or other mine traffic shall not be 

permitted to proceed until the operator of the 

man trip or other mine traffic is assured by the 

dispatcher or other competent person that he/she 

has a clear road. 

The safeguard on its face does not limit the mine 

operator to the use of only a full-time "dispatcher" but 

allows him to use any "competent person," full-time or 

part-time, to perform the same function. In addition, in the 

case of Secretary v. Southern Ohio Coal Company, 7 FMSHRC 509 

(1985) this Commission held that a safeguard notice must 

identify with specificity the nature of the hazard at which 

it is directed and the conduct required of the operator to 

remedy such hazard. The Commission further held that in 

interpreting a safeguard notice a narrow construction of the 

terms'of the safeguard and its intended reach is required. 

7 FMSHRC at 512. In this regard, by its own specific terms 

the safeguard herein was applicable only when 35 miners were 

employed underground. In this case it is not disputed that 

no more than seven union miners and perhaps up to three 

supervisors were to be employed underground. For this 

additional reason there clearly would not have been any 

violation of the safeguard to have continued operating the 

subject mine in a non-producing status with seven union 

miners and three supervisory personnel as contemplated. 

In addition the apparent failure of the Complainants to 

have consulted with the MSHA inspector who issued the safeguard as to whether the contemplated work conditions would 

have violated the safeguard demonstrates a lack of good faith 

on their part. Significantly the Complainants also failed to 

call that inspector as a witness in these proceedings. It is 

reasonable to infer from the absence of that key witness that 

his testimony would not have been supportive of the Complainants position herein and that they knew it. 

625 
The Complainants also demonstrated a lack of good faith 

by exercising their work refusal before determining what 

alternative s ety procedures were planned for the impending 

idle period in the absence of a full-time 11 dispatcher 11 • The 

evidence at hearing showed that other procedures could have 

been followed for the safe control of rail traffic but there 

is no evidence that the Complainants even considered these 

alternatives. It is apparent from this that they were more 

interested in preserving another job rather than exercising a 

sincere concern for safety. 

I also note from the undisputed evidence that other 

mines in the region similar to the Virginia Pocahontas No. 6 

mine and with ~.similar single track system do not generally 

use, and are not required to employ, a 11 dispatcher 11 • The 

evidence shows for example that each of the Island Creek Coal 

Company mines in the area has established its own policy in 

this regard. For example ~t its Beatrice Mine no "dispatcher" 

is used unless a supervisor decides it is necessary in a 

particular circumstance. At the Virginia Pocahontas No. 1 

Mine a "dispatcher" is used only when more than 12 union 

miners are employed underground. At the Virginia Pocahontas 

No. 2 Mine a "dispatcher" is used only when at least 25 union 

employees are working underground. At the Virginia Pocahontas 

No. 3 Mine a "dispatcher" is employed only if more than two 

pieces of track equipment are being used on one side of the 

mine and at the Virginia Pocahontas No. 5 Mine a "dispatcher" 

is employed only if two or more pieces of equipment are being 

used. The evidence shows that other Virginia mine operators 

including Westmoreland Coal Company have also operated without 

"dispatchers". 

In addition former superintendant Reynolds said in his 

deposition placed in evidence that he checked with federal 

mine inspector Jack Burnette and a state mine inspector concerning the procedures he intended to use during the idle 

period at issue and that both agreed that it would not have 

been uns e to operate the mine in the proposed manner.~/ 

Under the circumstances I find that the Complainants 

have failed in their burden of proving that they entertained 

a good faith and reasonable belief that their refusal to work 

3; The Complainant's objection to this testimony at the 

posthearing deposition on the grounds that it was hearsay is 

denied. 

626 
without a "dispatcher" under the described conditions would 

have been hazardous. Accordingly, the Comp int herein must 

be, and is, dismissed. 

Law Judge 

Distribution: 

Gerald F. Sharp, Esq., UMWA, District 28, P.O. Box 28, 

Castlewood, VA 24224 (Certified Mail) 

Thornton L. Newlon, Esq., Campbell & Newlon, P.C., P.O. Box 

717, Tazewell, VA 24651-0717 (Certified Mail) 

rbg 

627 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 23, 1986 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BANNER COAL COMPANY, INC., 

·Respondent 

. . 

. . 

. . 

. . 

DECISION 

Docket No. VA 85-26 

A.C. No. 44-04614-03505 

No. l Plant 

Appearances: Craig w. Hukill, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for Petitioner; 

Joe Douglas Kilgore, Banner Coal Company, 

Inc., Coeburn, Virginia for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et~, the "Act," for an alleged violation of 

the regulatory standard at 30 C.F.R. § 77.807-3. The general 

issues before me are whether Banner Coal Company, Inc., 

(Banner} has violated the cited regulatory standard and, if 

so, whether that violation was of such a nature as could 

significantly and substantially contribute to the cause and 

effect of a mine safety or health hazard i.e., whether the 

violation was "significant and substantial". If a violation 

is found it will also be necessary to determine the appropriate civil penalty to be assessed in accordance with section 

llOCi) of the Act. ~ 

The citation at bar, No. 2277631, alleges a "significant 

and substantial" violation of the regulatory standard at 30 

C.F.R. § 77.807-3 and charges as follows: 

"The energized high voltage power lines (12,440 

volts) passing over the stock pile area ranges in 

hight [Sic] from 26 feet to 34 feet. The front-end 

loader measures 18 feet high when the bucket is 

extended to its full hight [sic]. The coal trucks, 

dumping under the high voltage lines, are 27 feet 

628 
high. Both the front-end loader and the coal 

trucks can reach within the 10 feet minimum distance clearance required to be maintained from high 

voltage power lines." 

It is not disputed that the cited standard requires that 

when any part of any equipment operated on the surface of any 

coal mine is required to pass under or by any energized highvoltage powerline and the clearance between such equipment 

and powerline is less than 10 feet such powerlines must be 

deenergized or other precautions taken. 

On February 28, 1985, Bruce Dial, an inspector for the 

Federal Mine Sa~ety and Health Administration (MSHA) was performing an inspection at Banner's No. 1 Plant. It is undisputed that energized power lines carrying 12,440 volts passed 

over a portion of the coal stockpile at the plant. In addition a Hough 100 model front-end loader was then operating 

beneath the power lines with its bucket extended to its full 

height of 18 feet from the ground. Both tandem and tractortrailer coal trucks were also dumping on the stockpile in 

close proximity to the power line and the larger trailers, 

when extended to the full dumping position, measured 27 feet 

from the ground. 

Inspector Dial measured the height of the high voltage 

power line using a warren-Knight Abney Level. It was 26 feet 

at the lowest point he was able to measure i.e. a location 10 

feet horizontally from the lower support pole. Dial observed 

that as coal was being added to the stockpile the distance 

between the top of the stockpile where the equipment was 

operating and the high voltage power line was decreasing 

thereby increasing the potential hazard. 

Banner disputes only the accuracy of Dial's measurement 

of the height of the power lines using the Abney Level. 

Banner President, Joe Douglas Kilgore, telephoned a civil 

enginer and a land surveyer who purportedly informed him that 

a 20% error is possible using the Abney Level and that the 

instrument would not be accurate. Kilgore did not however 

take his own measurements or seek to have any more accurate 

measurements made even though the cited area remained roped 

off for more than 3 months. Accordingly, there is no affirmative evidence contradicting the measurements taken by Inspector Dial. In any event even had the measurements been in 

error by as much as 20% there would nevertheless have been a 

violation of the cited standard. 

According to Dial, electrocution of a truck driver was 

likely under the circumstances since the extended bed of the 

tractor-trailer reached 27 feet and the power line was then 

only 26 feet above stockpile. Under the circumstances it 

would be reasonable to expect that the truck bed could strike 

629 
the low power line causing serious injuries or electrocution 

to the operator. Another MSHA inspector, Daniel Graybeal 

also observed that there had been 4 fatalities within the 

MSHA district over the previous 6 years from mining equipment 

contacting high voltage power lines. Within this framework 

of evidence it is clear that the violation herein was serious 

and "significant and substantial." See Secretary v. Mathies 

Coal Co., 6 FMSHRC 1 (1984). 

Inspector Graybeal had also previously inspected the 

Banner No. 1 plant in September 1984. Graybeal did not cite 

Banner for any violation of the standard at issue because he 

saw no equipment operating in close proximity to the power 

line. It is not disputed however that Graybeal discussed 

the potential problem with Banner president Kilgore warning 

him that he was required to maintain a 10 foot clearance from 

the power line. Kilgore was further warned not to stockpile 

coal beneath the power line to the point where a 10 feet 

clearance could not be maintained. Under the circumstances I 

find that Kilgore was negligent in permitting the build-up of 

the coal stockpile beneath the power lines to the point where 

the minimum clearance was not maintained. 

In assessing a civil penalty in this case I have also 

considered that the mine operator is small in size, has a 

limited history of violations and abated the cited condition 

in a good faith and timely manner. Indeed the evidence shows 

that Banner expended $1,705 to have the Old Dominion Power 

Company raise the level of the power lines. Considering 

these factors I find that a civil penalty of $250 is 

appropriate. 

ORDER 

Banner Coal Company, Inc. is ordered to pay a civil 

penalty of $250 within 30 days of the date of t is decision. 

Distribution: 

Craig W. Hukill, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Joe Douglas Kilgore, President of Operations, Banner Coal 

Co., Inc., P.O. Box 123, Coeburn, VA 24230 (Certified Mail) 

rbg 

630 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 April 23 / 1986 

FMC CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . CONTEST PROCEEDING 

Docket No. WEST 84-117-RM 

Citation No. 2009928; 6/20/84 

FMC Trona Mine 

DECISION 

Appearances: John A. Snow, Esq., James A. Holtkamp, Esq., 

and Matthew F. McNulty, III., Esq., Salt Lake City, 

Utah, 

for Contestant; 

James H. Barkley, Esq., and Margaret Miller, Esq., 

Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, 

for Respondent. 

Before: Judge Lasher 

This proceeding arose upon the filing of a notice of contest 

on July 10, 1984, pursuant to Section 105(d) of the Federal Mine 

Safety and Health Act of 1977 (30 U.S.C. § 815(d)(l977)), herein 

the Act. 

By its initiation of the proceeding the Contestant <herein 

FMC) sought to obtain review of Part "a 11 l; Citation No. 2009928, 

issued June 20, 1984, charging it with a violation of 30 C.F.R. 

§ 57.21-78 ~/to wit: 

11 The Marietta Bore Miner No. 7426 approval No. 2G-2431A-2, 

was not maintained in permissible condition because: 

(a) On 3-29-84 the short circuit protective relays at 

the remote starter were found to be set for 1200 amperes 

fault current. 

!/ Part "bn of the citation was vacated by my written order 

herein dated July 23, 1985, after the Secretary moved for 

vacation at hearing (See separate transcript dated March 8, 

1985). 

'];/ This regulation provides: "Only permissible equipment 

maintained in permissible condition shall be used beyond the last 

open crosscut or in places where dangerous quantities of 

flammable gasses are present or may enter the air current." 

631 
A short-circuit analysis indicated that the minimum expected 

phase-to-phase fault current was 1005 amperes. Therefore, 

the machine and trailing cable were not properly protected 

against short-circuit faults. Ref 30 C.F.R. 18.35{a)(4) and 

18.35(a)(5)(ii). The protective relay settings were reduced 

to 800 amperes 5-1-84. 

Although the manufacturers MSHA approved design specif ication Ref. 2G-2431A-2 3; stipulates maximum relay settings 

of 1200 amperes the specification also stipulates maximum 

trailing cable length as follows: "Cable from power source 

to sled input is less than 100 feet. Total length from 

power source to machine not to exceed 700 feet. Protection 

at power source is provided by a circuit breaker with an 

instantaneous trip setting of 1500 amperes. 

It was found that the 4160 volt Bore Miner branch circuit 

was far in excess of these specifications." 

FMC operates a large underground trona mine (Tr. 46, 62). 

It liberates approximately 1,500,000 cubic feet of methane each 

24 hour period (Tr. 46). It is an extremely gassy mine (Tr. 47), 

and, as conceded by Contestant, the mine's face equipment is 

required to comply with the permissibility regulations (Tr. 47; 

FMC Brief, p. 1). 

The pertinent permissibility regulation mentioned in the 

Citation is 30 C.F.R. 18.35(a)(5)(ii), 4; under the rubric: 

"Portable {trailing} cables and cords",-which provides: 

3/ As will be explained further subsequently, this reference 

number refers to the second approval (Ex. C-2) of the miner by 

appropriate government regulatory agency. The first approval for 

the miner/starter sled (Ex. C-1) was by the Bureau of Mines and 

was shown on t'he original specifications ( C-1) which presumably 

accompanied the miner and sled when such were received by FMC on 

July 5, 1974. (Tr. 259). The second approval dated July 30, 

1974, was sent to the manufacturer of the miner/sled and not to 

FMC. A third approval (Ex. C-3) which was made a part of this 

record applied to another miner and has no impact on the resolution of this matter (Tr. 89, 90, 108, 114). 

4/ A general statement of the purposes of the regulations with 

which Section 35Ca)(5)(ii) is grouped is set forth in 30 C.F.R. 

18.1, to wit: 

"The regulations in this part set forth the requirements 

to obtain MSHA: (a) Approval of electrically operated 

machines and accessories intended for use in gassy mines 

or tunnels, (b) certification of components intended for 

use on or with approved machines, Cc) permission to 

modify the design of an approved machine or certified 

component, Cd) acceptance of flame-resistant cables, 

hoses, and conveyor belts, Ce) sanction for use of experimental machines and accessories in gassy mines or 

tunnels; also, procedures for applying for such approval 

certification, acceptance for listing; and fees. 11 

632 
"(a) Portable cables and cords used to conduct electrical energy 

to face equipment shall conform to the following: 

x x x x x x x 

(5) Ordinarily the length of a portable (trailing) cable 

shall not exceed 500 feet. Where the method of mining 

requires the length of a portable (trailing) cable to be 

more than 500 feet, such length of cable shall be permitted only under the following prescribed conditions: 

x x x x x x x 

(ii) Short-circuit protection shall be provided by a 

protective device with an instantaneous trip setting 

as near as practicable to the maximum starting-currentinrush value, but the setting shall not exceed the trip 

value specified in MSHA approval for the equipment for 

which the portable (trailing) cable furnishes electric 

power." 

CONTENTIONS OF THE PARTIES 

The evidence and arguments in this matter are difficult to 

marshal. A preliminary birds-eye view of the dispute is helpful. 

The Secretary's contentions, evidenced at hearing and in its 

post-hearing brief, consider Part "a" of the Citation to have 

alleged two infractions. First, that the trip setting on the 

short-circuit protection device required by the cited regulation, 

30 C.F.R. 18.35Ca)(5)Cii), was set too high at 1200 amperes. 

Secondly, the Secretary alleges that FMC was in violation by 

operating the miner contrary to the manufacturer's specifications 

as to the lengths of trailing cable between the miner and (1) the 

sled, and (2) the "power source", as set forth in the second 

government approval, Ex. C-2, at page 8, which FMC denies 

receiving or of having any knowledge. 

FMC, in addition to denying any knowledge of the requirements of the second approval ("revising" the manufacturer's 

specifications for the miner and sled), contends that it 

faithfully conformed to the requirements of the first approval 

CEx. C-1, Tr. 91) which authorized a trip setting of 1200 amperes 

and that it had no knowledge of the second approval which set 

forth maximum trailing cable lengths between the miner and sled 

and power source and wherein the only reference to the term 

"power source" is used. FMC contends that the term "power 

source" in any event is vague and that the wording of 30 C.F.R. 

18.35, "when reviewed in context with the specific 1200 amp 

setting requirement, is difficult to interpret and follow" and 

fails to afford FMC of fair notice as what is required and 

expected. As an alternative argument, should it be charged with 

notice of the second approval containing the cable length 

requirements, FMC 

633 
argues that the "power source" was the remote starter sled, and 

that the 700-foot trailing cable length between the miner and the 

sled was proper. In this connection, the Secretary contends that 

the "power source" refer to in the second approval (Ex. C-2) 

is a transformer located 10,300 feet from the miner and which is 

the point of origination the 4160 volt power upon which the 

miner runs. 

PRELIMINARY FINDINGS 

The preponderant reliable and probative evidence 

establishes the following. 

record 

On March 29, 1984, a federal mine inspector inspected the 

mine, including Marietta Bore Miner No. 7426 (herein the miner) 

(Tr. 47, 83). The purpose of the miner is to mine the product; 

the miner thus operates at the face past the last open crosscut 

(Tr. 47). It is electrically powered (Tr. 47) and as an electrically powered piece of face equipment it is required to comply 

with all permissibility regulations. 

The miner was ordered by FMC by purchase order dated May 7, 

1973, and the miner was received by FMC on July 5, 1974 (Tr. 42, 

259). National Mine Service Company was the manufacturer of the 

miner and its accompanying power sled (Tr. 258). The 1200 ampere 

relay setting on the power sled for the miner was set by FMC in 

accordance with the schematic diagram prepared by National Mine 

Service Company (Tr. 258; Ex. C-1). The schematic drawing or 

print contains the following admonition: "This drawing is not to 

be changed without approval of the Bureau of Mines." (Tr. 259). 

This first certification approval for miner was subsequently 

revised in a July 30, 1974 transmittal from Joseph J. Seman, of 

the Mining Enforcement and Safety Administration, to National 

Mine Service Company (Ex. C-2), herein r erred to as the "second 

approval." FMC was never apprised of the revision contained in 

the second approval and continued to operate the miner in accordance with the schematic print requirements that were delivered 

with the machinery in question (Tr. 259-261). The Secretary 

failed to establish FMC's knowledge or awareness of the second 

approval, actually or constructively. (Tr. 232, 233, 288-290). 

FMC had no knowledge of the second approval prior to or at the 

time of inspection (Tr. 264, 288-290, 320, 330, 354-355). 

On the day of the inspection the miner derived its power as 

generally shown in Exhibit R-1. Thus, the initial source of all 

mine power was a surface generator connected to a surface 

transformer delivering 13,800 volts (Tr. 48). From this surface 

generator a power cable transmitted the power to a second transformer located underground (Tr. 48). At the second transformer 

the power was reduced to 4,160 volts (Tr. 48, 49,) and this 

electric current (4160 volts) by which the miner was powered CTr. 

64) traveled from the second transformer 10,300 feet through a 

634 
starter sled to the miner (Tr. 48-56, 59, 100). The starter 

(remote control) sled was downstream some 9,600 feet from the 

transformer and 700 feet upstream of the miner CTr. 48, 51, 

104-106, 109, 144, 269, 331; Ex. C-1). The miner's remote 

starter sled contained the on-and-off switch for the miner and 

its short circuit protective device (Tr. 48, 50) the trip setting 

for which was set at 1,200 amps (Tr. 48, 56) which is arrived at 

by COMPUTATION (Tr. 261). 

A relay (protective device) setting is the predetermined 

amount of fault current required to deenergize a machine (Tr. 

128-130, 282). Fault current is the amount of current (amps) 

which will flow through a wire in the event of a fault (short 

circuit)(Tr. 129, 146, 147, 340). 

The power source of the 4,160 volts to the miner was the 

4,160 volt transformer (Tr. 49, 59, 60, 64-67, 80, 92-95, 

13 133, 140a, 160-161, 193, 199, 311-313, 344, 363; Ex. R-2). 

In evaluating FMC's contention that the starter sled, rather 

than the transformer, was the "power source", it is first noted 

that the purpose for the remote control sled is to comply with 

regulations which prohibit high voltage switching devices on 

miners (Tr. 50). Therefore, a high voltage on/off switch must be 

placed in a remote location away from the face and in fresh air 

(Tr. 51). This on and off switch does not produce power as a 

source, but simply "interrupts" it (Tr. 59). Under FMC's arrangement, had there been a short-circuit in the miner, the power 

would have been interrupted 700 feet away at the started sled 

(Tr. 50>. It is also noted (1) that IEEE 5; Greenbook (Ex. R-2) 

mentions only generators or transformers as power sources and (2) 

that the 4160 voltage upon which the miner was powered originated 

at the second (underground) transformer 10,300 feet distant (Tr. 

135 8). 

The maximum starting "inrush" current of the miner was 613 

amps (Tr. 146, 208). "Maximum starting current inrush Value" is 

the amount of current expressed in amperes required to start the 

miner (Tr. 129, 318-319, 338-339). Once the miner is started 

even ss current is required to keep it running (Tr. 129). 

As previously noted, on the day of the inspection (March 29, 

1984), the trip setting on the short circuit device for the miner 

(located on the sled) was set at 1200 amperes (Tr. 48, 56, 267). 

Such 00-arnpere setting was specified by the first government 

approved manufacturer's specification for the miner (Ex. C-1) and 

was not specified to be either a "maximum," "ceiling"" or 

"minimum" setting, or otherwise characterized (Ex. C-1, Tr. 207, 

210). 

~/ Institute of Electrical and Electronic Engineers. 

635 
At the time of the March 29, 1984 inspection, both parties 

present (MSHA and FMC) agreed that resetting the switch to a 

lower setting "would put FMC out of compliance with the specifications in the print" (Tr. 268). The MSHA inspectors were 

unwilling to see the setting reduced for fear of violating the 

specifications contained in the schematic print (Tr. 268-270). 

Only after a second inspection was undertaken on May 1, 1984, and 

presumbly further contemplation, was FMC authorized to reduce the 

setting (Tr. 268). 

Subsequent to March 29, 1984, a fault current Cshortcircuit} analysis was conducted by MSHA electrical engineer 

Terrance D. Dinkel which indicated that the minimum phase fault 

current, in the event a fault occurred in a cable at the miner, 

to be 1005 amperes. Had such a fault occurred with the trip 

setting on the protective device on the sled set at 1200 amperes, 

the circuit would not have been interrupted (Tr. 149, 150, 166}. 

Thus, the miner was not adequately protected against shortcircuit faults (Tr. 155-156). To make the short-circuit protection fective, the maximum inrush current being 613 amps and 

the low fault current being 1005 amps, the trip setting should 

have been set as close to the 613 ampere setting as possible (Tr. 

151, 152, 164) in approximately the 650-700 ampere range. 

Qualified electrical engineers are able to make such adjustments 

to the trip setting (Tr. 154-155, 179, 201, 219). 

The only trailing cable outby the miner (upstream from the 

miner toward the surface transformer) was the 700-foot length of 

cable between the miner and the starter sled (Ex. R-11 Tr. 41, 

62a, 63, 110, 270). The 9600-foot length of cable between the 

sled and the second (4160 volt) transformer-found to be the 

"power source" herein-was "feeder" cable or power cable, and was 

not trailing {portable) cable for the miner within the meaning of 

30 C.F.R. 35.18(a)(5)(ii) (Tr. 60, 63, 68, 77, 110, 116, 

278-281). 

The longer the cab , the greater amount of current is lost 

as it travels through the cable (Tr. 148, 156, 160-164, 192) because of "resistance" in the conduction of the current (Tr. 160). 

Loss of fault current as it travels through excessive cable thus 

can result in a circuit breaker not tripping (Tr. 148-150, 

151-161, 175). 

The safety standard (Section 35.18(a)(5)) relied on by the 

Secretary contains no reference to the term "power source." Nor 

is this term found in the original schematic print (Ex. c-1) for 

the miner's electrical set-up. It appears, from the standpoint 

of the documentary evidence herein, only in MSHA's subsequent 

second approval (Ex. C-2, p.8) since the provisions of Ex. C-3, 

p. 5 do not apply to the miner in question (Tr. 108, 114). 

636 
The applicable "power source" language in toto-relied upon 

by the Secretary relating to the excessive cable length issue -

found in the second approval dated July 30, 1974, (Ex. C-2, p. 8) 

reads as follows: 

TRAILING CABLE 

3 Conductor, No. 2, SHD-GC, 5 kv, 2.09" O.D., flameresistant between miner and remote skid-mounted (open-type) 

sled containing starter and Femco ground monitor chopper 

receiver. Power input and output of sled unit is made 

through quick disconnect plugs. Cable from power source to 

sled input is less than 100 feet. Total length from power 

source to machine not to exceed 700 feet. Protection at 

power source is provided by a circuit breaker with an instantaneous trip setting of 1500 amperes. (Emphasis added) 

DISCUSSION, ULTIMATE FINDINGS, 

AND CONCLUSIONS 

Taking up the first alleged infraction mentioned in the 

Citation, that relating to the 1200 ampere trip setting, FMC's 

primary contention is set forth at page 6 of its Brief, to wit: 

"MSHA suggests that the specifications regarding 

short-circuit protection provided by the manufacturer 

should have been modified by FMC in accordance with the 

regulations found at 30 c.F.R. § 18.35 .•.• With 

this suggestion MSHA asserts that FMC was under a 

duty to ignore the specif i~ 1200 amp setting and to 

operate the equipment at an " ••• inferred setting, 

which should be lower than the ceiling level." Apparently MSHA believes that the 1200 amp setting is 

the ceiling level. MSHA advances this position in spite 

of the fact that the manufacturer's specification level 

of 1200 amps is nowhere referred to as a ceiling level. 

In relying upon § 18.35 to support its contention of 

violation, MSHA requires a tortured and unnatural reading of the regulation in question. By MSHA's own admission, such a reading would require the operator to 

ignore a specifically authorized level and adjust the 

equipment to an "inferred setting". 

I disagree that the regulation, i.e., subparagraph ii, 

requires the mine operator to ignore a specifically authorized 

level per~· FMC's argument completely ignores the "excessive 

cable length" consideration which triggers the applicability of 

Subparagraph" ii). This contention and FMC's claim that it did 

not have "a fair indication" of what was required by the regulation~require further examination of the standard. 

637 
Analysis of section 18.35(a)(5)(ii) reveals that it consists 

of two phrases separated by a comma-each embodying a distinct 

concept. The regulation's essence is in the first phrase: that 

the short-circuit protection shall be provided by a protective 

device with an instantaneous trip setting as near as practicable 

to the maximum starting-current-inrush value. The second phrase 

is a limitation on the first phrase--not a setting independently 

authorized by the regulation as FMC contends. The second phrase 

in effect says, that in no event shall the setting required by 

the first phrase exceed the trip value specified in an MSH~ 

approval. 

Applying the requirements of the regulation to FMC's 

electrical arrangement shown in the record, it is concluded that 

FMC was required by the regulation to set the instantaneous trip 

setting "as near as practicable to" 700 amps, which was the 

approximate starting current inrush value. Since this amperage 

number was well below the MSHA approved trip value--the second 

phrase of the regulation clearly and simply had no application to 

the miner in the circumstances involved here. To illustrate, had 

the starting current inrush value for some reason been higher, 

say 1250 amperes, the secondary protective limitation of the 

second clause of the regulation would have become applicable because the trip value shown in the approved specification was 1200 

amperes. 

The critical focus must be on what set of circumstances trip 

the applicability of the standard. Quite simply, a mine operator 

must comply with the provisions of subparagraph ii of section 

35.18(a)(5} where, as here, the miner's trailing cable exceeds 

500 feet. Thus, contrary to FMC's argument, its awareness of the 

second approval (Ex. C-2) was not a prerequisite to its obligation to comply with the standard (Tr. 322) and its alleged 

difficulty with the term "power source" has no bearing on this 

question. 

Reading the regulation in the manner the Secretary urges 

requires no strained or tortured interpretation as FMC contends. 

It clearly states "Where the method of mining requires the length 

of a portable trailing cable to be more than 500 feet, such 

length of cable shall be permitted only" under the conditions 

prescribed in subparagraph "ii". At the time of the inspection, 

and at all other times pertinent herein, FMC knew the miner's 

trailing cable length was 700 feet and in excess of the 500-foot 

length permitted without compliance with Subparagraph "ii". The 

standard, whether viewed in the abstract-or in the context of 

FMC's mining and electrical arrangement for the miner--was not 

ambiguous, vague, or uncertain. It is concluded that men of 

common intelligence would not have to guess at its meaning. 

Accordingly, FMC's contest as to this facet of part "a" of the 

Citation is found to lack merit and FMC is found in violation of 

30 C.F.R. 57.21-78. 

638 
Turning now to the second infraction charg to FMC in part 

(a) of the subject Citation, that involving excessive cable 

length, it is clear that the Secretary solely relies on the 

second approval to provide the standard with which FMC must be 

in compliance. As previously noted, the second approval limits 

the length of the trailing cable from the power source to the 

sled input to be "less than 100 feet," and limits the "total 

length" from the power source to the miner to not exceed 700 feet. 

This regulation obviously contemplates that the cable from the 

power source (hereinabove found to be the 4160 volt transformer 

some 10,300 feet distant from the miner) be of the "trailing" or 

"portable" variety. This, of course, simply does not fit the 

electrical cable scheme which FMC had in place at the time of the 

alleged violation since the only trailing cable involved was the 

700-foot length from the miner to the sled. ~evertheless, it is 

clear that FMC's electrical power scheme contravened the requirements the second approval as to both the 100-f oot and 700-foot 

provisions. But this is not the decisive question posed. FMC 

aptly points out that as of July 30, 1974, MSHA (actually MSHA's 

successor, MESA - the Mining Enforcement Safety and Health Administration, a division of the Department of the Interior), in 

extending approval for the miner, had modified the certification 

requirement to restrict the cable length from the power source to 

the miner to 700 feet, but not apprised FMC of such modification 

(Tr. 288-290, 330). There is no specification of pertinent cable 

lengths in the first approval (Ex. C-1; Tr. 262). FMC's contention and evidence that it first learned of the second approval 

during the second inspection tour on May 1, 1984, was not 

challenged or rebutted by the Secr~tary. On the basis of this 

record, it would appear that the only way a mine operator would 

learn of such a modification as that contained in the second 

approval would be, as FMC contends, as a result of the issuance 

of a citation. In a case involving analogous circumstances, 

Secretary v. U.S. Steel Mining Company, 6 FMSHRC 1369, 1371 

(1984), Judge Gary Melick made the following determination: 

11 MSHA Inspector James Potiseck conceded that he could 

not verify that the mine operator had received notice 

of the necessary mod ication either from MSHA or from 

the Service Machine Company prior to the issuance of his 

citation. Indeed, Potiseck admitted that the letter in 

evidence (Government Exhibit No. 9) supposedly informing 

U.S. Steel of the required changes was sent to the wrong 

address. The district electrical engineer for U.S. 

Steel, Gary Stevenson, testified that after receiving the 

citation, he had been unable to locate anyone who had 

received the noted letter. 

Within this framework of evidence, it is clear that U.S. 

Steel did not receive notice of the change in the permissibility requirements for the cited longwall mining 

unit. Without such prior notice, there can be no violation. Accordingly, the citation is vacated." 

639 
In Grayned v. City of Rockford, 408 U.S. 102, 92 S. Ct. 

2294, 33 L. Ed. 2d 222 (1972), the Supreme Court pointed out 

various reasons for withholding enforcement of vague laws, all of 

which I discern have applicability here: 

urt is a basic principle of due process that an enactment 

is void for vagueness if its prohibitions are not clearly 

ined. Vague laws offend several important values. 

First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws 

give the person of ordinary intelligence a reasonable 

opportunity to know what is prohibited, so that he may 

act accordingly. Vague laws may trap the innocent by not 

providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must 

provide explicit standards for those who apply them. A 

vague law imperrnissibily delegates basic policy matters 

to policemen, judges, and juries for resolution on an 

ad hoc and subjective basis, with the attendant dangers 

of arbitrary and discriminatory application. Third, but 

related, where a vague :statute "abut($j _μ'pon sensiti:Ve 

areas of basic First Amendment freedoms," it "operates 

to inhibit the exercise of [those] freedoms." Uncertain 

meanings inevitably lead citizens to "'steer far wider 

of the unlawful zone' ••• than if the boundaries of the 

forbidden areas were clearly marked." 

On this record, it must be found that FMC had no warning of 

what constituted the conduct the Secretary contends was prohibited; FMC's contest of that aspect of the Citation charging 

improper, excessive cable length is found meritorious. 

ORDER 

Based on the foregoing findings and conclusions, FMC's 

contest is found to be meritorious in part. That part of Part 

"a" Citation No. 2009928 alleging an infraction of the manufacturer's approved design specification No. 2G2431A-2 because of 

excessive trailing cable lengths is vacated. That part of Part 

"a" of the Citation alleging non-compliance with 30 C.F.R. 18.35-

(a)(S) (ii) and a resultant violation of 30 C.F.R. 57.21-78, 

consisting of the first 3 paragraphs of the Citation and pertaining to the trip setting of the miner's short-circuit protection 

device, is affirmed. 

/.};~,("' d~~-</Z-~-· iiichael A. Lasher, Jr. 

Administrative Law Judge 

640 
D tribution: 

James H. Barkley, Esq., and Margaret A. Miller, Esq., Office of 

the Solicitor, U.S. Department of Labor, 1585 Federal Building, 

1961 Stout Street, Denver, CO 80294 (Certified Mail) 

John A. Snow, Esq., James A. Holtkamp, Esq~, and Matthew F. 

McNulty, III, Esq., Vancott, Bagley, Cornwall and McCarthy, 50 s. 

Main Street, Suite 1600, Salt Lake City, UT 84110 (Certified 

Mail) 

/blc 

641 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

A. D. BRACKEN, 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

April 24, 1986 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. CENT 85-132-D 

v • 

MADI CD 85-10 

ALPINE CONSTRUCTION COMPANY, 

Respondent 

ORDER F DISMI AL 

Before: Judge Merlin 

The Complainant has sent a letter to the Commission, dated 

March 18, 1986, stating that unless an impartial special 

investigator can be assigned to the case, who does not know him 

or the other parties, he does not want to pursue this matter any 

further. 

This Commission has no authority to assign a special investigator to this case or to undertake its own initial investigations 

of discrimination complaints. This responsibility is the 

Secretary of Labor's. 

In accordance with the Complainant's letter therefore, this 

case is DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

A. D. Bracken, Box 89, Stigler, OK 74462 (Certified Mail) 

Mr. Leon ~urns, Alpine Construction Co., P. 0. Box 339, Stigler, 

OK 74462 (Certified Mail) 

I g 1 

642 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 April 2 8 / 1986 

DAVID RATLIFF, 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. KENT 85-108-D 

v. 

PIKE CD 85-05 

BETHENERGY MINES, INC., 

Respondent 

DECISION 

Before: Judge Fauver 

This proceeding has been docketed as a claim for relief 

under the discrimination provisions (section 105(c)) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801, 

et seq. 

On March 25, 1986, Respondent moved to dismiss the 

Complaint on the grounds (1) that Complainant has not stated 

a claim for relief which can be granted under the Act, and 

(2) that Complainant has failed to comply with the prehearing 

requirements of the notice of hearing. 

The complaint alleges that Respondent failed to grant 

Complainant a second exercise of super-seniority rights, 

to return from layoff, under a collective bargaining 

agreement between Respondent and the United Mine Workers of 

America. 

Complainant has not responded to the motion to dismiss 

nor has Complainant filed a prehearing submission, which was 

due on March 26, 1986. 

On April 3, 1986, a Show Cause Order was issued to 

Complainant, allowing him until April 21, 1986, to show 

cause, in writing, why this case .should not be dismissed: 

(1) 

and 

lure to state a claim for which 

can be granted under the Act; 

(2) failure to comply with the 

prehearing requirements of the 

Notice of Hearing {Hearing Term 

dated January 15, 1986). 

643 
Complainant has not responded to the Show Cause Order. 

I conclude that the Motion to Dismiss should be granted, 

on the ground that the Complainant fails to state a claim 

for which relief can be granted under section lOS(c) of the 

Act. 

ORDER 

WHEREFORE IT IS ORDERED that the Motion to Dismiss is 

GRANTED, and this proceeding is DISMISSED. 

~~a~ Administrative Law Judge 

Distribution: 

Mr. David Ratliff, Box 192, Elkhorn City, KY 41522 (Certified 

Mail) 

Michael T. Heenan, Esq., Smith, Heenan & Althen, 1110 Vermont 

Avenue, N.W., Washington, DC 20005 (Certified Mail) 

Beth Elkhorn Corporation, Box 232, Jenkins, KY 41537 (Certified 

Mail) 

kg 

644 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WESTMORELAND COAL COMPANY 

April 28, 1986 

. . 

. . 

: 

Docket No. WEVA 82-152-R 

WEVA 82-369 

PETITION FOR RECONSIDERATION 

The recent decision of this Commission to reduce the 

civil penalty in the captioned case is based on an erroneous 

interpretation of the intent of the undersigned in use of the 

words "gross negligence" and "negligence". Accordingly the 

Commission's legal conclusion that the undersigned thereby 

believed that the operator's negligence was somehow lessened 

is totally erroneous and reconsideration under the circumstances would be appropriate. 

Although this Commission reversed the "unwarrantable 

failure" findings in the original decision of the undersigned 

the factual findings underlying the operator's negligence 

were not modified in any way. The use of the words "gross 

negligence" in that decision, 5 FMSHRC 132 (January 1983) 

CALJ), and the use of the word "negligence" in the decision 

following remand, 7 FMSHRC 1647 (October 1985) CALJ), concerning the same factual circumstances did not in any way 

reflect on my part a belief that there was any lesser 

negligence. The facts remain the same and had I known the 

Commission would have drawn any inference from the noted 

terminology I would have again used the phrase "gross 

negligence" to characterize the high degree of negligence 

found in this case, for indeed it is my firm belief that the 

facts of this case demonstrate the highest degree of 

negligence. This Commission of course has the authority to 

reduce the civil penalty in this case but such a reduction 

cannot be based upon any finding of lesser egligence by the 

undersigned because no such finding has eve been made. 

645 
Distribution: 

John A. Macleod, Esq., Crowell & Moring, 1100 Connecticut 

Ave., N.W., Washington, DC 20036 (Certified Mail) 

Barry Wisor, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Scott L. Messmore, Esq., Westmoreland Coal Company, P.O. 

Drawer A & B, Big Stone Gap, VA 24219 (Certified Mail) 

rbg 

646 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 28, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF 

KEVIN L. SMITH, 

Complainant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 86-69-D 

MORG CD 85-20 

Loveridge No. 22 Mine 

ORDER OF DISMISSAL 

Before: Judge Kennedy 

Complainant having failed to file his complaint as 

allowed by the order of March 11, 86, it is ORDERED 

that the captioned matter be, an ereby is, DISM SSED. 

Distribution: 

Joseph B. Kennedy 

Administrative Law 

Catherine Oliver-Murphy, Esq., Office of the Solicitor, U.S. 

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

Street, Philadelphia, PA 19104 (Certified Mail) 

Mr. Kevin L. Smith, 701 Oliver Avenue, Fairmont, WV 26554 

(Certified Mail) 

Steven P. McGowan, Esq., Steptoe & Johnson, 715 Charleston 

National Plaza, P. 0. Box 1588, Charleston, WV 25326 

(Certified Mail) 

dcp 

647 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 Apr i 1 3 0 1 19 8 6 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MID-CONTINENT RESOURCES, INC., 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 85-34 

A.C. No. 05-00469-03550 

Dutch Creek No. 2 Mine 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, 

Glenwood Springs, Colorado, 

for Respondent. 

Before: Judge Carlson 

This case, heard under the provisions of the Federal Mine 

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

arose out of an inspection at an underground coal mine operated 

by respondent Mid-Continent Resources, Inc. {Mid-Continent) near 

Redstone, Colorado. On August 23, 1984, Larry Ganser, a coal 

mine inspector employed by the Secretary of Labor, issued two 

citations to Mid-Continent in which he alleged violations of mine 

safety standards promulgated by the Secretary under the Act. In 

the present proceeding the Secretary seeks to collect substantial 

civil penalties as the result of the alleged violations. At the 

evidentiary hearing held in Denver, Colorado, both parties presented evidence. The parties waived the filing of briefs or other 

post-hearing submissions. 

REVIEW AND DISCUSSION OF THE EVIDENCE 

Citation No. 2213222 

On the morning of August 23, 1984, Larry Ganser, a federal 

coal mine inspector, inspected the 204 headgate section of MidContinent' s Dutch Creek No. 2 Mine. While there, he observed 

a continuous mining machine inby the last open crosscut. The 

machine was withdrawn from the face and was not engaged in mining. 

A 550-volt trailing cable furnished power to the machine. When 

the inspector looked at the cable he noted that its outer jacket 

had been cut away where it entered the "stuffing box" and was connected to the machine. According to the inspector, the absence 

of the outer jacket diminished the circumference of the cable to 

the extent that air could freely enter and exit the box in which 

energized wires in the cable were connected to the machine. 

648 
This condition, the inspector believed, violated the mandatory 

safety standard published at 29 C.F.R. § 75.503. That standard, 

at the time of the alleged violation, provided as follows: 

The operator of each coal mine shall 

maintain in permissible condition all 

electric face equipment required by 

§§ 75.500, 75.501, 75.504 to be permissible which is taken into or used 

inby the last open crosscut of any 

such mine. 

The machine was not in "permissible" condition, the inspector 

maintained, because the opening around the cable allowed the free 

exchange of atmosphere between the inside and outside of the box. 

A "permissible box," he testified, must be able to contain any explosion of a gassy atmosphere within the confines of the box. 

Through its answer, Mid-Continent confessed the existence of 

the violation. It contested, however, the Secretary's characterization of the violation as "significant and substantial," and disputed the reasonableness of the proposed penalty of $900.00. 

In penalty assessments, Section·llO(i) of the Act requires 

the Commission to consider the operator's size, its negligence, 

its good faith in seeking rapid compliance, its history of prior 

violations, the effect of a monetary penalty on its ability to remain in business, and the gravity of the violation itself. 

The parties stipulated that Mid-Continent's mines in the 

Redstone, Colorado area produced a total of 743,844 tons of coal 

in the year in question, of which 463,504 tons came Dutch 

Creek No. 2. Th€y further stipulated that Dutch Creek No. 2 employed approximately 135 miners, with all mines employing about 350. 

From these facts I must conclude that the size of the mining enterprise was large. 

The parties further stipulated that Mid-Continent abated the 

violation in good faith, and that payment of the propc penalty 

would not impair its ability to continue in business. 

The evidence shows that Mid-Continent knew or should have 

known that the violat condition existed. The cut-away portion 

of the cable was clearly visible to anyone who approached the box 

and looked. Moreover, Mid-Continent's face boss at the area in 

question acknowledged that the cable was an inch larger than was 

customary. Therefore, someone had to "trim it down" to get it 

into the box (Tr. 137). In other words, the defective cond ion 

was not the result of an unnoticed accident or of a gradual deteriorat n which could perhaps have been overlooked. 

649 
The record contains exhaustive evidence of Mid-Continent's 

history of prior violations under the Act. Through its safety 

director, Mid-Continent introduced a series of computerized lists 

of citations grouped in various ways (respondent's exhibits 5 

through 18-a}. The accuracy of these records was not challenged. 

No useful purpose would be served in summarizing the many pages 

of these records here. It is enough to say that during the two 

years prior to the instant citation, Mid-Continent received 

numerous citations. On the other hand, one must recognize that 

the Dutch Creek No. 2 operation is classified as a gassy mine; 

it therefore undergoes nearly constant federal inspection. This 

fact, coupled with the mine's large size, tends to mitigate the 

impact of the mere numbers of violations. 

We now consider the gravity of the violation. Mid-Continent 

acknowledges that Dutch Creek No. 2 is properly classified as a 

"gassy mine" under the numerous regulations that deal with that 

concept. Nor disputed that the opening around the trimmed 

trailing cable where it entered the box on the mining machine 

caused the box tu lose its "explosion-proof" character and thus 

rob the machine of its "permissible" approval. Inspector Ganser 

testified that should an explosion occur because of the unprotected electrical connection, three miners would have been endangered at the time of inspection: the miner operator, his 

helper, and a shuttle car operator. Five or six miners would 

have been in the vicinity had mining actually been in progress, 

he testified. 

The inspector tested for methane presence at the face. He 

found a concentration of four-tenths of one percent. Under the 

standards, mining may take place at levels under one percent. The 

inspector tes ied without contradiction that the mine atmosphere 

becomes explos when the methane concentration reaches f 

percent. 

He acknowledged that the continuous mining machine was 

equipped with a methane monitor designed to alarm when the concentration one percent. The device also automat lly 

deac the machine when the methane level reaches two percent. 

The tor maintained that the shutdown mechanism would not 

affect the hazard created by the lack of an explosion-proof box, 

however, se he did not believe that it would de-energize 

the cable itself. John Jerome, the face boss, testified to 

the 1 however. He asserted that the shutdown dev e 

de-energized the machine totally, all the way back to the power 

center. I f that Jerome was familiar with the machine and 

credit his testimony on this issue. Donald E. Ford, the 's 

safety d tor, testified that gas studies in the double entry 

in question here showed relatively low rates of methane liberation 

for a gassy Readings, he declared, had generally varied from 

three-tenths to five-tenths of one percent. Occasionally, readings 

were as high as eight-tenths of one percent. Immediately 

natural shifts in the mine strata, described as "bumps" and 

"bounces," levels as high as one or two percent were recorded. 

650 
Mid-Continent suggests that the presence of the alarm made 

the possibility of a methane-fueled explosion and fire unlikely, 

and that the $900.00 penalty proposal is excessive. 

The Secretary's position is that violations such as the 

present one, which increase the risk of an unconfined electrical 

spark in a gassy mine, are always serious. Whatever the immediate level of methane, the known possibility of methane releases, 

together with the inevitable presence of some amounts of coal dust 

(excessive or not), makes for a potentially lethal situation. This 

is so, the Secretary contends, even with the presence of methane 

alarms or automatic shutdown devices. 

The inspector's assessment of the danger took into account 

thnt his reading of air flow near the face was only about half of 

what was required by the mine's ventilation plan when mining was 

in progress. Although mining had ceased by the time he arrived, 

he inferred that the insufficient flows existed when mining was in 

progress. He reasoned that the diminished flows allowed greater 

concentrations of methane and coal dust near the face, since the 

gas and dust generated there would not be diluted by the required 

large volumes of moving air. 

The ventilation issue was directly raised by the inspector in 

the second citation tried in this case, number 2213223. As will 

be seen in the discussion of that citation, I found that no violation of the mine's ventilation plan was proved. It follows that 

a lack of proper ventilation should not considered as an aggravating 

factor in determining the gravity of the present violation. 

Moreover, I must conclude that the presence of a methane alarm 

and shutdown device did tend to reduce the possibility of an explosion. The safety director's recitation of the history of low 

levels of methane release for the in question is less impressive. It is scarcely prudent to assume that greater amounts 

of methane will not be released with the next mining advance. Moreover, that witness admitted that bumps and bounces sometimes occur 

in the mine, causing release of methane to a two-percent level. 

The witness did not claim, of course, that was able to forecast 

the times when these phenomena may occur. 

Overall, I must also conclude that the evidence establishes 

the gravity of the vio ion to be moderate-to-high. No condition 

which ives a piece of electric face equipment of its permissibility in a gassy mine can be taken lightly. The standards insist 

upon multip precautions in underground coal mines - particularly 

gas mines - because of the potentially disasterous consequences 

of fire or explosion. One simply cannot reason, for example, that 

if methane control and coal dust suppression measures are well 

maintained, that one can be casual about safeguards against ignition 

sources. The standards and common sense demand that all mandatory 

precautions against explosions and fire be scrupulously observed. 

651 
Having weighed all the statutory penalty elements discussed 

above, I conclude that $600.00 is the appropriate civil penalty. 

The Secretary's citation characterized the violation as 

"significant and substantial" under section 104{d) of the Act. 

In Cement Division, National Gypsum Company, 3 FMSHRC 822 {1981), 

the Commission defined such a violation as one where" .•• there 

exists a reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious nature." 

Doubtless, had an explosion or fire occurred, the likely injuries 

to miners would have been severe. That an explosion would occur 

was not probable, certainly, but was reasonably possible. The 

violation furnished a ready ignition source. Had this been combined with an untimely failure of face ventilation or some other 

failure in coal dust or methane control, the basic ingredients for 

a disaster would have been at hand. In this regard, the facts 

discussed in connection with the other citation in this case are 

instructive. Those facts were insufficient to establish the violation charged because the unplanned disruption in ventilation 

which occurred was not proved to have happened during mining. 

(As mentioned earlier, mining generates coal dust and may liberate 

methane.) They were sufficient to illustrate, however, that accidental disruption of ventilation can take place in the mine in 

question. That the accident took place when no mining was in progress was mere fortuity. The Secretary correctly classified the 

present violation as "significant and substantial." 

Citation No. 2213223 

This citation was written by Inspector Ganser in the 204 headgate section on the same morning as the permissible face equipment 

citation. 1/ It is undisputed that the inspector took a measurement 

of a flow at the face which showed 11,190 cubic feet per minute. 

It is also undisputed that Mid-Continent's approved ventilation 

plan ed for minimum quantity of 20,000 cubic per minute of 

air development sections during the cutting, mining or loading of 

coal (respondent's exhibit 1, section 6.2}. The inspector believed 

that his reading showed that Mid-Continent was violating this provision. He therefore cited the operator for violation of the mandatory standard published at 30 C.F.R. § 75.316, which provides: 

A ventilation system and methane and dust 

control plan and revis 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 

1/ Midway through the hearing Mid-Continent was allowed to amend 

its answer to show that it contested the alleged violation. Its 

intention to oppose the violation was plain, and the Secretary did 

not appear prejudiced by the amendment. 

652 
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 six months. 

The inspector admitted that at the time he made his inspection 

and took his reading, coal was being neither cut, mined, nor loaded. 

The real issue to be decided, then, is whether the evidence justifies 

a reasonable inference that the air flow was below 20,000 cubic feet 

per minute earlier on the morning of the inspection when mining was 

admittedly in progress. For the reasons which follow I conclude that 

the established facts do not adequately support such an inference. 

The inspector testified that he arrived at the area in question 

at about 10:05 a.m. or 10:10 a.m. and wrote the ventilation citation 

at about 10:45 a.m. (Tr. 45, 73, 95). He acknowledged that the next 

step in the mining cycle would have been roof bolting. For roof 

bolting, the record shows, the ventilation plan requires but 3,000 

cubic feet per minute of air (Tr. 96-99, respondent's exhibit 1, 

section 6.8). 

The inspector assumed, without being certain, that the morning 

shift had reported to work at 8:00 a.m. He professed a certainty 

that the mining had ceased only a short time after he had arrived. 

He found coal dust in the air, he said, and the area was still wet 

from the spray emanating from the continuous mining machine during 

cutting. Beyond that, and most important, he maintained that the 

air flow volume present at inspection could not have decreased from 

the 20,000 cfm level to 10,190 cfm in the short time since mining 

had ceased. He did not claim firsthand knowledge of the cause of 

the decrease in air, but reasoned that since it took from 10:45 a.m. 

to 12:15 p.m. to bring the volume back up to the 20,000 level, the 

problem was a major one. He admitted having been told by a management official that the problem was caused by a check curtain having 

been knocked down elsewhere in the air course. The inspector rejected that explanation, however, because in his opinion a section 

of curtain could have been replaced in 15 minutes; it would not 

have taken an hour and a half. 

Mid-Continent's principal witness disagreed with most of the 

inspector's premises. Mr. Jerome, the face boss, testified that the 

shift had started at 7:00 a.m., not 8:00 a.m. He agreed that the 

face had been advanced about 15 feet that morning, but he insisted 

he had done the required pre-shift readings and found the air-flow 

to have been 23,000 cfm. He estimated that mining had ceased at 

'least 15 minutes before the inspector arrived. (More time - at least 

a half an hour - elapsed before the inspector took his air flow 

reading.) 

653 
According to Jerome, he sent a crew of three men to check out 

the stoppings along the entryway. At about 1500 feet outby the inspection area they found that an airlock curtain had been knocked 

down by a trailer carrying longwall shields to a separate area of 

the mine. Jerome ordered a second curtain hung there to repair the 

leak. Restoration of the airlock returned full ventilation to the 

face, the witness testified. 

I find Mid-Continent's explanation of the reduced air at the 

face plausible. A large diversion of air from the prescribed air 

course would likely cause a fairly rapid decline in air flow at the 

face. Clearly, displacement of the airlock would tend to create a 

large diversion. The evidence does not disclose the time at which 

the trailer knocked down the curtain. Under proper circumstances, 

one may indeed infer a present condition existed at a time past. 

In this case, however, the inspector's conclusions are simply too 

speculative to constitute a convincing set of proofs. The burden 

of proof on the issue of violation rests upon the Secretary. He 

did not susta that burden because he did not effectively negate 

the possibility that the air at the face remained at the prescribed 

volume until after mining had ceased. 

One more matter deserves comment. The inspector and the face 

boss differed rather heatedly over whether the crew at the face had 

set a timber and extended the line curtain to it after the face was 

advanced. Mr. Jerome insisted that this was done, and that it is 

significant because he took a satisfactory air reading at the place 

where the curtain was "winged out" to better sweep the face with 

air. It was undisputed that the timber could not have been set until 

mining and loading had ceased because the timber would have interfered with the use of the face equipment (Tr. 133-135). Inspector 

Ganser, however, was certain that the line curtain was not extended 

when he took his own readings (Tr. 199). He was certain, he said, 

because the change in the configuration of the curtain would have 

yielded different measurements than those he got when he calculated 

the area at the mouth of the line curtain - an integral step in 

determining the air flow. 

I find no reason to question the fundamental truthfulness of 

either witness, despite the irreconcilable difference in their testimony. I must therefore attribute that difference to a failure in 

accurate recall on the part of one witness or the other. I have not 

attempted to resolve the matter because if Jerome were declared wrong 

and the inspector correct, the result would not be changed. If, 

indeed, a reading showing a 20,000 cfm flow was taken by Mid-Continent 

after the mining ceased, it would be compelling evidence that there 

was no violation. If, on the other hand, such a measurement was not 

taken, or if it was taken and found to be less than 20,000 cfm, such 

facts would not add substantial weight to the Secretary's case. 

They do not bear directly on the essential question: the level of 

air flow during cutting, mining or loading. 

The citation will be vacated. 

654 
CONCLUSIONS OF LAW 

Based upon the entire record herein, and in accordance with 

the factual determinations contained in the narrative portion of 

this decision, the following conclusions of law are made: 

(1) The Commission has jurisdiction to decide this matter. 

(2) The respondent, Mid-Continent, admits violation of the 

mandatory safety standard published at 30 C.F.R. § 75.503, as 

alleged in citation number 2213222. 

{3) The violation was "significant and substantial" within 

the meaning of section 104(d) of the Act. 

(4) The appropriate civil penalty for the violation is 

$600.00. 

(5) Mid-Continent did not violate the mandatory safety 

standard published at 30 C.F.R. § 75.316, as alleged in citation 

number 2213223. 

ORDER 

Accordingly, citation number 2213222 is ORDERED affirmed; a 

civil penalty of $600.00 is ORDERED assessed therefor, to be paid 

within 30 days of the date of this decision; and citation number 

2213223 is ORDERED vacated. 

Distribution: 

John A. Carlson 

Administrative Law Judge 

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

Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado 

80294 (Certified Mail) 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.O. Drawer 790, 

818 Colorado Avenue, Glenwood Springs, Colorado 81602 (Certified 

Mail) 

/ot 

655