AUGUST2002 

THERE WERE NO COMMISSION DECISIONS OR ORDERS 

ADMINISTRATIVE LAW JUDGE DECISIONS 

08-07-02 

08-09-02 

08-15-02 

08-22-02 

08-23-02 

Lodestar Energy Incorporated 

John R. Peterson v. Sunshine Precious Metals, Inc. 

Darwin Stratton & Son, Inc. 

Sec. Labor on behalf of Richard M. Bundy 

v. Kennecott Utah Copper Corporation 

Cannelton Industries Incorporated 

ADMINISTRATIVE LAW JUDGE ORDERS 

08-13-02 Jerry Polly v. Powell Mountain Coal Co. 

08-22-02 Black Beauty Coal Company 

i 

KENT 2001-53 

WEST 1998-307-DM 

WEST 2002-146-M 

WEST 2001-608-DM 

WEY A 2000-113 

KENT 2002-253-D 

LAKE 2002-20 

Pg. 803 

Pg. 810 

Pg.817 

Pg.822 

Pg.840 

Pg.864 

Pg. 866 

AUGUST 2002 

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

Secretary of Labor, MSHA v. Cannelton Industries, Inc., Docket Nos. WEVA 2002-111-R 

and WEY A 2002-112-R. (Judge Hodgdon, July 10, 2002). 

Secretary of Labor, MSHA v. Dacotah Cement, Docket No. CENT 2001-218-M. 

(Judge Schroeder, July 31, 2002). 

No cases were filed in which Review was denied during the month of August 

ii 

ADMINISTRATIVE LAW JUDGE DEQSIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

August 7, 2002 

: CIVIL PENAL TY PROCEEDINGS 

: Docket No. KENT 2001-53 

: A. C. No. 15-14492-03838 

LODESTAR ENERGY INCORPORATED, 

Respondent 

: Docket No. KENT 2001-64 

: A. C. No. 15-14492-03836 

803 

: Docket No. KENT 2001-166 

: A. C. No. 15-14492-03837 

: Docket No. KENT 2001-198 

: A. C. No. 15-14492-03840 

: Docket No. KENT 2001-199 

: A. C. No. 15-14492-03841 

: Docket No. KENT 2001-200 

: A. C. No. 15-14492-03843 

: Docket No. KENT 2001-201 

: A. C. No. 15-14492-03844 

: Docket No. KENT 2001-295 

: A. C. No. 15-11704-03565 

: Docket No. KENT 2001-346 

: A. C. No. 15-14492-03849 

: Docket No. KENT 2001-347 

: A. C. No. 15-14492-03850 

: Docket No. KENT 2001-349 

: A. C. No. 15-14492-03852 
SECRET ARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LODESTAR ENERGY INCORPORATED, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LODESTAR ENERGY INCORPORATED, 

Respondent 

DECISION 

Docket No. KENT 2001-350 

A. C. No. 15-14492-03853 

Baker Mine 

CIVIL PENAL TY PROCEEDINGS 

Docket No. KENT 2001-52 

A. C. No. 15-13920-03942 

Docket No. KENT 2001-141 

A. C. No. 15-13920-03944 

Wheatcroft Mine 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 2001-223 

A. C. No. 15-16855-03555 

Miller Creek Mine No. 1 

Appearances: Thomas A. Grooms, Esq., Office of the.Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, on behalf of Petitioner; 

Stanley Dawson, Esq., Lodestar Energy Incorporated, Lexington, Kentucky, 

on behalf of Respondent. 

Before: Judge Melick 

These cases are before me upon petitions 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 

(1994) et seq .. the "Act" charging Lodestar Energy Incorporated (Lodestar) with multiple 

violations of mandatory standards and proposing civil penalties for those violations. Citations 

No. 7646106, 7646137, 7647120 and 7645346 were vacated by the Petitioner at hearing and 

other citations were the subject of settlement agreements submitted and approved at hearing. A 

corresponding order approving settlement for the appropriate citations will be incorporated 

herein. 

804 
Six citations remained in dispute and were the subject of evidentiary hearings. Citations 

No. 7646256, 7646257, 7646233, 7646103 and 7646265, each allege violations of the mandatory 

standard at 30 C.F.R. § 75.321(a)(l). That standard provides, as relevant hereto, that "the air in 

areas where persons work or travel . . . shall contain at least 19.5% oxygen ... " 

More specifically, Citation No. 7646256 charges as.follows: 

The oxygen reading taken at.the upper right side of Seal #2 of the #10 set 

was 18.8%. The upper right side of the .# 1 seal of the # 10 set was 19 .1 %. 

Inspector Abel De Leon, of the Department of Labor's Mine Safety and Health 

Administration (MSHA), has an associate degree in niining technology and significant 

underground coal mining experience. He also received specific classroom and on-the-job 

training by MSHA in the proper methods for taking air readings. In particular, he was taught of 

the need to take air samples at least 12 inches from the roof, ribs, faces and seals. 

On December 16, 2000, De Leon, accompanied by miner's representative Kenneth 

Mallory, was approaching Seal No. 2 of the No. 10 Set when the alarm went off on his 

"spotter."' Using his "spotter" and taking readings at least 12 inches from the roof, ribs and seal, 

De Leon obtained a reading only 18.8% oxygen at the upper right side of seal No. 2 of the No. 10 

set. De Leon obtained a bottle sample at the same location and forwarded this sample for 

analysis. The undisputed result of the sample analysis at that location was 18.34% oxygen 

(Gov't Exh. No. 3). De Leon also took a second reading with his "spotter" at the upper right side 

of the No. 1 seal at the No. 10 set. Holding the "spotter" more than 12 inches from the roof, ribs 

and seal, he obtained a reading of 19. I% oxygen. A bottle sample taken at this location showed 

19.09% oxygen (Gov't Exh. No. 3). 

Citation No. 7646257 alleges a violation of the same standard and charges as follows:2 

The # 1 seal of the # 11 set of seals had an oxygen reading of 15 percent 

and a methane reading of 2.1 percent, (upper right side) and upper left side. Also 

the 

#5 seal, middle to right side of the seal, 19.2 - 19.4%. No. 6 seal, middle to left 

De Leon described his "spotter" as a hand-held TMX 412 mechanical detector 

used to ascertain oxygen, carbon monoxide and methane levels. The detector is set to sound an 

alarm in an atmosphere ofless than 19.5% oxygen. 

2 In its posthearing brief, Lodestar offered to "withdraw its contest of this citation 

and the associated penalty." To date the Secretary has not assented to this proposal. 

Accordingly the citation remains at issue in this decision. 

805 
side, 19. l - 19 .4 percent. Air bottle samples were taken. 

Inspector De Leon testified that he took readings with his "spotter" at the locations noted 

in the citation, making sure that he was more than 12 inches from the roof, ribs and seal. He 

obtained readings of 15% at both locations. He also obtained bottle samples at the same 

locations and the results of those samples sJ:i.owed 15.37% at the No. 1 seal of the No. 11 set of 

seals and 18.91 % at the No. 5 seal, middle to right side of seal. (Gov't Exh. No. 3). 

Miner's representative Kenneth Mallory testified that he accompanied De Leon on his 

December 16, 2000, inspection into the sealed areas· and he too detected low oxygen with his 

"spotter." The alarm on his· "spotter" was triggered two or three feet from the seal at the same 

time that De Leon's was also triggered. He observed De Leon take his bottle samples more than 

12 inches from the roof, ribs and seals. Mallory had· previously accompanied De Leon on at least 

50 occasions during some of which De Leon obtained gas samples. According to Mallory, De 

Leon always performed his inspections in a professional manner and within the law. 

Citation No. 7646265, issued February 20, 2000, as amended at hearing, alleges a 

violation of the same standard on December 20, 2000, and charges as follows: 

The air quality was 17 .1 percent oxygen and 2.1 percent methane in front 

of the #3 seal of the #8 set. An air bottle sample was taken. 

De Leon testified without contradiction that he found oxygen levels of 17 .1 % in front of 

the No. 3 seal of the No. 8 set. Analysis of a bottle sample taken at the same·location showed 

17.08% oxygen. (Gov't Exh. No. 6). 

Citation No. 7646233, issued November 27, 2000, alleges another violation of the same 

standard and charges as follows: 

The air bottle sample taken on 11103/2000 showed an oxygen analysis 

19 .19%. This bottle sample was taken at Seal #2, # 14 Set of Seals. A minimum 

of 19.5% Oxygen is required. 

According to Inspector De Leon, on November 3, 2000, he obtained a reading at the cited 

location close to the 19.5% oxygen level. He therefore deferred issuing a citation until obtaining 

the analysis of a bottle sample taken at the same location. The analysis of the bottle sample 

showed 19.19% oxygen and, therefore, on November 22, 2000, De Leon issued the instant 

citation. (See Gov't Exh. No. 9). 

Citation No. 7646103, issued November 20, 2000, alleges another violation of the same 

standard and charges as follows: 

The upper left portion of the #2 Seal of the #24 set of Seals had an oxygen 

806 
reading of 18.8% and a Methane reading of 2.0% . .A bottle sample was taken. 

According to Inspector De Leon, on November 20, 2000, he detected 18.5% oxygen with 

his "spotter" at the cited location. Analysis of a bottle sample taken at the same location showed 

an oxygen level of 13.95%. (Gov't Exh. No. 11). 

Within the above framework of evid~nce I conclude that the violations have been proven 

as charged. This credible evidence demonstrates that Inspector De Leon obtained his "spotter" 

samples as well as his bottle samples at least 12 inches from the ribs, roof and seals, in each of 

the cited cases. The test results are indeed undisputed and each shows oxygen levels below the 

minimum required by the cited standard. 

In reaching these conclusions I have not disregarded Lodestar's arguments that there will 

invariably be oxygen deficiencies in the vicinity of seals and that Inspector De Leon moved his 

"spotter" around the seal areas until he obtained an oxygen deficient reading. However, even 

assuming, arguendo, that these statements were factually accurate, such facts nevertheless would 

not negate the existence of the violations as charged. 

I have also not disregarded Lodestar's argument that the Secretary must prove that the 

oxygen deficient air is located precisely in the same area in which the exposed person would 

intake a breath. According to this argument Lodestar would require the Secretary to prove the 

location of the mouth and nostrils of each person who would work or travel in the cited areas and 

then limit oxygen testing to only those precise locations where such mouths and nostrils would 

appear. I find no such requirement in the cited standard and accordingly reject Lodestar's 

argument in this regard.3 

The parties conditionally stipulated (assuming that the violations had been proven) that 

the violations were of low gravity and the result of only moderate negligence. These conclusions 

were based upon the fact that there had been prior low oxygen readings near the seals thereby 

giving Lodestar some notice of potential oxygen deficiencies in these areas. They were also 

based on the fact that the cited oxygen deficiencies were only slightly below the required level 

and that no one in the inspection party suffered any ill effects from the oxygen deficient 

atmosphere. It has also been stipulated by the parties that the penalties issued herein would have 

no affect on the operator's ability to continue in business and that the operator abated the 

violations in a good faith and timely manner. Lodestar is a large mine operator and has a 

significant history of violations (Gov't EXh. No. 1). Considering all of the "section l lO(i)" 

criteria, I find that the civil penalties originally proposed· by the Secretary are appropriate: i.e., 

3 Respondent's additional argument - - that these citations should be vacated 

because they were written as to areas where "persons" do not work or travel - - was previously 

rejected in an Order Denying Motions for Summary Decision issued March 8, 2002. The 

substance of that Order is incorporated herein by reference. 

807 
Citation No. 7646256 - $55.00, Citation No. 7646257 '"$55.00, Citation No. 7646265 - $55.00, 

Citation No. 7646233 - $55.00 and Citation No. 7646103 - $55.00. 

Citation No. 7646334, issued February 27, 2001, alleges a violation of the standard at 30 

C.F.R. § 75.l 722(c) and, as amended at hearing, charges as follows: 

Because of the position of the No. 3 Unit ID 007 belt tail roller and tail 

piece, the tail roller guard needed t<? be extended to an area where the belt hung 

below the conveyor belt frame exposing ~ners .to the hazard of being pulled into 

the tail roller. An expanded metal guard providing this protection was present but 

was not secured to the conveyor belt frame. 

The cited standard, 30 C.F .R. § 7 5 .1722( c ), provides that "[ e ]xcept when testing the 

machinery, guards shall be securely in place while machinery is being operated." MSHA 

inspector Ronald Oglesbee testified that on February 27, 2001, he was performing an inspection 

at.Lodestar's Baker Mine when he observed in the feeder area of the conveyer, what he believed 

to be an extension to the tail roller guard that was not secured. The item was propped onto the 

conveyor frame and was not attached to the frame. The tail roller was admittedly guarded 

however. According to Oglesbee, there was a danger to the section foreman and belt workers 

who frequently traveled the area. In particular he believed that a shovel could become caught 

under the moving belt thereby dragging a miner into the belt. He concluded that the violation 

was of low gravity because the area was guarded although not secured. 

Lodestar's compliance coordinator, Kevin Vaughn, testified that he was present at the 

time the citation was issued. According to Vaughn, the guard found by Inspector Oglesbee lying 

against the belt frame was actually an old guard that had been removed and replaced by a welded 

steel guard protecting the tail roller. According to Vaughn, the welded guard provided full 

protection for the tail roller area and there were no moving parts exposed beyond the guard. 

Vaughn further testified that the new welded guard had been in place for about two months and 

one or two inspectors had examined this condition without issuing any citations. He also 

admitted however that the subject tailpiece would have been moved every four days thus altering 

the extant conditions. He also testified that Lodestar had.utilized similar guards elsewhere in the 

mine without citation by inspectors. 

I find Vaughn's testimony sufficient to vacate the citation at issue. llis testimony is 

undisputed that-the old guard had been replaced by a new welded guard and it is acknowledged 

by the Secretary that the welded guard fully protected the tail roller. The fact that the old guard 

had remained in the vicinity of the tail roller leaning against the belt structure cannot be taken, 

under the circumstances, to mean that it was intended to be, or was needed as, a fixed guard. 

Within this framework of credible evidence I find that the item, which was formerly a guard, 

could not, at the time the citation was issued, be considered a "guard" within the meaning of 30 

C.F.R. § 75.l 722(c). At the same time the welded guard protecting the tail roller was securely in 

place as required by the cited standard. Indeed, if the welded guard was deemed inadequate then 

808 
a violation should properly have been charged under subsection (a) or (b) of the cited standard - -

not subsection (c). Citation No. 7646334 must accordingly be vacated. 

ORDER 

Citation No. 7646334 is hereby vacated. ·citation Nos. 7646256, 7646257, 7646265, 

7646233 and 7646103 are hereby affirmed and Lodestar Energy Incorporated is hereby directed 

to pay civil penalties of $55.00 for each violation within 40 days of the date of this decision. In 

addition, pursuant to the settlement agreement submitted at hearing, Lodestar Energy 

Incorporated is directed to pay civil penalties of$1 l,353.00 within 40 days of the date of this 

~~~ \ 

\ ·\ fvvv'\ \ ./ l/" . 

Gary Meli . ~ l_,,..'\. 

Administr 1 ive Law Judge "" 

Distribution: (By Certified Mail) 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Dept. of Labor, 2002 Richard Jones Rd., 

Suite B-201, Nashville, TN 37215 

Stanley Dawson, Esq., Lodestar Energy, Inc., 333 West Vine Street, Suite 1700, Lexington, KY 

40507 

\mca 

809 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOU LEV ARD #280 

DENVER, CO 80204-3582 

303-844-3993/F AX 303-844-5268 

JOHN R. PETERSON, 

Complainant 

v. 

SUNSHINE PRECIOUS METALS, 

INCORPORATED, 

Respondent 

August 9, 2002 

DISCRIMINATION COMPLAINT 

Docket No. WEST.98-307-DM 

WEMD98-04 

Sunshine Mine 

Mine ID 10-00089 

DECISION 

Appearances: John R. Peterson, Coeur D'Alene, Idaho, prose; 

Fred M. Gibler, Esq., John S. Simko, Esq., EV ANS, KEANE, Kellogg, Idaho, 

on behalf of Respondent. 

Before: Judge Cetti 

This case is before me upon the complaint of discrimination filed by John R. Peterson, 

pursuant to Section I 05(c)({3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.§ 

801 et seq., the "Mine Act." In his original complaint filed with MSHA, Mr. Peterson states 

that on September 16, 1997, while employed as a Gypo contract miner by the Sunshine Mining 

Company, he was discharged for insubordination. His original complaint to MSHA states the 

date of the alleged discriminatory action occurred with his discharge on September 16, 1997. 

Peterson was reinstated by Sunshine Mines to his position as a Gypo contract miner, 

working in the stope of his choice, in October 1998. This reinstatement was pursuant to an 

arbitration finding and award which Peterson's union pursued and obtained on Peterson's behalf. 

Pursuant to the Finding and A ward and a later settlement agreement, Sunshine paid Peterson 

total back wages of $52,748.80, less the standard government's required deductions. The 

settlement was approved by the arbitrator who heard the case and issued the findings and award. 

(Complaint Ex. 1) 

The final event that occurred just prior to Peterson's discharge involved the abatement of 

Citation No. 4135775, received in evidence as Complainant's Exhibit 6. The citation was issued 

to Sunshine Mine on September 4, 1997, and required the ventilation problem described in the 

complaint to be corrected by September 7. The ventilation problem was caused by waste rock 

810 
that the miners placed in a drift that was the exhaust drift for an underground shop, which 

maintained and serviced three loaders that were kept at the shop. This shop was located in 

Peterson's stope, in an area close to where he was mining. For some unknown reason, the 

citation was not abated by the date specified in the citation. Peterson first learned of the citation 

from his mining partner Mr. McNutt. Peterson's shift boss, Stan Mayo, as the first step in the 

abatement of the citation, instructed Peterson to install a fiberglass ventilation tubing in a minedout area at the mine so the miners could move the blocking waste rock out of the exhaust drift of 

the shop into the mined out area. Ventilation of the mined out area was necessary for the miners 

to perform this work. Peterson's shift boss, Stan Mayo, needed this ventilation tubing installed 

as the first step in abatement of the citation and instructed Peterson to do that installation the first 

thing on the morning of September 9. The shift was half over when the shift boss Stan Mayo 

came to where Peterson was working and found that the ventilation tubing had not been installed. 

Peterson explained why the installation of the ventilation tubing had not been done. One of the 

primary reasons was he did not know where to obtain the needed ventilation tubing. Apparently 

neither Stan Mayo nor mine management believed him nor accepted his excuses as valid reasons 

to delay the installation of the needed ventilation tubing. 

Peterson was given a five-day letter required by the Union contract before discharging 

him for his refusal to follow what mine management considered a direct order. The arbitrator, 

however, disagreed, and in his finding and award stated that Sunshine Mine had to offer 

something more to establish a "deliberate refusal" than the "speculative argument" that Peterson 

"could have" or "should have" known where to get the Y ventilation tubing. The Arbitrator 

therefore issued the Finding and Award reinstating Peterson and making him economically 

whole for all loss resulting from his discharge. Peterson, upon receiving the arbitrator funding 

and award wrote to the undersigned as follows: 

"Arbitrator James Reed has found in my favor, an unjust termination. He 

has awarded myself back wages at contract rate, my seniority, my choice 

of bids awarded while I was discharged, vacation, safety awards, holidays, 

medical and dental expenses while discharged." 

Peterson was obviously pleased with the award but he still believes Sunshine should give 

him more back pay than the $52,748.80 gross amount back wages that Sunshine mine paid him, 

pursuant to the finding to award and the later settlement approved by the Arbitrator Reed who 

heard his case. (Resp's Exhibit 1) 

At the hearing under the Mine Act, once it became clear to Peterson that there could be 

no recovery under the "Mine Act" for additional compensation for pain and suffering, the major 

issue that concerned the parties was whether or not Peterson had already received under the 

Arbitrator's Finding and Award and the latter approved settlement, the correct amount of back 

pay for loss resulting from his discharge. It is Respondent's position that Peterson has already 

been paid everything he could receive even if he were successful in proving his discharge 

constituted a violation of Section 105(c) of the Mine Act. For the reason stated in more detail 

811 
below, I find Peterson has been paid in full for all economic losses that resulted from his 

discharge. 

The union contract provides for the operator to set up an incentive pay system for Gypo 

contract miners where they can earn more than a day's pay. Under the incentive pay system, 

Sunshine Mine paid the Gypo miners additional wages called a "bonus" which was based on the 

number of feet the Gypo miner advanced the face of his respective stope. Under the system, the 

mine would periodic- ally set up a so-called contract for each stope that was ready for mining and 

set the price per foot for each particular stope as a bonus. The mine would then set out for 

bidding by the Gypo miners each of the stope contracts management prepared. The gypo miners 

bid on the stope they wished to mine. Mine management awarded contracts at each stope to the 

Gypo miners on the basis of the miner's seniority. Before bidding on this contract for a stope, 

each miner would team up with another Gypo miner to form a team of two for the purpose of 

bidding on the contract for mining the stopes of their choice. The bidding was awarded on the 

basis of the seniority of the senior member of each team. At times there would be a second team 

of Gypo miners working on the same stope but on a different shift. Thus the pay of each of the 

four miners would be based on the number of feet the four miners advanced the face of the 

stope. This advance would be measured periodically. 

Adding vacation days and holidays, there apparently was a potential maximum of 2,208 

hours of pay that Peterson could have earned during the time between his discharge and his 

reinstatement. 

At the hearing, the judge asked Mr. Peterson if the wages to be paid to Gypo contract 

miners were set forth somewhere in the Union contract. Peterson responded "No" and 

emphatically elaborated his answer as follows: 

Peterson: 

Judge: 

Peterson: 

No, it's not. Thafs on the company's discretion, totally whether they like 

you or not. 

What do you mean by that," ... at the company's discretion"? 

That means that they pay by the foot. But they don't gotta pay you 

the same as anybody else. They pay whatever they want to whoever 

they want per foot. Then they can do things like give somebody a 

two-yard loader, which-and only give you a one-yard loader to muck 

with. But you 're only gonna haul half the rock of a two-yard loader. 

If they give somebody better equipment, a jumbo, they're gonna get 

drug away faster that you are with. a jack leg. And a jumbo has a tenfoot steel on it, and a jack leg that you're manhandling has only got a 

six-foot steel on it. 

812 
Sunshine Mine first paid Peterson $40,048.80 for his loss of wages from the time 

between his discharge and his reinstatement. This amount was reduced by reimbursement of 

$6,360.00 for Idaho State Unemployment, which he received during the time he was off. There 

were also the standard government wage deductions required by law, as set forth in Respondent's 

Ex. B. This figure of$40,048.80 was based on Peterson's past performance and earnings during 

the 18 months he worked for Sunshine Mine as a Gypo contract miner before his discharge. 

Under the facts of this case, it was proper to use past earnings to compute Peterson's wage loss 

resulting from his discharge. Any other method of computing wage loss under the fact of this 

case would involve considerable unacceptable speculation. Peterson's average earnings prior to 

his discharge were 1.584311 times a regular day's pay, which at that time was $10.45 per hour. 

Claimant's Ex. 3. His average pay was therefore approximately $17.00 per hour, which resulted 

in the $40,048.80 first paid to Peterson. However, the union, through intense negotiation with 

Respondent, was able to.obtain an additional $12,700.00 of back wages for Peterson. The 

$12,700.00 was paid pursuant to settlement of his loss approved by the trial arbitrator. Peterson 

cashed each check of back wages he received from Sunshine, but before cashing each check, he 

wrote on the back of the check "partial payment:" Peterson was paid a total.of$52,748.80 which 

was about $25 per hour. Peterson contends he should have received the same amount of pay as 

his replacement. However, there was no replacement as such. The stope that Peterson now says 

he would have bid on if he were working for Sunshine at the time that contract was passed out 

for bidding was contracted out to a truly "independent contract company, the "Atlas Faucet 

Contracting Company," (Atlas Faucet), which had two employees who were paid by Atlas 

Faucet. There is no evidence as to what those two Atlas Faucet employees received in the way of 

wages. The only evidence available was the amount Sunshine paid the independent contractor, 

Atlas Faucet Contractors Company. Out of what Sunshine paid Atlas Faucet came not only the 

wages Faucet paid their two employees who did the mining but also the burden an employer 

carries such as workers' compensation, health insurance, holiday and vacation pay, and perhaps 

some profit. 

Peterson had no medical or dental expenses. 

On review of all the relevant evidence, I find that Respondent Sunshine Mine paid 

Peterson for his economic losses resulting from his discharge. He has been made "whole" 

economically. Sunshine Mine paid Peterson for all economic loss that could potentially be 

payable to him if he were to win his claim under the Mine Act. 

Peterson stated several times that Sunshine management acknowledged that he was a 

productive worker. He then asks, "Why did they fire me?" It appears that a large part of the 

answer to his question can be found in Peterson's Exhibit l, the favorable decision, findings, and 

award that his friend Lavern A. Milton, Subdistrict Director of United Steel Workers of America, 

was able to obtain for him in the arbitration proceeding. The arbitrator James C. Reed in his 11-

page decision stated the following at page 2: 

813 
During his tenure at the mine, which was about one and one half years, 

he displayed a work disciplinary record that, to say the least, was not 

exemplary. Starting in January 1997 with an attendance problem. 

Again in June another safety violation. In September another attendance 

problem. 

·His personal record shows a history of twenty seven (27) days absent 

for various reasons. Counseling in May 1997 for harassment of other 

employees. Counseling in May 1977 for absenteeism. Counseling 

again for absenteeism in June, and at this session he was advised of the 

Company's employee assistance program. In June 1997, the Grievant 

was observed and tested for alcohol while on duty. He was removed 

from work for that shift. Later a grievance was filed for that incident, 

but it has nothing to do with this gnevance concerning the Grievant's 

discharge. Again in August 1997 the Grievant was charged with another 

safety violation. In August of 1997, he was instructed to install a vent 

line and the work was not done two days later. Some of these items in 

the Grievant's record are merely notes to the file, and some are pending 

grievances, but the overall record are merely notes to the file, and some 

are pending grievances, but the ov_erall record of this Grievant is still that 

of a less than good employee. 

With respect to the employer's position, the Arbitrator on page 3 of his decision stated: 

The Grievant was expected to install the vent line system as a part of his 

job as a contract miner. It is not unusual for a work assignment of this 

nature and the 52-pound "Y" is light enough for one person to install, and 

if the Grievant needed help, he could have asked the nipper to help him. 

Instead of asking for help, the Grievant simply decided on his own to not 

install the vent line and instead installed rock bolts in the ceiling of S76A 

Stope, a task, which according to testimony by the Company, was not 

necessary at the time. The ·Grievant was not required to work by himself; 

he had plenty of help available to him. 

The grievant was issued a corrective action memorandum for failing 

to perform work as instructed. The decision to terminate the Grievant 

was made after reviewing his entire work record, as indicated in the 

Collective Bargaining Agreement at Article 15.13, where if the Grievant 

in question has less than five years seniority, as in this case, his entire 

814 
work record may be considered when the Company is making a 

determination concerning discipline of the Grievant. 

On page 4 the Arbitrator in his decision states: 

There is also the matter of the Grievant's position on the incident changing 

over time. At step four of the grievance proceedings, he, or the Union, 

argued that he could not hang the vent line by himself. But at hearing, the 

reason changed to-he did not perform the task as directed because he could 

not find the "Y" fitting. This position of the Union's at hearing was contradicted by the nipper's testimony that he knew where the fitting was and 

would have assisted the Grievant if required. 

The discharge of the Grievant was appropriate since he, without a justifiable reason, disobeyed a direc_t order given him by the Company, which 

is a basis for discipline under Section 23.3 of the CBA. In addition, given 

the Grievant's 18-month work history, discharge was the appropriate outcome. 

In the end, the Grievant could very well have done the task assigned to him 

if he had elected to do it. The "Y'~ fitting did not weigh 90 pounds as the 

Union argued; it weighed 50 pounds. The Grievant was not required to 

work alone as he has stated, instead, there was help available from the 

nipper ifhe needed it. But according to the nipper's testimony, he was 

never asked to help. 

The Grievant made excuses why he did not install the vent line. He testified 

that he couldn't find the fitting, yet his partner and nipper, who worked 

here less than a year, knew where it was. He said he bad to install the 

rock bolts for safety reasons, yet the Union safety representative testified 

it was not necessary to install the rock bolts before installing the vent line. 

He also said he did not have a loader to assist him, yet the nipper and his 

partner both had loaders. 

The Grievant's testimony was brief, but a few matters became evident. 

Despite Article XXVI of the CBA he felt he was more competent to 

manage the Mine than management. His work record shows over the 

short period of his employment he failed to follow orders on other 

occasions and felt that he was "above" the work he was required to do. 

In the end, there is not much question that the Grievant is a lousy 

employee and eventually he will be terminated for something, but 

not this time. There is simply not enough evidence to determine 

that the Grievant deliberately refused to change the ventilation 

815 
system. It was a job that, according to testimony, would have 

taken him only about 20 to 30 minutes and it just doesn't make 

any sense that, unless he simply did not know where to find a 

"Y" he would have not installed it. 

Peterson did participate in a meeting with management involving the potential 

disciplinary action against him for absenteeism. This occurred on June 18, about three months 

before he was discharged. At that meeting, Peterson asked for the telephone number and address 

of MSHA but no one responded to his question. However, he could have easily gotten this 

information from the safety department or from one of his fellow miners who was a 

representative of the union. I do.not believe his request for MSHA's phone number and address 

constituted protected activity. Peterson, at no time, called MSHA nor did he discuss any 

problem with an MSHA representative before his discharge. 

CONCLUSION 

On review of the record, I find that there is no persuasive, credible evidence of protected 

activity prior to his discharge. Assuming argumento that there was protected activity, there is no 

direct or indirect circumstantial evidence from which to draw any reasonable inference that the 

adverse action was motivated in whole or in part by protected activity. The complaint is 

DISMISSED. 

Distribution: 

~4~ Augu5( F. Cetti 

Administrative Law Judge 

Mr. John R. Peterson, 2600 East Third Street #130, Post Falls, ID 83854 

John S. Simko, Esq., CIO EV ANS, KEANE, 1101 W. River St., Suite 200, P.O. Box 959, 

Boise, ID 83701-0959 

/ek 

816 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENV.ER, CO 80204-3582 

303-844-3577/FAX 303-844-5268 

August 15, 2002 

SECRETARY OF LABOR, · 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2002-146-M 

A.C. No. 42-02283-05506 

v. 

Rattlesnake Pit 

DARWIN STRATTON & SON, INC., 

Respondent 

DECISION 

Before: Judge Manning 

The Secretary of Labor filed a petition for assessment of civil penalty against Darwin 

Stratton & Son, Inc. ("Darwin Stratton") proposing a penalty of $1,000 for Citation No. 

6281686. The citation alleges a violation of section 103(a) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 813(a), for refusing to permit an inspector of the Department 

of Labor's Mine Safety and Health Administration ("MSHA") to inspect the Rattlesnake Pit. 

When Darwin Stratton did not file an answer to the petition, as required by 29 C.F.R. § 

2700.29, the Commission's chief administrative law judge issued an order to show cause to 

Darwin Stratton. In response to the order to show cause, Mr. Pat Morgan acting for Darwin 

Stratton filed a letter stating: 

We do not feel that FMSHRC can be or will be fair and 

impartial in the hearing of Docket No. WEST 2002-146-M, 

A.C. No. 42-02283-05506 in regard to the CANCELED and 

Permanently Closed Mine ID No. 42-02283. The former 

alleged Rattlesnake [Pit] situs NEVER was a mine or pit and 

NEVER was under the jurisdiction of MSHA. Therefore, your 

March 19, 2002, ORDERED threat of default and penalty 

(punishment) continues the process of force and fear by 

FMSHRC, MSHA, and the Office of the Solicitor. 

817 
(emphasis in original). Darwin Stratton enclosed a number of documents, including a Motion 

for the Voluntary Recusal of the Honorable David Sam, 1 a memorandum in support of this 

recusal motion, and a copy ofMSHA's Quarterly Employment Form for the first quarter of 

2002 on which Morgan had stamped "CANCELED." The chief judge accepted, this response 

to the order to show cause and the case was assigned to me. 

Citation No. 6281686 was issued on November 8, 2000, by MSHA Inspector Stephen 

Wegner and alleges a violation as follows: 

Pat Morgan, a consultant acting on Darwin Stratton & Son 

Inc.' s behalf, refused to allow an authorized representative to 

enter the mine for the purpose of conducting an inspection of the 

mme. 

Mr. Morgan refused to acknowledge Judge Manning's October 

3, 2000, decision stating that MSHA has jurisdiction to inspect 

the Rattlesnake Pit. Mr. Morgan felt that he had canceled all 

review commission action last July. Mr. Morgan was told that 

refusal to allow the inspection was in violation of the provisions 

of section 103(a) of the Mine Act. 

In Darwin Stratton & Sol}, Inc., 22 FMSHRC 1265 (Oct. 2000), I held that the 

Rattlesnake Pit is a mine subject to the jurisdiction of MSHA. In that case, Darwin Stratton 

requested a hearing on citations and orders issued at the Rattlesnake Pit. I set the case for 

hearing, at Darwin Stratton's request, but Darwin Stratton and Mr. Morgan refused all mail 

service from me and from the Office of the Solicitor. 22 FMSHRC 1269-70. No 

representative from Datwin Stratton appeared at the hearing held in Washington, Utah, on 

October 3, 2000. 

Based on evidence presented by the Secretary at the hearing, I concluded that the 

Rattlesnake Pit was subject to the jurisdiction ofMSHA at the time of the inspection in late 

April 2000. I based this determination, in part, on the fact that the wash plant at the facility 

was used to prepare excavated rock and that this rock was then fed into a hopper and conveyed 

to a single-deck screen to separate out oversized material. 22 FMSHRC 1267-69. The Mine 

Act defines a mine broadly to include "lands, excavations ... structures, facilities, equipment, 

machines, tools, or other property ... on the surface or underground, used in, or to be used in, 

or resulting from, the work of extracting minerals from their natural deposits, ... or used in, 

or to be used in, the milling of such minerals, or the work of preparing ... minerals ... . " 30 

1 The Secretary brought an action against Darwin Stratton in the United States District Court 

for the District of Utah seeking temporary and permanent injunctions against Darwin Stratton for 

refusing to allow MSHA inspectors to enter its facilities. Judge Sam sits on the District Court and 

I presume he has jurisdiction over the injunction actions. 

818 
U.S.C. § 802(h)(l). Thus, the fact that Darwin Stratton was, at a minimum, milling or 

preparing minerals at the site that had been extracted from their natural deposits, established 

MSHA jurisdiction. Stone, rock, gravel, and sand are "minerals" as that term is used in the 

Mine Act. Richard E. Seiffert Resources, 23 FMSHRC 426, 427 (April 2001) (ALJ). I also 

held that the sale of the prepared minerals entered or affected interstate commerce. 22 

FMSHRC 1269. I entered similar findings with respect to Darwin Stratton's Airport Pit in 

Darwin Stratton & Son, Inc., 24 FMSHRC 403 (April 2002). 

On May 17, 2002, I issued a prehearing order in the present case directing the parties 

to confer in an effort to settle the case. I also addressed the jurisdiction issue raised by Darwin 

Stratton and stated that if Darwin Stratton permanently closed the Rattlesnake Pit between 

April and November 8, 7000, MSHA jurisdiction may have terminated. 

By letters dated June 28, and July 8, 2002, John Rainwater, counsel for the Secretary, 

advised me that he had ma~e several unsuccessful attempts to contact Mr. Morgan to discuss 

the case. He also talked to people at Darwin Stratton's office who advised him that Mr. 

Morgan would be available by phone in Darwin Stratton's office on July 1, 2002. Mr. 

Rainwater was unable to reach Mr. Morgan and Mr. Morgan did not return any of his phone 

calls. 

On July 16, 2002, I issued an order directing Darwin Stratton to advise me, in writing, 

whether it will appear at a hearing and present evidence on the jurisdictional issues. In his 

response, Mr. Morgan reiterated that Darwin Stratton canceled ID. No. 42-02283 and that 

MSHA officials have "first-hand knowledge" of this cancellation. Mr. Morgan stated that he 

previously notified me that Darwin Stratton was ''waiving the prehearing order and request to 

a review on the CANCELED MINE ID No. 42-02283." (emphasis in original).2 With respect 

to settlement, Mr. Morgan stated that the jurisdiction issue must be resolved "in the District 

Court venue and, if necessary, even to the Supreme Court." In the final paragraph, Mr. 

Morgan stated that "Respondent once again waives its request for a hearing by the FMSHRC 

due to the fact that it cannot be fair or impartial to the Respondent." (emphasis in original). 

Based on the statements contained in documents filed by Darwin Stratton in this case, 

I conclude that Darwin Stratton is no longer requesting a hearing. Under 29 C.F.R. § 

2700.3(b )( 4), Mr. Morgan is authorized to represent Darwin Stratton and he is the only person 

who has responded to the Commission's orders in this case and the other cases involving 

Darwin Stratton. Consequently, I enter findings of fact and conclusions of law based on the 

record in this case and the record in previous cases before me involving the Rattlesnake Pit. 

2 Mr. Morgan attached a letter addressed to me, dated June 24, 2002, which states that 

Respondent has "decided to waive the prehearing order and proceed to resolve this whole matter in 

the District Court venue." I do not recall seeing this letter but, because it does not contain a docket 

number, it may have been misfiled. 

819 
On April 21 , 2000, an employee of Darwin Stratton was fatally injured at the 

Rattlesnake Pit when she became entangled in a moving conveyor-belt tail-pulley that was not 

guarded. MSHA conducted an investigation and issued a nwnber of citations against Darwin 

Stratton. I held a hearing in that case on October 3, 2000, but no representative of Darwin 

Stratton appeared at the hearing. The Secretary presented evidence as to the nature of the 

operations at the Rattlesnake Pit. Based on that evidence, I concluded that the Rattlesnake Pit 

was a "coal or other mine" as that term is defined in section 3 of the Mine Act. 22 FMSHRC 

at 1267-70. I described the Rattlesnake Pit as follows: 

The Rattlesnake Pit is a small sand and gravel mine 

owned and operated by Darwin Stratton near Hurricane, Utah, in 

Washington County. Sand and gravel is extracted from a dry 

stream bed, transported by truck to an adjacent wash plant, and 

stockpiled. The stockpiled material is fed into a hopper and 

conveyed to a single-deck screen where oversized material is 

separated. The sand is then fed into a screw classifier and 

mixed with water to remove unwanted material. 

22 FMSHRC at 1267. In my prehearing order in the present case, I advised Darwin Stratton 

that if it permanently shut down the Rattlesnake Pit between April and November 2000, 

MSHA's jurisdiction may have ceased, but it waived its right to present evidence on this 

issue. 

I conclude that the Rattlesnake Pit is a "coal or other mine" and that it is subject to the 

jurisdiction of the Secretary under section 4 of the Mine Act. Consequently, I find that 

Darwin Stratton violated section 103(a) of the Mine Act when it refused to allow an MSHA 

inspector onto its property at the Rattlesnake Pit. 

Section 11 O(i) of the Mine Act sets out six criteria to be considered in determining an 

appropriate civil penalty for a violation of the Mine Act. The petition for penalty states that 

27 citations were issued at the pit during the previous 24 months. Darwin Stratton is a small 

operator. The citation was not abated in good faith and section 104(b) Order No. 6281687 

was issued. There has been no showing that the penalty assessed in this decision will have an 

adverse effect on Darwin Stratton's ability to continue in business. The violation was serious 

because it was reasonably likely that an inspection would have revealed hazardous conditions 

that needed correction. Darwin Stratton's negligence was high because it intentionally refused 

to allow the inspection in the face of a previous finding of jurisdiction. Darwin Stratton had 

not notified the local MSHA office that it closed the pit after April 2000 and it did not so 

advise Inspector Wegner. It simply stamped "Canceled" on MSHA docwnents to indicate that 

it was refusing MSHA jurisdiction. An operator cannot unilaterally nullify MSHA 

jurisdiction. Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), I 

assess a penalty of$1,000 for this violation. 

820 
ORDER 

Accordingly, section 104(a) Citation No. 6281686 and section l04(b) Order No. 

6281687 are AFFIRMED and Darwin Stratton & Son, Inc.~ is ORDERED TO PAY the 

Secretary of Labor the sum of $1,000.00 within 40 days of the date of this decision. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

John Rainwater, Esq., Office ~f the Solicitor, U.S. Department of Labor, P.O. Box 46550, 

Denver, CO 80201-6550 (Certified Mail) 

Johnpatrick Morgan, General Delivery, Fredonia, AZ. 86022-9999 (Certified Mail) 

Darwin Stratton & Son, 720 West State Street, Hurricane, UT 84737-2084 (Certified Mail) 

RWM 

821 
FEDERAL MINE SAFETY AND HEAL TH R6VIEW COMMISSION 

1244 SPEER BOULEVABD #2SO DEliiVE~. co 8ti264 !'i582 303-844-3577/FAX 303-844-5268 

August 22, 2002 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2001-608-DM 

on behalf of RICHARD M. BUNDY 

Complainant Bingham Canyon Mine 

V. Mine I.D. 42-00149 

KENNECOTT UTAH COPPER CORP., 

Respondent 

Appearances: 

Before: 

DECISION 

Gregory W. Tronson, Esq., and Jennifer A. Casey, Esq., Office of the 

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

Complainant; 

James M. Elegante, Esq., Kennecott Utah Copper Corp., Bingham 

Canyon, Utah, and Melissa H. Bailey, Esq., Ray, Quinney & Nebeker, 

Salt Lake City, Utah, for Respondent. 

Judge Manning 

This case is before me on a complaint of discrimination brought by the Secretary of 

Labor on behalf of Richard M. Bundy against Kennecott Utah Copper Corporation 

("Kennecott") under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. §815(c) (the "Mine Act"). The complaint alleges that Kennecott _terminated Mr. Bundy 

from his employment in violation of section 105( c ). An evidentiary hearing in this case was 

held in Salt Lake City, Utah, and the parties filed post-hearing briefs. 

I. FINDINGS OF FACT 

Kennecott is the operator of the Bingham Canyon Mine, a large open-pit copper mirie in 

Salt Lake County, Utah. Mr. Bundy worked at the mine as a repair gang machinist from March 

21, 2000, until he was terminated on March 21, 2001, after he refused to work overtime on the 

evening of March 15, 2001. He told his supervisor that he was too tired to work safely during 

the overtime shift and left the mine at 11:30 p.m. at the end of his regular shift. 

822 
At the time of Mr. Bundy's termination, the mine worked three shifts. Bundy worked 

the B shift, which started at 3 p.m. and ended at 11 :30 p.m. His supervisor was Michael 

Ragsdale. As a repair gang machinist, Bundy helped repair and maintain electric shovels and 

drills at the mine. Mr. Bundy was suspended without pay on March 16, 2001. Following an 

investigation and a disciplinary hearing conducted by Kennecott on March 19, Bundy was 

terminated from his employment on March 21, 2001. (Ex. R-26). 

The circumstances giving rise to his suspension and tennination stem from events on 

March 15, 2001. Bundy arrived for work at the beginning of his shift and was directed by 

Ragsdale to help repair the No. 56 shovel (the "shovel"). The transmission for the shovel had 

been removed on the previous shift, but the crew on that shift could not remove the swing 

shaft. The transmission is connected to this swing shaft, which functions as a pinion to rotate 

the very large metal-toothed wheel under the superstructure of the shovel. As this wheel is 

turned, the deck of the shovel, the house containing the machinery and controls, as well as the 

crane for the shovel, rotate. The swing shaft is quite large and heavy. In theory, the swing shaft 

should simply fall out when the transmission is removed but, more often than not, the swing 

shaft has been deformed from use. A number of techniques are used to remove the swing shaft 

so that it can be replaced with a new one. 

About five members of the B crew, including Bundy, were assigned to remove the 

swing shaft, which is in a small compartment under the deck of the shovel. The crew 

determined that the best way to remove this swing shaft was to weld blocks in this 

compartment and then maneuver the swing shaft free using hydraulic jacks. One end of the 

jack was placed against the block and then pressure was exerted against the swing shaft to 

loosen it. The compartment containing the swing shaft measures about 44 inches wide, 66 

inches deep, and 34 inches high. The jack weighs about 30 pounds and is capable of exerting 

30 tons of pressure. 

Bundy testified that he spent more that three hours of his shift in this compartment with 

the hydraulic jack attempting to dislodge the swing shaft. He testified that he was the only 

member of his crew who worked in the swing shaft compartment for a substantial period of 

time. He had to sit in the cramped compartment as he worked. Although Bundy believes that 

he made some progress in loosening the swing shaft, the swing shaft was still in place at the 

end of the shift. 

Bundy testified that by 11 p.m., he was very tired and was ready to go home. Ragsdale 

believed that he needed three B shift employees to work overtime on the C shift to remove the 

swing shaft and to perform other jobs that he wanted to complete before the start of the A shift 

the next morning. These overtime employees would work with the four members of the C 

shift. 

The employees at the mine are represented by several unions. The repair gang 

machinists are represented by Local 568 of the International Association of Machinists and 

823 
Aerospace Workers (the "union"). There i.s a single collective bargaining agreement ("CBA") 

at the mine that applies to seven unions including this union. The CBA has specific procedures 

that Kennecott must follow when it seeks to have employees work overtime. As applied here, 

Kennecott must first seek volunteers for overtime, starting with those on the crew with the 

most seniority. If Kennecott cannot recruit a sufficient number of volunteers, it can force 

employees to work overtime. In such an instance, the company must start with the employee 

on the crew with the least seniority and work up the seniority list until it secures the number of 

overtime employees that it is seeking. 

On the night of March 15, Ragsdale began informally soliciting volunteers to work 

overtime as the crew was beginning to wrap up its work at the shovel and at the other locations 

where crew members were working. After the crew had driven to the changing room at about 

11 p.m., Ragsdale again sought volunteers. When no employees volunteered for overtime, he 

announced that he would have to force three employees to work overtime. The person at the 

bottom of the seniority list, Danny Turquoise, volunteered. The next eligible employee up 

from the bottom of the seniority list, Duane Barton, ''volunteered" to work overtime after 

Ragsdale told him that he was going to force him to. The next employee up on the seniority 

list was Bundy. Ragsdale asked Bundy to work overtime. Bundy declined. Bundy testified 

that he believed that he was too tired to work safely and he believed that he would be placing 

himself and others at risk if he worked with heavy equipment and machinery during the C shift. 

Ragsdale continued to press Bundy to work overtime. Bundy refused, saying on 

several occasions that he was "too tired and unsafe" to work overtime. Ragsdale continued to 

press Bundy to work overtime and Bundy continued to refuse. This dispute continued over a 

15- to 20-minute period. Ragsdale had a number of other responsibilities that he had to tend to 

before 11 :30 p.m. so the exchange between Ragsdale and Bundy was not continuous. During 

the shift, Ragsdale did not observe Bundy working in the compartment under the deck but saw 

him joking around with other employees and Bundy did not appear to be particularly tired to 

him. 

Ragsdale advised Bundy that the company would have to make a determination as to 

whether Bundy should be excused from working overtime. Bundy then advised Ragsdale that 

he could not stay because he was having carpet installed in his home at 7 a.m. the next 

morning. Ragsdale told Bundy that he would be home in plenty of time for the carpet 

installers. When Ragsdale believed that they had reached an impasse, he went to his office and 

looked at the CBA to make sure that he was following the required procedures for forcing 

overtime on an employee and to review the procedure for resolving disputes. After reviewing 

the CBA, Ragsdale discussed the procedures for forcing overtime with the union representative 

on the shift, J. T. Timothy, to see if he was proceeding correctly. Mr. Timothy advised 

Ragsdale that he had the right to force Bundy to work overtime that night. Bundy did not seek 

union representation and he did not talk to Timothy about his rights. 

824 
Ragsdale approached Bundy one more time and told him that he could be forced to 

work overtime and that they would have to resolve their dispute and talk to a union 

representative. Bundy went to the time clock, punched out, and said "I punched out ... I [am] 

on my own time now ... I [am] going home ... quit talking to me." (Tr. 38). As Bundy left, 

Ragsdale said that their dispute could not wait until the next day and, if he left, he would face 

disciplinary action. Mr. Bundy left the mine. After Bundy left, Ragsdale wrote up what is 

called a "Notice of Investigation and Hearing" under the CBA, which is commonly referred to 

as a "disciplinary ticket." He wrote the ticket because Bundy left the mine without permission. 

The next day, when Ragsdale advised Jerry Kinyon, the Field Maintenance Superintendent, 

what had happened on the B shift, Kinyon agreed that Ragsdale had followed the terms of the 

CBA. 

Ragsdale, Danny Turquoise, and Duane Barton worked the C shift that night. Ragsdale 

does not ordinarily work on the C shift but he did so that night to make sure that the shovel was 

repaired. The C shift crew removed the swing shaft using a different method which did not 

require anyone to enter the frame of the shovel or to work in a tight space. Several individuals 

on the crew performed that task while others worked in the warehouse and obtained supplies 

from the shop. 

On March 16, 2001, after Bundy arrived at the start of the B shift, Kinyon gave Bundy 

the disciplinary ticket. A representative from the union was present at this meeting in K.inyon's 

office to represent Bundy, but Bundy refused representation and he signed a waiver releasing 

the union from its obligations to represent him.1 Bundy was suspended until a disciplinary 

hearing was held on March 19, 2001. Bundy, Ragsdale, Kinyon, two union representatives, 

and a Kennecott human resources department representative were present. Although Bundy 

refused union representation, the union officials wanted to attend because the outcome of the 

hearing could have an impact on future cases involving union members. At this hearing, 

Ragsdale explained what happened and Bundy responded by defending his actions. After 

reviewing Kennecott's Code of Conduct and the CBA, Kinyon recommended that Bundy be 

dismissed from his employment at Kennecott. Kinyon's decision was based, in part, on 

Bundy's violation of the second paragraph of the Code of Conduct, which covers the "[f]ailure 

or refusal to comply with instructions, perform work assignments, or complete responsibility of 

the job." (Ex. R-20). 

II. MOTION TO EXCLUDE TESTIMONY OF TERRY HURST AND DAVID 

PARSONS 

1 Utah is a ''right-to-work" state. Bundy is not a member of the union. At all times pertinent 

in this case, whenever Bundy was asked by Kennecott officials if he wanted a union representative, 

Bundy declined and, when requested by the union, he signed a release relieving the union of its 

obligation to represent him. 

825 
At the hearing, the Secretary called Terry Hurst and David Parsons as witnesses. 

Kennecott objected to their testimony because the Secretary did not list them as witnesses on 

her witness list provided in response to my Amended Notice of Hearing issued on January 7, 

2002. The Secretary also did not list these individuals as potential witnesses in her response to 

Kennecott's interrogatories. In response, the Secretary maintains that these witnesses were 

informants protected under 29 C.F.R. § 2700.61 ("Commission Rule 61 ")and that she was not 

required to disclose their names until two days before the hearing under Commission Rule 62. 

At the hearing, I allowed the Secretary to present these witnesses and asked the parties to brief 

this issue. I stated that ifl granted Kennecott's motion, the testimony of these witnesses would 

be stricken. 

Terry Hurst was employed by Kennecott on several occasions. His most recent 

employment by Kennecott was between January 1998 and June 22, 2001. He worked as a 

repair gang machinist. He voluntarily left Kennecott in June 2001 to take a job in the aircraft 

industry at Hill Field Air Force Base. David Parsons worked at Kennecott from January 25, 

2000, until February 3, 2002, as a repair gang mechanist. At the time of the hearing, he was 

living in Garland, Texas, and was looking for work with Ingersoll-Rand and other miningrelated companies. Both of these men were working on the same shift as Bundy on March 15, 

2001. 

The Secretary maintains that, although Hurst and Parsons were no longer employed by 

Kennecott at the time of the hearing, "they both worked at the Bingham Canyon Mine in March 

2001 when Bundy was terminated from his position and [they] provided confidential 

information to MSHA regarding Bundy's protected activity and subsequent termination." (S. 

Br. 7). She further argues that "the possibility for retaliation for communicating with MSHA 

lingers for Hurst and Parsons·in the same manner as it would for current employees working 

for Kennecott." Id. The Secretary contends that these witnesses should be afforded the same 

protection from disclosure as current Kennecott employees. In making this argument, the 

Secretary relies on case law on the informant's privilege, including Bright Coal Co. , 6 

FMSHRC 2520 (Nov. 1984). 

Kennecott contends that the Secretary was obligated to provide it with the names of 

Hurst and Parsons because neither of these individuals are miners. It argues that Commission 

Rules 61 and 61 only apply to individuals "currently employed in mining operations." (K. Br. 

19). The term "miner'' is defmed in section 3 of the Mine Act as "any individual working in a 

coal or other mine." 30 U.S.C. § 802. Kennecott argues that there was no potential for 

intimidation or retaliation against Hurst and Parsons and that Rules 61 and 62 do not apply to 

them. The Secretary violated the Commission's rules when it failed to identify Hurst and 

Parsons as witnesses and, consequently, their testimony should be stricken. In addition, 

Kennecott maintains that the Secretary failed to provide the names of these witnesses two days 

prior to the start of the hearing as required by Rule 62. 

826 
The Commission has two related procedural rules that govern the disclosure of the 

identity of informants and witnesses who are miners. Rule 61 provides that a judge shall not, 

except in extraordinary circumstances, order a person to disclose to an operator or his agent the 

name of an informant who is a miner. In broadly interpreting the informant's privilege, the 

Commission noted that the language of the Mine Act and its legislative history ')'eflect 

congressional concern about the possibility of retaliation against miners who participate in 

enforcement of the Act." Bright, 6 FMSHRC at 2524. The Commission went on to state: 

We believe that these expressions of congressional concern for 

protecting the identity of miners who contact the Secretary 

regarding violations of the Act, and otherwise protecting miners 

who participate in enforcement of the Act, underscore the need 

for the recognition and proper application of the informer's 

privilege in Mine Act proceedings. Therefore, in order to 

maximize the lines of communication with the Secretary 

concerning violations of the Mine Act, we hold that a person's 

status as an informer is not dependent on whether that person is 

an employee of a mine operator. 

Id. The Commission discussed this issue because the operator in that case had ceased all 

operations and it was not clear whether the informants were still employed in the mining 

industry. Consequently, an individual who was an eyewitness to events that may be in 

violation of section 105( c) of the Mine Act may be ari informant notwithstanding the fact that 

he is no longer employed by a mine operator. In such an instance, that individual's identity 

would be protected from discovery by the informant's privilege. See also Asarco, Inc., 12 

FMSHRC 2548, 2552-57 (Dec. 1990); 14 FMSHRC 1323, 1327-28 (Aug. 1992). The 

Secretary maintains that Hurst and Parsons were informants protected by this privilege. 

Although the language of Rule 61 can be interpreted to protect the identity "of an 

informant who is a miner" and not informants who are no longer employed by a mine operator, 

the Commission has not adopted this interpretation. It has consistently interpreted the 

informant's privilege broadly. The Commission has not implied that Rule 612 is to be 

construed more narrowly than or inconsistently with its broad interpretation of the informant's 

2 When the Commission's cases on the informant's privilege were issued, the provisions of 

Rules 61 and 62 were contained in Rule 59. See Bright, 6 FMSHRC at 2523 n 2. When the 

Commission revised its rules, it split Rule 59 into two rules. In the preamble, the Commission noted 

that a "miner informant may also be a witness in Commission proceedings" and stated that a judge 

shall not disclose under Rule 62 whether any miner witnesses "were also informants." 58 Fed. Reg. 

12158, 12163 (March 3, 1993). 

827 
privilege. In any event. I am prohibited by Commission case law from revealing the identity of 

informants who are not miners.3 

Rule 62 provides that a judge shall not, "until 2 days before a hearing, disclose or order 

a person to disclose to an operator or his agent the name of a miner ... whom a party expects 

to summon or call as a witness." This rule applies to all miners who are called as witnesses, 

including miners who are not informants. How this two-day rule should be applied to 

witnesses who are not informants and who are no longer employed in the mining industry is 

not before me. What is before me is how this rule should be interpreted for witnesses who are 

informants but who are no longer employees of a mine operator. As discussed above, a judge 

is prohibited from ordering the. Secretary to disclose the identify of an informant. I hold that 

Rule 62 is an exception to this prohibition with respect to informants who are to be called as 

witnesses. If the Secretary intends to call an informant as a witness, she must identify him two 

days prior to the hearing. If she does not intend to call an informer as a witness, his identity 

need not ever be revealed. Given the Commission's interpretation of the informant's privilege, 

discussed above, Rule 62 must also apply to individuals who are not employed in the mining 

industry at the rime of the hearing. 4 

I find that Hurst and Parsons were informants as that term has been interpreted by the 

Commission and that the Secretary was within her rights to protect their identity. As a 

consequence, for the reasons set forth above. the Secretary was not required to reveal their 

identity until two days before the hearing under Rule 62. My holding in this case is consistent 

with my holdings in two previous cases. Mobile Premix Sand & Gravel Co. 19 FMSHRC 220 

(Jan. 1997); Basin Resources, Inc., 18 FMSHRC 1125 (June 1996).s 

3 Because the informant's privilege is a qualified one, if the judge determines that the 

privilege applies, he must perform a "balancing test to determine whether the respondent's need for 

the information is greater that the Secretary's need to maintain the privilege to protect the public 

interest." Bright, 6 FMSHRC at 2526. Because of the manner in which the issue arose, the 

balancing test does not apply. 

" lfl interpret the word "miner" in Rule 62 to include only individuals who are employed 

by operators at the time of the hearing, then the Secretary would not be required to reveal the identity 

of"non-miner'' witnesses who are informants. An informant's identity would be protected by the 

informant's privilege and Rule 62 would not apply because the informant is not a ')niner." I reject 

this interpretation. 

5 In making its arguments, Kennecott relies on orders of Commission Judge Feldman. 

Laurel Run Mining Co., 19 FMSHRC 1229 (June 1997), 19 FMSHRC 1607 (Sept. 1997). That case 

arose out of a different set of facts but, to the extent that Judge Feldman's holding is inconsistent 

with the holding in this case, I respectfully disagree with his reasoning. 

828 
Kennecott argues that the Secretary did not comply with Rule 62, in any event, because 

she provided it with the names of these witnesses less than two days prior to the start of the 

hearing. It is undisputed that the Secretary advised Kennecott that she was calling Hurst and 

Parsons as witnesses on Saturday, March 16, 2002, at about 11 a.m. (S. Br. Ex. C). The 

hearing commenced at 9 a.m. on Tuesday, March 19, 20.02. Kennecott points to Commission 

Rule 8, which states that when a prescribed time period js less that seven days, "intermediate 

Saturdays, Sundays, and federal holidays shall be excluded in the computation." As a 

consequence, Kennecott maintains that the Secretary was obligated to provide the names of 

these witnesses at 9 a.m. on Friday, March 15, 2002. 

The Secretary does not dispute Kennecott's argument that she was required to provide 

the names of Hurst and Parsons on the morning of Friday, March 15. She argues that counsel 

for the Secretary misinterpreted the Commission's rules. She contends, however, that the 

sanction of striking the testimony of these two witnesses is too extreme. She maintains that I 

should take into consideration the reason for the delay and whether the delay prejudiced 

Kennecott. The Secretary argues that Kennecott failed to establish actual prejudice caused by 

the delay. She points to the fact that Kennecott engaged in active discovery but did not take 

any depositions in this case, Kennecott had knowledge that Hurst and Parsons were on Bundy's 

crew and had informally interviewed them about the facts in this case. The Secretary contends 

that Kennecott "obtained detailed, factual information concerning Bundy's allegations .... " 

before this case was initiated. (S. Br. 11 ). The Secretary maintains that if Kennecott believes 

that it was prejudiced by the delay, it could have requested a one-day continuance of the 

hearing. Finally, the Secretary believes that Bundy's interests should not be compromised by 

the failure of the government to meet its time obligations. 

I hold that the Secretary was obligated to disclose the names of these informant 

witnesses at or about 9 a.m. on March 15. Under the facts of this case, however, I find that 

Kennecott did not suffer any prejudice by the Secretary's short delay. The testimony of Hurst 

and Parsons was consistent with the testimony of the other witnesses and consistent with what 

they told Kinyon when he interviewed them on March 26, 2001. (Ex. R-27). Consequently, 

the motion to strike the testimony of Hurst and Parsons is DENIED. 

III. SUMMARY OF THE PARTIES' ARGUMENT 

A. Secretary of Labor 

The Secretary contends that Bundy had a reasonable, good faith belief that he was so 

tired that if he continued working on the shovel.he could injure himself or others. A miner 

who refuses to work is not required to establish that an actual hazard exists, but he must show 

that he had an "honest belief that a hazard exists." Robinette, 3 FMSHRC at 810. 

Nevertheless, the miner must attempt to communicate his safety concerns to the operator. 

Secy of Labor on behalf ofDunmier v. Northern Coal Co., 4 FMSHRC 126, 133 (Feb. 1982). 

829 
The Secretary maintains that when Bundy told Ragsdale that he was too tired to work 

safely, he had a reasonable good faith belief that he would put himself and others in danger if 

he continued working on the shovel. The Secretary argues that his refusal to work beyond his 

normal work shift was protected activity under section 105( c) of the Act. Because Kennecott 

discharged Mr. Bundy as a direct result of this work refusal, it violated section 105(c). The 

Secretary relies, in part, on a decision of former Com.mission Judge Koutras in which he held 

that a refusal of a miner to work overtime because he was too tired is protected activity. James 

Eldridge v. Sunfire Coal Co., 5 FMSHRC 408 (March 1983). The Secretary also relies on 

the Commission's decision in Sec '.Y of Labor on behalf of Bowling v. Mountain Top Trucking 

Co., 21 FMSHRC 265 (March 1999) in which the Commission held that a work refusal based 

on fatigue as a result of excessive work hours was protected under the Mine Act. 

The Secretary rests on the fact that Bundy "conducted uniquely difficult work" on the B 

shift on March 15. (S. Br. 15). He was working in a small compartment in the frame of the 

shovel using hydraulic jacks weighing about 30 pounds to exert pressure on the swing shaft. 

Because the compartment was dark and dusty, he used a flashlight to see. Bundy testified that 

he worked in this compartment for about 3Yi hours and that it was "back-breaking" work. (Tr. 

20). Bundy testified that he was mentally and physically exhausted at the end of his regular 

shift. 

The Secretary also states that Kennecott did not tell Bundy what overtime work he 

would be performing during the C shift. Consequently, he assumed that he would be 

"conducting the same back-breaking work" that he performed on the B shift. Ragsdale told the 

crew that he was seeking miners to work overtime because the swing shaft had not been 

removed on the B shift. Bundy honestly believed that he could not safely continue to remove 

the swing shaft on the next shift. The Secretary maintains that Bundy communicated his safety 

concerns to Ragsdale on several occasions. Despite Bundy's repeated attempts to 

communicate his safety concerns, Ragsdale did nothing to address these issues or to ease his 

fears. The Secretary also believes that Ragsdale expressed animus towards Bundy's safety 

concerns. Finally, the Secretary contends that Bundy was terminated as a direct result of his 

work refusal. 

B. Kennecott 

Kennecott maintains that the record in this case does not support the Secretary's 

position that Bundy entertained a reasonable, good faith belief that a hazard existed at the time 

he refused to work overtime. Kennecott believes that Bundy raised the safety issue to mask his 

real reason for his work refusal. He simply did not want to work another four hours but wanted 

to go home. Bundy offered a string of excuses to get out of his obligation under CBA to work 

overtime. Thus, Kennecott contends that the safety concern was a pretextual excuse rather than 

one made in good faith. Kennecott points to the fact that, in a conversation with Kinyon, 

Bundy stated that Kennecott ''was missing the boaf' by not having 12-hour shifts. (Tr. 375-

76). 

830 
Kennecott contends that Bundy's refusal to work overtime and his subsequent decision 

to walk off the job was also unreasonable. Kennecott maintains that Ragsdale tried to keep 

Bundy from leaving the mine so that Bundy and the company could follow the dispute 

resolution process in Article 18J of the CBA. Because Bundy is not a member of the union, he 

refused to comply with the requirements of the CBA. Kennecott states that if Bundy had 

stayed at the mine, he would not have been required to work around the shovel or perform any 

other heavy work while the parties attempted to resolve the issue under Article 18J and he 

would have been compensated for this time. Thus, even if Bundy's safety concern was initially 

reasonable, it became unreasonable, and therefore unprotected, when he refused to allow the 

company to follow the procedures set forth in the CBA to resolve the issue. If Bundy was 

concerned about safety, he would have stayed at the mine because he would not have been 

required to place himself in a position where he could be injured. As a consequence, Bundy's 

testimony was not credible as further evidenced by the fact that he told Ragsdale that he was 

having carpet laid at his home at 7 a.m., which Bundy now admits was not true. 

Even if Bundy's work refusal was protected, the Secretary failed to establish that his 

dismissal was motivated in any part by his protected activity. Although Kennecott had 

knowledge of Bundy's safety concerns, the company never had a chance to address them 

because Bundy abruptly left the mine. As a consequence, Kennecott was never given the 

opportunity to make a determination whether Bundy was too tired to work safely. There is no 

evidence in the record that Kennecott has any animus towards work refusals due to safety 

concerns. Bundy was terminated from his employment, after a hearing on the merits, because 

he refused to stay at the mine to have the matter resolved under the procedures set forth in the 

CBA. 

IV. DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS OF LAW 

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising 

any protected right under the Mine Act. The purpose of the protection is to encourage miners 

"to play an active part in the enforcement of the [Mine] Act" recognizing 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." S. Rep. No. 

181, 95•h Cong., 151 Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95111 Cong., 2"d Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977 at 623 (1978). 

A miner alleging discrimination under the Mine Act establishes a prima facie case of 

prohibited discrimination by proving that he engaged in protected activity and that the adverse 

action complained of was motivated in any part by that activity. Sec '.Y of Labor on behalf of 

Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980), rev 'd on other 

grounds, 663 F .2d 1211 (3d. Cir. 1981 ); Sec '.Y of Labor on behalf of Robinette v. United Castle 

Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The mine operator may rebut the primafacie 

case by showing that no protected activity occurred or that the adverse action was in no part 

831 
motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800. If the mine operator 

cannot rebut the prima facie case in this manner, it nevertheless may defend by proving that it 

was also motivated by the miner's unprotected activity and would have taken the adverse 

action for the unprotected activity alone. Id.; Robinette, 3 FMSHRC at 817-18; see also 

Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (41

h Cir. 1987). 

In a discrimination case involving an alleged work refusal, the complainant is not 

required to establish that a hazard actually existed. The complainant must show that bis work 

refusal was based on his reasonable, good faith belief that a hazard exists. To meet this burden 

of proof, the Secretary must establish that Mr. Bundy's belief that he could not continue to 

work safely was reasonable, that it was made in good faith, and that he at least attempted to 

communicate his belief that he could not continue to work safely to a representative of 

Kennecott. Sec '.Y of Labor on behalf of Dunmire v. Northern Coal Co., 4 FMSHRC 126, 133 

(Feb. 1982). The ''perception of the hazard must be viewed from the miner's perspective at the 

time of the work refusal." Gilbert v. FMSHRC, 866 F. 2d 1433, 1439 (D.C. Cir 1989). 

I find that Bundy acted in good faith when he told Ragsdale that he was too tired to 

work safely. "Good faith belief simply means honest belief that a hazard exists." Robinette, 3 

FMSHRC at 810. I find that the preponderance of the evidence establishes that Bundy 

honestly believed that he was too tired to continue working safely with heavy equipment At 

first he did not give Ragsdale any reason why he did not want to work overtime. He raised the 

safety issue once they reached the change room. When that failed, he told Ragsdale that people 

were coming to install new carpets in his house at 7 a.m. the next morning. As a consequence, 

Kennecott maintains that the Secretary did not establish that Bundy was acting in good faith 

when he raised safety issues. Kennecott states that his lack of good faith is underscored by the 

fact that he told Kinyon the next day that Kennecott should institute 12-hour shifts. Kennecott 

also argues that I should not credit Bundy's testimony because, in order to obtain 

unemployment benefits, he told the hearing officer at the benefits hearing, while under oath, 

that he did not have carpeting installed the next day. (Tr. 51-52, 83-84). Kennecott also points 

to the fact that Bundy's statements about having carpet installed has changed several times and 

that his testimony at the hearing in this case was also inconsistent on this issue. 

(K. Br. 29-30; Tr. 49, 82). 

Although Bundy's lack of candor is troubling, I find that his testimony at the hearing as 

to why he raised the carpet issue with Ragsdale to be credible. He testified that he did not need 

to be home when the carpet was installed and that he told Ragsdale about the carpet installers 

in the hope that Ragsdale "would let me go home." {Tr. 50). Bundy testified that he did not 

want to work overtime because he felt that he was too tired to work safely, but he raised the 

carpet issue thinking that perhaps Ragsdale would accept that excuse, since he did not believe 

that be was getting anywhere with the safety issue. I give Bundy the benefit of the doubt on 

this issue. 

832 
The closer question is whether Bundy's safety concerns were reasonable. The 

Secretary contends that Bundy's safety concerns were reasonable because he had been working 

with heavy equipment for at least three hours in a very small, dark compartment under the deck 

of the shovel. Bundy assumed that he would be doing the same "back-breaking" work during 

overtime because the swing shaft had not been removed from the shovel. (Tr. 93). Ragsdale 

told the crew that he needed three individuals to work overtime so that the repair work on the 

shovel could be completed. At the hearing in this case, Bundy stated that he was concerned 

that "if you are not mentally and physically able to work, in a split second you can get crushed, 

maimed, or even kill yourself or a fellow coworker." (Tr. 40). The Secretary contends that the 

reasonableness of Bundy's concerns is emphasized by that fact he had worked about 300 

overtime hours during the previous year thereby demonstrating that he was not someone who 

evaded work responsibilities. Finally, the Secretary argues that Bundy's safety concerns were 

clearly communicated to his supervisor, Ragsdale. 

Kennecott argues that Bundy was not being reasonable on the evening of March 15. It 

maintains that it terminated Bundy for walking off the job, not for raising safety issues. He did 

not know what work he would be required to perform during the C shift and the Mine Act does 

not regulate working hours or allow miners to refuse to perform work that does not present any 

particular hazards. Moreover, even assuming that Bundy had legitimate safety concerns, he 

refused to stay at the mine so that the matter could be handled under the dispute resolution 

provision in the CBA. Kennecott contends that Ragsdale ''worked to convince Bundy to 

follow the dispute resolution procedure of Article l 8J of the CBA to make a determination as 

to whether a safety hazard existed." (K. Br. 27; Tr. 254). Bundy's refusal to submit to this 

procedure because he was not a member of the union was unreasonable. Kennecott contends 

that Bundy would not have had to perform any work while the matter was being resolved. As a 

consequence, if Bundy had stayed at the mine, as instructed by Ragsdale, he would not have 

been exposed to any safety hazards. 

Under the appropriate circumstances, I hold that a miner has the right to refuse to 

perform a job assignment if he is too tired to safely conduct the work. Former Commission 

Judge Koutras held that a miner is engaged in protected activity when he refused to work 

overtime because he was "too tired and exhausted" to continue extracting pillars in a coal mine. 

Eldridge, at 464. Commission Judge Feldman held that miners, who drive large multi-ton haul 

trucks, had the right to refuse to continue driving their vehicles because of fatigue in the face of 

the long hours that they had worked during the preceding weeks driving these trucks over 

mountainous terrain on narrow and winding roads. Sec '.Y on behalf of Bowling v. Mountain 

Top Trucking Co., 19 FMSHRC 166 (Jan 1997); ajf'd on this issue 21FMSHRC265, 274 

(March 1999). 

I find, however, that Complainant did not establish that Bundy's refusal to work 

overtime on the night ofMarch 15, 2001, was protected activity under section 105(c) of the 

Mine Act because his refusal was not reasonable at the time he left the mine. Bundy's initial 

concern that he was too tired to continue trying to remove the swing shaft was reasonable, but 

833 
his refusal to stay at the mine until the matter was resolved or until he was assigned work that 

he considered to be hazardous considering his fatigued state was not reasonable. In reaching 

this conclusion, I have considered the facts from the perspective of Mr. Bundy at the time of 

his work refusal. 

First, it was not reasonable for Bundy to assume that he would be required to continue 

the "back-breaking" job of attempting to remove the swing shaft from inside the compartment 

under the deck for the shovel. Bundy was never assigned to perform that task by management. 

Bundy undertook to be the employee on the B shift to work in the compartment on his own. 

He could have asked another employee to take over that work during overtime, or asked 

Ragsdale to assign him a different, less demanding task. Several of the employees who worked 

overtime performed tasks that did not involve working with heavy equipment or working in 

areas that presented a hazard. Indeed, Mr. Herbert, who worked the C shift that night, testified 

that he told Ragsdale that overtime employees would not be needed that night. (Tr. 181-83). 

Bundy had no reasonable basis to conclude that he would be forced to continue working in the 

compartment under the deck of the shovel. His refusal to work was too anticipatory to be 

afforded protection. In contrast, the miners who refused to work in the Eldridge and Bowling 

cases had been assigned to complete specific jobs. Mr. Eldridge was told that he would be 

pulling pillars until the job was completed. The miners in Bowling were truck drivers who 

would be required to continue driving their haul-trucks over narrow maintain roads. If Bundy 

had stayed at the mine and Ragsdale required him to work in or around heavy equipment or put 

him ·in a dangerous position, taking into consideration his fatigued state, Bundy would have 

had a statutory right to refuse to perform those tasks. Instead, Bundy left the mine at the end of 

his shift despite requests from Ragsdale to stay so that the matter could be discussed and 

resolved. 

Complainant emphasizes the fact that Bundy raised the safety issue in the context of 

whether he could be required by Kennecott to work overtime. The Mine Act does not regulate 

the working hours of miners. Thus, the issue is whether Bundy had a reasonable belief that he 

could not safely perform an assigned task because of his fatigued state, irrespective of the time 

in which he raised the issue. A miner who is mentally and physi~ally exhausted may 

reasonably believe that he cannot safely perform a specific task in the middle of his shift, 

particularly if the shift is longer than eight hours. In such an instance, his refusal may 

constitute protected activity. On the other hand, a miner who does not know what task he will 

be required to perform cannot refuse to perform any work because he is fatigued. 

6 It is 

important to understand that there has been no showing that Bundy was so tired that he could 

not do any productive work. Complainant's case was premised on the assumption that Bundy 

6 Situations may arise where a miner is so exhausted that he cannot perform any productive 

work. There has been no showing 'that Bundy was in such a condition. Some of the miners who 

worked on the C shift that night performed work that was not arduous and did not involve the use 

of heavy equipment. 

834 
would be required to perform a task that was too demanding for him to safely perform. Bundy 

assumed, without justification, that he would be forced to work in the compartment of the 

shovel doing the same work he did during the B shift. Although Bundy stated that he was also 

mentally tired, which could have clouded his thinking, he did not wait to see what job he was 

assigned. He also did not attempt to negotiate with Ragsdale to get an easier job assignment. 

Bundy only told Ragsdale that he could not be forced to work overtime because he was too 

tired. 

Mr. Timothy was the union representative on the B shift that evening. Any hourly 

worker, including a worker who is not a member of the union, has the right to talk to the 

representative about his rights and to request representation. Ragsdale asked Bundy if he 

wanted to talk to Timothy. Bundy refused by saying that he had no use for unions and that the 

union could not help him. Ragsdale talked to Timothy, but only in the context of making sure 

the union did not dispute his right to force Bundy to work overtime. It is not clear whether 

Timothy understood the nature of Bundy's refusal but he advised Ragsdale that he could force 

Bundy to work overtime under the CBA. 

Complainant argues that Kennecott failed to notify Bundy of his rights under section 

l 8J of the CBA. It is clear that Bundy was advised of his safety rights and his rights under the 

CBA at the time of his orientation when he was hired by Kennecott. As a general matter, an 

employer is not required to offer its interpretation of a union contract to its employees and in 

some instances an employer would violate the National Labor Relations Act if it does so. 

More importantly, it is clear that Bundy was well aware of his right to request union 

representation. It was not necessary for Bundy to understand all of the nuances of the CBA 

because he could ask a union representative. Union representative Timothy was available to 

Bundy but he waived his right to seek his representation or his advice. (Tr. 284). 

Section 18J of the CBA, "Disputes Resolution," establishes a step-by-step procedure 

that the company and union will follow when an employee ''believes an unsafe condition exists 

which is beyond the normal hazards inherent in the operation which involves an immediate 

danger of injury to his person .... " (Ex. R-6). Under this procedure, the employee notifies 

his immediate supervisor when he believes that such a condition exists. If the supervisor 

determines that an immediate danger of injury does not exist, the employee may request union 

representation. If the union representative and the supervisor cannot reach an agreement, the 

matter proceeds to subsequent steps which involves calling in higher levels of management, 

calling in company and union safety officials and, in certain instances, calling in medical 

personnel. This procedure has been used in similar situations such as when miners ask to leave 

their shift early because they feel tired or sick. 

I credit the testimony of Kennecott witnesses that the company would have called in 

those people necessary to resolve the dispute between Ragsdale and Bundy on the night of 

March 15. If Bundy had remained at the mine, he would not have been required to work until 

the matter was resolved, but he would have been paid for his time. Because Bundy refused to 

835 
discuss the matter with Timothy and he left without Ragsdale's permission, the dispute 

resolution procedures were never implemented. Complainant faults Ragsdale because he did 

not lay out this procedure in detail for Bundy before he left. As stated above, Mr. Timothy was 

available to assist Bundy. Ragsdale testified that Bundy told him that he did not need the 

union's help and that he could handle the matter on his own. (Tr. 254). It must also be 

understood that Ragsdale had to tend to many other matters between 11: 10 and 11 :30 that 

night, including lining up the oncoming crew to give them their assignments and advising that 

crew's leadman of the status of the work to be completed. It was unreasonable for Bundy to 

insist that Ragsdale determine whether he should be excused from working overtime during 

this 20-minute period. When Ragsdale kept talking about it, Bundy told him to "quit talking to 

me." (Tr. 38). 

Throughout this proceeding Bundy maintains the he was in the best position to know 

whether he was too tired to work safely. The implication is that once Bundy told Ragsdale that 

he was too tired to work safely, he should have been excused from working overtime. Given 

the subjective nature of such a claim, it is reasonable for an employer to want to evaluate such 

a claim. When an employee asks to be excused from working at the Bingham Canyon Mine 

because he is sick or exhausted, Kennecott sends him to its on-site medical clinic for an 

examination. (Tr. 118-19, 155). 1n·at least one instance, an employee who asked to be excused 

from working overtime because he was not feeling well was sent home after he was examined 

by clinic personnel. If the clinic is closed, an EMT is available to examine the employee. It is 

impossible to know how Mr. Bundy's situation would have been resolved had he remained at 

the mine. I find that because Bundy left the mine before he was given a work assignment and 

before Kennecott was given the opportunity to review his claim that he was too tired to work 

safely, his refusal to remain at the mine for overtime was not reasonable and was not protected 

by section 105( c) of the Mine Act. 

When "a miner expresses a reasonable, good faith fear in a hazard, the operator has a 

corresponding obligation to address the perceived danger." Gilbert, 866 F.2d at 1440. In 

Gilbert, a miner raised concerns about the condition of a roofin a mine. Although the miner 

had not been told that he was going to be working in the same area, he left the mine after he 

came to work the next morning because of his continued concerns about the condition of the 

roof. When he inquired about the roof that morning, he was told that it was "none of his 

concern". Id. After reviewing the events leading up to his work refusal, the court held that the 

Commission's conclusion that he could not have "entertained a reasonable or good faith belief 

that he would be required to work in a hazardous [area]" was not supported by the record. The 

court remanded the case to determine ''whether management addressed [the miner's safety] 

concerns in a way that his fears reasonably should have been quelled." Id. at 1441. 

The facts in this case differ significantly from the facts in Gilbert. In Gilbert, the miner 

had a reasonable, good faith belief that he would be required to work under a hazardous roof 

In the present case, none of the conditions at the mine presented a hazard that concerned 

Bundy. His safety concern was that, because he was tired from working under the deck of the 

836 
shovel for three hours during his regular shift, he could not continue to safely perform that task 

or another arduous task without jeopardizing his safety and the safety of others. In Gilbert, the 

miner was concerned that management had not done enough to determine the extent of the roof 

control problem and had not taken sufficient steps to secure the roof. Jn this case, by leaving 

the mine, Bundy prevented management from making a determination whether he was indeed 

too tired to work safely. Thus, the o_nly option for Kennecott was to take Bundy at his word, 

allow him to go home, and force the next person up the seniority list to work overtime. 

I credit the testimony of Ragsdale that he told Bundy that they would have to resolve 

their dispute that night and that he would be disciplined ifhe left at the end of his shift. (Tr. 

253-55). Although these statements did not address Bundy's concerns about his fatigued state, 

it is clear that Bundy was not going to be asked to work under the deck of the shovel until his 

concerns were discussed further. It appears that Bundy did not particularly like Ragsdale and 

did not completely irust him. But given the nature of Bundy's safety concern, it was 

incumbent on him to remain at the mine until Kennecott could evaluate his fitness to work. 

Thus, Bundy's initial concern that Ragsdale would make him get right back into the 

compartment under the shovel or perform other arduous work "reasonably should have been 

quelled," at least enough for him to stay at the mine to see if Ragsdale was acting in good faith. 

It was not reasonable for Bundy to leave before the dispute was resolved or before he was 

assigned a task that he be.lieved he could not safely perform. It is important to remember that 

Ragsdale had not required Bundy to work under the deck of the shovel during the B shift, so 

Bundy's continuing concern that he would be forced to perform such work during overtime 

was illogical and unreasonable. 

In determining whether a mine operator's adverse action was motivated by the miner's 

protected activity, the judge must bear in mind that "direct evidence of motivation is rarely 

encountered; more typically, the only available evidence is indirect." Secretary of Labor on 

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (November 1981 ), rev 'don 

other grounds, 709 F.2d 86 (D.C. Cir 1983). "Intent is subjective and in many cases the 

discrimination can be proven only by the use of circumstantial evidence." Id. (citation 

omitted). In Chacon, the Commission listed some ·of the more common circumstantial indicia 

of discriminatory intent: 

(1) knowledge of the protected activity; (2) hostility or animus towards the protected activity; 

(3) coincidence in time between the protected activity and the adverse action; and (4) disparate 

treatment of the complainant. See also Hicks v. Cobra Mining, Inc. , 13 FMSHRC 523, 530 

(April 1991). 

In applying this test to the present case, it is clear that Kennecott had knowledge of the 

protected activity and that there was a coincidence in time between the protected activity and 

the adverse action. Any hostility exhibited by Ragsdale concerned Bundy's refusal to work 

overtime and to stay at the mine to resolve the matter. There has been no credible showing that 

Ragsdale and Kennecott were hostile to miners' safety concerns or that Ragsdale issued the 

disciplinary ticket because Bundy raised safety issues. Bundy was disciplined because he left 

837 
the mine. In the termination letter, Kinyon stated "[s]ince you chose not to have further 

discussions with your supervisor, refused to stay, used foul and abusive language towards him, 

then left the property, the Company has decided to terminate your employment effective the 

date of this letter for your insubordinate behavior as described above." (Exs. R-26, G-6). 

Finally, Complainant did not establish disparate treatment. There is little evidence on this 

issue. A union officer was given a disciplinary ticket for refusing overtime, but the ticket was 

vacated when the company discovered that he refused overtime because he had to tend to union 

business. On February 22, 2001, Bundy refused to work overtime after Ragsdale told him he 

was going to force him to work but, before the matter came to a head, another en:iployee 

voluntarily agreed to work overtime. (Tr. 214; Ex. R-3). Bundy had not been previously 

disciplined and he received favorable performance evaluations. No empfoyee had been 

terminated at the mine under similar circumstances because there is no evidence that anyone 

had refused to work overtime and then left the mine in a similar manner. I find that there is 

insufficient evidence to hold that Bundy was treated differently than other employees because 

he raised a safety issue. 

In conclusion, I find that although Bundy's initial concern about his fatigued condition 

was reasonable, his refusal to remain at the mine after the end of his shift to resolve the matter 

under the CBA was not reasonable and was not protected by section I 05( c ). I find that the 

adverse action was not motivated by Bundy's protected activity but was prompted by his 

unprotected activity alone, as discussed above. 

V. ORDER 

For the reasons set forth above, the complaint filed by the Secretary of Labor on behalf 

of Richard M. Bundy against Kennecott Utah Copper Corporation under section 105( c) of the 

Mine Act is DISMISSED. 

Richard W. Manning 

Administrative Law Judge 

838 
Distribution: 

Gregory W. Tronson, Esq., and Jennifer A. Casey, Esq., Office of the Solicitor, U.S. 

Department of Labor, P.O. Box 46550, Denver, CO 80201-6550 (Certified Mail) 

James M. Elegante, Esq., Kennecott Utah Copper Corp., P.O. Box 351, Bingham Canyon, UT 

84006-0351 (Certified Mail) 

Melissa H. Bailey, Esq., Ray, Quinney & Nebeker, P.O. Box 45385, Salt Lake City, UT 

84145-0385 

RWM 

839 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET, N.W., Room 6003 

WASHINGTON, D. C. 20006-3867 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CANNELTON.INDUSTRIES, 

INCORPORATED, 

Respondent 

Telephone No.: 202-653-5454 

Telecopier No.: 202-653-5030 

August 23, 2002 

CIVIL PENAL TY PROCEEDING 

Docket No. WEV A 2000-113 

A. C. No. 46-03317-03655 

Mine: Lady Dunn Preparation Plant 

DECISION 

Appearances: Robert S. Wilson, Esq., U.S. Department of Labor, Office of the Solicitor, 

Arlington, 

Before: 

Virginia, for the Secretary; 

David J. Hardy, Esq., Heenan, Althen & Roles, Charleston, West Virginia, for the 

Respondent. 

Judge Barbour 

This civil penalty proceeding is brought by the Secretary of Labor (Secretary) on behalf 

of her Mine Safety and Health Administration (MSHA) pursuant to sections 105 and 110 of the 

Federal Mine Safety and Health Act of 1977 (30 U.S.C. §§ 815, 820). The Secretary is seeking 

the assessment of civil penalties against Cannelton Industries, Incorporated (Cannelton) for three 

alleged violations of mandatory training and safety standards. The case arises out ofMSHA's 

investigation of a fatal accident that occurred at Cannelton's Lady Dunn Mine, a facility that 

includes the Dunn Coal and Dock Strip Mine, the Dunn Hollow Haulroad and the Lady Dunn 

Preparation Plant, on June 28, 1999. The accident took the life of Roy Whitt, an employee of 

Cannelton's contractor, Wiggles Trucking Company (Wiggles). 

Cannelton denied the violations occurred, and the parties engaged in extensive pretrial 

discovery. The case was tried in two sessions in Charleston, West Virginia. During the first 

session, the testimony of nonexpert witnesses was heard. During the second session, the expert 

witnesses testified. 

840 
STIPULATIONS 

At the commencement of the first session the parties agreed to the following 16 

stipulations: 

1. Cannelton ... is the operator of the [Lady Dunn Mine;] 

2. Operations of the [mine] are subject to the jurisdiction of the [Mine Act;] 

3. [The] case is under the jurisdiction of the ... Commission and its designated 

Administrative Law Judge pursuant to ... the Mine Act [;] 

4. William Uhl was acting in his official capacity as an authorized representative of the 

Secretary ... [i.e., as a federal mine inspector] when [the] citation[s] ... were issued[;] 

5. True copies of [the] citation[s] ... were served on ... [Cannelton] or its agent as 

required by the Mine Act[;] 

6. The total proposed penalty ... will not affect .. . [Cannelton's] ability to continue in 

business[;] 

7. [Gov. Exh. l] is an authentic copy of [C]itation No. 7157394 .. . and may be admitted 

into evidence for the purpose of establishing its issuance[;] 

8. [Gov. Exh. 2] is an authentic copy of [C]itation No. 7157395 ... and may be admitted 

into evidence for the purpose of establishing its issuance[;] 

9. [Gov. Exh. 3) is an authentic copy of [C]itation [N]o. 7187482 ... and may be 

admitted into evidence for the purpose of establishing its issuance[;] 

10. Assuming that the violations ... are affirmed ... [they] were abated in good faith[;] 

11. The Proposed Assessment ... [Gov. Exhibit 5), accurately sets forth(:] 

a. [T]he size of Cannelton ... in production tons or hours worked per year[;] 

b. [T]he size, in production tons or hours worked per year, of . . . [the mine] in which 

the citations . .. were ... issued[;] 

c. [T]he total number of assessed violations for the period of July 1998 through May 

2000, and[;] 

d. [T]he total number of inspection days for that same period[;] 

841 
12. [Gov. Exh.6], the .. . printout of prior violations, may be admitted into evidence and 

may be used for determining the assessment of a penalty if the citations at issue are affirmed[;] 

13. Coal was hauled from the Dunn Coal [and] Dock Strip (M]ine to the preparation 

plant via the Dunn Hollow haulroad on June 28, 1999(;] 

14. On June 28, 1999, the Dunn Coal [and] Dock Strip (M]ine, the Dunn Hollow 

[H]aulroad and the Lady Dunn [P]reparation [P]lant were all on property leased or owned by 

Cannelton ... [;] 

15. On June 28, 1999, at approximately 6:00 p.m., while driving a loaded haulage truck 

on the Dunn Hollow [H]aulroad, going from the Dunn Coal [and] Dock Strip [M]ine to the Lady 

Dunn [P]reparation [P]lant, Roy E. Whitt was involved in a haulage accident and received fatal 

injuries [;] 

16. The decline grade of the Dunn Hollow [H]aulroad in the vicinity of the accident 

ranged from 10.6 to 17.4 percent[;] [Gov. Exh. 8] . . . is an accurate depiction of the grade of the 

haulroad in the vicinity of where the accident occurred and may be admitted into evidence. 

(Tr. 14; see also Joint Exh. 1 ). 

THE FACTS 

The mine is a surface complex where bituminous coal is extracted, hauled and processed. 

As the stipulations indicate, the mine includes the Dunn Coal and Dock Strip Mine (the pit), 

where the coal is mined and stockpiled, and the Lady Dunn Preparation Plant, a coal preparation 

and tipple facility. The pit and the processing area are connected by the Dunn Hollow 

[H]aulroad (the road). The pit's elevation is considerably higher than that of the processing area. 

As a result the connection road has several areas of steep decline. 

If the company's speed limits are observed, it takes approximately l5 minutes to drive 

from the pit to the processing area. Due to the elevation difference the route is somewhat 

circuitous. The road leaves the pit and, after its initial descent, reconnects with a public road 

before resuming its course on mine property and descending to the processing area. Primarily, 

the road is used by coal haulage trucks. However, the road also is used by other mine vehicles, 

and the short public part of the road is open to general traffic (Tr. 119, 688). 

Jack Hatfield, the safety manager of Cannelton since 1977, explained that the mine began 

operating in late 1992 or early 1993 (Tr. 569). After it opened, the road was used intermittently. 

As 1999 began, the road which had been out of service was upgraded and reopened (Tr. 573). 

Cannelton then contracted with Bridgeport Trucking Company (Bridgeport) to haul coal from the 

pit to the processing area (Tr. 575-576). However, on June 13, 1999, Bridgeport informed 

Cannelton it no longer would haul (Tr. 578, 676). Because Cannelton could not get its coal to 

842 
the processing area without trucks, Cannelton immediately sought to replace Bridgeport with 

another firm (Tr. 676). 

On June 18, Cannelton selected Big G Trucking Company as its new contractor. After 

the company decided on Big G, Hatfield told George Arthur, Big G's president, that all of Big 

G's drivers, mechanics, and bosses should come to the mine for training. A training class was 

scheduled to be held on Saturday, June 19. Hatfield maintained that he assembled the men and 

began a hazard training session in which he reviewed hazards associated with the road and the 

processing area (Tr. 584). Hatfield discussed escape ramps with the drivers (Tr. 586) and 

explained that they should rely on their citizens' band (CB) radios to report trouble and request 

assistance (Tr. 588-589). Also, Hatfield emphasized the drivers should wear seat belts and 

should not pass on the road (!QJ. 

In the meantime, George Arthur's relative, William Arthur, heard about the job at the 

mine. William Arthur owned Wiggles Trucking Company, a coal haulage firm that owned 11 

trucks and employed approximately 30 persons. 1 William Arthur wanted the work for his 

company. After discussing the matter, Wiggles subcontracted the work from Big G (Tr. 30-32). 

Thus, it was Wiggles' drivers who actually hauled for Cannelton. 

After Hatfield's training session ended, William Arthur, who was at the mine, introduced 

himself to Hatfield. As the owner of Wiggles, William Arthur was in charge of all work done by 

his employees. As he put it, he was responsible for ''run[ning] the jobs" (Tr. 29). After the two 

men met, Hatfield got in William Arthur's pickup truck and guided Arthur up the road to the pit. 

Along the way, Hatfield spoke to Arthur abo.ut various aspects of the road, including the escape 

ramps and the berms. Hatfield noted that there was a flat area near the top of the hill where the 

drivers could pull over. He told Arthur to instruct the drivers that when they left the pit and 

began to descend toward the tipple, they could stop in that area, gear down and then proceed 

down the hill (Tr. 682). 

When the tour of the road was finished, Hatfield felt that Arthur "could lead the trucks 

... and ... talk to [the] drivers" (Tr. 590-591). Hatfield believed Arthur would tell the drivers 

which gears to use when they came down the hill (Tr. 591). Arthur agreed that Hatfield gave a 

good overview of the road. "He showed me the whole road ... all the escape ramps and 

everything" (Tr. 191). 

1

/ Subsequent to the accident, Wiggles filed for bankruptcy. It no longer engages in 

trucking (Tr. 27-28). 

843 
Hatfield testified he told Arthur that if Arthur was going to bring in drivers other than 

those Hatfield already had met, Arthur should "make sure they have all their training, they have 

been hazard trained, [and] ... they're legal" {Tr. 598). Hatfield felt certain Arthur understood 

Cannelton did not want untrained persons on its property and that Cannelton was concerned 

about safety {Tr. 656). For his part, Arthur was not clear what Cannelton officials asked about 

Wiggles' safety program. At first, he seemed to agree that representatives of Cannelton asked 

whether his company had a safety training program {Tr. 216), but a short time later he stated he 

did not recall whether or not anyone asked (Tr. 218). Arthur was sure, however, that the 

representatives of Cannelton made it clear that Wiggles' drivers had to be trained as MSHA 

required {Tr. 218). 

Hatfield also testified he told Arthur that Cannelton needed copies of Form 5000-23 for 

the drivers to show they had been trained. 2 According to Hatfield, Arthur responded that a 

person named Greg Holestin conducted training for Wiggles, that Arthur would contact Holestin, 

and that Holestin would provided the documents. Hatfield felt comfortable that Wiggles' drivers 

had the required training (Tr. 593). 

After Hatfield's and Arthur's conversation ended, Wiggles' drivers went up the hill to the 

pit. Hatfield believed Arthur would lead the drivers down the road to the processing area and 

the tipple. Hatfield did not accompany the drivers because he "felt confident [Arthur] had seen 

the road, and escape ramps, and ... [would] convoy . .. [the drivers] ... and show them these 

things" (Tr. 681). 

The next day, June 20, the mine did not operate. The drivers returned to the mine for 

work on Monday, June 21, and· they worked the rest of the work week. Hatfield stated that 

during this week he was not aware of any safety issues at the mine involving the drivers {Tr. 

596). Arthur agreed that things went well. However, because of a large amount of coal in the 

pit, Hatt.field kept asking Arthur for more 

drivers, and Arthur testified he felt pressure to provide them {Tr. 34, 194-195). 3 

A short time later Wiggles hired two laid-off former employees, one was Whitt and the 

other was David Fields (Tr. 34-35). Arthur had known Whitt for 20 years {Tr. 36). Whitt was 

then working in the Cleveland, Ohio area {Id.). Holestin called Whitt on June 24 or June 25, and 

left a message for Whitt to return to West Virginia, if he wanted to work at the mine (Tr. 196). 

2

/ Upon completion of a miner's training, an operator is required to record and to certify 

that the miner has received the training specified. The operator does so on MSHA Form 5000-

23, a copy of which is given to the miner and a copy of which is retained by the operator {30 

u.s.c. § 48.9). 

3

/ Arthur maintained that Hatfield told him if Wiggles could not provide more drivers, 

Cannelton would let someone else do the job (Tr. 41 ). 

844 
Whitt agreed to report for work on Monday, June 28 {Tr. 83-84, 197). Fields also agreed to 

come to work that Monday. 

Holestin testified that he let Cannelton officials know Whitt and Fields would be 

reporting for work by writing their names on a piece of paper and leaving the paper on a desk at 

Cannelton's mine office {Tr. 75). Holestin stated he did not sign the paper.(Tr. 87).4 

Whitt and Fields reported for work around 5:00 p.m. on June 28 (Tr. 198). The men 

stopped where Wiggles' trucks were parked. Arthur estimated that he spent approximately 

45 minutes to 1 hour "training" both men {Tr. 38, 163).5 He explained that the training was the 

same he had "done for 15, 16 years or 20 years" (Tr. 164-165). It involved him and the men 

preshift examining the trucks by checking their brakes, lights, horns, and other components 

(Tr. 165). Arthur had great confidence in the men's driving abilities, and he noted that neither 

asked any questions regarding the trucks (Tr. 165-166, Tr. 170). After he was finished with the 

"training," Arthur filled out Whitt's and Fields' task training papers. 

Arthur completed the forms even though he was not certified by MSHA to provide 

training (Tr. 38-39, 158). He stated he did not know he was required to be certified, that he had 

provided training "for 23 years," and that prior to the accident "[e]very inspector in West 

Virginia ha[d] looked at it and it was fine" (Tr. 38).6 

After the papers were signed, Whitt and Fields got in their trucks and headed for the pit. 

Arthur told them when they reached the pit, they should not try to take their trucks down the road 

on their own. Rather, the first time they descended the road, they should follow another driver, 

Ronald Hunt (Tr. 41). Arthur viewed Hunt as an "excellent truck driver" (Tr. 38), "one of the 

best ... on the job" (Tr. 167). Hunt was "head strong when it [came] to safety" ffil). 

Whitt and Fields did as they were told. When they reached the pit, their trucks were 

loaded, and they formed a "convoy" with other trucks. Hunt lead the way down the hill followed 

4

/ The paper was not addressed to anyone, and Holestin had no knowledge of what 

happened to it (Tr. 74-75). Cannelton's witnesses testified that they never saw it. 

s; Arthur later seemed to hedge his testimony regarding the time he spent with the men. 

He agreed that when he met with Inspector Uhl and a representative of the State of West Virginia 

after the accident, he might have said he spent 10 to 15 minutes with Whitt and Fields {Tr. 52, 

163). 

6

1 Fields described how his training papers were completed. Fields placed his social 

security number and the date on the forms, and Arthur filled out the rest (Tr. 110, 125). As 

Fields recalled, it took about 5 minutes (Tr. 108, see also Tr. 125). He believed that the same 

procedure was followed with regard to Whitt (Tr. 110). 

845 
by Fields, Whitt, a driver named John Harless, and another Wiggles driver {Tr. 126-127). Fields 

understood that Hunt would explain the "lay of the land" to him and Whitt (Tr. 127). As the 

trucks proceeded down the hill, Hunt spoke to the drivers over their CBs {Tr. 108, 127-128 ). 

Fields remembered Hunt telling them to stay in first gear. According to Fields, Hunt talked to 

the men all of the way down the hill {Tr. 130). Once the trip was completed, Fields believed he 

was introduced to the haulage road and that he understood what was required to drive it 

{Tr. 112). 

In the meantime, another driver, Randy Halstead, had stayed from the previous shift to 

work during the evening shift. Halstead was assigned to use Wiggles' Truck No. 425. Halstead 

checked the truck's brakes and tires, and found nothing wrong (Tr. 375). He was not.surprised 

the brakes exhibited no problems because approximately 2 112 months previously new brake 

shoes had been installed on the truck (Tr. 365-366). Halstead proceeded to the pit in Truck 

No. 425 where the truck was loaded. Truck No. 425 was equipped with a "Jake brake," a devise 

for slowing the engine and hence the truck. It also was equipped with a retarder. 7 Prior to 

starting down the hill, Ron Hunt told Halstead that he only should use the Jake brake and that he 

should stay in first gear (Tr. 377, 378). 

As he began his descent, Halstead put the truck into first gear and applied the Jake 

brake. He had no trouble getting down the hill. In addition, when he applied the truck's service 

brakes at the bottom of the hill, they worked as they should (Tr. 379-380). 

After Halstead reached the bottom and dumped his coal at the tipple, lie heard someone 

on the CB tell Whitt that something was hanging underneath Whitt's truck. Halstead pulled up 

beside Whitt, got out of Truck No. 425, and looked under Whitt's truck. A brace for a fuel line 

had come loose and was hanging below the truck. Halstead told Whitt to use Truck No. 425, that 

he, Halstead, would take Whitt's truck and have it repaired {Tr. 356-357). 

Whitt agreed to switch trucks with Halstead. Halstead explained to Whitt that Truck 

No. 425 had a larger engine than the truck Whitt had been driving. Whitt responded that he 

could "handle it" (Tr. 357). As the men drove up the hill and before Halstead went to the repair 

area, Halstead remained in touch with Whitt over the CB. Whitt reported no problems with 

7 I A "retarder" is generally defined as a device for restraining movement (See M· 

U.S. Department of the Interior A Dictionary of Mine, Mineral & Related Terms (1968 at 918). 

William Arthur, descried the function of a retarder as being to "hold you back on the hill where 

you don't have to use your brakes and get them hot" {Tr. 49). Fields explained that a retarder 

"slows the drive shaft down and [thus] help[s] to slow the truck down,, (Tr. 114). Fields 

cautioned - and almost all of the other witnesses who addressed the point agreed- that if a driver 

tried to down-shift and to take the truck out of gear while the retarder was engaged, the driver 

could not get the truck back into gear and the retarder would have no effoct on controlling the 

truck's speed {Tr. 114-115). 

846 
Truck No. 425 (Tr. 381 ). 

Near the top of the hill, Halstead turned off to go to the repair area, and Whitt continued 

to the pit. A short time later, Whitt asked over the CB how to work the retarder. Halstead was 

not surprised. He believed a driver would not necessarily know how to use a retarder, especially 

if he or she never had driven a truck equipped with one (Tr. 371). 

Halstead thought it was dangerous for such a driver to use the retarder. If the driver tried 

to shift and go out of gear, he or she could stall the engine. The result would be ')ust like putting 

... [the] truck in neutral" (Tr. 363). Once the engine stalled, the driver instinctively would apply 

the service brakes, but the truck would be traveling at such a speed it would require repeated 

application of the brakes to even begin to slow it, which in tum would make the brake drums hot 

and the brakes quickly would loose their effectiveness (Tr. 367). Therefore, Halstead told Whitt 

"you don't need the retarder ... use your Jake brake ... and first gear .. . until you get to the 

bottom of the mountain" (Id.). Whitt again replied he could "handle" the truck, and Halstead 

had the impression that Whitt was comfortable driving it (Tr. 372).8 

When Whitt reached the pit, Cannelton miner Tommy Campbell was loading trucks with 

a front-end loader (Tr. 401- 402). Whitt pulled his truck into the wrong place, and Campbell 

called him on the CB and asked him to move the truck closer to the front-end loader, which 

Whitt did (Tr. 404-405). Campbell testified that Cannelton officials had told him and other 

loader operators that new drivers would be coming and had asked them to "make sure ... [the 

new drivers] were ... task trained before ... [the operators] loaded them" (Tr. 406). As a result, 

Campbell believed when a new driver arrived in the pit, the front-end loader operators always 

asked if the driver was task trained (Id.).9 

Because Whitt was a new driver, Campbell maintained that he loaded Whitt's truck 

"lighter" than he loaded the other trucks (Tr. 407). Campbell was certain he had been told to "to 

do that" by the mine superintendent (Tr. 407). Because the coal was not piled above the truck's 

side rails, Campbell estimated Whitt's load was about 75 percent that of an experienced driver 

(Tr. 408). 

8

/ Fields overheard the discussion. Fields version of what was said essentially tracked 

Halstead's. He stated that Whitt "asked [Halstead] something about the ... retarder and 

[Halstead] told him not to fool with it, just [to] put the truck ... in first gear and do down the 

hill" (Tr. 113). Fields did not know whether Whitt had prior experience driving a truck equipped 

with a retarder (Tr. 189). 

9

/ Campbell never specifically stated he asked the question of Whitt (See Tr. 405-407). 

Rather, he testified that he was "sure he ... would have [asked Whitt] or I wouldn't have loaded 

him" (Tr. 412). Compbell also stated he had no first hand knowledge Whitt actually received 

such training (Id.). 

847 
After Field's truck was loaded, the men were ready to make their second trip down the 

hill to the tipple. Fields proceeded Whitt. Because he was ahead of Whitt, Fields did not see 

what happened next (Tr. 107). However, John Harless did. 

Harless had been working at the mine for about a week. On June 28, he too was hauling 

coal from the pit to the tipple on the evening shift. When Whitt and Fields left the pit, Harless 

also started for the tipple. Harless reach a spot where he had a good view of the road. Harless 

described what happened: 

[I] slowed down and looked ... I saw a truck break away, 

and I saw it flip over .. . coal dust went up . . . 30, 40 feet in the 

air.[10] I started . .. hollering at Roy [over the CB]. [There was] 

no response. And I thought Roy was still in the truck because Roy 

always wore a seat belt ... I hollered back up to the strip. I said 

you need to get 911 up here there's been an accident {Tr. 233; see 

also Tr. 240)). 

Harless drove to a level spot and parked. He got out and began running down the road 

toward Whitt's truck. He rounded a curve and saw Whitt laying in the middle of the road. The 

truck had traveled on for a considerable distance before running off the road and overturning. 

Harless took off his shirt and covered Whitt. He told Whitt that everything was going to be all 

right. Whitt did not respond. Another miner arrived and checked Whitt' s pulse. The other 

miner told Harless to return to his truck and there was nothing Harless could do. Whitt was dead 

(Tr. 234-235). 

MSHA was notified of the accident, and later that evening, Inspector Uhl arrived at the 

mine. He made sure that an order was issued under section 103(k) of the Act (30 U.S.C. 

§ 813(k)) to "freeze" the accident site until MSHA's investigation was completed. He traveled 

the haulroad to familiarize himself with the road, and he requested that representatives of 

MSHA' s technical support unit come to the mine and inspect the overturned truck. Uhl also 

arranged for MSHA to interview those who had information about the accident, and he requested 

the truck's maintenance records and the road's shift examination reports {Tr. 423). Finally, he 

asked to see the training records of Wiggles' and Cannelton's employees {Tr. 424). 

In addition to Uhl, MSHA sent to the mine supervisory investigator Dennis Ferlich, who 

holds a BS degree in mechanical engineering from Penn State University (Tr. 834-835). Perlich 

101 Harless described the truck as traveling faster than if it had been in first or second gear. 

In fact, it was going so fast, he believed it could have been totaJly out of gear {Tr. 241, 261 ). 

848 
arrived on June 30, and spent the next 3 days inspecting the truck (Tr. 748). 11 He took 

photographs and kept notes of his findings (Tr. 749). 

Although, Ferlich found the steering, the transmission, the gears, the electronic system, 

the pneumatic system, and the structure of the truck to be sound, he believed there were defects 

in the trucks' service braking system (Tr. 778-779, 843, 867-868). He explained there were six 

service brakes on the truck. Two wheels on the truck's front steering axle each had brakes, and 

four wheels on the truck's back axles each had brakes. The brakes were applied through 

hydraulic air pressure which was activated when the driver pushed the brake pedal. The brakes 

worked as follows: When the driver stepped on the brake pedal, the air pushed forward the 

pushrods, which contacted the slack adjusters, which pushed the S-carns, which pushed against 

the rollers, which pushed the brake shoes outward and into the inside of the brake drums. Since 

this happened virtually simultaneously on the six wheels, the contact between the brake shoes 

and the brake drums caused the wheels to slow and, if need be, to stop (Tr. 755, 766-767, 768; 

see Gov. Exh. 20-7). 

In Ferlich's view, the nature of the contact between the pushrods and the slack adjusters 

was critical to the effective functioning of the brakes. The distance the pushrods moved (the 

pushrod stroke) determined whether the slack adjusters adequately caused the S-carns to move 

sufficiently to cause the rollers to propel the brake shoes out against the brake drums. Ferlich 

stated that the goal was to keep the pushrod strokes to a minimum so that a S-carns "didn't have 

to tum too far to push the [brake] shoes ... against the drum[s]" (Tr. 770). The strokes should 

extend no more than 2 inches (Id.). Ideally, each stroke should be "in the neighborhood of an 

inch and~ half' (Tr. 771). 

Ferlich found the pushrod stroke on the right middle brake to be 2 1/4 inches, which, in 

Ferlich's view "reduced the braking force on that brake" (Tr. 781). In addition, two of the three 

other rear brakes were at or near their limit. The left-rear brake had a stroke of 2 inches and the 

right rear brake had a stroke of 1 15/16 inches. (The stroke on left middle brake was 

1 9/16 inches (Tr. 781; see also Tr. 843-844).) 

Ferlich also testified there were limits to allowable wear on the brake drums. He 

measured the wear and found that "all of the brake drums were over the maximum allowable 

wear limits" (Tr. 783). The drums were "severely worn ... beyond what the manufacture[r] 

allow[ ed]" (kh). In his view, the wear was so great the drums should have been "throw[n] ... 

out" {Tr. 799). Each drum had a "ridge build up on the edges" and the ridge showed that 

excessive use had worn the drums down (Tr. 783). 

11/ On June 30, the truck was still located where it had come to rest after it careened off 

the road. The only change in the truck's physical condition since the accident was that it had 

been returned to· an upright position {Tr. 862). 

849 
In addition, each drum was discolored by scorching, which indicated to Ferlich that the 

drums had been subjected to temperatures "anywhere above 6 to 8 hundred degrees Fahrenheit" 

{Tr. 783). Finally, a piece measuring approximately 2 114 inches had broken off the edge the 

right middle brake drum (Tr. 782; see Gov. Exh. 20-10). 

Upon the completion of his on-site inspection of the truck, Ferlich returned to his office 

where he prepared a report summarizing his findings {Id.). Then, after consulting with Ferlich, 

Uhl issued the subject citations to Cannelton. 

states: 

THE ALLEGED VIOLATIONS 

Citation No. 30 C.F.R. § 

7157394 9121199 48.26 

Citation 7157394, which alleges a significant and substantial violation of section 48.26, 

Based upon testimony and records obtained during this 

accident investigation, adequate experienced miner training was 

not provided to Roy Whitt, driver and victim of the . .. haulage 

accident which occurred June 28, 1999. The training he received 

did not provide adequate information and instruction about the 

recognition and avoidance of hazards he would encounter at the 

mine, more specifically on the haul road where he was assigned to 

drive. This inadequate training was determined to be a factor 

contributing to the accident which resulted in fatal injuries to the 

driver (Gov. Exh. 1). 

At the time the alleged violation occurred (June 28, 1999), section 48.26{a) required 

newly employed experienced miners to complete a training course as "prescribed in the section" 

before beginning work duties. Section 48.26{b) specified the topics for the course, which 

included: (1) an introduction to the work environment (section 48.26 {b)(l)); (2) mandatory 

health and safety standards pertinent to the task( s) the miner [would] be assigned 

(section 48.26{b )(2)); (3) review of the line of authority of supervisors and miners' 

representatives, and an introduction to the operator's rules and procedures for reporting hazards 

at the mine (section 48.26(b)(3)); (4) instruction on the procedures for riding on and in mine 

conveyances, the controls for the transportation of miners and materials, and the use of 

communication systems, warning signals and directional signs at the mine (section 48.26(b)(4)); 

(5) escape and emergency evacuation plans and fire warning and firefighting procedures at the 

mine (section 48.26(b)(5)); (6) instruction in work procedures around highwalls and pits 

(section 48.26(b )(6)); (7) the recognition of hazards in the mine and their avoidance 

(section 48.26(b)(7)); (8) and such other courses of instruction as may be required by MSHA's 

850 
District Manager based on the circumstances and conditions of the mine (section 48.26(b)(8)).

12 

The citation charges that "adequate experienced miner training was not provided to Roy 

Whitt" (Gov. Exh. 1). The parties accept the fact that Whitt was an "experienced miner" (as 

defined in section 48.22 (30 C.F.R. § 48.22)), who was newly employed. As such, section 48.26 

required that he be trained according to .its mandates. There is no <lispute that Cannelton did not 

provide Whitt with training. Thus, whatever training Whitt received was provided by Wiggles. 

I credit Arthur's testimony that on the afternoon of June 28, the trucks that Whitt and 

Fields were going to drive were preshift examined in Whitt and Fields presence 

(Tr. 106, 159, 165). I also find that after the trucks were examined, Whitt and Fields drove them 

to the pit where they were loaded, that the men then followed Hunt down the hill (Tr. 41 ), and 

that on the way down, Hunt pointed out the escape ramps and other safety-related features of the 

road (Tr. 167). 

I conclude, however, that none of this "training" complied with the existing requirements 

of the standard. There is nothing in the standard indicating that miners observation of and/or 

participated in preshift examination of trucks they would be driving in and of itself met any of 

the prescribed training requirements. Further, even if Whitt's "convoyed" introduction to the 

road qualified as instruction in "the recognition and avoidance of hazards present in the mine" 

(section 48.26 (b)(7)), a dubious assumption given the rather imprecise description of the content 

of Hunt's instruction given in the testimony (See Tr. 126-130), section 48.26(a) required the 

training to be given before Whitt was "assigned to work." Here, the journey down the road did 

not occur before Whitt was assigned to work, that is to carry a load of coal to the tipple. Rather, 

it followed his visit to the pit and it coincided with his first trip down the road in a loaded truck 

(Sec. Br. 10). 

Moreover, the training requirements for newly employed experienced miners were 

premised on the requirement that most of the training would be provided by ·MSHA approved 

instructors (See section 48.23(g)). Arthur acknowledged that he was not certified by MSHA to 

provide training. Nor was Arthur authorized to sign a certificate of training (Tr. 38, 41, 542-

543). Hunt, too, was not authorized by MSHA to provide training. For these reasons, I find the 

Secretary proved that Whitt was not provided with experienced miner training as required and 

that section 48.26 was violated. 

Having found a violation, the question arises whether Cannelton can be held responsible 

for it, and I conclude it can. The law is clear. In a case whose facts resembled those at hand, the 

Commission stated: 

12/ Effective July I , 1999, section 48.26 was revised. Among other things additional 

requirements for a "minimum course of instruction" were add to the regulation (30 C.F .R. 

§ 48.26 (July 1, 1999)). 

851 
Operators are liable without regard to fault for violations of 

the Mine Act and its standards. E.g. Fort Scott Fertilizer-Cul/or, 

Inc. 17 FMSHRC 1112, 1115 (July 1995); Western Fuels-Utah, 

Inc., IO FMSHRC 256, 260-61 (Mar. 1988) affd on other grounds, 

870 F.2d 711, 716 (D.C. Cir. 1989); Asarco, Inc. -Northwestern 

Mining Dept., 8 FMSHRC 1632, 1634-36 (Nov. 1986), affd, 868 

F.2d 1195, 1198 (10th Cir. 1989) .. . . [T]he mine operator ... is 

strictly liable for all violations of the Act that occur at its mine, 

including those committed by its contractors' employees. See Bulk 

Transportation Services, Inc., 13 FMSHRC 1354, 1359-60 

(Sept. 1991) ("the Act's scheme ofliability provides that an 

operator, although faultless in itself, may be held liable for the 

violative acts of its employees, agents and contractors"); see also 

Cyprus Indus. Minerals Co. v. FMSHRC, 664 F .2d 1116, 1119 (91h 

Cir. 1981) (mine operators are strictly liable for the actions of 

independent contractor violations") (Bluestone Coal Corporation, 

19 FMSHRC 1025, 1032) (June 1997)). 

Thus, a production-operator may be liable without regard to fault for violations 

committed by its contractor's employees, and it is within the Secretary's discretion to cite the 

production-operator, the contractor, or both. The Commission and its judges may review the 

decision of the Secretary in order to guard against an abuse of discretion. (Bluestone, 

19 FMSHRC at 1032 (citing to W-P Coal Co., 16 FMSHRC at 1404, 1411(July1994)). 

The facts support the Secretary's decision to cite Cannelton. As the Commission has 

pointed out, a factor indicative of a proper exercise of the Secretary's discretion is whether the 

violation affects the safety of the production-operator's employees (Mingo Logan Coal Co., 19 

FMSHRC 246, 250 (Feb. 1997); affd 133 F3d 916 (41

h Cir. 1998)). Whitt did work alone or 

only with Wiggles' drivers. His operated his truck in areas where Cannelton's employees and 

the public occasionally were present. Employees of Cannelton worked in the pit and the 

processing area (Tr. 243), and at times equipment other than haulage trucks was driven by 

Cannelton's employees on the haulage road. Finally, the public had access to the small part of 

the road that belonged 'to the state {Tr. 589). An untrained driver, such a Whitt, was a danger to 

Cannelton's employees as well as to the public when he had to travel in the pit, the processing 

area, and on Cannelton's and the state's parts of the road (Tr. 244). Cannelton had a duty to 

protect those employees and citizens by ensuring that its contractor's employees were properly 

trained. 

Moreover, as the Court noted in Mingo Logan, "holding production-operators liable for 

the training violations of their independent contractors encourages production-operators to 

employ only those independent contractors with exemplary health and safety records, thereby 

promoting the protective purposes of the Mine Act" (Mingo Logan, No. 97-1392, slip op 8 

(4th Cir. Jan. 8, 1998)). In addition, holding production-operators liable for the training 

852 
violations of their independent contractors promotes production-operator oversight and, thus, 

encourages contractor compliance. Training prescribed by the regulations is vital to ensuring a 

safe work place and the ultimate responsibility for ensuring a safe workplace lies with the 

production-operator. 

SIGNIFICANT AND SUBSTANTIAL (S&Sl AND GRAVITY 

Inspector Uhl found that the violation was S&S. He based his finding on the fact that the 

lack of training meant hazards associated with descending the road and ways to avoid such 

hazards were not properly pointed out to Whitt. Uhl believed the violation directly contributed 

to Whitt's death. (Tr. 480-481). 

Although the evidence does not establish an unequivocal causal link between the accident 

and Whitt's lack of experienced miner training, I agree with Uhl's conclusion as to the S & S 

nature of the violation. A condition or practice is S&S if: ( 1) it is a violation of a mandatory 

safety standard; (2) if it contributes to a discrete safety hazard; (3) if there is a reasonable 

likelihood that the hazard contributed to will result in an injury; and (4) if there is a reasonable 

likelihood that the injury will be of a reasonably serious nature (Cement Division, National 

Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981); Math-ies Coal Co., 6 FMSHRC 1, 3-4 

(Jan. 1984)). When evaluating the ''reasonable likelihood" element, "likelihood" is viewed in 

terms of continued normal mining operations without any assumption as to abatement (US. Steel 

Mining Co., Inc. 6 FMSHRC 1573, 1574 (July 1984); Halfway, Inc., 8 FMSHRC 1, 12 

(Jan. 1986); Southern Ohio Coal Co., 13 FMSHRC 912, 916-917 (June 1991)). 

I have found a violation of section 48.26. The failure to provide Whitt with required 

experienced miner training made him a danger to himself and to others, specifically to those at 

the mine who worked in the pit and tipple areas, who drove on the road, and to those members of 

the public who used the state's part of the road. This was especially true given the fact that Whitt 

had not driven a loaded coal haulage truck for a number of months and the fact that he was 

totally unfamiliar with the steeply graded road. The situation created by Whitt's lack of training 

was an accident waiting to happen. Finally, given the weight of the truck, the speed at which the 

truck could move, the steepness of the road, as well as the other vehicles the truck could 

encounter as mining continued, it was reasonably likely that any injuries resulting from Whitt's 

lack of training would be serious or worse. 

In addition to being S&S, the violation was very serious. As I have noted, training is 

critical to maintaining a safe work place. Whitt was not given the training required. He had not 

driven a coal haulage truck for months, and he was unfamiliar with the conditions at the mine, 

the most potentially hazardous of which was the steep descent of the haulage road. He was 

expected to work in the vicinity of other miners and, to a limited extent, in the vicinity of the 

public. Allowing him to work under such conditions without first providing him the required 

prescribed training placed him and others in a very dangerous situation. 

853 
NEGLIGENCE 

Negligence is the failure to exercise the care required by all of the circumstances. I 

conclude that although Cannelton tried to exercise some oversight of contractor training, it did 

not implement sufficient procedures to make the oversight effective and, therefore, did not 

exhibit the care required. In finding Cannelton negligent, I note, again, that it is the productionoperator who bears the ultimate responsibility to ensure training is given as required. 

Essentially, Cannelton relied on Wiggles to be responsible for the training of new drivers. 

Cannelton's reliance was exemplified by the fact that Hatfield showed William Arthur the 

haulage road so. that Arthur could instruct the new drivers in its hazards (Tr. 590-591 ), and by 

Hatfield telling Arthur to make sure the Wiggles' drivers were trained properly (Tr. 598, see also 

Tr. 28). For his part, I am persuaded that Arthur lead Hatfield to think all of Wiggles' drivers 

were trained as required (Tr. 616). I am also persuaded that Arthur was asked by a Cannelton 

representative whether Wiggles had a training program. Arthur testified this "probably" 

happened, and it is something a production-operator, relying on its contractor to provide training, 

would have done (Tr. 216-217). Moreover, I credit Arthur's testimony that Cannelton officials 

had made it clear to him Wiggles' drivers had to be current in their training {Tr. 218). This also 

would have been consistent with Cannelton' s reliance. 

There was nothing wrong with Cannelton relying on Wiggles. Required training can be 

provided by the contractor, the production,.operator, or by both. The problem was that 

Cannelton's efforts to monitor Wiggles' compliance were woefully inadequate. In fact, there is 

no indication that Cannelton instituted any systematic checks to ensure that before a contract 

miner was assigned work, he or she was properly trained by a certified trainer. For example, 

Cannelton did not insist that prior to beginning work a newly employed contract employee 

review his or her training status with someone from the company and from Wiggles. 13 True, 

Hatfield requested copies of Wiggles' employees training certificates {Tr. 610), but this was not 

enough because it left Cannelton in the position of relying on what the certificates stated without 

attempting to confirm their accuracy. 

Further, even if rank-and-file front-end loader operator, Tommy Campbell, and other 

loader operators were told by Cannelton officials to make sure new drivers were trained before 

they loaded the drivers' trucks (Tr. 406), by the time the loader operators would have asked, 

untrained newly employed experienced drivers would have been assigned to work and would 

have embarked upon their duties. In other words, the loader operators' questions would have 

come too late to further full compliance with section 48.26(a). ("A newly employed experienced 

miner shall receive and complete training .. . before such miner is assigned to work duties" 

13/ This is not to say that the mechanics of a production-operator's oversight must include 

such a check. Oversight methods are up to the operator. However, whatever methods it chooses 

to employ, they must be effective, and Cannelton's were not. 

854 
(30 C.F.R. § 48.26(a)).

14 

Citation No. 30 C.F.R. § 

7157395 9/21/99 48.27 

The citation, which alleges a S & S violation of section 48.27, states: 

Based on the testimony obtained and the failure to provide records of task 

training for operating the Mack RD-854-SX coal haulage truck, it is detennined 

that task training was not proved for Roy Whitt, driver and victim of the fatal 

powered haulage accident which occurred on June 28, 1999. This was the 

victim[']s first day of employment at this mine site and his first trip on the 

haulage road with this particular type vehicle. He was operating it in the 

production process and was not under direct supervision. This failure to provide 

training was determined to be a factor contributing to the accident which resulted 

in fatal injuries to the driver (Gov. Exh. 2). 

With regard to Whitt, section 48.27 then required he be: (1) instructed in an on-the-job 

environment in the health and safety aspects of safe operating procedures relating to the 

operating of the coal haulage trucks at the mine and relating to the hauling of coal (30 C.F .R. 

§ 27(a)(l)); and, (2) because he was to begin work immediately, be instructed in the supervised 

operation of the coal haulage truck during production (30 C.F.R. § 48.27(a)(2)(ii)). Whitt was 

required to abstain from driving a truck until the training "ha[ d] been completed" 

(30 C.F.R § 48.27(a)). 

It is clear that Uhl based the citation on the fact that after Whitt's first trip down the 

haulage road, he changed to Truck No. 425, a truck that was equipped with a retarder. In Uhl's 

opinion, the presence of the retarder required new task training because the regulation required 

training whenever a miner used a new or modified piece of equipment that he or she had not used 

14/ While I conclude Cannelton was negligent because it failed to exercise effective 

oversight of Wiggles' compliance, I recognize Wiggles also did not exercise the care rquired. 

Indeed, Wiggles' lack of care was greater than Cannelton's. Arthur was primarily responsible 

for failing to see that Whitt was trained properly before he was assigned work. Wiggles' greater 

negligence, however, does not excuse Cannelton's failure. 

855 
before. 15 In Uhl's view, the retarder qualified as such a modification because if a miner was 

unfamiliar with its purpose and use the miner's ignorance could create a serious safety hazard for 

himself or herself and others (Tr. 487, 526). Uhl believed Whitt did not understand the function 

of the retarder because Whitt asked Halstead over the truck's CB about the retarder's purpose 

Gd., see also Tr. 360). 

I agree with Uhl that Whitt needed new task training (Tr. 487, 523). The regulation 

encompasses the exact situation in which Whitt found himself when it requires operators of 

equipment to be "instructed in safe operating procedures applicable to . . . modified ... 

equipment[,] . . . which requires ... new or different operating procedures" (section 47.27(a)(3)). 

The retarder's purpose, as stated by Wiggles' driver, John Harless, was to slow the truck 

(Tr. 239). However, while the testimony establishes that a retarder can be helpful in keeping a 

truck under control as it descends an incline, the record also reveals the retarder can be dangerous 

if its purpose and function are not understood. As Halstead and others explained, a driver must 

realize if the retarder is engaged and he or she tries to shift, the transmission can go out of gear 

and the engine can stall. If this happens, and the truck is.loaded and starts to run away, the 

truck's brakes will not hold it on steep grades S\J.Ch as those of the haulage road (See e.g. 

Tr. 363). 

I accept as a fact that Whitt asked Halstead over the CB radio how to work the retarder 

since there is no testimony discrediting Halstead's assertion that this is what happened and since 

Halstead's description of the conversation was essentially confirmed by Fields (See e.g. infra 

(Tr. 360)). Whitt's question reveals that the retarder was new to him and that training was 

required - training he did not receive. Other than being told by Halstead not to "fool around" 

with the retarder, there is no indication Whitt was advised about the device's purpose, function 

and safe use (or, nonuse, as the case may be (Tr. 360)). Thus, Whitt was placed in a situation 

where misuse of the retarder easily could cause the truck to run away. Therefore, I find that a 

violation of section 4 7.27 occurred as charged. 

S&S and GRAVITY 

The violation was S&S. The Jack of training contributed to the hazard that Whitt would 

try to use the retarder and would endanger himself and/or others. Given the particular 

circumstances under which the violation occurred - the grades of the road, the necessity to 

maintain complete control of the truck when on the road, Whitt's general lack of familiarity with 

the road, the fact that shifting gears with the retarder "on" could cause the truck to go into neutral 

and stall, and the fact that Whitt was likely to downshift to try to control the speed of the truck -

it was reasonably likely that lack of training in the purpose and function of the retarder could 

lead to a runaway situation which, in turn, could result in an accident causing injury to Whitt or 

15/ Uhl also testified that the truck's larger engine size also required new task training 

(Tr. 526), but he did not explain why, and the entirety of his testimony abundantly indicates he 

based the citation almost solely upon the presence of the retarder. 

856 
to anyone the uncontrolled vehicle hit. Finally, such aJi accident was reasonably likely to at least 

cause serious injury to Whitt and perhaps to others as well. 

In addition, to being S & S, the violation very serious. While I am not holding that the 

accident was caused by misuse of the retarder - no one knows for certain its cause - it is clear to 

me that lack of training in the purpose and function of the retarder created the conditions under 

which the accident or one like it easily could have happened. This alone is sufficient to make the 

violation very serious. 

NEGLIGENCE 

I also find that the violation was due in part to Cannelton's negligence. Cannelton's 

management representatives did not know that Whitt had started work, changed trucks, and was 

unfamiliar with a retarder. However, Cannelton knew that new employees of Wiggles were 

likely to be arriving and especially that they might be present on June 28. (I credit Arthur's 

testimony that Cannelton was anxious to have more drivers on the job (Tr. 195-196) and that 

Arthur told Hatfield more drivers would be coming to work that Monday (Tr. 195)). 

As I have already noted, Cannelton made some general efforts to check on the training of 

its contractor's employees, but what the testimony does not reveal and what I conclude did not 

exist was systematic, effective and ongoing oversight by Cannelton to make sure all of the 

employees of its contractor were trained as required. There were things that a productionoperator exercising reasonable care might have done, and which Cannelton did not do, to 

exercise effective oversight. Had Cannelton systematically overseen training compliance by its 

contractor, Arthur would have been more likely to make certain that Whitt be properly trained 

before he drove a truck like Truck No. 425. Although Arthur, acting for Wiggles, assumed the 

primary duty of making sure all required training was provided, Cannelton also had a duty that it 

fully failed to meet. Its negligence was less than Wiggles', but Cannelton's lack of a systematic 

and (most importantly) effective effort to make sure the training requirements were enforced, 

means that the violation of section 48.27 also was due to its negligence. 

Citation No. 30 C.F.R. § 

7187482 9121199 77.404(a) 

The citation, which alleges a S & S violation of section 77.404(a), states: 

(The truck] that was being driven by Roy Whitt to haul coal at the mine on 

June 28, 1999, was not maintained in a safe operating condition in that: 1. One 

brake on the axles was beyond the maximum allowable adjustment range[;] 2. The 

other three brakes on the drive axles were at or near the maximum allowable 

adjustment range[;] 3. The brake drums of all four drive axle brake units and the 

two front steering axle brake units were worn beyond the maximum allowable 

wear limit stamped on the drums by the manufacturer. These conditions 

857 
decreased the braking capacity of the truck. This reduced braking capacity, in 

combination with the fact that the truck was operating on a steep grade that ranged 

from 10.6 to 17.4 percent over a distance of approximately 1000 feet in the area of 

the accident site and the fact that the truck was routinely carrying significantly 

more than its rated capacity, contributed to the accident that resulted in fatal 

injuries to the driver (Gov. Exh. 3). 

Section 77.404(a) requires in pertinent part that "[m]obile ... equipment ... be 

maintained in safe operating condition and . .. equipment in unsafe condition ... be removed 

from service immediately." The Commission has held that section 77.404(a) imposes two duties: 

(1) to maintain equipment in safe operating condition; and (2) to remove unsafe equipment from 

service immediately (Peabody Coal Company, 1FMSHRC1494, 1495 (Oct. 1979)) and that 

"[d]erogation of either duty violates the regulation" (1 FMSHRC at 1495; see also Ambrosia 

Coal & Construction Co., 18 FMSHRC 1552, 1556 (Sept. 1996)). Truck No. 425 was mobile 

equipment. Obviously, it was not removed from service before the accident. Therefore, if the 

conditions cited by Uhl existed, and if they singly or in combination rendered it unsafe to operate 

the truck, a violation occurred. 16 The issue of whether the truck was unsafe must be determined 

by deciding whether "a reasonably prudent person familiar with the factual circumstances 

surrounding the allegedly hazardous conditions, including any facts peculiar to the mining 

industry, would recognize a hazard warranting corrective action" (See Alabama By-Products 

Corporation, 4 FMSHRC 2128, 2129 (Dec. 1982) (involving identical standard applicable to 

underground coal mines)). The burden of proof is on the Secretary. 

Ferlich was the only witness who conducted a detailed, post-accident investigation of the 

state of the subject truck's braking system, and I find that the conditions be found, particularly 

the pusbrod stroke lengths, the brake drum wear and discoloration, and the missing piece of the 

right rear middle brake drum, existed as he described them. 

Would a reasonably prudent person consider these conditions to have rendered Truck 

No. 425 unsafe? The question must be answered based on the testimony ofFerlich and Steven 

Chewning, President of Traffic Safety Consultants of Richmond, Virginia. (Chewing conducted 

a study of the accident for Cannelton {Tr. 906-907)). Having considered the testimony of both, I 

conclude that the Secretary established the violation. My conclusion is based upon a 

combination of conditions as they affected the brakes and upon the circumstances under which 

the truck was used. In my view, together they created a situation in which a reasonably prudent 

person would have recognized a hazard and would have withdawn the truck from service. 

Ferlich believed the braking capacity of the truck was diminished by what he found. He 

stated that the pushrod for the brake on the right rear axle being 114 inch above the limit reduced 

its braking capacity. Ferlich persuasively and logically explained why a stroke exceeding the 

16/ Equipment may be defective and not be in violation of the standard if the defect does 

not affect safe operation of the equipment during its normal intended use (See Hobet Mining, 

Inc., 19 FMSHRC 411, 414 (Feb. 1997) (ALJ Maurer)). 

858 
2 inch limit meant the S-cam could not propel the right rear brake shoe far enough so it had 

adequate contact with the brake drum (Tr. 770-771, 781). Ferlich was a credible witness, and I 

accept his testimony that the braking capacity of the right rear brake was lessened. 

I am also persuaded that, due to wear, all of the brake drums were thinner than they 

should have been (Tr. 783, 786-788, 799). I credit Ferlich's testimony that because they were 

thin, the drums had less structural integrity and a tendency to heat faster than brake drums with 

lesser wear. Further, I credit his explanation that as the temperature rose, the drums then 

expanded and, when the brakes were applied to the expanded drums, the brake shoes could not 

maintain effective contact with the drums because the drums had pulled away from the shoes (Tr. 

786-787, 789-790). (This is the phenomenon Ferlich referred to as "brake fade" (Tr. 788)). The 

credibility ofFerlich's testimony regarding the condition of the drums and the consequences to 

the braking system is supported by the fundamental and unchanging rule of physics that friction 

produces heat and that heat causes metal to expand. 

Ferlich was less convincing when he testified regarding the hazard posed by the three 

pushrods that were "at or near the limits" (Tr. 781 ). The stroke of the three pushrods measured 2 

inches, 1 15/16 inches, and 1 9/16 inches (hh). Although he believed the length of these strokes 

minimized a driver's ability to stop, he did not satisfactorily explain why (Tr. 786), and the fact 

remains that the strokes' distances were within an allowable range. I cannot conclude that a 

perfectly permissible condition would have signaled a hazard to a reasonable miner. 

Also, while I accept as a fact that a piece measuring approximately 2 1/4 inches in length 

was missing from the right middle drum, I am not convinced the missing "chunk" posed a hazard 

(See Tr. 791). In his testimony Perlich did not connect the missing piece to any particular 

hazard. His general view seemed to be that somehow the missing chunk compromised the 

integrity of the braking system, but he did not fully explain why. Without an adequate 

explanation I cannot find that the missing piece posed or contributed to a hazard, especially 

when, as here, the missing chunk was not mentioned in the citation as a cause of the violation. 17 

Thus, during the course of a work day, Truck No. 425 - a truck, with diminished braking 

capacity on one wheel and with six worn brake drums - would have been required to descend a 

haulage road carrying a load of coal. The question is whether a reasonable miner would have 

concluded that travel down the road in such a loaded truck posed a hazard warranting correction. 

17/ In addition, there was much discussion by Ferlich and by Chewning about the 

significance of the brake drums' blue color. Their testimony revolved around the issue of 

whether "bluing" was indicative of bake fade (Tr. 820) and thus, indicative of the immediate 

cause of the accident. Very little, if any, of the testimony concerned whether a reasonable miner 

would have noted the bluing as indicating a hazard prior to the accident. In fact, Ferlich agreed 

he could not say for certain if the "bluing" was present prior to the accident and thus would have 

been seen by such a miner (Tr. 856, 885). Therefore, I will not consider it as a condition that 

would have signaled a hazard. 

859 
I conclude the answer is "yes" because the pushtod stroke being above the limit on one of 

the rear brakes reduced the capacity of that brake to function as it should, and, therefore, the full 

force of the truck's braking system could not be applied when needed. In addition, the record 

fully supports finding that the thin brake drums meant they were more likely to crack or to loose 

a piece because their integrity was less than when they were manufactured and that they would 

heat up and expand faster and lead to brake fade (Tr. 786-789). Not only does Ferlich's credible 

testimony support this conclusion, so do elementary physical principles. 

Ferlich's description of the brakes as "the " last line of defense in an emergency" was 

accurate (Tr. 809). As he explained, if the Jake brake and the retarder did not slow the truck 

sufficiently, the service brakes had to be used (Tr. 808). For example, if the drive shaft broke, 

the truck would have nothing to slow it but its service brakes (Tr. 809). Also, Ferlich 

persuasively testified that brakes in pristine condition are designed to stop the truck on a 20 

percent grade (Tr. 879). Here, the grade was approximately 17 percent at its steepest, close to the 

maximum grade on which the truck could be safety operated. The fact that the brakes were in far 

from pristine condition meant that Truck No. 425 had diminished braking capacity where it 

might be needed most. While the diminished capacity might not have been a problem if the 

truck had been operated on generally level roads, on a road with grades 

as steep as those at the mine, diminished capacity presented a definite hazard. Therefore, I 

conclude Truck No. 425 was in an unsafe condition, and a reasonably prudent person familiar 

with the truck and the conditions under which it was operating would have fixed or adjusted the 

pushrod stroke and installed new brake drums or would have removed the truck from service. 

S&S and GRAVITY 

The violation was S&S. The violation of section 77.404(a) contributed to the hazard that 

the truck would be unable to stop. Given the particular circumstances under which the violation 

occurred - the grade of the road, the necessity to maintain control of the truck, the need to make 

frequent trips down the road with the truck, the driver's unfamiliarity with the road and with the 

truck - I conclude that as mining continued it was reasonably likely that the lack of full braking 

capacity could contribute to a situation which was reasonably likely to result in an accident 

causing serious injury to Whitt and/or to anyone the uncontrolled vehicle hit. Obviously, the 

violation also was serious. 

NEGLIGENCE 

William Arthur testified that, prior to the accident, no one from Cannelton inquired about 

Wiggles' truck maintenance program (Tr. 42-43). There is no testimony to refute this assertion, 

nor any testimony that Cannelton made any independent checks of Wiggles' trucks. While 

primary responsibility for the violation lay with Wiggles, Cannelton also exhibited negligence. 

Cannelton could have - and should have - instituted some sort of systematic check (perhaps a 

periodic spot check) to ensure its contractor's equipment was in compliance with applicable 

safety standards. In particular, Cannelton had a duty to ensure its contractor used equipment that 

860 
either was maintained in safe condition or, if it could not be so maintained, was removed from 

service. In the case of Truck No. 425, Cannelton did not meet this duty . . 

ABILITY TO CONTINUE IN BUSINESS 

The parties stipulated that the total of the proposed penalties would not affect Cannelton's 

ability to continue in business (Stip. 6). 

The parties stipulated that the proposed assessments were based, in part, on accurate 

figures regarding Cannelton's size (Stip. 1 l(a),(b); Gov. Exh. 5). The figures reveal that 

Cannelton has an annual tonnage of 43,607,666 (See Gov. Exh. 5; Petition For Assessment of 

Civil Penalty, Exh. A). Cannelton is a large operator. 

GOOD FAITH ABATEMENT 

The parties stipulated that if the violations are affirmed, they were abated in good faith 

(Stip. 10 infra). 

HISTORY OF PREVIOUS VIOLATIONS 

The parties stipulated that the printout of the mine's prior violations for June 27, 1997 

through June 27, 1999, ''may be used determining the assessment of a penalty" (Stip. 12). The 

printout indicates that there were 34 applicable violations during this period, a number which 

represents a moderate history of pervious violations. 

CIVIL PENALTY ASSESSMENTS 

Citation No. 30 C.F.R. § . Proposed Assessment 

7157394 9121199 48.26 $25,000 

I have found the violation was very serious and was in part the result of Cannelton's 

negligent failure to effectively oversee Wiggles' training of its employees. The violation was 

abated in good faith, and any penalty assessed will not affect the ability of Cannelton, which is a 

large company with a moderate history of previous violations, to continue in business. Given the 

factors and especially in view of Cannelton's shared negligence and moderate history of prior 

violations, I conclude an assessment of $5,000.00 is appropriate. 

Citation No. 30 C.F.R. § Proposed Assessment 

7157395 9/21/99 48.27 $20,000 

861 
I have found the violation was very serious. I also have found that it was in.part the result 

of Cannelton's failure to effectively oversee Wiggles' training of its employees. The violation 

was abated in good faith, and any penalty addressed will not affect the ability of Cannelton, 

which is a large company with a moderate history of previous· violations, to continue in business. 

Given these factors and especially in view of Cannelton' s shared negligence and a moderate 

history of previous violations, I conclude an assessment of $4,000 is appropriate. 

Citation No. 30 C.F.R. § Proposed Assessment 

7187482 9/21199 77.404(a) $20,000 

I have found the violation was serious. I also have found it was, in part, the result of 

Cannelton's failure to meet its duty to ensure the equipment operated by its contractor was either 

safe or removed from service. The violation was abated in good faith, and any penalty assessed 

will not affect the ability of Cannelton, which is a large company with a moderate history of 

previous violations, to continue in business. Given these factors and especially in view of 

Cannelton's shared negligence and moderate history of previous violations, I conclude an 

assessment of$1 ,500.00 is appropriate. 

ORDER 

Within 30 days of the date of this decision, Cannelton SHALL pay to the Secretary a 

total of$10,500.00 for the violations found above, and upon payment of the penalties this 

proceeding is DISMISSED. 18 

18/ In issuing this order, I note that the Secretary chose to propose very substantial 

penalties for these violations. In so doing the Secretary presumably was attempting to "send a 

message" to Cannelton and to other production-operators that they must increase oversight of 

their contractors' compliance efforts and proactively encouraging compliance. While I do not 

disagree with the Secretary regarding production-operators overalJ responsibility for compliance 

and their need to effectuate that responsibility, I question whether the assessment of substantial 

penalties without a prior "warning" is equitable. It is clear from the testimony of Bowman and 

Hatfield that before the accident they discussed Cannelton's responsibility for contractors' 

violations including the operator's need for oversight (Tr. 272-273, 282-283, 296-297; 648-649). 

What is not clear from this record is whether there has been a prior consistent effort on MSHA' s 

part to enforce oversight by Cannelton and/or other production-operators. For example, MSHA 

might have insisted that operators include in their training plans provisions for effective 

oversight . . . something MSHA apparently did not do when it came to Cannelton (Tr. 659), or 

MSHA might have sent cautionary letters to production-operators, something about which the 

record is silent. 

862 
Payment may be sent to: Mine Safety and Health Administration, U. S. Department of 

Labor, Payment Office, P. 0. Box 360250M, Pittsburgh, Pennsylvania 15251. 

3Jv-'1"rl _(Je;,Jt, ...__-

David Barbour 

Chief Administrative Law Judge 

Distribution: 

Robert S. Wilson, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson 

Boulevard, 22nd Floor, Arlington, VA 22209-2296 (Certified Mail) 

David J. Hardy, Esq., Heenan, Althen & Roles, BB & T Building, P. 0. Box 2549, Charleston, 

WV 25329-2549 (Certified Mail) 

dcp 

863 

ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET, N.W., Room 6003 

WASHINGTON, D. C. 20006-3868 

Telephone No.: 202-653-5454 

Telecopler No.: 202-653-5030 

August 13, 2002 

JERRY POLLY, DISCRIMINATION PROCEEDING 

Complainant, 

v. Docket No. KENT 2002-253-D 

POWELL MOUNTAIN COAL 

COMP ANY, INC., 

Respondent 

BARB-CD-2002-04 

Mine: Kentucky Wallins Mine 

Before: 

ORDER DENYING MOTION TO DISMISS 

ORDER TO RESPONDENT TO FILE AN ANSWER 

Judge Barbour 

On July 17, 2002, the Respondent, Powell Mountain Coal Company, Inc. ("Powell"), 

filed a motion to dismiss the above captioned discrimination case. In support of the motion, 

Powell asserts the Complainant, Jerry Pol1y, failed to file a discrimination complaint with the 

Commission within 30 days notice by the Mine Safety and Health Administration ("MSHA") 

that no violation occurred under Section l 05( c) of the Mine Act ("the Act"). Resp. Mot. at 1. 

Powell argues that Polly was required to file a complaint with the Commission by May 15, 2002, 

but Polly did not mail the complaint until June 4, as shown by a copy of the envelope. Mot. at 2; 

Resp. Exhibit 4. 

Section 105(c)(3) of the Act states in pertinent part: "[i]fthe Secretary, upon 

investigation, determines that the provisions of this subsection have not been violated, the 

complainant shall have the right, within 30 days of notice of the Secretary's determination, to file 

an action in his own behalf before the Commission, charging discrimination." 30 U.S.C. § 

815(c)(3). 

The record indicates, as Powell correctly states in its motion, that MSHA's letter is dated 

April 15, 2002, and, therefore, Polly had until May 15, 2002, to file a complaint with the 

Commission. However, Powell is mistaken in asserting that Polly did not timely file a 

complaint. My office received Polly's complaint on May 13, 2002, two days before the deadline. 

Subsequently, on May 14, 2002, I sent a letter to Polly - as is normal practice - instructing him to 

file additional information, wi~hin 30 days, including a copy of the return receipt indicating he 

had sent a copy of the complaint to Powell. If Polly had not already sent a copy of the complaint 

to Powell, I instructed him, in the alternative, to do so via certified mail, return receipt requested. 

My office timely received the required information on June 14, 2002. 

864 
Thus, the record clearly indicates that Polly was in compliance with MSHA's April 15 

letter and my May 14 letter. Polly timely filed his documents with my office. Polly's apparent 

error was in failing to timely serve Powell with a copy of the complaint, an error that likely was 

the root of PoweJI's belief that Polly did not timely file a complaint. Commission Rule 7(a) (29 

C.F.R. § 2700.7(a)) requires all documents filed with the Commission to be served on all parties. 

However, Polly, who is appearing prose, may have been unaware of the rule. He is now, and I 

expect him to fully comply in the future. 

In light of the foregoing, Powell's motion to dismiss is DENIED. 

Further, Powell is ORDERED to file an answer to the complaint within 30 days of the 

date Qfthis order. 

..D~d { ~"111/Nv,_ David . Barbour 

Chief Administrative Law Judge 

Distribution: 

Jerry W. Polly, HC 61,Box 199, Pinevelle, KY 40977 (Certified Mail) 

Marco M. Rajkovich, Jr., Esq., Melanie J. Kelpatrick, Esq., Noelle M. Holladay, Esq., Wyatt, 

Tarrant & Combs, LLP, 1600 Lexington Financial Center, Lexington, KY 40507 (Certified Mail) 

dcp 

865 
FEDERAL MINE SAFETY A ND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 Skyline, Suite 1000 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH · 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

BLACK BEAUTY COAL COMPANY, 

Respondent 

August 22, 2002 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2002-20 

A. C. No. 12-02010-03609 

Air Quality No. I Mine 

ORDER DENYING MOTION TO LIFT STAY 

Proceedings in this case were stayed on February 6, 2002, pending completion of a 

11 O(c) investigation, 30 U.S.C. § 820(c), involving Respondent's employees. The 

Respondent has now filed a Motion to Terminate Stay of Proceedings. The Secretary 

opposes the motion. For the reasons set forth below, the motion is denied. 

When the Secretary filed the original motion to stay, she indicated that the 

investigation was expected to be completed within 90 to 120 days. Pointing out that more 

than 120 days have elapsed, the Respondent states that three of its employees, who were 

present during the inspection which resulted in the citations in this case, no longer work 

for the company. 

In response to the motion, the Secretary requests that the stay remain in effect 

because the matter has been referred to the U.S. Attorney for criminal investigation. 

Included with the response, is a letter from the U.S. Attorney's office requesting that the 

Secretary seek a stay in the case. 

The Commission has held that the following factors should be considered in 

determining whether to lift a stay in a case where the possibility of criminal prosecution 

exists: ( l) the commonality of evidence in the civil and criminal matters; (2) the timing of 

the stay request; (3) prejudice to the litigants; (4) the efficient use of agency resources; and 

(5) the public interest. Buck Creek coal, Inc., 17 FMSHRC 500, 503 (April 1995). After 

considering these factors, I conclude that the stay should remain in place. 

Here it appears that the evidence in the civil and criminal matters will be the same. The 

Commission has noted that it is proper to stay civil proceedings if they "'chum over the same 

866 
evidentiary material"' as the criminal case. Id. (citing Peden v. U!Jiled States, 512 F.2d 1099, 

1103 (Ct. Cl. 1975). Thus, I find that this factor supports retaining the stay. 

Turning to the second factor, the Commission has held that where there has been no 

criminal investigation and, therefore, no reference to the U.S. Attorney for criminal prosecution 

there is a "reduced need for a ... stay." Capitol Cement Corp., 21 FMSHRC 883, 890 (August 

1999). The opposite, however, is true in this case. The matter has been referred to the U.S. 

Attorney for criminal investigation. Accordingly, I find that this factor also supports retaining 

the stay. 

The third factor requires consideration of prejudice to the litigants. Black Beauty asserts 

that three potential witnesses have left its employ and that "at least one of these witnesses has 

moved to another state." (Resp. Mot. at 2.) The Respondent does not contend, however, that 

these witnesses are unavailable or that their evidence cannot be memorialized, if it has not 

already been, to refresh recollections. Nor does the company aver that these are the only 

witnesses available to it. The company's bare assertion, without more, is not sufficient to 

establish that it will be prejudiced if the stay continues. This does not preclude it from 

conducting its own investigation. Consequently, I find that this factor does not militate against 

retaining the stay. 

The fourth factor also supports retaining the stay. Any witness who may be subject to 

criminal prosecution is likely to assert his privilege against self-incrimination if called to testify 

in the civil penalty proceeding. This would hinder rather than advance the efficient use of 

agency resources. 

Finally, only the fifth factor resul~s in the conclusion that the stay should be lifted. As the 

Commission observed over 20 years ago, "there is a substantial public interest in the expeditious 

determinatio.n of whether penalties are warranted." Scotia Coal Mining Co., 2 FMSHRC 633, 

635 (March 1980). 

After considering all of the factors involved in granting or denying a stay, it is clear that 

four of the five either support, or are not contrary to, retaining the stay. Accordingly, the Motion 

to Terminate Stay of Proceedings is DENIED. 

Yr~~ Administrative Law Judge 

(703) 756-6213 

867 
Distribution: (Certified Mail) 

Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South 

Dearborn Street, Suite 844, Chicago, IL 60604 

David Joest, Esq., Black Beauty Coal Company, 1970 Barrett Court, P.O. Box 1990, Henderson, 

KY 42420 

\fb 

868 * U.S. GOVERNMENT PRINTING OFFICE: 2002 492-135175252