February 1983 

Conmission Decisions 

02-15-83 Florence Mining Co., Helen Mining Co. 

Oeida Mining Co. , North .American Coal Corp. 

Administrative Law Judge Decisions 

02-10-83 Kitt Energy Corp. 

02-15-83 Roger Bentley v. Wampler Brothers Coal Co. 

02-15-83 Jim Walter Resources, Inc. 

02-17-83 MSHA ex rel William E. Fitzwater v. Mettiki 

Coal Corp. 

02-24-83 Lynn Donovan v. Brown & Root, Inc. 

02-28-83 Mid-Continent Resources, Inc. 

PITI 77-15 

WEVA 83-65-R 

KENT 82-75-D 

SE 82-52 

YORK 82-23-D 

WEST 82-92-IM 

WEST 82-174 

For sale by the Superintendent of Documents, U.S. Government Printing Office 

Washington. D.C. 20402 

Pg. 189 

Pg. 201 

Pg. 209 

Pg. 221 

Pg. 225 

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Pg. 261 
Commission Decisions 
FEBRUARY 

The following case was Directed for Review during the month of February: 

Secretary of Labor, MSHA v. Westmoreland Coal Company, Docket No. WEVA 

82-152-R, WEVA 82-369. (Judge Melick, January 18, 1983) 

Review was Denied in the following cases during the month of February: 

Secretary of Labor on behalf of George Mateleska v. Shannopin Mining Co., 

Docket No. PENN 81-209-D. (Judge Fauver, January 6, 1983) 

Charles J. Frazier v. Morrison~Knudsen, Inc., Docket No. WEST 81-329-D. 

(Judge Morris, January 19, 1983) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COM.MISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

FLORENCE MINING COMPANY 

HELEN MINING COMPANY 

ONEIDA MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 15, 1983 

Docket Nos. PITT 77-15 

PITT 77-16 

PITT 77-17 

PITT 77-18 

PITT 77-19 

PITT 77-23 

IBMA 77-32 

NORTH AMERICAN COAL CORPORATION 

DECISION 

I. 

This case is before us upon grant of a petition seeking reconsideration of our decision in this matter issued on August 31, 1982. 4 FMSHRC 

1486. Pursuant to that reconsideration oral argument was heard and the 

record and arguments of the parties fully reviewed. As a result of our 

further review, our previous decisio~ in this matter has been modified. 

For purposes of clarity, we vacate the previous decision and issue the 

following as our decision in this case. 

II. 

This case arose under the Federal Coal Mine Health and Safety Act 

of 1969, 30 U.S.C. § 801 ~ ~ (1976) (amended 1977) ("the Coal Act"). ];_/ 

The issue is whether the administrative law judge erred in concluding 

that 30 C.F.R. § 75.1405 does not apply to certain mine haulage equipment that travels both on and off tracks. For the reasons that follow, 

we reverse the jud&e's decision. 

The standard at issue essentially reiterates section 314(f) of the 

Coal Act and provides: 

All haulage equipment acquired by an operator of a coal mine 

on or after March 30, 1971, shall be equipped with automatic 

couplers which couple by impact and uncouple without the 

necessity of persons going between the ends of such equipment. 

All haulage equipment without automatic couplers in use in a 

mine on March 30, 1970, shall also be so equipped within 4 

years after March 30, 1970. 

];/ On March 8, 1978, this case was pending on appeal before the Department of Interior's Board of Mine Opei::ations Appeals ("the Board"). Accordingly, it is before the Commission for disposition. 30 U.S.C. § 961 (Supp. 

IV 1980). The Mine Safety and Health Administration (MSHA) has been substituted in the caption for its predecessor agency, the Mining Enforcement 

and Safety Administration (MESA). 

In this case review was sought of an unabated notice of violation. 

For the reasons stated in our decision in Eastern Associated Coal Corp., 

4 FMSHRC 835 (May 1982), we will r~v.;lex the merits of the notice at this 

time. l. ~ \:J 

83-2-3 
30 C.F.R. § 75.1405-1, which. delineates the scope of the above standard, 

provides: 

The requirement of § 75.1405 with respect to automatic 

couplers applies only to track haulage cars which are 

regularly coupled and uncoupied (emphasis added). 

The six notices of violation at issue allege that the operators (all 

subsidiaries of the North American Coal Company at the time the notices 

were issued) failed to equip "rubber-rail" mine cars with automatic 

couplers. Jj The issue is whether the standard applies to "rubber-rail" 

equipment. 

This case has an involved procedural history. Litigation of the 

issue began on April 3, 1974, when the companies filed separate petitions 

for modification of § 75.1405 under section 30l(c) of the Coal Act. The 

petitions alleged that the standard was inapplicable to rubber-rail 

equipment or, in the alternative, that application of the standard would 

diminish safety. The petitions for modification were consolidated. On 

March 26, 1976, the administrative law judge ruled that the rubber-rail 

vehicles were not "track haulage cars" within the meaning of § 75.1401-1. 

He made no findings with respect to the diminution of safety argument. 

The Secretary appealed this decision to the Board of Mine Operations 

Appeals. 

Thereafter, the Board ruled in a different case that a petition for 

modification alleging that a mandatory safety standard was inapplicable 

did not state a claim upon which relief could be granted under section 

30l(c) of the Coal Act. Itmann Coal Co., 6 IBMA 121, 128 (1976). 

Subsequently, the Board reviewed the judge's modification decision in 

light of its holding in Itmann and concluded: (1) the applicability of 

§ 75.1405 to rubber-rail equipment was not a proper issue under section 

30l(c) of the Coal Act, but (2) the issue could be litigated if the 

companies were issued notices of violation of § 75.1405 and applied for 

review of the notices under section 105 of the Coal Act. Oneida Mining 

Co., 6 IBMA 343, 349-350 (1976). 

The Secretary then issued the presently contested notices of 

violation. The companies filed for review and the case was assigned to 

the same judge who had heard the modification case. The parties stipulated that the issue pefore the judge was whether § 75.1405 was 

applicable to rubber-rail vehicles and that this issue should be decided 

on the basis of certain specified exhibits and specified portions of the 

testimony from the previous modification proceeding. 

!:./ Rubber-rail equipment can be used both on and off track. When 

operating on track, a rubber-rail car is pulled by a small locomotive 

and moves along the track on steel wheels similar to traditional railroad equipment (Tr. 149). When the car reaches the end of the track, 

the rubber tires, which are suspended along the side of the car, are 

dropped and they "literally lift the vehicle up off the rail" (Tr. 149). 

The car is then pulled by a battery powered vehicle and can move along 

the mine floor or in the supply yard where there are no tracks. 

190 
On April 20, 1977, the administrative law judge rendered a decision, 

the substance of which was virtually identical to his decision in the 

modification case, finding that the regulation was not applicable to 

the company's rubber-rail cars. Prior to his discussion and resolution 

of the issue, the judge set forth those findings of fact he believed to 

be essential. The findings which are relevant for purposes of our decision are those pertaining to the equipment, the method of coupling and 

uncoupling the equipment, and MESA's history of enforcement of the 

automatic coupler standard. 

The judge found that approximately 600 rubber-rail cars were operating at the six mines. The cars are coupled and uncoupled manually by the 

draw bar and pin method (Dec. at 3). The draw bar is a steel bar 1-1/2 

inches thick, 4 inches wide and 30 to 36 inches long (Tr. 179-180). It 

serves as the horizontal link between two cars and is secured by steel 

pins which are inserted vertically through holes in "pockets" at the end 

of each car. Coupling takes place when the pocket holes are aligned 

with holes at each end of the draw bar and the pins are dropped through 

the holes in the pockets. The process is reversed for uncoupling (Tr. 

168). Alignment of the draw bar holes with the pocket holes and insertion of the pins are done manually. 

The judge found that the rubber-rail cars are used solely to 

transport men, equipment and supplies. 3/ He also found that the cars 

are used intermittently and that 2 to 3-times as many couplings and 

uncouplings are performed off track as are performed on track (Dec. at 

3-4). 

The judge found that the rubber-rail cars are loaded on the surface 

(in the supply yard) and moved on track into the mine in trips of 5 to 

15 cars (Dec. at 4 and Tr. 151-155). The trips are pulled by locomotives 

(Tr. 150). He found that once in the mine the trips are broken down 

into small groups of 1 to 5 cars, the wheels are lowered and the small 

trips are pulled by tractors to the section where the supplies are 

needed (Dec. at 4). The process is reversed after the supplies are 

unloaded. !:../ 

At the time the evidence was taken below, MESA was divided into 9 

administrative districts. Each district was headed by a district 

manager responsible for enforcement of the Act in his district. The 

inines in this case were located in District 2, with headquarters in 

Pittsburgh. The judge found that from the passage of the Coal Act until 

3/ Coal is moved out of the mines on conveyor belts. 

4/ After the cars are uncoupled, a tractor picks up the empty cars, 

one by one, and takes them back to the track. The locomotive goes from 

section to section picking up cars which have been put on the track. 

Once the locomotive has about 15 cars it pulls the trip back to the 

supply yard. After a complete return trip is assembled underground, no 

further coupling or uncoupling occurs until the trip reaches the supply 

yard (Tr. 154-155). 

191 
February 1974, § 75.1405 was not enforced with respect to rubber-rail 

cars in District 2 (Dec. at 4). He also found that, in a memorandum 

dated November 21, 1973, the district manager indicated that when the 

regulation was written, § 75.1405 was not intended to apply to rubbertired haulage cars and was intended to apply only to track haulage cars 

(Dec. at 5). The judge also found that during this period of nonenforcement the companies, relying on this policy of non-enforcement, 

purchased 230 rubber-rail cars not equipped with automatic couplers 

(Dec. at 4). The judge further found that the Secretary at one time 

proposed to amend § 75.1405 to specifically include rubber-rail cars 

(Dec. at 6). 5/ Finally, he found that MESA's enforcement policy 

changed on February 7, 1974, and the Secretary began applying the 

automatic coupler requirement to rubber-rail vehicles in District 2. 

The judge's ultimate conclusion was that rubber-rail cars are not 

"track haulage cars" within the meaning of § 75.1405-1. He noted that 

§ 75.1405 applies to "all haulage equipment." He found that the 

phrase "all haulage equipment" is not ambiguous, that the word "haulage" 

as used in mining parlance refers to the hauling of men and supplies as 

well as ore, and that the word "equipment" is very broad. Thus, he found 

that if the statutory language had been literally applied, there would 

be little doubt that rubber-rail haulage equipment would be required to 

have automatic couplers (Dec. at 5-6). However, in implementing 

§ 75.1405, the Secretary promulgated § 75.1405-1 which states that 

§ 75.1405 applies "only to track haulage cars." (Emphasis added.) The 

judge attempted to determine whether Congress had intended that section 

75.1405 apply "only to track haulage-cars." He first examined the 

legislative history. The sole reference in the legislative history to 

section 314(f) is contained in a letter from the Director of the Bureau 

of Mines to Congressman John Dent. Congressman Dent had asked the 

Director to conduct a technological review of safety standards which had 

been proposed as amendments to the House bill. The automatic coupler 

provision was one of those amendments. The Director stated "[t]he 

provisions relative to coupling mine cars ••• will make a positive 

contribution to safety." The judge found this reference to be uninstructive (Dec. at 6). 

Next, the Judge examined the structure of section 314 itself and 

found this to be persuasive: 

Perhaps the best indication of what Congress intended can be 

obtained from viewing section 314 of the Act in its entirety. 

It consists of six subsections, "a" through "f" and is headed 

"Hoisting and Mantrips." Subsections "a," "b," "c," and "d" 

1/ The proposed amendment stated: 

§ 75.1405-1 automatic couplers, haulage equipment. The 

requirement of § 75.1405 with respect to automatic couplers 

applies only to track haulage cars, including rubber-rail 

cars, which are regularly coupled and uncoupled. 

The proposal was one of many contained in a February 10, 1975, MESA 

memorandum which was addressed to all underground coal mine operators 

(Exhibit 12). The memorandum stated that hearings would be conducted on 

the proposed changes and requested the operators to submit comments. 

The change with respect to rubber-rail cars was never adopted nor was 

the change ever formally proposed in the Federal Register. 

192 
deal specifically with hoists and generally with the 

transportation of men and material. However, in "e" locomotives and haulage cars are mentioned for the first time in 

connection with the requirement that they have automatic 

brakes. Next follows 314(f) and its reference to "all haulage 

equipment." I believe subsections "e" and "f" are generally 

different than the preceding four subsections and should be 

read together. Following this approach, the phrase "haulage 

equipment" would relate back to subsection "e" and its mention 

of locomotives and haulage cars. Since in customary coal 

mining jargon, the word "car" and the term "haulage car" has 

reference to vehicles used on railroad track, I would conclude 

that this is what Congress had in mind, even though the phrase 

"all haulage equipment" when taken out of context is not 

patently ambiguous outside the mining industry (Dec. at 7, fn. 

12). 

The judge stated that the Secretary in promulgating § 75.1405-1 had done 

what Congress intended--that is, had made the automatic coupler provision 

applicable to equipment which traveled on track (Dec. at 6-7). He also 

concluded that because the record showed rubber-rail cars at the 6 mines 

were used only intermittently, were primarily operated off track and 

represented a technological variant not contemplated by Congress, they 

were not "track haulage cars" within the meaning of § 75.1405-1 (Dec. at 

6-7). 

Finally, the judge found that MESA's enforcement practice for the 

first four years of the Coal Act limited the coverage of § 75.1405 to 

locomotives and haulage cars which traveled on track, and concluded that 

this constituted a "binding construction of the statute" (Dec. at 7). 

The Secretary asserts that the rubber-rail vehicles are "track 

haulage cars" which are "regularly coupled and uncoupled" and therefore 

come within the purview of § 75.1405. He first argues that the judge's 

decision effectively modifies § 75.1405-1 to apply to haulage cars that 

operate exclusively on track. He asserts such an interpretation is 

erroneous because the Coal Act was remedial and regulations adopted 

thereunder should be given a liberal construction. He states that the 

purpose of section 314(f) of the Coal Act and § 75.1405 is to prevent 

accidents while track haulage equipment is coupled and uncoupled. In 

~is view, it makes no difference if the cars are coupled and uncoupled 

on the track only some of the time. In short, the Secretary argues that 

interpreting the standard so as to include rubber-rail equipment best 

effectuates its purpose. 

The Secretary next argues that the rubber-rail vehicles are "regularly 

coupled and uncoupled." According to the Secretary the proper test for 

regularity should be whether the equipment is coupled or uncoupled in 

the normal course of routine operation or on a cyclic basis. The Secretary 

193 
argues that in testifying about rubber-rail procedures the companies' 

safety manager described routine on track couplings and uncouplings both 

in the supply yard and the point of track nearest the working sections 

(citing to Tr. 150-155). 

The Secretary also argues that the agency cannot be estopped from 

enforcing § 75.1405-1 if it applies to rubber-rail equipment. An agency, 

the Secretary states, can change its interpretation of a regulation if 

that change is within the scope of the regulation. 2.1 

The operators maintain that, although the language of section 314(f) 

requires automatic couplers on "all haulage equipment," the judge and 

the parties agree that Congress never intended the standard to be applied 

literally. They also assert that the parties agree that § 75.1405-1 

attempts to make explicit the limitation intended, but not stated by 

6/ The Secretary makes two other arguments which do not warrant 

extended discussion. First, he argu~s that the judge erred in admitting 

the testimony of the then district manager of District 2, Robert Barrett, 

concerning his understanding of the proper interpretation of § 75.1405. 

Barrett had a dual role with regard to the regulation. He was assigned 

by the director of the Bureau of Mines to coordinate the efforts of 

those writing the Coal Act's implementing regulations--including 

§ 75.1405-1 (Tr. 40, 46). Moreover,-as district manager for District 2 

he was responsible for enforcing all standards in the district. Barrett 

testified as to his opinion concerning the type of equipment the drafters 

of section 75.1405-1 intended to cover. He also testified concerning 

the enforcement policy he pursued while district manager (Tr. 49-56, 59-

63, 81-88, 91). The Secretary asserts the testimony of a participant in 

the drafting of a regulation cannot be admitted to prove regulatory 

intent. He asks that any findings or conclusions based upon Barrett's 

testimony be rejected. A review of the judge's decision, however, fails 

to indicate any findings of fact or conclusions of law based upon 

Mr. Barrett's testimony concerning his view of the drafters' intent or 

his understanding of Congressional intent in enacting section 314(f). 

(Finding of fact No. 12 relates to a memorandum issued by Barrett). 

Thus, even if we were to assume that admission of Barrett's testimony 

regarding intent was erroneous, it was harmless error. 

Second, the Secretary asserts that the Board of Mine Operations 

Appeals in Canterbury Coal Co., 6 IBMA 276 (1976), affirmed a judge's 

decision disallowing a modification of § 75.1405 for several types of 

track equipment, including rubber-rail equipment, and refused to stay 

its decision with respect to rubber-rail equipment until the instant 

case was decided. The Secretary views this as de facto recognition by 

the Board that the standard applies to rubber-rail equipment. However, 

the Board's refusal to stay the part of the proceeding relating to 

rubber-rail equipment was based on factual differences it perceived 

between the Canterbury case and this case. 6 IBMA at 286. Moreover, 

the validity of the application of the standard to rubber-rail equipment 

could not have been at issue in the modification case, the Board having 

ruled that such an issue could only be raised in an enforcement proceeding. 
Congress. They assert the original intent of section 75.1405 was to 

apply the automatic coupler requirement only to coal haulage equipment 

that operates solely on track and that this original intent must control. 

They argue this intent may be derived from the legislative history, i.e., 

the letter to Congressman Dent, and from the structure of section 314.-

Moreover, they assert that the Secretary's consistent policy from 1971 

to 1974 of excluding rubber-rail equipment from coverage under § 75.1405 

is the type of contemporaneous construction of the regulation by those 

charged with its enforcement to which deference should be accorded. 

They view this consistent administrative interpretation over a period of 

four years as compelling evidence of the original intent underlying the 

statutory and regulatory provisions. They also view the Secretary's 

proposal to amend § 75.1405-1 so as to include rubber-rail vehicles as 

evidence that such equipment was not originally covered. 

In short, the operators argue that because of the legislative 

history, the Secretary's contemporaneous construction of the standard, 

the four year enforcement policy of not requiring automatic couplers on 

rubber-rail equipment and the proposal to amend § 75.1405-1, the 

judge correctly concluded that the Act and regulations do not require 

automatic couplers on rubber-rail equipment. The companies state that 

if the Secretary wishes to change a regulation he should follow the 

promulgation procedures set forth in the Act, rather than legislate 

through interpretation. LI 

Our resolution of this case begins with an examination of the words 

of the statute and standard. The judge and parties agree that section 

314(f) and § 75.1405 on their face apply to "all haulage equipment." 

They also agree that Congress could not have intended literal application 

of the standard to all haulage equipment because there are many types of 

equipment used to transport coal, men and supplies (~._a., shuttle cars, 

battery powered tractors, and battery powered personnel carrier) which 

travel alone and upon which automatic couplers would serve no purpose. 

The judge and the parties also agree that in order to clarify Congressional intent and to narrow the overly inclusive language of the 

statutory standard the Secretary promulgated § 75.1405-1 limiting the 

automatic coupler requirement to "track haulage cars which are regularly 

coupled and uncoupled." 

The word "track" indicates that the regulated cars travel on rails 

~s opposed to free moving vehicles. All parties agree the rubber-rail 

cars travel on rail from the supply yard into the mine to the point on 

the track nearest the section where the supplies are to be used (Tr. 

150-152, Dec. 4). Thus, the rubber-rail vehicles qualify, at least in 

this facet of their operation, as "track" equipment. The term "haulage 

LI The operators insist that they are not raising an estoppel argument. 

Rather, they are arguing that the original interpretation of the standard 

is the correct interpretation and must be followed. They state that the 

agency "is free to change the regulation despite reliance on the old 

regulation so long as [the agency] pursues the proper procedures." 

(Brief at 17.) 

195 
cars" in mining parlance indicates cars which carry either ore, equipment, 

supplies or personnel. 8/ The rubber-rail vehicles are used for the 

transport of men, equipment and supplies. Thus, we conclude that, based 

on a plain reading of the standard and the nature of the use of the equipment at issue, the rubber-rail vehicles involved are a type of "trackhaulage car." 2_/ 

The Secretary's inconsistent enforcement of the standard against 

the operators involved is troubling, but it does not lead us to a 

different result. The prior practice in District 2 of not enforcing 

section 75.1405-1 against rubber-rail equipment was contrary to the 

plain language of the standard. Further, although an agency's contemporaneous interpretation of a regulation can be given weight, the 

interpretation must be a consistent practice implemented by the agency 

as a whole. See 2 Davis, Administrative Law Treatise, § 7.14 at 66-

69 (2d ed. 1979). The record indicates confusion among agency personnel regarding enforcement of the standard and it cannot be determined 

what interpretation, if any, had been adopted as the official agency 

position on the standard. 

This leaves the question of whether the cited rubber-rail vehicles 

are "regularly coupled and uncoupled" within the meaning of the standard. 

The adverb "regularly" suggests a practice or implies uniformity or a 

method of proceeding. It excludes isolated or unusual occurrences. We 

believe that the record reflects a uniform method and practice of on-track 

coupling and uncoupling. The judge's finding that the rubber-rail cars 

are used only intermittently and are not regularly coupled and uncoupled 

is difficult to explain. None of the sources cited by the judge states or 

infers that the use of the equipment was only intermittent or that on-track 

coupling and uncoupling are not routine practices. 

§_/ Haulage cars. Rail haulage cars for surface or mine shaft operations are used to carry ore and equipment to and from the digging site. 

They may be of the trailer type or self-propelled, and include dump 

cars, flat cars, personnel cars, etc. Dictionary of Mining, Mineral 

and Related Terms, U.S. Department of the Interior at 530 (1968). 

9/ There is a great deal of discussion by the parties as to whether 

Congress intended section 314(f) to apply to rubber-rail vehicles. The 

j.udge concluded that the Secretary "correctly divined Congressional 

intent" when he promulgated§ 75.1405-1 (Dec. 6). Our attempt to 

determine Congressional intent is inconclusive. We have found no 

indication that Congress in drafting section 314(f), or the Secretary 

in promulgating § 75.1405-1, considered rubber-rail equipment. See 

35 Fed. Reg. 17890 (Nov. 20, 1970). At most section 314(f) and the 

legislative history indicate that automatic couplers are required on 

mine cars which run on track and which carry loads. Thus, we perceive 

no definitive indication from the legislative history, or the context 

of section 314, as to whether automatic couplers are to be installed 

on such cars that run only part of the time on track. 

196 
We therefore find that the rubber-rail cars are track haulage 

equipment that are regularly coupled and uncoupled on track and, 

therefore, that the standard applies to the on-track facet of their 

operation. The standard, however, does not apply to off-track operation and no other standard to which we have been cited, or that we 

are aware of, requires the use of automatic couplers on this equipment 

when it is used off-track. 

Accordingly, if the Secretary wishes to require use of automatic 

coupling devices on rubber-rail vehicles at all times, he should 

amend § 75.1405-1 to expressly so provide. See Diamond Roofing Co. 

v. OSHRC, 528 F.2d 645 (5th Cir. 1976). In the course of the rulemaking process set forth in section 101 of the Mine Act (30 u.s.c. 

§ 811), 10/ the technology, feasibility and safety considerations 

so important to miners and the industry could be developed and a 

rational resuit reached. It is of parenthetical interest to note 

that there is testimony in the record that any attempt to adopt 

automatic couplers to rubber-rail vehicles operating off-track could 

be dangerous to the safety of miners (Tr. 67-68; 202). Vertical 

movement of the automatic coupling on the uneven mine floor, together 

with the difficulty of lateral alignment in off-track operation, 

lends considerable force to this testimony. 

Having made the foregoing observations as to the standard at 

issue, we are now faced with the disposition of this case. The 

record supports the finding that the-equipment here was not equipped 

with automatic couplers while it was operated on-track. Accordingly, 

the operators were in violation of the standard. In this regard the 

judge erred in his finding. 

We are not unaware that the facts also pose an issue which transcends 

the applicability issue resolved in this forum. This additional question 

concerns whether, given the asserted safety problems associated with 

automatic coupling systems off-track and potential practical problems 

with a requirement that the vehicles have two coupling systems so that 

they can be used safely both on and off-track, the standard should be 

enforced by the Secretary in accordance with its literal terms in 

the situation here. Section 30l(c) of the Coal Act and section lOl(c) 

of the Mine Act, however, provide a separate means of addressing 

this concern. As we have held previously, it is "important that 

questions of diminution of safety first be pursued and resolved in 

the context of the special procedure provided for in the Act, i.e., 

a modification proceeding." Penn Allegh Coal Co., 3 FMSHRC 1392, 1398 

(June 198l)(emphasis added). Cf. General Electric Co. v. Secretary 

of Labor, 576 F.2d 558, 561 (3d Cir. 1978). This Commission was 

established as fully independent of the Secretary by the 1977 Mine 

Act. As ·a result, we do not have jurisdiction, as did the Board 

of Mine Operations Appeals, to rule on petitions for modification 

based on diminution of safety. 30 U.S.C. § 8ll(c)(Supp. V 1981). 

10/ Similar provisions existed in section 101 of the Coal Act. 

19'( 
From our review of the previous decisions of the administrative 

law judge and the Board in this matter, it appears that the question 

of diminution of safety never has been finally resolved. In light 

of our reversal of the judge on the applicability issue, both parties 

now have a present incentive to finalize the previously instituted 

modification proceeding. In the event that this avenue is pursued, 

we observe that all parties would be well-served by updating the 

time-worn record presently available in order to better conform the 

issue posed with the state of present technology. 

Conclusion 

Accordingly, we reverse the judge's conclusion that 30 C.F.R. 

§ 75.1405 does not apply to the haulag cars at issue and reinstate 

the notices of violation. _!l/ 

on Commissioner 

"""~~~~ ..... 

11/ The present case arose from an application for review filed by 

the operators, rather than a petition for assessment of penalties 

filed by the Secretary, and only the question of the applicability 

9f the standard is being resolved herein. Therefore, we need not 

~xplore in this case the effect that a previously instituted modification proceeding should have on a subsequently filed action 

seeking civil penalties for noncompliance with the standard sought 

to be modified. See Sewell Coal Co., 3 FMSHRC 1402, 1414-15 (June 

1981). Our conclusion concerning the applicability of the standard 

to only one facet of a two facet operation is based on the particular 

standard.and the particular type of equipment involved in this case. 

198 
Distribution 

Ann Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Richard McMillan, Jr., Esq. 

Crowell & Moring 

1100 Connecticut Ave., N.W. 

Washington, D.C. 20036 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge Michael Lasher 

FMSHRC 

5203 Leesburg Pike, 10th Fl. 

Falls Church, Virginia 22041 

19B 
Administrative Law Judge Decisions 

200 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

KITT ENERGY CORPORATION, 

Contestant 

Contest of Citation 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. WEVA 83-65-R 

Citation 2020054; 12/1/82 

Order No. 2020054-1; 12/22/82 

Kitt No. 1 Mine 

DECISION 

Appearances: B. K. Taoras, Esq., Meadow Lands, Pennsylvania, appeared for 

Contestant; 

Before: 

Howard Agran, Esq., Office of the Solicitor, U.S. Department of 

Labor, Philadelphia, Pennsylvania, appeared for Respondent. 

Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

Contestant filed a notice of contest on December 10, 1982, contesting a 

citation issued on December 1, 1982, by MSHA charging a violation of 30 C.F.R. 

§ 75.1722. The notice contended that the Contestant did not violate the 

standard as alleged, that the violation charged could not have significantly 

and substantially contributed to the cause and effect of a mine health or 

safety hazard and that it was not caused by the unwarrantable failure of the 

operator to comply with the standard. Contestant filed a motion for an 

expedited hearing with its notice of contest. Respondent filed a statement in 

opposition to the m~tion for expedited review, but the parties subsequently 

agreed that a hearing be called for January 12, 1983. Pursuant to notice, the 

case was heard in Washington, Pennsylvania on January 12 and 13, 1983. 

On January 12, 1983, prior to the commencement of the hearing, Contestant 

filed a supplement to its notice of contest challenging the "modification" of 

the contested citation on December 22, 1982, (the supplement erroneously 

states that the modification was issued December 28, 1982), whereby the 

citation was changed to an order of withdrawal issued under section 104(d)(2) 

of the Act. 1be order was itself modified on January 10, 1983, to delete the 

"significant and substantial" finding. The parties agreed that this case now 

involves the propriety of the order of withdrawal. 

201 
John Paul Phillips, a federal mine inspector, Michael Niggemyer, and 

James Lloyd Davis testified on behalf of the Secretary-Respondent. Joseph D. 

Mock, Kirby Smith, and Robert McAtee testified on behalf of the OperatorContestant. Two miners at the subject mine, Franklin D. Raddish and 

Gregory A. Riley, filed requests prior to the hearing that they be recognized 

as parties to this proceeding. At the hearing they explained that they wished 

to be present for the hearing but did not wish to take part in examining 

witnesses or introducing evidence. Contestant moved for the sequestration of 

witnesses. In granting the motion, I permitted one of the above miners to 

remain in the hearing room as a representative of the miners at the subject 

mine, even though the Solicitor stated he might call them as witnesses. 

Contestant objected, but since neither miner was in fact called as a witness, 

the objection is moot. The parties waived their right to file written briefs. 

Based on the entire record and considering the contentions of the parties, 

I make the following decision. 

FINDINGS OF FACT 

1. At all times pertinent to this proceeding, Kitt Energy Corporation 

was the owner and operator of a coal mine in Barbour County, West Virginia, 

known as the Kitt No. 1 Mine. 

2. The operation of the subject mine affects interstate commerce. 

3. MSHA began a comple·te quarterly inspection ("AAA inspectl:on'') of the 

subject mine on July 2, 1982, and completed it on September 28, 1982. Another 

quarterly inspection was begun on October 14, 1982. This inspection continued 

until December 17, 1982. During the former inspection a withdrawal order was 

issued under section 104(d)(2) of the Act on July 14, 1982, alleging a violation of 30 C.F.R. 75.1704. 

4. A special technical inspection ("CEF investigation") was commenced 

on July 19, 1982 and completed on August 6, 1982. 

5. All the active sections of the mine were visited by MSHA inspectors 

(in either the regular inspection or the technical inspection) between 

July 19, 1982 and September 28, 1982. 

DISCUSSION 

The operator's safety supervisor, Robert McAtee, testified that a new 

regular inspection was commenced on July 19, 1982, and completed ("closed 

out") on September 28, 1982. It appears from Inspector Phillip's testimony 

that McAtee is mistaken. The regular inspection which commenced on July 2, 

1982, was not completed until September 28, 1982. The inspection which began 

on July 19, 1982, was a technical inspection. During such an inspection the 

inspector can issue citations for any violation he encounters. However, he 

is concentrating on the technical problems which prompted the investigation. 

202 
6. The bin area of the subject mine contains a large bin holding many 

tons of coal into which the belts coming from the face-areas dump. A vibrator 

screen starts the flow of coal and a scalping screen separates the smaller 

from the larger pieces. The former area sent to the slope belt and thence to 

the surface; the latter are fed into a crusher. The vibrating machine has an 

"eccentric," ?lso called a balance wheel, which turns and is attached to a 

shaft which causes the vibrating machine to vibrate. There was an on-off 

switch in the bin area, but the scalping screen can be turned on from the 

preparation plant even though the switch in the bin area is off. 

7. The belt drive between the motor and the eccentric was covered with 

a guard -- an 8 inch wide sheet metal frame on top and on both ends to which 

a screen was attached on the front (away from the eccentric). The right upper 

corner of the screen was torn away from the frame as of December 1, 1982, and 

the screen, which had been welded to the frame, was loose. It was not 

anchored to the floor. 

8. The lower frame of the guard was 23 inches above the floor, and the 

upper frame was 49 inches from the floor, on December 1, 1982. Thus, there 

was an area of 23 inches from the floor not covered by the screen. 

9. The floor in question consisted of metal grating. 

10. On December 1, 1982, the eccentric did not have a guard affixed to 

it. The eccentric turns at approximately 735 revolutions per minute. On 

December 1, 1982, its highes.t point when turning was approximately 4 .. inches 

above the top of the frame of the belt drive guard. 

DISCUSSION 

Inspector Phillips and Mr. Niggemyer both testified that the eccentric 

came above the belt drive guard when it revolved. I found their testimony 

more persuasive on this point that the contradictory testimony of Mr. Mock. 

11. A guard had been attached to the eccentric but was damaged and 

loosened in approximnately September, 1982. The operator fabricated a 

replacement in its shop and installed it on October 2, 1982. The guard lasted 

less than one day. A replacement was made and reinstalled but it too did not 

last. On October 25, 1982, a wire or rope was stretched around the scalping 

screen area and a guard was ordered from the equipment manufacturer. This 

wire was present 4 or 5 days prior to December 1, 1982, but was not present 

on December 1. The wire did not contain a "danger" sign and there is no 

indication that the people working in the bin area were instructed by the 

operator to avoid the area. 

12. Normally, three men work in the bin area--one on each shift. The 

duties of a bin man include cleaning up coal spillage. There is generally 

some spillage in the area of the screen and it often extended under the guard 

screen in front of the pulley. The bin man was required to shovel fine coal 

spillage from under the screen. 

203 
13. The preshift examiners report book ("fireboss book") maintained at 

the subject mine contained references to the shaker balance wheel beginning on 

November 19, 1982. On November 20, there is a notation that it was "guarded 

and cleared." On November 22, the absence of a guard was noted on the day 

shift and afternoon shift. On November 23, 24, 25, 26, 27, 28, 29 and 30, it 

was noted on all three shifts that the balance wheel needed a guard. On the 

midnight shift, December 1, the absence of a guard was also noted. 

14. A preshift examiner is a certified employee and in the subject mine 

is a member of the Union and not considered part of management. He is 

required to note in the preshift report all health and safety violations and 

other hazardous conditions. He has the authority to "danger off" an area 

which he deems hazardous. 

15. The chairman of the Union Safety Connnittee told the operator about 

the unguarded eccentric on a number of occasions in September and October, 

1982. 

16. On December 1, 1982, Federal coal mine electrical inspector John Paul 

Phillips inspected the bin area of the mine accompanied by Joseph D. Mock, 

the operator's chief electrician, and Michael Niggemyer, the union walkaround 

representative. Niggemyer was told by the fireboss about the guard being 

missing from the eccentric and sd informed the inspector. Niggemyer was 

employed as an electrical trainee and had worked as a bin man in the area in 

question. 

17. On December 1, 1982, Inspector Phillips issued a citation under 

section 104(d)(l) charging a "significant and substantial" violation of 

30 C.F.R. § 75.1722(a) because a guard was missing from the eccentric on the 

scalping screen and the guard over the belt drive was not adequate. The 

citation was terminated by the erection of a screen and barrier preventing 

employees from entering the area. This was accomplished the same day. Later 

in early December the eccentric guard was received from the manufacturer and 

installed the same day. The screen in front of the pulley was extended to 

the floor and bolted to the frame. 

18. Inspector Phillips issued a citation because he was not aware that 

a 104(d) series was in effect at the subject mine. He was not the regular 

inspector and was apparently misinformed by the regular inspector. 

19. After returning to 

mine was on a "(d) series." 

order and, apparently under 

significant and substantial 

his office Inspector Phillips learned that the 

He then "modified" the citation to a 104(d)(2) 

instructions from his superiors, deleted the 

finding •. 

20. On December 1, 1982, the eccentric or balance wheel in the subject 

mine was unguarded. This was a moving machine part. Since it turned above 

the belt drive screen it was such that it might be contacted by employees in 

the bin area and cause injury. The belt drive screen had a broken area in 

its upper right corner and did not extend to the floor. The screen did 

204 
extend to the bottom of the belts and pulleys. However, it is possible that 

an employee could contact the belt or pulley if he shovelled under the screen. 

The broken area in the upper right hand corner did not directly expose the 

belts or pulleys but an employee could accidently reach through this area and 

contact the moving machinery. This resulted in the possibility of employees 

contacting the belt drive through the opening or under the screen and 

sustaining injuries. Further, the screen was loose and could have been pushed 

into the moving pulley. 

STATUTORY PROVISIONS 

Section 104(d) of the Act provides as follows: 

(d)(l) If, upon any inspection of a coal or other mine, 

an authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety 

standard, and if he also finds that, while the conditions 

created by such violation do not cause imminent danger, such 

violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds such 

violation to he caused by an unwarrantable failure of such 

operator to comply with such mandatory health or safety 

standards, he shall include such finding in any citation 

given to the operator under this Act. If, during the same 

inspection or any subs~,quent inspection of such mine within 

90 days after the issuance of such citation, an authorized 

representative of the Secretary finds another violation of 

any mandatory health or safety standard and finds such violation to be also caused by an unwarrantable failure of such 

operator to so comply, he shall forthwith issue an order 

requiring the operator to cause all persons in the area 

affected by such violation, except those persons referred to 

in subsection (c) to be withdrawn from, and to be prohibited 

from entering, such area until an authorized representative 

of the Secretary determines that such violation has been 

abated. 

(2) If a withdrawal order with respect to any area in 

a coal or other mine has been issued pursuant to paragraph (1), 

a withdrawal order shall promptly be issued by an authorized 

representative of the Secretary who find upon any subsequent 

inspection the existence in such mine of violations similar 

to those that resulted in the issuance of the withdrawal order 

under paragraph (1) until such time as an inspection of such 

mine discloses no similar violations. Following an inspection 

of such mine which discloses no similar violations, the provisions of paragraph (1) shall again be applicable to that 

mineo 

.205 
REGULATORY PROVISION 

30 C.F.R. § 75.1722(a) provides as follows: "(a) Gears; sprockets; 

chains; drive, head, tail, and takeup pulleys; flywheels; couplings, shafts; 

sawblades; fan inlets; and similar exposed moving machine parts which may be 

contacted by persons, and which may cause injury to persons shall be guarded." 

ISSUES 

1. Was the 104(d)(2) order challenged in this proceeding invalid because 

it was not issued "promptly?" 

2. Was there an inspection of the mine disclosing no similar violations 

between the 104(d) order issued July 14, 1982, and the order challenged 

herein? 

3. Was a violation of 30 C.F.R. § 75.1722(a) established as of 

December 1, 1982? 

4. If the answer to question 3 is affirmative, was the violation caused 

by the unwarrantable failure of the operator to comply with the applicable 

safety standard? 

CONCLUSIONS OF LAW 

1. Contestant was subj.ect to the provisions of the Federal ~n~ Safety 

and Health Act in the operation of Kitt No. 1 Mine at all times pertinent 

hereto, and the undersigned Administrative Law Judge has jurisdiction over 

the parties and subject matter of this proceeding. 

2. The withdrawal order issued under 104(d)(2) of the Act which is 

challenged in this proceeding is not invalid becuse it was not issued 

"promptly." 

DISCUSSION 

Section 104(d)2) of the Act provides that when a withdrawal order has 

been issued under 104(d)(l), another withdrawal order "shall promptly be 

issued" if an inspector finds a violation similar to that which resulted in 

the first order. The inspector here found what be considered such a violation on December 1, 1982. He issued the withdrawal order (by a "modification" 

of a citation) on December 22, 1982. The delay was occasioned by the fact 

that the inspector (a special electrical inspector) was unaware on December 1 

that the mine was under a "(d) series." He therefore issued a citation. He 

later (after this proceeding was instituted) checked the records and found 

that the mine was on a "(d) series," and issued the modification. The condition had long since been abated and there was in fact no withdrawal or closure 

of any part of the mine. The modification was a bookkeeping matter, and, 

although the government has not shown why it took 3 weeks to determine the 

true facts, Contestant has not shown that the delay prejudiced it in any way. 

206 
3. A complete inspection of the mine showing no "similar violations" 

had not occurred between the withdrawal order issued under 104(d)(2) on 

July 14, 1982, and the finding of the violation on December 1, 1982, which 

resulted in the order challenged in this proceeding. 

DISCUSSION 

The antecedent 104(d)(2) order was issued on July 14, 1982, during the 

course of a regular inspection which took place between July 2, 1982 and 

September 28, 1982. Another regular inspection was begun October 14, 1982. 

It was completed on December 17, 1982. Although the order contested herein 

was issued after that date, it resulted from conditions found (and cited) 

prior to that date. Therefore, there was no intervening complete inspection 

between the conditions resulting in the two orders. I conclude that the 

fact (Finding of Fact No. 5) that all of the sections of the mine were 

visited by inspectors, regular or technical, between July 14, 1982 and 

September 28, 1982, does not establish "an inspection of such mine" as that 

term is used in section 104(d)(2). I conclude that the term contemplates a 

regular inspection of the entire mine. 

S. The condition cited in the bin area of the subject mine on 

December 1, 1982, the absence of a guard on the eccentric and the inadequate 

guard on the belt-drive, constituted exposed moving machine parts which might 

be contacted by persons and cause injury to persons. Therefore, a violation 

of 30 C.F.R. § 75.1722(a) was established. 

DISCUSSION 

I accept the inspector's testimony that the eccentric, in the course of 

its revolution, extended above the screen guarding the belt drive. An 

employee in front of the screen could accidently reach over the frame and be 

struck by the eccentric. Should he do so he would certainly sustain injury. 

It would be less likely but not impossible, that an employee shovelling under 

the screen or falling against the damaged part of the screen could contact 

the belt drive with his hand, foot or shovel, and sustain injury. At least 

one miner was in the area each shift. The rope or wire stretched across 

the area was not adequate to keep employees away from the scalping screen 

and, in any event'· it was not there on December 1, 1982 (Finding of Fact 

No. 11). 

6. The violation referred to in conclusions of law No. 5 was caused by 

the unwarrantable failure of the operator to comply with the standard. 

DISCUSSION 

There is ·no doubt that Contestant was aware of the absence of a guar<l 

on the eccentric, since attempts were made to repair it, and finally a 

replacement was ordered. Further the absence of the guard was continually 

noted in the fireboss book. The placing of a wire across the walkway to the 

area was too ambiguous a signal to keep miners out, but does show that 

207 
Contestant recognized the danger. The area should have been dangered off to 

prevent miners from approaching the exposed moving machine parts. The 

inadequate guard on the belt drive was not noted in the fireboss book but 

was clearly visible and Contestant, whose chief electrician visited the area 

monthly, should have been aware of it. If a violation results from an 

operator's failure to correct conditions or practices which it knew or should 

have known existed, the violation is caused by the operator's unwarrantable 

failure to comply with the standard. Zeigler Coal Company, 7 IBMA 280 (1977); 

Cleveland Cliffs Iron Company v. Secretary, 4 FMSHRC 171 (ALJ). 

ORDER 

Based upon the above findings of fact and conclusions of law, IT IS 

ORDERED that the contest is DENIED and the order contested is AFFIRMED. 

J

/ lt(/v iu: >" ./tdz-: J/t'Lf?/(_ 

James A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

B. K. Taoras, Esq., Kitt Energy Corporation, P.O. Box 500, 455 Race Track 

Road, Meadow Lands, PA 15247 

Howard K. Agran, Esq., Office of the Solicitor, U.S. Department o~ Labor, 

Room 14480 Gateway Building~ 3535 Market Street, Philadelphia, PA 19l04 

Gregory A. Riley, Chairman Safety Conunittee, Local 2095, U.M.W.A., 1306 Penn. 

Ave., Fairmont, WV 26554 

208 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

ROGER BENTLEY, 

Complainant 

v. 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11/12 

Complaint of Discrimination 

Docket No. KENT 82-75-D 

WAMPLER BROTHERS COAL CO., 

Respondent 

DECISION 

Appearances: Harold D. Bolling, Esquire, Whitesburg, Kentucky, for 

the respondent; Roger Bentley, Jackhorn, Kentucky, 

pro se. 

Before: Judge Koutras 

Statement of the Case 

Thi9 proceeding concerns a discrimination complain..t fileg by_the 

complainant against the respondent pursuant to Section 105(c) of the 

Federal Mine Safety and Health Act of 1977. The complaint was filed pro 

se after the complainant was advised by MSHA on March 30, 1982, that 

its investigation of his complaint disclosed no discrimination against 

him by the respondent. Respondent filed a timely answer denying that 

it had discriminated against the complainant, and pursuant to notice, 

a hearing on the merits of the complaint was held in Pikeville, Kentucky, 

November 23, 1982, and the parties appeared and participated fully therein. 

The basis of Mr. Bentley's discrimination complaint in his assertion 

that mine foreman Larry Wright discharged him because of his belief 

that Mr. Bentley had complained to an MSHA inspector about certain roof 

and rib conditions at the mine, which resulted in an inspection of 

the mine sometime during the period of November 17 to December 3, 1981. 

In addition, in his initial MSHA complaint, filed on January 18, 1982, 

Mr. Bentley asserted that he had not been paid for a day of first aid 

training which he took on a Saturday, and he had not received a copy 

of his training certificate. 

Issue 

The critical issue presented in this case is whether Mr. Bentley's 

discharge was in fact prompted by any protected activity under section 

209 
105(c)(l) of the Act. Specifically, the crux of the case is whether 

Mr. Bentley's discharge on January 7, 1982, was in retaliation for any 

safety complaints made by him to MSHA, or whether his discharge was 

justified because of absenteeism, as claimed by the respondent. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 301 

et~ 

2. Sections 105(c)(l), (2) and (3) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §§ 815(c)(l), (2) and (3). 

3. Commission Rules, 29 CFR 2700.1, et~ 

Complainant's testimony 

Roger Bentley testified that he was hired by the respondent on 

September 15, 1981, as a roof bolter and was paid $8.75 an hour, or 

$70 a shift. The normal work shift was eight hours a day, five days 

a week, and the mine is a non-union mine. He was discharged on 

January 7, 1982 (Tr. 6-8). 

Mr. Bentley stated that when he filed his discrimination complaint 

with MSHA, he included the' matter of not being compensated for a day's 

training which he took on a Saturday in October, and not receiving his 

training certificate. However, he confirmed that after his discharge, 

the respondent paid him for his training and that his training -cert:ificate 

was mailed to him (Tr. 10). 

Mr. Bentley confirmed that sometime during the period of November 7 

to December 3, MSHA conducted a mine inspection, inspectors were there 

periodically, and that at least on one occasion as a result of a complaint 

about certain mine roof and rib conditions (Tr. 12). 

Mr. Bentley stated that the day before his discharge he was having 

an electrical problem with the wiring in his home which necessitated his 

taking off work. He indicated that he and his wife called the mine and 

advised them of this, and the next day when he reported for work he was 

fired by Mr. Larry Wright, the mine superintendent. Mr. Wright told him 

that he was firing him because he missed too much work (Tr. 17). 

Mr. Bentley indicated that MSHA's mine inspections may have resulted 

in some citations being issued, or at least an order to correct certain 

roof and rib conditions. He also indicated that he performed some roof 

bolting work to correct some of the conditions. He identified one of 

the inspectors who participated in the inspection as Rob Fleming, and 

stated that Mr. Fleming is a friend and neighbor who he had known for 

some four years. Mr. Fleming was the regular MSHA inspector assigned 

210 
to the mine, and Mr. Bentley recalled one past incident when Mr. Fleming 

was at the mine when Mr. Bentley could not make it because of heavy snow, 

and Mr. Fleming asked some of the miners about the whereabouts of "his 

neighbor" (Tr·. 19). 

Mr. Bentley testified that he never mentioned the training incident 

to Mr. Fleming. He also indicated that Mr. Fleming was not the inspector 

who may have inspected the roof and rib conditions which qe worked on, 

but that Mr. Fleming was involved in the inspection of a loader that another 

miner had reported (Tr. 21). 

Mr. Bentley confirmed that Larry Wright never said anything to him 

that would lead him to believe that Mr. Wright suspected him of being 

the person who complained to MSHA inspectors. However, Mr. Bentley 

stated that loader operator Warren Bentley, who is not related to him, 

told him that "they said that I was the one that called the inspectors 

on them, and they was going to get rid of me" (Tr. 22). Mr. Bentley 

testified further that after he was discharged, Warren Bentley told him 

that Larry Wright had said that "he (complainant) was the one that called 

the inspectors and they was going to have to get rid of me. Or, something 

pertaining to tha~'(Tr. 23). 

Mr. Bentley stated that during his period of employment with the 

respondent he "got along good" with Mr. Wright (Tr. 24). He also confirmed 

that subsequent to his discharge he applied for and received unemployment 

benefits (Tr. 26). Mr. Bentley stated further that he filed his discrimination 

complaint because he felt that Mr. Wright believed that he had complained 

to the inspectors and fired him over it to get back at him (Tr. 27). 

Mr. Bentley testified when Mr. Wright fired him he told him that he 

would have to let him go for missing too many days. Mr. Wright made no 

mention about any complaints, and there was no discussion about any "rumor" 

that Mr. Bentley may have been the person who complained to the inspectors. 

Mr. Bentley confirmed that he said nothing to Mr. Wright at that time and 

simply left the mine (Tr. 29). Mr. Bentley also confirmed that he was 

paid two salary checks which he had coming and indicated that- the respondent 

had always paid him for his work and that he never had any trouble over 

pay (Tr. 30). He also confirmed that Mr. Wright came to his house and 

personally paid him for the day of training in question, but that 

they did not discuss his discharge and Mr. Bentley never spoke with again 

about getting his job back (Tr. 31). 

On cross-examination, Mr. Bentley confirmed that he worked as a 

roof bolter, and also did some work as a shuttle car operator. He confirmed 

that he is an experienced miner, and that his roof bolter's job is an 

important job at the mine (Tr. 33). He confirmed that the training in 

question was given by a private company off mine property, and that company 

is responsibile for certifying that he received the training. He also 

confirmed that the training issue is no longer a part of his present 

complaint (Tr. 35). 

211 
Mr. Bentley believed that the inspection which resulted from the 

complaint filed with the MSHA inspectors took place sometime in November, 

and that no one said anything to him about the inspection. He confirmed 

that he continued working at the mine through the month of December 

following that inspection, and up to the time when he was discharged 

(Tr. 37). He confirmed that mine management never complained about his 

work, that the working conditions "were pretty good", and that he never 

felt that the day-to-day operations of the mine endangered his life. He 

did not know whether any citations were ever issued while he was on the 

job (Tr. 38-39) •. 

Mr. Bentley stated that mine management never threatened to fire 

him over his work habits, and he denied that management had ever mentioned 

the fact that they could not tolerate his missing work (Tr. 40). He 

also denied that he had several absences subsequent to the inspection 

which prompted the "rumor" that he was the one who had complained, and 

was not fired (Tr. 41). He did confirm that he had two days of sick 

leave for which he had a doctor's excuse, and he estimated that he only 

missed work for a total of six days during his employment with the 

respondent, but denied that he ever missed four days' in a row in 

November or any other time (Tr. 43). He stated that "I never took off 

nary day without calling" (Tr. 43). He also indicated that when he did 

take off work, he would call in the morning of the day he was off, and 

the calls would usually be made at 6:00 a.m. He also confirmed that 

there were one or two days when he left work early due to inclement weather, 

but was still paid for a full shift, and he "guessed" that this was after 

the inspection in question. He confirmed that the respondent "was a good 

company to work for", that management never asked him to perform any 

dangerous work, had never-made any abnormal demands to him as an employee, 

never threatened him for reporting safety infractions to MSHA. He also 

confirmed that the respondent "ran a good mine", had a good safety 

record, that "it was one of the best places I ever worked", and that he 

had "no reason to call the inspectors on them" (Tr. 46). 

In response to one of my questions concerning his discrimination 

complaint, Mr. Bentley responded as follows (Tr. 48-49): 

Q. Mr. Bentley, if this company is so great 

to work for, and they were an enlightened employer, 

with a good safety record, and they treated you fine, 

and they paid you well, and they paid you even a 

couple of days when you went home early because of 

weather or what-have-you; what leads you to conclude 

why did you -- why do you put any stock in these rumors 

that they got you because they feel you were the guy 

that blew the whistle on them? 

A. Well, that's just the way 

Q. You just feel that way? 

212 
A. Yes. Just the way everything looks to me. 

I don't know. You know, just the way everything_ 

looks to me. 

Q. * * Other than the rumor that you had heard, 

was there anything concrete, or anything that you 

can put your finger on as to 

A. No. 

Q. Do you know of any other employees out there 

that have filed complaints, that have been treated 

the same way you have? 

A. No. 

Q. Or, the way you claim to have been treated here. 

A. See, I wasn't going to file any complaint against 

them. 

Q. You weren't going to do what? 

A. I wasn't going to file a complaint against them. 

Mr. Bentley explained that when he initially went to the MSHA 

office after his discharge, his intent was to try to find out the identity 

of the miner whose complaint prompted the inspections which he believed 

triggered his discharge. _.He assumed that he could find out who.~co~plained, 

and that he could then go to Mr. Wright and inform him that it was not 

him (Tr. 50). Mr. Bentley also explained that while at the MSHA office 

"they said I probably had a pretty good case against them" and that the 

"MSHA people" talked him into filing his discrimination complaint against 

the respondent. He confirmed that MSHA would not tell him who filed the 

safety complaint against the company, and that other than the letter he 

subsequently received from MSHA advising him that MSHA's investigation 

of his discrimination complaint did not disclose any violation by the 

respondent, he was never specifically advised as to why MSHA concluded 

that the respondent had not discriminated against him (Tr. 49-50). 

He did not know whether Inspector Fleming participated in his discrimination 

investigation, nor does he know whether any investigators went to the 

mine to speak with anyone there (Tr. 52). He confirmed that Warren Bentley 

no longer works at the mine {Tr. 53). 

Warren Bentley, testified that he first contacted Larry Wright 

at the mine while looking for a job, and that Mr. Wright told him that 

Roger Bentley was missing work and that he (Wright) may have to lay him 

off, and that if he did, he {Wright) would hire Warren. Mr. Bentley 

confirmed that during that conversation with Mr. Wright, Mr. Wright 

made some mention of the fact that he was having "trouble" because 

someone had "called the inspector" (Tr. 55). Mr. Bentley confirmed that 

213 
he quit his job with the respondent on November 20, 1981, to go to work 

for another coal company, but that he became dissatisfied with his new 

job and contaeted Mr. Wright to get his old job back, and that is when 

the purported conversation took place (Tr. 56). He did not go back 

because Mr. Wright was looking for a roof bolter, and Mr. Bentley did 

not like to roof bolt (Tr. 58). 

Mr. Bentley indicated that at the time he worked at the mine, some 

15 miners worked there, and he confirmed that Robert Fleming was the 

MSHA inspector assigned to the mine in question (Tr. 60). He also 

confirmed that he had "heard" that someone had complained to an inspector 

sometime in November about someone getting hurt, but that no one knew 

who had complained (Tr. 62). When asked whether he had ever told the 

complainant that Mr. Wright believed the complainant called in the 

inspector's and that was why he was fired, Mr. Bentley stated as follows 

.(Tr. 66-68): 

Q. Did Mr. Wright ever say anything to you, 

either directly, or indirectly, that he knew 

who had called the Federal inspector on him, 

and that the next time that fellow fouled up, 

he was going to get rid of him? 

A. Not that I recall. 

Q. Why would Mr. Rogert Bentley, sitting right 

here next to you at that table, say that you 

made that statement, then? 

A. I don't have any idea. 

Q. You never told Roger Bentley that Mr. Wright 

had said to you that he knew --

A. Now the only thing -- I'll put it to you, 

I understand what you are getting to -- I told 

him, I said, he was talking to me about it, and 

I told him, I said, well, it soulds like, you 

know, that -- me and him both was together, just 

talking like me and you would meet up friends --

and I said, well, it kinds sounds like that maybe 

that's it. But, now as far as definitely stating, 

uh-uh. 

Q. Did you hear from any of the other members 

any of the other miners, rather -- or any of 

the crew men out there, was there any rumor going 

around the mine that Mr. Wright knew who had complained, and who had called the Federal inspectors 

out there, and that Mr. Wright was going to see to 

it that the next time the fellow that did it, was 

going to get it? 

214 
A. No, for I wasn't back -- when I quit him, I 

wasn't back to the mines but one time. I went up 

there to get my W-2 forms, and that's the only time. 

In fact, I went to his house, I think, to get them, 

I believe. 

Q. Have you ever known Mr. Roger Bentley to file 

any complaints with MSHA, or to complain about 

safety conditions, or that sort of thing? 

A. Not since I have known him. 

Q. Do you have any idea who complained about 

the conditions at the mine that caused the inspector 

to go there in November? 

A. I don't know (INAUDIBLE). 

Mr. Bentley stated that there is no mine safety committee, and that 

if anyone had a safety problem they would go to Mr. Wright, mine owner 

Wampler, of foreman Ernest Mullins, and that Mr. Mullins would take care 

of the problem (Tr. 70). In response to further questions, Mr. Bentley 

stated that the respondent always treated him fairly, and he confirmed 

that he was not at the mine when the complainant was discharged (Tr. 73). 

He also indicated that mine management never threatened him for complaining 

about safety matters, and did was expected to take care of such problems 

(Tr. 76). 

After the testimony of Warren Bentley, the complainant indicated 

to me that he did not wish to pursue the matter further, and his reason 

for this was his belief that Warren Bentley's testimony was contrary 

to what Mr. Bentley had previously told him. The complainant indicated 

that he filed his discrimination complaint on the basis of Warren Bentley's 

prior statement that Mr. Wright told him that he had fired the complainant 

because he believed that his complaint to the inspector had prompted 

the mine inspection (Tr. 77). In view of the fact that Mr. Wright was 

present for testimony, the complainant's request not to pursue the 

matter further was denied (Tr. 77). 

Respondent's testimony and evidence 

Larry Wright testified that he is the mine superintendent and that 

he also has an ownership interest in the mine. He indicated that mine 

foreman Ernest Mullins takes care of the day-to-day operation of the 

mine, and that he (Wright) spends half his time underground. He confirmed 

that the complainant was hired on September 15, 1981, and that the only 

problem he had with him was that he missed work- He confirmed that the 

complainant Roger Bentley was a good roof bolter and worker, and that 

from the time he was hired he began missing work "one or two days a week". 

Since the roof bolter is important to his mining operation, this 

215 
necessitated finding a replacement for him when he missed work, and he 

would have to reassign another miner to that job, and that he did not 

believe that this was a good safety practice (Tr. 81-83). 

Mr. Wright confirmed that the complainant was terminated on January 6, 

1982. Upon review of his personnel records, he confirmed that the complainant worked a total of 70 days before his discharge and that he was 

absent from work a total of 11 full work days during that time (Tr. 84). 

In addition, he confirmed that his records reflect that the complainant 

worked two hours one day, four hours another day, and went home, but 

was paid a full days' wages. There were an additional two days in which 

he did not put in a full day, and the total time beyond the 11 days which 

he did not complete a full days' work was four days (Tr. 85). 

Mr. Wright testified that he never accused the complainant of 

instigating any MSHA inspection and he identified the miner who did as 

Tammer Waggoner. He stated that the complaint was over a bad top and ribs, 

and when the inspectors came to the mine the complainant was not there. 

Some of the miners concluded that since the complainant was not at work 

that he was the one who called in the inspectors. In fact, Mr. Wright 

stated that Mr. Waggoner came to him and told him that the mine would 

be inspected that day, and he confirmed that the inspectors did in fact 

issue a citation which reqtlired some overhanging ribs to be cut down, and 

compliance was immediate. He confirmed that Mr. Waggoner is still employed 

at the mine. Mr. Wright denied that he ever ·made a statement that he 

would fire the complainant for having complained to the inspectors, and 

stated "I never fired nobody over that. That's their own right" (Tr. 87-88). 

Mr. Wright testified that he told the complainant that his missing 

work was causing him problems and that if he continued.he would have to 

do something about it. He also informed the other miners about this 

and indicated that it was becoming costly and expensive, and he also 

indicated that absenteeism was not a problem at that time, but in the 

past it was a problem (Tr. 89). He confirmed that present mine policy 

is to terminate miners if they consistently miss work (Tr. 89). 

Mr. Wright identified the inspectors who conducted the inspection 

which resulted from Mr. Waggoner's complaint as Carl Smith and Reed Castle, 

and that Inspector Fleming was not with them. He also confirmed that 

Mr. Fleming had never complained to him about any miner complaints over 

safety (Tr. 90). Mr. Wright also confirmed that loader operator Johnny Ison 

was injured in a rib roll, but that this occurred a week before the MSHA 

inspection in question. He denied ever telling Roger Bentley that he 

fired the complainant because of any complaint to an inspector, and he 

denied.ever telling Roger Bentley that he would hire him because the 

complainant was missing work. He did confirm that Warren Bentley called 

him three or four weeks after he quit trying to get his job back, but 

that he informed him that he had already hired a loader operator but 

would consider him for a repairman's job if anyone quit (Tr. 91). 

216 
Mr. Wright confirmed that MSHA and state inspectors routinely 

inspect the mine, that he has never had any problems with them, and that 

it did not bother him if any employee saw fit to complain to any inspector 

or to report him to MSHA (Tr. 92). 

In response to bench questions, and after referring to his attendance 

records, Mr. Wright detailed the specific days on which the, complainant 

missed work. He testified that out of a total of 11 days of missed work, 

he could only recall one day on which the complainant called to inform 

him he would not be at work. On that day, the complainant called him 

and told him he had his truck stuck in a ditch and would be late, but 

he never showed up at all (Tr. 95). 

Mr. Wright confirmed that it was possible that the complainant 

called someone else at the mine on the days he did not show up for work, 

but he also confirmed that his pay was docked for the 11 days he was 

absent. He also stated that mine policy is such that miners are only 

paid for the days they work, and even if they bring a doctor's excuse, 

they are not paid. However, in such circumstances, it would be an excused 

absence (Tr. 95-96). A miner would not be paid if he could not get to 

work because of road conditions (Tr. 98). 

Mr. Wright stated that he has fired other miners for absenteeism, 

and that he considered the 11 days which the complainant missed to be 

excessive absenteeism, and that he had spoken with the complainant about 

the matter before he dismissed him, and that he had warned him a week 

or so before his dismissal (Tr. 100). He denied that the complainant 

ever called him about the problems with his house wiring (Tr. 100), 

and he confirmed that he spoke with mine owner Wampler before discharging 

Mr. Bentley, and stated Mr. Wampler is his (Wright's) uncle. 

Mr. Wright stated that he did not know that Inspector Fleming 

was a neighbor of the complainant, and Mr. Fleming never mentioned 

that fact to him (Tr. 102), and that he found out that this was true 

after the discrimination complaint was filed (Tr. 103). Mr. Wright also 

related that he employs 14 or 15 miners, that absences cause production 

problems and are costly to his mine operation, and that when the complainant 

missed work someone had to replace him (Tr. 105). He also indicated his 

safety concern over replacing an experienced bolter such as the complainant 

with someone who is not as experienced (Tr. 106). 

The complainant was given the opportunity to call Mr. Wampler as 

a witness, but declined to do so. The complainant indicated that the 

only reason he filed his complaint was that Warren Bentley told him he 

had been fired for complaining to the inspectors. When asked why 

Warren Bentley would make such a statement, the complainant stated that 

he did not know. Further, while he has known Warren Bentley for four 

years, he "never had that much dealing with him", but that he had heard 

others say that Warren Bentley was known to exaggerate or take things our 

of context (Tr. 108). 

217 
Mine operator Larry Wampler was called as the Court's witness, 

and he confirmed that the mine rules were that "anybody that didn't 

work regular,_ we had them terminated" (Tr. 109). Mr. Wampler confirmed 

that Mr. Bentley missed eleven days of work when he was employed at 

the mine, and could only recall one phone call which he received from 

Mr. Bentley at his home advising him that he couldn't come to work. 

Mr. Wampler stated that he did not discuss the absences with Mr. Bentley, 

and he left such matters to Mr. Wright (Tr. 111). 

; 

Mr. Wampler denied that Mr. Bentley was discharged for complaining 

to MSHA, and stated that he was terminated for "irregular work" (Tr. 112). 

Mr. Wampler stated further that the mine employs 14 to 16 miners, that 

it is a non-union mine with daily production of 200 to 400 tons, five 

days a week (Tr. 113). He also indicated that personnel turn-over at 

the mine is not a problem (Tr. 113). He confirmed that he is a "working 

owner" at the mine, but that Mr. Wright "runs the show", with full authority 

to hire and fire employees. To his knowledge, Mr. Wright has never fired 

a miner for reasons other than missing work, and he had no knowledge that 

Mr. Bentley had ever complained to MSHA inspectors about the mine (Tr. 114). 

Complainant produced his payroll check receipts covering his employment period September 18, 1981 through January 1, 1982, and by agreement 

of the parties, copies were made a part of the record and the originals 

were returned to Mr. Bentley (Tr. 116). When asked if he disputed Mr. Wright's 

references from respondent's payroll records indicating that he had missed 

eleven days of work, Mr. Bentley said that he questioned one day when 

the loader was down on November 6th. He confirmed that he took off the 

following day, November 7, when "they said the loader was down" (Tr. 117). 

Findings and Conclusions 

In order to establish a prima facie case a miner must prove by 

a preponderance of the evidence that: (1) he engaged in protected activity, 

and (2) the adverse action was motivated in any part by the protected 

activity. Secretary of Labor on behalf of David Pasula v. Consolidation 

Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on other grounds sub nom., 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981). It is 

clear that a miner has the right to file a safety complaint or to summon 

MSHA inspectors to the mine site for an inspection if he believes that 

safety hazards exist in his work environment. It is clear that any 

retaliation by the mine operator against the miner for making any safety 

complaints is a violation of the Act. 

Complainant Bentley claims that he was fired by Mine Foreman Larry Wright 

because Mr. Wright believed that Mr. Bentley had complained to an MSHA 

inspector about certain safety conditions at the mine. Mr. Bentley's 

"belief" concerning Mr. Wright's motivation for discharging him is based 

on what he was purpotedly told by former employee Warren Bentley after the 

discharge, Warren Bentley purportedly told the complainant that he had 

heard that Mr. Wright fired him because he believed that the complainant 

had complained to an MSHA inspector about certain safety conditions at 

the mine. 

218 
In a recent case decided by the Commission on August 31, 1982, it 

was held that a miner is protected from retaliatory discharges by 

a mine operator even "for the suspected exercise of a statutory right", 

Elias Moses v; Whitley Development Corporation, 4 FMSHRC 1475 (1982). 

In that case, the Commission stated at 4 FMSHRC 1480, that "the complainant 

establishes a prima facie case by proving that (1) the operator suspected 

that he had engaged in protected activity, and (2) the adverse action was 

motivated in any part by that suspision". 

In the instant case, the respondent mine operator contended that 

the complainant was discharged for absenteeism, and in support of this 

defense presented the testimony of Larry Wright, the mine foreman who 

fired Mr. Bentley. Mr. Wright had with him at the hearing his attendance 

records for the miners working at the mine during the time in question, 

and that those records, coupled with Mr. Wright's testimony, establish 

to my satisfaction that Mr. Bentley was absent from work for a total of 

11 days during his tenure at the mine. Further, with the exception of 

one instance when Mr. Wright recalled a telephone call from Mr. Bentley 

at his home, respondent established through the credible testimony of 

Mr. Wright, that Mr. Bentley did not advise mine management that he would 

be absent from work and this necessitated a replacement for him. For a 

small mine operation such as that carried out by the respondent, this 

presented a problem for management since Mr. Bentley was a skilled roof 

bolter whose presence at the mine was crucial. 

Although the complainant denied that he had been warned about his 

absenteeism, I find Mr. Wright's testimony that he cautioned Mr. Bentley 

about his absences and warned him that he could be terminated if he 

continued missing work to-· be credible. Further, aside from the' discharge, 

there is no evidence that mine management treated Mr. Bentley badly or 

that he was ever harrassed or intimidated for exercising any protected 

rights during his rather short employment tenure at the mine. As a matter 

of fact, Mr. Bentley conceded that the mine operator treated him fairly, 

paid him well, and that the mine was a good place to work. 

Complainant subpoenaed Warren Bentley to testify in his behalf at 

the hearing. Warren Bentley no longer works at the mine in question, and 

he denied that he ever told the complainant that mine foreman Wright had 

told him that he fired the complainant because of his belief that the 

complainant had complained to an MSHA inspector. The inspector in question 

is a neighbor of the complainant's, and the complainant surmized that 

foreman Wright may have believed that this impacted on Mr. Wright's 

asserted "belief" that the complainant may have told the inspector about 

certain unsafe roof conditions at the mine. 

No MSHA inspector was called by the complainant to testify in his 

behalf. Further, the complainant states that when he visited MSHA's 

district office after he was fired, he did so in an attempt to learn 

the identify of the individual who may have complained to the inspectors. 

The complainant asserted that while MSHA would not reveal the identity 

of the person who may have complained, someone in MSHA's district office 

suggested that the complainant filed a discrimination complaint and 

helped him fill out the necessary paperwork. 

219 
Mr. Wright denied that he fired the complainant for filing any 

complaints, and he denied ever telling Warren Bentley that he suspected 

the complainant. As a matter of fact, Mr. Wright testified that he knew 

who had compl~ined, identified him for the record, and indicated that 

he was still employed with the company. This testimony was not rebutted 

by the complainant. 

I conclude and find that on the basis of the preponderance of the 

evidence in this case, respondent has established that it discharged 

Mr. Bentley for absenteeism, and there is no credible evidence to support 

a conclusion or finding that mine foreman Larry Wright suspected or knew 

that Mr. Bentley had filed any safety complaints and fired him for that 

reason rather than for missing too much work. In short, I cannot conclude 

that Mr. Wright fired Mr. Bentley because of any belief that he had exercised 

a protected right to file safety complaints. 

The question concerning Mr. Bentley's first aid training and the 

receipt of a certificate for that training is not an issue in this case. 

The record shows that Mr. Bentley was paid for the day of training and 

that he apparently received the certificate from the company who provided 

the training. 

ORDER 

In the view of the foregoing findings and conclusions, and after 

careful consideration of all of the evidence and testimony adduced in 

this case, I conclude and find that the respondent did not discriminate 

against Mr. Bentley, and that his rights under the Act have not been 

violated. Accordingly, his discrimination complaint IS DISMISSED: 

$_, 4 ? 

.. /" 

Admin 

eorge 4f~4.· strative . 

.-Koutras d ~~ Law Judge 

Distribution: 

Harold D. Bolling, Esq., 4-5-6 Bank Building, Whitesburg, KY 41858 

(Certified Mail) 

Roger Bentley, Box 87, Jackhorn, KY 41825 (Certified Mail) 

220 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 FEB 15 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND-HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 82-52 

A.C. No. 01-00758-03132 V 

No. 3 Mine 

Appearances: Deborah Greene, Esq., Office of the Solicitor, U.S. Department 

of Labor, Birmingham, Alabama, for Petitioner; 

Robert W. Pollard, Esq., Birmingham, Alabama, for Respondent. 

Before: Judge Melick 

This case is before me upon the Petition for Assessment of Civil Penalty 

filed by the .Secretary of Labor pursuant to Section 105(d) of the Federal Mine 

Safety and Health Act of 1977, 40 U.S.C. § 801 ~ ~·, the "Act," for one violation of the regulatory standard at 30 C.F.R. § 75.503. The general issue before me is whether Jim Walter Resources, Inc. (Jim Walter) has violated the cited 

regulatory standard and if so, whether that violation was "significant and substantial" as defined in the Act and as interpreted by the Commission in Secretary v. Cement Division, National Gypsum Company, 3 FMSHRC 822. If it is determined that a violation has occurred, it will also be necessary to determine the 

appropriate penalty to be assessed. Hearings on these issues were held in Birmingham, Alabama, on November 30, 1982. 

The order at issue, No. 758262, reads as follows: 

A non-permissable three-phase filter capacitor was installed 

on the outside of the No. 50 Joy shuttle car reel housing and not 

in an explosion proof compartment. Car was observed hauling coal 

out of the face of No. 4 working place. 

The cited standard, 30 C.F.R. § 75.503, requires, in essence, that all 

electric face equipment operating inby the last open crosscut be "permissible". 

Permissible electric face equipment, as defined in 30 CFR § 75.(2)(i), is equipment in which the electrical parts, including associated electrical equipment, 

components, and accessories, are designed, constructed, and installed irr accordance with specifications of the Secretary, to assure that the equipment will 

not cause a mine fire or mine explosion. 

221 
There is no dispute in this case that the three-phase filter capacitor 

here cited was an electrical component of electric face equipment and was not 

installed in an explosion and fire proof compartment as required by the cited 

standard. John Trusik, an electrical engineer employed at the Jim Walters No. 

3 Mine, conceded that it was not "permissible" to have the filter capacitor installed as it was in this case and that indeed it constituted a safety hazard. 

The cited violation is therefore proven as charged. The only issues remaining 

then are whether that violation was "significant and substantial" and the amount 

of penalty to be assessed. 

A violation is "significant and substantial" if, based upon the particular 

facts surrounding the violation, there exists a reasonable likelihood that the 

hazard contributed to would result in an injury or illness of a reasonably serious nature. National Gypsum, supra, 3 FMSHRC at 825. The test essentially involves two considerations: the probability of resulting injury, and the seriousness of resulting injury. MSHA resident coal mine inspector at the No. 3 Mine, 

Bobby Horton, issued the order in question on March 17, 1982. A "resident inspector" was required at the No. 3 Mine because of its history of mine accidents 

and high methane liberation. MSHA records show that as of January 9, 1981, the 

No. 3 Mine was liberating over nine million cubic feet of methane daily. Moreover, the evidence shows that there had been over twenty methane ignitions at 

the No. 3 Mine since it began operations in 1975 or 1976. Although Inspector 

Horton found only .5% to .8% methane concentrations in tests performed ten to 

twenty minutes before his discovery of the violation cited in this case, he 

opined that the possibility of sudden inundations exceeding the 5% explosive 

range always existed at a gassy mine such as this. According to Horton, methane concentra"fions in the 5% range combined with an ignition source such as the 

non-permissible phase filter in this case presented a serious explosion hazard. 

He thought it reasonable to infer that all 200 miners working on the shift could 

receive fatal injuries in such an explosion. 

MSHA Inspector Claude Lutz further opined that coal dust and powdered 

coal were explosive even in the absence of methane if ignited by electric spark 

or arc such as could occur from the non-permissible phase filter. While Inspector Horton conceded that the methane sensor mounted on the cutting machine on 

which the cited filter was located was designed to cut off electrical power if 

the level of methane reached 2%, he noted that such monitors have been known to 

malfunction. In addition, Horton explained that methane concentrations in excess of 5% regularly occur in the immediate vicinity of the face as coal is cut. 

On the other hand, electrical engineer John Trusik opined that the odds 

were "high against failure" of the non-permissible filter. He conceded, however, that there had been failures in a number of smaller filters formerly used 

at the mine. Under all the circumstances, I find that there did indeed exist a 

reasonable likelihood that the hazard of an explosion or fire would occur if 

the condition c(ted had remained uncorrected, and that if, indeed, an explosion 

occurred in the No. 3 Mine, it could very well lead to the death of up to 200 

miners. The violation was, accordingly, "significant and substantial". For 

the same reasons, I also find a high level of gravity associated with the violation. 

222 
It is also ap~arent from the record in this case that the operator was 

"grossly negligent" in allowing this known violative condition to exist. The 

uncontradicted evidence shows that as early as 1979, an MSHA inspector had advised Jim Walter officials of the problems relating to the use of impermissible 

phase filters on their electric face equipment. Two citations ~ad been issued 

at the No. 3 Mine on November 18, 1981, and again on January 20 and January 21, 

1982, for the same violation as cited in this case. Moreover, MSHA officials 

met on November 16; 1981, with officials of Jim Walter's, including company 

Vice President Don Schlick and the chief of maintenance for several Jim Walter's 

mines including the No. 3 Mine, concerning the use of impermissible phase filters. There is no dispute that the operator was then clearly informed that the 

use of impermissible phase filters on electric face equipment was a violation 

of the cited standard. In any event, electrical engineer Don Trusik admitted 

that the use of these filters had always been known by mine personnel to be a 

safety hazard. Trusik candidly admitted that, in spite of that knowledge, it 

was management's position that coal production was more important than the correction of that hazard. He testified in this regard that "with the amount of 

coal we run and the people we have down there, they will do what they have to 

do to move coal". 

Management's attitude is further illustrated by the uncontradicted evidence that maintenance foreman Douglas Sergeant told Inspector Horton that the 

violations would be corrected only so long as Horton was present. Within this 

framework of evidence, it is clear that the operator's agents had been warned 

of the violation at issue and had been repeatedly cited for continuing violations in spite of such warnings. The operator has shown blatant disregard for 

the safety of 1ts miners by allowing the admitted safety haz;frd to ·continue 

uncorrected. 

In determining the amount of penalty to be assessed in this case, I am 

also taking into consideration that the operator is large in size and has a 

history of repeatedly violating the standard at issue herein. Under all the 

circumstances, I find that a penalty of $2,000 is appropriate. 

ORDER 

Jim Walter Resources, Inc., is ordered to pay a cilil penalty of $2,000 

within 30 days of the date of this decisi,n. i 

Distribution: Next page. 

Gar 

Ass 

223 
Distribution: By certified mail. 

Robert W. Pollard, Esq., Jim Walter Resources, Inc., P.O. Box C-79, Birmingham, 

AL 35283 

Deborah Greene, Esq.; Office of the Solicitor, U.S. Department of Labor, 1929 

9th Avenue, South, Birmingham, AL 35256 

224 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 171983 

SECRETARY OF LABOR, 

on behalf of 

Complaint of Discrimination 

and Application for Temporary 

WILLIAM E. FITZWATER, III Reinstatement 

Applicant 

v. 

Docket No: YORK 82-23-D 

MORG CD 82-23 

METTIKI COAL CORPORATION, 

Respondent 

Mettiki General Mine 

Appearances: 

Before: 

DECISION 

David E. Street, Esq., Office of the Solicitor, 

U.S. Department of Labor, 3535 Market Street, 

Philadelphia, PA 19104, for the Applicant; 

Barbara Krause, Esq., and Michael T. Heenan, Esq., 

Smith, Heenan, Althen & Zanolli, 1110 Vermont Ave., NW., 

Washington, D.C. for the Respondent 

Judge Moore 

I have heard a number of discrimination cases and I can not recall 

any'where the government has presented such a devastating prima facia 

case. In August of 1981 Mr. William Fitzwater and others made safety 

complaints to MSHA. Mr. Fitzwater did so indirectly by informing his 

father and brother with the successful expectation that one of them 

would call MSHA's hot-line. Transcripts of the hot-line recordings 

during that time period concerning this Mettiki mine were received in 

evidence as government exhibit No. 5. An objection to the admissibility 

was taken under advisement, but the objection is overruled. 

Shortly thereafter the supervisors held a series of closed door 

meetings at which George Kutchman the mine superintendent stated that he 

knew the Fitzwaters and Tichnells were making these complaints and he 

wanted to.get rid of them. He wanted them harrassed and even considered 

at one point laying off a number of miners and then rehiring everybody 

except the Fitzwaters and Tichnells. Two former supervisors and two 

present supervisors testified at the trial and three of them stated that 

Mr. Kutchman had said that he was out to get the Fitzwaters. The other 

supervisor who testified, Mr. Visniski, was for some reason not questioned 

concerning the closed door meetings. 

One of the reasons that former preparation plant foreman Chapman 

left Mettiki Coal Company was that he thought they were being unfairly 

harsh and mistreating some of the miners including Mr. Fitzwater. Two 

welders, Mr. Tichnell and Mr. King both testified they were reprimanded 

and criticized for bringing up safety matters at a safety meeting. 

Miners who brought up safety matters were considered trouble makers. 

225 
I will not summarize the testimony of each witness, but the testimony 

of Randy Chapman and Ted Uphold is of such a nature that I think that at 

the risk of some repetition, it is necessary that their testimony be 

emphasized. Randy Chapman was once the preparation plant foreman and as 

stated, one of the reasons he left the Mettiki mine was his concern 

about the mistreatment of Mr. Fitzwater. He stated that he kept a diary 

and the diary was in the courtroom and shown to counsel. After refreshing 

his memory by looking at the diary, he stated that on August 25, 1981 

George Kutchman the superintendent said "we have got to get rid of the 

Fitzwaters and Tichnells." They were troublemakers according to Mr. 

Kutchman. The foremen were told to harass them when they could and only 

to talk to them when they were alone. He said "we could get in trouble 

if there were witnesses." Regardless of the quality of the work they 

did, the foremen were told to make these miners redo it. Mike Burch and 

Ernie Uphole were present and were told by Mr. Kutchman not to breathe a 

word to anyone else because they could get in trouble if anyone found 

out. Mr. Chapman said that on August 27, 1981, Rich Visniski told Mr. 

Burch to harass Fitzwater. At an August 28, 1981 meeting between George 

Kutchman, Ted Uphold, Mike Burch, Rich Visniski, Ernie Uphole and Randy 

Chapman, George Visniski said someone had called in safety complaints to 

MSHA and he knew Fitzwater and Tichnell reported it. They had to be 

fired or some of the supervisors might lose their jobs. And then there 

came a time when George Kutchman said that he did not want Fitzwater 

harassed at that particular time because MSHA inspectors were on the 

scene. At another meeting, according to the testimony of Mr. Chapman 

and his diary, on August 31, 1981, with most of the supervisors present, 

there was a discussion about laying off as many as twenty miners and 

gradually hi-ring other men back but leaving the Fitzwaters"and Tichnells 

out. It was stated that they had to get rid of William Fitzwater and his 

brother Ralph. One of the suggestions was that the Fitzwaters be placed 

in a position where they were working alone in a quiet area, hoping they 

might catch them asleep. (Tr. 186-187). 

As to cleaning under the breaker screens, one of the matters that 

will be discussed later, Chapman said that it was always done when the 

rotary breaker was not in operation and that it was never a practice to 

clean under the screen while the rotary breaker was operating. He 

thought it would be unsafe to do so because of the noise, dust and the 

hazard of falling rocks. 

Ted Uphold was the other former foreman who testified for the 

government in this case. He was present at one of the 1981 supervisor's 

meetings when George Kutchman (Sr.) mentioned the Fitzwaters and said 

that he wanted them fired. He discussed the coming trial in this matter 

with Mr. Rich Visniski and according to him, Mr. Visniski stated that he 

would testify as he needed to. Mr. Uphold told him that if he was 

subpoenad he would tell the whole truth concerning the meeting and what 

Kutchman said about the Fitzwaters. Mr. Uphold was terminated after 4-1/2 

years as a foreman on September 27, one week prior to the trial in 

Cumberland. 

226 
Foreman Mike Burch also testified, but he testified as the only 

witness for respondent. While he differed in many respects from the 

version of the actual details of the firing and other matters with the 

other witnesses,when questioned as to whether he heard George Kutchman 

say that the Fitzwaters were trouble makers and would have to be fired, 

he admitted that he had heard that; he qualified it somewhat by saying 

that he thought it had to do with dealings other than working at the 

mine. But there has been no dispute or denial by any witness of the 

matters set forth by Mr. Chapman and Mr. Uphold in their testimony. I 

find that the company was looking for an excuse to fire Mr. Fitzwater 

(all three of them in fact) and that the reason Mr. Kutchman wanted to 

get rid of the Fitzwater's was because of safety complaints. 

For some reason the real hard questions were not asked while 

Mr. Burch and Mr. Visniski were on the stand. I suspect, that insofar 

as Mr. Burch is concerned, the government did not think his testimony 

had been damaging and therefor did not choose to pursue the matter. I 

think government counsel was correct in this assumption. As to Mr. 

Visniski, I wonder why he was called as a witness if he was not going to 

be put to the test as to why he upbraided and reprimanded the two welders, 

Mr. King and Mr. Tishnell for bringing up safety matters at a safety 

meeting as had been alleged. The particular matter that was involved in 

one of these reprimands was a request that a discrete frequency be 

available for the walkie-talkies used between the engineer and a man on 

the rear car when the train was backing into an area where other cars 

were pa:i;ked or when they were trying to connect other ,cars ... According 

to the testimony of Mr. Tichnell and Mr. King, they were accused of 

being rowdy for bringing up this safety complaint. Mr. Burch did recall 

the complaint. Mr. Visniski was not questioned about the matter. 

Joint exhibits 1, 2 and 3 are photographs of the rotary breaker 

building from two angles and a picture of the lower end or bottom of the 

grizzly and shaker screen. The latter picture shows some accumulation 

of debris near two doors or gates in the screen assembly. The exhibit 

does not purport to show conditions as they were at the time of Mr. 

Fitzwater's firing but it is the area and the debris that had accumulated 

was similar but more extensive. 

The rotary breaker recei·.Tes coal from three silos and the operator 

of the rotary breaker chooses which silos he wishes to draw coal from. 

The coal is fed in at the top of the breaker, goes through the grizzly 

and shaker screen, and then to the rotary breaker and then is dumped on 

a conveyor belt where it goes to some other part of the preparation 

plant. The operator's main station is in a control room where he has 

gauges that indicate to him the extent of the coal in each of the three 

silos he is drawing from. One of his duties is to make sure that none 

of the silos gets too full because if the depth exceeds around sixty 

feet in any silo there would be an automatic shutting of a gate which 

would cause coal spillage. When the levels in the three silos are low, 

however, the operator can leave the control room for short periods of 
time. When the breaker building is in operation, it is noisy and 

dusty. Also' there is a hazard from falling rocks as testified to by Mr. 

Fitzwater, former preparation plant superintendent Mr. Chapman, Mr. 

Tichnell and electrician Harvey. One rock had fallen from the shaker 

and had hit with sufficient force to shear the door off an electrical 

box that was attached to one of the girders. On the deck where the 

grizzlies were, there was another hazard in that the upper end of the 

grizzlies and shaker boxes were held in place by cables which could, and 

had, broken. When such cables broke the grizzly would not fall all the 

way to the floor but it would fall approximately a foot and they weigh 5 

or 6 tons each. Both former preparation plant superintendent Chapman 

and William Fitzwater thought it was hazardous to clean under the grizzlies 

while the preparation plant was in operation. Accordingly, it was Mr. 

Fitzwater's practice, and when Mr. Chapman was superintendent it was the 

entire plant's practice, to clean only when the rotary breaker was not 

in operation. 

Mr. Fitzwater testified that he always used a mask (sometimes 

referred to as a filter) when working outside the control room when the 

rotary breaker was in operation. Forema.r: nun:h denied that it was. 

hazardous to be on the rig when it is in operation and says that he has 

seen Mr. Fitzwater on the rig while the breaker was in operation and 

that Mr. Fitzwater did not have a dust mask. He only sees Mr. Fitzwater 

out of the control room about twelve times a year, however. But for all 

of his time as breaker operator Mr. Fitzwater had not been cleaning and 

had not been asked to clean under the grizzlies while the machine was in 

operation. 

The automotive dust respirator No. 06983 distributed by the Automotive 

Trades Division of the 3-M Company is the mask ordinarily used by Mr. 

Fitzwater. It is both MSHA and NIOSH approved (see Government Exhibit 

4). The masks that foreman Burch delivered to Mr.Fitzwater were designated 

8500 non-toxic particle mask and are also manufactured and distributed 

by the 3-M Company. 

The box that the 8500 comes in does not contain any statements 

that it is approved by NIOSH or MSHA. (See Government exhibit 3). Mr. 

Fitzwater was unfamiliar with the 8500 mask and during a preshift conference 

with his counterpart on the previous shift, Mr. Decker, Mr. Decker 

pointed out that the 8500 was not MSHA approved, and not near as thick 

as the 06983 or the Dust-Foe 88 which he, himself, wore. When Mr. 

Decker was getting ready to leave the breaker he left three of the 06983 

masks in the general locker but forgot to say anything to Mr. Fitzwater 

about it, and Mr. Fitzwater had no way of knowing they were there. 1/. 

I accept foreman Burch's statement that he did not deliberately deliver 

]:/ I fail to see how anyone could agree with respondent's proposed 

finding to the effect that Mr. Fitzwater "had every reason to know" 

the filters were there. 

228 
the wrong type of filter to Mr. Fitzwater. Mr. Fitzwater had requested 

the filters on April 15 and sometime shortly thereafter foreman Burch 

delivered them. But the two boxes are very similar and I find that the 

mistake was not deliberate. It was made, however. The only masks that 

Mr. Fitzwater thought were available to him were the non-approved 8500's. 

On April 20, 1982 Mr. Burch came by and told Mr. Fitzwater to clean 

under the grizzly. Mr. Fitzwater testified that he had every intention 

of doing so at the end of the shift. He did not get a chance to do so, 

however, because he was told to run late, and in fact the 9,000 tons run 

through the breaker on April 20 was a record high for Mr. Fitzwater. He 

had no time to clean after the run was over. On the 21st he had no 

down-time on the rotary breaker and ran late again because he was told 

to. On the next day, April 22, 1982, Mike Burch came by and looked at 

the breaker building and wanted to know why Fitzwater had not cleaned 

the material that had accumulated under the grizzlys. When Mr. Fitzwater 

explained that he had not had any down-time in two days Burch said that 

he wanted the area cleaned while the rotary breaker was in operation. 

Mr. Fitzwater responded that if he was going to have to clean while the 

rotary breaker was in operation, he wanted a proper dust mask. He did 

not mention the safety hazard that he thought existed because it was his 

opinion that a miner who had complained about safety, a Mr. Arnott, had 

been fired because of it, and because his own father after making safety 

complaints had been assigned outside shovelling work in the winter where 

the temperatures were sometimes as low as 30 degrees below zero. That 

was his stated reason for not mentioning safety, but mentioning only the 

fact that he wanted a properly approved mask. Mr. Burch reminded-Mr. 

Fitzwater that he was refusing a work assign~ent, and Mr. Fitzwater 

responded that he was not refusing, that he just wanted the proper mask 

before performing the task. The details of the events following are not 

important, but when Mr. Fitzwater left the mine property he was not sure 

of whether he had actually been permanently fired or temporarily suspended. 

After a few telephone calls he found out that he had been fired. This 

experience is somewhat similar to what happened to his brother who had 

been accused of sleeping on the job. His brother, who at the time was 

under medication testified that he became dizzy and sat down on a panel 

box when of the supervisors came by and accused him of being asleep. A 

fellow miner who was a witness to the fact that Fitzwater was not asleep 

he did not want to get involved in a dispute with the foreman. When 

Mr. Ralph Fitzwater was fired it was similar to his brother's firing in 

that he left the property not knowing whether he was suspended or fired. 

He later got written notice that he was fired. 

While it was not explained in detail how it happened, the father 

was somehow laid off; so the direction of Mr. George Kutchman had been 

complied with to the extent that the foremen had now gotten rid of the 

Fitzwaters. 

Thebreaker has since been fitted with some type of guard that 

eliminates the hazard from falling rocks when the machine is in operation. 

I find however, that as of the time when this case arose, it was hazardous 

to work in the area that Mr. Fitzwater had been assigned to clean while 

229 
the breaker"building was in operation. Since he did not voice that 

hazard however, even though the failure to voice the hazard was motiviated 

by a fear of reprisal, I am not sure that a refusal to work in the 

hazardous area was a protected activity. Certainly refusal to go in to 

a dusty area without a proper mask is a protected activity. I find that 

Mr. Fitzwater was discharged because he made safety complaints and 

because he was engaged in a protected activity of refusing to work 

in a dusty area without an approved ];_/ dust mask. 

He is entitled to reinstatement to his former position with back pay 

and benefits plus interest. He is also entitled to reasonable expenses 

in connection with prosecution of this case. See the Commission decision 

in Secy. ex. rel MICHEL ET AL v. NORTHERN COAL CO. 4 FMSHRC 126, 143. 

The Commission has before it the question of whether it is proper 

to assess a penalty in a discrimination case in which the 3 CFR 100 

procedures have been bypassed. Until the Commission decides to the 

contrary, I am not going to assess such penalties. 

All proposed findings inconsistent with the above are rejected. 

PENDING A FINAL ORDER 

The Secretary shall have 15 days from the date of this decision to 

submit a proposed order granting relief for the violation found above, 

with service of a copy on Respondent. Respondent shall have ·:(5 days 

from receipt to reply to the proposed order. 

Distribution: By Certified Mail 

Charles 

~ef/J4~. c. Moore, Jr. 

Administrative Law Judge 

David E. Street, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3535 Market Street, Philadelphia, PA 19104 

W. H. Thompson, Jr. President, Mettiki Coal Corporation, 

1800 So. Baltimore Street, Tulsa, OK 74119 

David J. Kutchman, Safety Director, Mettiki Coal Corpn., 

Route 3, Box 124-A, Deer Park, MD 21550 

Mr. William E. Fitzwater, III, Star Rt. l/Box 110-A, Oakland, 

Md. 21550 

Michael T. Heenan, Esq., Smith, Heenan, Althen & Zanolli, 1110 

Vermont Avenue, NW., Washington, D.C. 20005 

]:_/ See 30 CFR. Part II 

230 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

{703) 756-6210/11/12 

LYNN DONOVAN, 

Complainant 

Complaint of Discharge, Discrimination 

and Interference 

v. Docket No. WEST 82-92-DM 

BROWN & ROOT, INC., 

Respondent 

Tenneco Soda Ash Project 

DECISION 

Appearances: Lynn Donovan, Denver, Colorado, pro se; Peter R. McLain, 

Esq., Houston, Texas, for the respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed by the 

complainant with the Colllll!ission on January 22, 19)32. His compJ..a.in..t 

is dated January 19, 1982, and states as follows: 

There is reason to believe that there was 

discrimination. And the uses of drugs on 

the job. I know for a fact the drug user's 

are still on the job. There for I am asking 

the commission for an appeal. 

Mr. Donovan's complaint of discrimination was investigated by 

MSHA, and by letter dated June 26, 1981, MSHA advised Mr. Donovan that 

its investigation did not substantiate his charges of discrimination, 

and that a vio·lation of section 105 (c) of the Act did not occur. The 

record also reflects that due to a change of address and residence by 

Mr. Donovan, he did not receive actual notice of MSHA's determination 

until January 4, 1982. Mr. Donovan then retained counsel, and in an amended 

complaint filed March 15, 1982, counsel itemized the specific alleged 

facts of discrimination against Mr. Donovan. 

231 
In his amended complaint, Mr. Donovan asserted that in January 1981, 

while he was in the employ of the respondent, a contractor performing 

construction work with Tenneco Oil Company, Green River, Wyoming, 

constructing a mine and mill at Tenneco's Soda Ash Project, he was required 

to work on and around trucks hauling diesel fuel and gasoline at the 

project site. In summary, the amended complaint states that while employed 

with the respondent, Mr. Donovan made several complaints to respondent's 

management, as follows: 

-- the trucks in question were not maintained in a 

safe condition in that they leaked quantities of fuel, 

and Mr. Donovan believed in good faith that such leaks 

constituted a danger or threat to his safety and the 

safety of other miners because of the possibility of 

fire or explosion started by sparks from cigarettes or 

other equipment, such as welders. 

-- during the time Mr. Donovan was employed by the 

respondent, the person who normally drove the truck 

on which he (Donovan) worked, a man known to him 

as "Dave", and the leadman, known as "Doc", smoked 

marijuana in one of the trucks used on the job, often 

during their lunch time. 

Mr. Donovan believed that the smoking of mariJuana 

on the job constituted a danger to himself and others, 

in that the judgment and ability to react of those 

persons smoking-·would be impaired. Mr. Donovan also 

asserted that those persons drove trucks and operated 

other equipment which he believed, if done under the 

influence of marijuana, could result in accidents 

threatening the safety of himself and others on the site. 

He was afraid for his safety while the truck was being 

operated by someone smoking marijuana, or who had been 

smoking marijuana on the job. 

In regard to his complaints concerning the alleged leaky fuel trucks, 

Mr. Donovan asserts that when he made his complaints known to the leadman 

"Doc", and to a foreman, Joe Erger, they were "hostile" and told him 

"don't worry about it, just get back in the truck and go back to work", 

or words to that effect. Further, Mr. Donovan asserted that rather than 

repairing the condition resulting in the unsafe leaking of fuel from the 

trucks, the respondent allowed the condition to continue, and he asserted 

that on at least one occasion he heard Joe Erger order "Doc" to "hide 

your trucks" from MSHA inspectors who "Doc" believed were coming for an 

inspection. Mr. Donovan claims the trucks were then driven off so that 

they could not be inspected. 

With regard to his marijuana smoking allegations, Mr. Donovan 

asserted that he complained about this to his immediate superior, leadman 

"Doc", and that "Doc" did not attempt to cease and prevent the smoking of 

232 
marijuana. Rather than taking corrective action, Mr. Donovan stated 

that "Doc" responded to his complaints by increasing his hostility 

toward him by. undertaking an effort to discredit him with his supervisor, 

Joe Erger. In support of this claim, Mr. Donovan asserted that "Doc" 

followed him around the job unjustifiably, complaining about his work 

performance to the supervisor, Joe Erger, and calling him derogatory 

names and starting arguments with him. Mr. Donovan claims that these 

actions by "Doc" were motivated in large part by his complaints about 

the unsafe condition of the trucks and the smoking of marijuana. 

Mr. Donovan complained that the conduct of "Doc" and Joe Erger was 

intended to intimidate him and to prevent him from taking his complaints 

to any other person, to discredit him in the eyes of those to whom he 

might complain, and to make his working conditions so difficult that 

he would not be able to continue in his job. Mr. Donovan also asserted 

that in addition to the alleged harrassment, his wages were reduced by 

$2.50 per hour, even though his duties remained the same, and that this 

reduction in wages was part of the discrimination against him for his 

complaints about safety. 

Mr. Donovan stated that several days before the termination of his 

employment with the respondent, the harrassment became so severe that 

he went to Dave Warhol respondent's personnel officer, to request a 

meeting with John Murray, respondent's equipment superintendent and 

immediate supervisor of Joe Erger. Mr. Donovan claims that a meeting 

was arranged for the following Monday, but when he returned to work that 

day, Mr. Erger told him that he would not be permitted to meet with 

Mr. Murray, and that Joe Erger told him that he (~rger) would jμst. as 

soon see him "drag up" or-· quit. Since he believed he was prev~nted 

from meeting with Mr. Murray, and since he believed that the unsafe 

conditions would continue unabated, Mr. Donovan claims that he was afraid 

that taking his complaints elsewhere would present a danger to himself, 

and he therefore left his job on or about March 17, 1981. Mr. Donovan 

stated further that he subsequently filed a written complaint regarding 

his alleged discrimination with MSHA's Green River field office on 

March 25, 1981. 

Respondent filed an Answer to the complaint on April 6, 1982, 

denying Mr. Donovan's allegations of discrimination. Respondent maintained 

that Mr. Donovan voluntarily terminated his employment on March 19, 1981. 

further, respondent asserted that in his original complaint filed with 

MSHA on March 25, 1981, the only colorable allegation of protected activity 

was Mr. Donovan's assertion that "during my employment I complained of 

safety violations and dangerous practices", and that after an extensive 

investigation by MSHA, it decided that Mr. Donovan had not been discriminated 

against in violation of the Act. Further, respondent asserted in its 

Answer that Mr. Donovan chose to renew his complaint with the Commission 

after respondent refused to comply with an alleged extortion demand by 

Mr. Donovan requesting $5 million in exchange for the destruction of 

certain tapes allegedly in Mr. Donovan's possession showing respondent's 

employees using controlled substances and other narcotics during their 

course of employment. 

233 
By Order issued by me on May 24, 1982, I denied the respondent's 

motion for summary decision for failure by Mr. Donovan to state a cause 

of action, anq I also denied respondent's motion to dismiss the complaint 

as untimely filed. I also denied the respondent's motion to strike an 

affidavit filed by the respondent in support of its alleged claim of 

extortion, and the parties were directed to finalize any discovery so 

that the matter could be scheduled for a hearing on the merits at a site 

convenient to all parties. 

On September 7, 1982, I granted Mr. Donovan's counsel's motion to 

withdraw as his representative in this case, and Mr. Donovan was advised 

that he could retain new counsel or proceed with his case pro se. At 

the conclusion of discovery, and after the issuance of certain subpoenas 

requested by the parties, a hearing was held in Green River, Wyoming, 

during the term October 20-21, 1982. Respondent appeared with counsel, 

and Mr. Donovan appeared pro se, and the parties participated fully in 

the hearing, and they both filed post-hearing arguments which I have 

considered in the course of this decision. 

Issue 

The crucial issue presented in this case is whether or not Mr. Donovan's 

claims of harrassment and intimidation on the job by mine management because 

of his safety complaints, .including his claim that his wages were reduced 

because of these complaints, all of which he claims resulted in his leaving 

his job, constituted a "constructive discharge" and illegal discrimination 

under the Act. Additional issues raised by the parties are identified 

and~discussed in the course of this decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 301 

et~· 

2. Sections 105(c)(l), (2) and (3) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §§ 815(c)(l), (2) and (3). 

3. Commission Rules, 29 CFR 2700.1, et ~· 

Stipulations 

The parties stipulated to the following (Tr. 7-11): 

Mr. Donovan was employed by the respondent from January 28, 1981, 

to March 17, 1981. Respondent during this time was performing contractual 

work.at the Tenneco Soda Ash Project, a mining operation owned and 

operated by Tenneco Corporation, and the product being mined was trona. 

Mr. Joe Erger, Mr. John Murray, and Mr. Dave Warhol, were during 

all times relevant to the complaint in this case supervisory or managerial 

234 
employees of respondent at the mine construction site in question. 

These individuals had the authority to hire, fire, to recommend such 

action, and w~re otherwise authorized to direct the work force and discipline 

employees. 

The individual identified as "Doc" in Mr. Donovan's complaint is 

in fact one James Kauss. However, the parties could not agree whether 

Mr. Kauss was in fact a "leadman", or supervisor or manager:. 

Mr. Donovan had a meeting with Mr. Warhol at his office in Green 

River. However, the date of the meeting is in dispute. Respondent 

believes that meeting took place on or about March 6, 1981, and Mr. Donovan 

believes the meeting was later. 

Mr. Donovan's employment with the respondent ceased on March 17, 1981. 

However, respondent believes that Mr. Donovan voluntarily quit his job 

on that date, and Mr. Donovan does not consider it a voluntary quit. 

Service of subpoena 

The local sheriff's department was unable to effect service on three 

potential witnesses sought by Mr. Donovan. Mr. Donovan identified them 

as Duane Baker, Floyd Chacon, and Delmer Fiscus, and he stated that they 

were former oilers and co-workers who worked at the construction project 

in question. Mr. Baker's whereabouts were unknown, Mr. Chacon was purported 

to be residing in Granger, Wyoming, and Mr. Fiscus was purported to be 

"in the Pinedale area looking for work". In view of the unavailability of 

these witnesses, I requested Mr. Donovan to make a proffer as to what 

they would testify to so as to unable me to make a judgment and .. rtiiing 

as to whether their absence would be prejudicial or critical to Mr. Donovan's 

case. 

Mr. Donovan stated that Mr. Baker would testify as to the use of drugs 

at the construction site and would confirm his efforts to arrange a 

meeting between Mr. Donovan and the former project equipment superintendent 

John Murray. Mr. Murray was not subpoenaed, but is reportedly working 

for the respondent in Springerville, Arizona (Tr. 8). Mr. Donovan stated 

that Mr. Chacon could testify to the use of drugs by leadman "Doc" on 

the job, and "maybe some safety conditions" (Tr. 9). As for Mr. Fiscus, 

Mr. Donovan stated that he could testify as to the use of drugs by "Doc" 

(Tr. 10). 

After consideration of this matter, I concluded and ruled that the 

absence of these witnesses were not critical to Mr. Donovan's discrimination 

complaint. Aside from the fact that efforts to locate them and to serve 

them with the subpoenas were not successful, I ruled that the question 

of the alleged smoking of marijuana on the job site is one that was raised 

by Mr. Donovan, and even if it were an established fact, the question 

of discrimination and retaliation against Mr. Donovan by mine management 

personnel for these complaints would be the crucial question for decision. 

As for the efforts by Mr. Baker to arrange a meeting, Mr. Donovan testified 

235 
that these efforts came after his employment terminated, and Mr. Donovan 

testified that.during the week after he left his job, and before filing 

his complaint .with MSHA, he made several attempts to call Mr. Erger, 

but was unable to reach him. He did not know why he did not go to the 

mine to try and see him, but indicated that a friend, Duane Baker, tried 

to set up a meeting with Mr. Murray but could not arrange it. After 

that Mr. Donovan "forgot about it", and filed his complaint with MSHA 

(Tr. 141). 

During the course of the hearing in this matter, MSHA's Denver 

Regional Solicitor's Office, through attorney James Barkley, made a limited 

appearance at the hearing to file an objection to a subpoena which had 

been served on the inspector who investigated Mr. Donovan's discrimination 

complaint. The subpoena was served on him by respondent's counsel, and 

MSHA's opposition stemmed from the fact that the subpoena had been served 

the day before the hearing, and MSHA's counsel indicated that MSHA 

had no opportunity to review the investigative files and other material 

sought by the subpoena. After further bench discussion, and in view 

of the fact that Mr. Donovan had in his possession a copy of MSHA's 

investigative report, respondent's counsel agreed to release the inspector 

from the subpoena, and the parties agreed that the inspector, Jerry Thompson, 

had no personal knowledge concerning Mr. Donovan's complaint, but that 

three pages from his report could be admitted as part of the record in 

this case. Further, Mr. Thompson confirmed that he issued no citations 

to the respondent during his inspections at the mine. In short, he 

confirmed that he issued no citations for any leaky fuel trucks, or for 

employees smoking marijuana (Tr. 47-56). 

Complainant's testimony and evidence 

Mr. Donovan testified that three weeks before the termination of 

his employment he complained to leadman "Doc", Mr. Erger, and his fellow 

co-worker Dave Barnhouse about the leaky fuel truck condition. Although 

Mr. Erger did temporarily repair the truck on one occasion, the problems 

persisted and Mr. Erger's response to Mr. Donovan was for him "not to 

worry about it, just get back to work". Mr. Donovan also stated that he 

complained to Dave Barnhouse and to "Doc" about their smoking marijuana 

in the trucks while on the job, and that he let them them know that this 

was not safe. The complaints were oral, and were made two weeks before 

his employment ended. He also indicated that "Doc" and Mr. Barnhouse 

advised him that it didn't matter because they smoked marijuRna on their 

lunch hour (Tr. 13-15). He did not complain to Mr. Erger about the 

asserted marijuana smoking because he did not know who else may have been 

involved and was afraid that "I might get hurt" (Tr. 16). 

Mr. Donovan confirmed that he and Mr. Barnhouse were both classified 

as "oilers" and were expected to do the same work, but that because of 

a "lazy eye" condition, Mr. Donovan was not permitted to drive the fuel 

truck, and Mr. Barnhouse did the driving. On one occasion, Mr. Barnhouse 

nearly backed over him while driving the truck under the influence of 

marijuana, and Mr. Donovan stated that he had to signal him three times 

to stop the truck (Tr. 18). 

236 
Mr. Donovan described his duties as an oiler and he believed 

that "Doc" was.in some supervisory position because he went around 

"checking on all of our work and to tell us certain things that needed 

to be done" (Tr. 18). Mr. Donovan confirmed that the extent of his safety 

complaints had to do with the leaky fuel trucks and the smoking of marijuana 

on the job by "Doc" and Mr. Barnhouse, and that these activities took 

place during the time he worked on the day shift. Mr. Donovan stated that 

after he made a mistake and put some gas in a diesel truck, and also put 

a half quart of oil too much in a welding machine, Mr. Erger informed 

him that he was going to cut his pay by $2.57 an hour. At that time, 

Mr. Donovan was making $10.57 an hour, and he confirmed that at the time 

his employment ended, he was making the same wage and that Mr. Erger 

had not cut his pay as of that date (Tr. 20-23). 

Mr. Donovan confirmed that he had been "written up" by respondent's 

safety department for refueling some welding machines while welders 

were working nearby, and he also confirmed that he did not bring any 

of his safety complaints to the attention of MSHA because he "didn't 

know they existed". He also related an incident where he claims that 

Mr. Erger instructed Mr. Barnhouse to hide some leaky fuel trucks from 

some MSHA inspectors who were on the property, and that Mr. Barnhouse 

took the trucks out of service and parked them. Mr. Donovan confirmed 

that the inspectors did not inspect the trucks, and he also confirmed 

that he did not tell the inspectors about the leaky condition of the 

trucks (Tr. 24-37). 

Mr. Donovan admitted that he had smoked marl.Juana "a time or two" 

in the past, but denied that he ever did so while-~on the job (Tr .. ·37-38). 

He knew that Mr. Barnhouse smoked marijuana on the job, because he 

observed him "light up" while actually driving the truck and his "responses 

or reflexes were real slow", and on at least two occasions when he signaled 

Mr. Barnhouse to stop the truck "he kept on corning", and he had to fall 

out of his way. He again discussed the matter with Mr. Barnhouse, but 

did not complain to Mr. Erger or to respondent's management about the 

marijuana smoking. However, he did say that he visited the office of 

respondent's personnel manager, Mr. Warhol, in Green River, but simply 

advised him that there were "safety problems on the job". Mr. Warhol 

advised him to consult the safety department, and also suggested that 

he take a couple of days off. Mr. Donovan indicated that Mr. Warhol 

had arranged. a further meeting for him to discuss the matter with management, 

but that when he returned to work, Mr. Erger stated to him that there would be 

no meeting, and that Mr. Erger also stated to him that as far as he was 

concerned he didn't care if Mr. Donovan worked there anymore (Tr. 41). 

Mr. Donovan stated that after the abortive meeting with Mr. Warhol, 

Mr. Erger and "Doc" "teamed up to get rid of him" (Tr. 41). He indicated 

that "Doc" would follow him around the job site, checking on his every 

move, and that Mr. Erger threatened to cut his pay. He also indicated that 

"Doc" worked for Mr. Erger, but he conceded that "Doc" had no office at 

237 
the site (Tr. 60). He stated further that he complained to Mr. Erger 

about "Doc's" ·treatment, and that Mr. Erger stated that "he didn't care" 

(Tr. 61). Mr •. Donovan believed that "Doc's" treatment of him stemmed 

from his complaints about his smoking marijuana, and Mr. Donovan stated 

that "Doc" was employed by the respondent, but he did not know if he 

was still employed with them (Tr. 61). When asked to explain the circumstances of his departure from his employment with the respondent, 

Mr. Donovan stated as follows (Tr. 62-64): 

Q. March 17, 1981. What prompted you to leave 

work, not to go back? Just tell me in your words 

whether or not you believe -- Just tell me how it 

came to pass that your employment was terminated 

there. 

A. Well, when they refused the safety meeting with 

me on a Monday, at that point the harrassment 

kept on and I think it was on a Wednesday I quit. 

I just felt like they weren't going to help me with 

any of my complaints so I left on a Wednesday, 

I believe. 

Q. Now Wednesday -- March 17 according to my 

calendar would have been a Tuesday. 

A. It could have been Tuesday. 

Q. So it could_.have been either Tuesday_ or Wednesday, 

the 17th. Did you give the company any notice or 

did you tell anyone you were leaving? 

A. Well, after he told me he was cutting my wages I 

decided there wasn't -- There was nothing more I 

could do there so I just quit. I told the time office 

people -- They asked me why I was quitting, what my 

reason was for quitting and I told them I was under a 

lot of harrassment. They didn't give me no layoff slip 

or nothing. I didn't get no kind of a layoff slip. 

Q. Were you paid for the services that you performed 

out there up to the time you quit? 

A. No, Thad to come back and get my check. 

Q. But you were eventually compensated? 

A. Yes. 

Q. Did anything transpire when you went back? Did you 

make any attempts to go back or did you contact anyone 

from the company? 

238 
A. A friend of mine, Mr. Baker, which was working out 

there, he tried to line up a meeting with Mr. Murray 

and by the time he had that lined up I had already 

went to MSHA. So Mr. Murray was willing to talk to me 

about it after so many days had went by. 

Q. What made you decide to go to MSHA after you left 

the job? 

A. Well, I figured MSHA was a safety program for the 

~eople and if I let this thing go that more people 

who were involved with the drugs on the job and more 

people would be exposed to either getting hurt or getting 

killed on the job so I decided I wouldn't let this go, 

that it would be taken care of. 

Q. How did the fact that MSHA was in existence, 

or was available to you, come to your attention? Did 

someone tell you they were available or how did you come 

to file a complaint with them? 

A. I don't really remember for sure how I did that. 

Mr. Donovan stated that a month or so after he left employment with 

the respondent after he filed his discrimination complaint with MSHA, 

he was told "by some friends" that "dozens of people were either fired 

or run off their job for using drugs" (Tr. 66). When asked why he had 

simply not refused to work around any hazardous f_yel trucks, h~~responded 

"I was kind of paranoid. -· I didn't want to get in any trouble. I 

wanted to keep my job. I just tried to live with the conditions as 

long as I could" (Tr. 70). He also confirmed again that the only time 

he complained to MSHA was "after I had quit. Then I later found out that 

I could do something about it, I could go to MSHA and they would do 

something about it. This was after I quit" (Tr. 71). 

On cross-examination, Mr. Donovan reviewed his prior employments 

with other mine operators and construction companies, and confirmed 

that for the exception of the issuance of safety glasses and boots by 

the respondent, he received no safety training and that there were no 

safety meetings during the day shifts which he worked on. However, 

he did confirm that safety meetings were held while he was on the night 

shift (Tr. 75). ae also confirmed that he worked on the night shift for 

two or three weeks before being switched to the day shift, and denied 

that his work was ever questioned (Tr. 78). He also denied that the night 

shift came to an end because the men on that shift were drinking and did 

not do their work (Tr. 80). 

Mr. Donovan confirmed that he complained to Mr. Erger about the leaky 

fuel trucks on two or three occasions (Tr. 83), but he could not recall 

whether he had first complained to "Doc" and Mr. Barnhouse about their 

239 
smoking marijuana (Tr. 84). He conceded that he didn't complain to 

Mr. Erger at first about the leaky truck when he first noticed it, 

but did so after the leak "began gushing" (Tr. 84). He also confirmed 

that he did not complain to any mechanics about the leaky truck when he 

first noticed it (Tr. 86). He explained that the leaks came directly from 

the pump on the truck as well as the hose nozzle, but that he personally 

never attempted to fix the leaks (Tr. 87). He later stated that he did 

not have the proper tools to fix any leaks (Tr. 88). He also confirmed 

that he brought the leaky truck condition to the attention of "Doc", 

and when he failed to do anything about it, he complained to Mr. Erger 

(Tr. 91). The first time he complained to Mr. Erger, the truck was tagged 

out by respondent's safety personnel, and Mr. Erger had it fixed, and 

that Mr. Erger told him not to worry about it and that he would have it 

fixed (Tr. 92-93). Mr. Donovan also indicated that one of his co-workers 

Keith, whose last name he does not recall, also complained to Mr. Erger 

about the leaky truck (Tr. 95). 

Mr. Donovan indicated that "it was probably common knowledge throughout 

many, many people on the job" that miners were smoking marijuana, and 

that other oilers commented to him when he was getting off work that "they 

were going out to smoke a joint" (Tr. 100), and that this was still during 

working hours (Tr. 101). Although Mr. Donovan claims he was concerned 

about the safety aspect of this marijuana smoking, he said the other workers 

with whom he discussed the matter "didn't care" (Tr. 102). He confirmed 

that he did not bring this to the attention of Mr. Erger or to respondent's 

management because "he was scared", and he confirmed that he did not 

notify any of respondent's safety personnel about the marijuana smoking 

(Tr~ 105). 

Mr. Donovan stated that after the incidents where he put gas in 

a diesel truck and over-filled a welder with oil, "Doc" began harrassing 

him over these incidents and that he (Donovan) "blew up at him", and the 

two exchanged words. At that point, Mr. Donovan left the job site to 

seek out Mr. Warhol. Before leaving, he told Mr. Erger that he was upset 

over "Doc" harrassing him and told Mr. Erger that he was going to see 

Mr. Warhol. When he met with Mr. Warhol, he simply told him about "safety 

problems on the job", but told him nothing specific, and he told him 

nothing about the leaky trucks or marijuana smoking. Mr. Warhol informed 

him that while safety problems were not his concern, he would arrange 

a meeting with superintendent Murray, Mr. Erger's superior (Tr. 114-124). 

Mr. Donovan stated that after his employment ceased and when he 

went back to pick up his final pay check, he was asked to sign a paper, 

and he identified it as exhibit R-1. He indicated that he did not remember 

telling anyone why he quit his job when he returned to get his check 

(Tr: 129). He could not recall receiving a copy of the paper which he 

signed (Tr. 131). 

240 
Mr. Donovan denied ever making video tapes of anyone smoking marijuana on the job, and he denied ever calling any official employed by 

the respondent to inform them that he had such tapes. He also denied 

ever calling any management official threatening to "go public" with the 

tapes unless he was paid five million dollars or given his job back 

(Tr. 133-135). 

Mr. Donovan testified that he never heard "Doc" or Dave Barnhouse 

tell Mr. Erger about his safety complaints, and Mr. Erger never told him 

that "Doc" or Mr. Barnhouse had informed him about these complaints 

(Tr. 136). Mr. Donovan also conceded that Mr. Erger told him he intended 

to cut his wages because of the fueling mistakes which he had made, and 

that he did not directly state that he was cutting his wages because of 

his safety complaints (Tr. 138). He confirmed that his visit to Mr. Warhol's 

office was his last attempt prior to quitting that he made to communicate 

his safety concerns to respondent's management personnel (Tr. 143-144). 

He also confirmed that "Doc" never told him that he was "harrassing him" 

because of any complaints concerning the leaky fuel truck or the marijuana 

smoking (Tr. 145). 

During further testimony at the hearing, Mr. Donovan stated that the 

last day he worked he was informed that his pay would be cut and that 

he "was just so discouraged I didn't want to stay any longer" (Tr. 137). 

He stated further that at the time he picked up his last pay check, he 

did not call Mr. Erger or Mr. Warhol to advise them that he was quitting 

his job. He identified a copy of the "termination paper", exhibit R-1, 

stated that the signature which appears thereon "looked like his signature", 

but~he could not recall receiving a copy of the d~cument at the;time he 

visited the site trailer office to pick up his check and "sign out". 

He also stated that when he picked up his check he told the time clerk 

that he was leaving his job because he was being harrassed by "Doc" 

and had an agrument with him (Tr. 77, 79, 84-85). Mr. Donovan also 

identified exhibit R-8, as his final pay check in the amount of $167.74 

(Tr. 90). 

Mr. Donovan stated that after he returned to work on Monday, March 9, 

he asked Mr. Erger about the meeting with Mr. Murray. "Doc" was present 

at that time, and Mr. Erger "implied or told" Mr. Donovan that there would 

be no meeting and that Mr. Donovan and "Doc" were to "work this out between 

us" (Tr. 143). Mr. Donovan stated further that he did not at that time 

tell Mr. Erg2r about the smoking of marijuana, but simply told him that 

"there were problems" which needed to be discussed (Tr. 146). Mr. Donovan 

confirmed that he never saw Mr. Erger smoke marijuana, and that he never 

saw Mr. Erger observe anyone else smoke marijuana and do nothing about 

it (Tr. 147). Mr. Donovan summed up his desire to meet with Mr. Murray as 

follows (Tr. 148-149): 

241 
MR. DONOVAN: I wanted everybody to be there when 

I exposed all this, and then there was no meeting. 

I had figured that all this could be exposed that 

morning in which I was planning on doing that, but 

there was no meeting at all. 

THE COURT: Okay. What if Mr. Murray had been there 

and you told him all about this? 

MR. DONOVAN: I would think the problem would have 

been corrected. 

THE COURT: What kind of corrective action would 

have been taken? 

MR. DONOVAN: I would imagine he would have investigated 

all these problems. 

THE COURT: Okay. 

MR. DONOVAN: And the man was a very intelligent 

man in my estimation, I believe he would have brought 

some justice to these problems. 

THE COURT: And that wouldn't have given you any 

cause to leave the site, you still would have sat 

there and worked? 

MR. DONOVAN: Yes. 

THE COURT: And what if Mr. Erger said that's fine, 

but you're still going to be making $7.85 an hour 

because we don't think you're cutting the mustard. 

Then what could have happened? 

MR. DONOVAN: Well, I'd have a choice to stay or 

leave. 

THE COURT: But you don't think you'd have a 

discrimination complaint? 

MR. DONOVAN: Well, it would be much lesser without this. 

THE COURT: So, you're saying now, you're suggesting 

that the fact that you weren't given an opportunity 

to talk to somebody higher up in the hierarchy of Brown 

& Root to tell them about these problems so corrective 

action would be taken, that that is what caused you to 

just leave the mine site? 

MR. DONOVAN: That and the harrassment I was going 

through with the foreman. 

242 
David A. Barnhouse, confirmed that he presently works for Tenneco 

Corporation, but that he did work as an oiler for the respondent and was 

Mr. Donovan's.co-worker. He denied that "Doc" ever told him or Mr. Donovan 

to "hide the trucks" from any MSHA inspectors, and stated that he was 

told to check the trucks and "watch what you're doing" (Tr. 160). He 

confirmed that their fuel truck leaked "small amounts of fuel on and off", 

but he could not recall the truck ever being "tagged out" for any safety 

reasons (Tr. 162), but did recall that it was cited one day because the 

parking emergency braked slipped and would not hold the truck (Tr. 163). 

Mr. Barnhouse denied that "Doc" ever claimed that he and Mr. Donovan 

were written up for driving a truck into an area where welding was going 

on, and he denied that he witnessed any arguments between Mr. Donovan 

and "Doc" (Tr. 164). Mr. Barnhouse denied that he and "Doc" ever smoked 

marijuana on the job, and he also denied that on occasion, he smoked 

marijuana with Mr. Donovan in the truck (Tr. 165). 

When asked if he knew what this case was all about, Mr. Barnhouse 

replied as follows at Tr. 166: 

THE WITNESS: All I know is he's wanting money 

off Brown & Root for quitting the job. That's 

about all I know about these proceedings. 

Mr. Barnhouse also confirmed that Mr. Donovan subpoenaed him to appear 

at the hearing, and that he has not seen nor spoken with Mr. Donovan 

prior to the hearing and since he left his job (Tr. 167). He denied any 

"harrassment" of Mr. Donovan by "Doc", and stated that "Doc" "Just tried 

to get the job done is all I can say" (Tr. 168). ....-Mr. Barnhouse"' co.nfirmed 

that "Doc" was always around the job site checking their work, indicated 

"that was his job" (Tr. 168), but denied that "Doc" constantly followed 

them around (Tr. 169). 

Mr. Barnhouse recalled the incident concerning Mr. Donovan's putting 

gas into a diesel truck, and confirmed that Mr. Donovan himself told 

Mr. Erger about the incident (Tr. 169). Mr. Barnhouse also confirmed 

that there were occasions when he complained about leaky fuel on the truck 

due to excessive fuel from the pump, but that the conditions were always 

fixed (Tr. 171). He confirmed that he had rumors about some people 

leaving the job because of using drugs, but denied any personal knowledge 

of any of the details (Tr. 171). 

Mr. Barnhouse recalled one day when Mr. Donovan left the job "in a 

very upset manner", but could recall none of the details (Tr. 172). He 

conceded that during the time he worked with Mr. Donovan he considered 

him to be "an honest person" (Tr. 174). 

On cross-examination, Mr. Barnhouse confirmed that he went to work 

at the site in question in February of 1980 or 1981, and started working 

with Mr. Donovan a month or two later (Tr. 175). During the time he 

243~ 
worked with Mr .• Donovan, there were complaints about his work in 

that he was "lax in the way he done things. He didn't wash things quite 

the way it should be done. Sometimes it was hard to explain to him some 

things like the difference between diesel welders and gas welders and 

so on" (Tr. 177). Mr. Barnhouse denied speaking with any MSHA officials 

after Mr. Donovan left the respondent's employ (Tr. 177). 

Mr. Barnhouse indicated that when he was employed by the respondent 

he attended safety orientation classes while on the job, and that safety 

meetings were held every two weeks and that the leadman met with the crew 

once a month. He never heard anyone complain about marijuana smoking 

during any of these safety meetings (Tr. 179-180), and he stated that he 

never observed "Doc" smoke marijuana on the work site (Tr. 180). He 

confirmed that Mr. Donovan did complain about the leaky fuel trucks during 

safety discussions, and that these complaints were about certain pumps on 

the trucks. However, the pumps were taken off and fixed and he was never 

required to use a truck with a defective pump (Tr. 182). He also 

confirmed that he was never directed to fuel any welding machines while 

welders were working above them, and that had this been the case he 

would have refused to work (Tr. 183). 

Respondent's testimony and evidence 

David Warhol, respondents group personnel manager, Houston, Texas, 

confirmed that he was respondent's personnel manager for the Tenneco 

Soda Ash Project at the time of Mr. Donovan's employment. He explained 

the procedure for hiring for the project, and explained the employee 

orientation program (Tr. ~9-56). 

Mr. Warhol stated that there are "lead men" for each basic craft, 

and while the lead man is also a worker, he has the responsibility for 

insuring the quality of the work being performed. However, the leadman 

has no authority to hire, fire, or to independently give an employee time 

off (Tr. 57, 58). He does not have the authority to increase or decrease 

an employee's wages (Tr. 59). However, a leadman could direct the work 

of other employees as long as it has been previously outlined by the 

foreman, and in effect would be carrying out the foreman's orders (Tr. 61). 

Mr. Warhol stated that the respondent had an "open door" policy at 

the construction project in question insofar as employee complaints or 

grievances were concerned, and employees were advised of the policy and 

procedures when they were hired and notices to this effect were posted on 

employee bulletin boards (Tr. 62). 

Mr. Warhol confirmed that he first met Mr. Donovan when he applied 

for a job at the construction project. He was recommended by project 

superintendent John Murray, and he was hired as an oiler. Since Mr. Donovan 

had an eye problem, it took the project manager's approval to hire him 

(Tr. 63). 
Mr. Warhol testified that on Friday, March 6, 1981, sometime after 

lunch, Mr. Donovan came to his office and stated that he had an argument 

with James Kauss, who was also known as "Doc". The meeting was brief, 

and Mr. Donovan informed him that he and Mr. Kauss had called him an 

S.O.B. Mr. Donovan indicated that "he just wanted to get away from 

it and so he left". He was concerned that he didn't lose his job for 

walking off the project (Tr. 65). 

Mr. Warhol stated that after speaking with Mr. Donovan, he called 

Mr. Murray, and rather than terminating Mr. Donovan, Mr. Murray indicated 

that they would meet with him on the following Monday "to work this thing 

out". Mr. Warhol then advised Mr. Donovan to "get away from it for the 

weekend, calm down, and go back Monday morning!' Mr. Murray told Mr. Donovan 

the same thing and that was the extent of the meeting (Tr. 66). 

Mr. Warhol confirmed that he was the custodian of Mr. Donovan's 

personnel file, and he identified his record, and he confirmed that Mr. Donovan 

was first hired as an oiler on the night shift on January 28, 1981, and his 

pay was $10.50 an hour. He identified a notation that he made to the 

file concerning his meeting with Mr. Donovan on March 6, 1981 (Tr. 69-70; 

exhibit R-4). He also identified an "assignment authority" form and a 

"termination form", both from Mr. Dojovan's personnel file (exhibits R-5 

and R-1). 

Mr. Warhol testified that when he met with Mr. Donovan on March 6, 

he did not mention that employees were smoking marijuana on the job, nor 

did he mention that he had voiced safety complaints to Joe Erger, or to 

"Doc'', or that he was being harrassed because of any safety comBlaints 

or any work action that he was taking (Tr. 104). /After his mee.ting with 

Mr. Donovan, he spoke with Mr. Murray and Mr. Erger, and they assured 

him that there would be a meeting with Mr. Donovan on Monday. However, 

during that time and March 17, when Mr. Donovan left the job, Mr. Warhol 

had no knowledge of Mr. Donovan's safety complaints or his complaints 

concerning the smoking of marijuana, and he learned of the matter after 

Mr. Donovan's termination and after he filed his discrimination complaint 

(Tr. 105). 

Mr. Warhol stated that respondent employed approximately 800 people 

at the site in question and that Tenneco had less than 50 employees (Tr. 106). 

He confirmed that after the night shift was laid off, Mr. Donovan and one 

other miner were retained and transferred to the day shift, and this 

decision would have been made by Mr. Murray and Mr. Erger (Tr. 110). 

Mr. Warhol also confirmed that two people were terminated for smoking 

marijuana on the job site, and that these are the only two incidents 

he was aware of (Tr. 112). He deined any wholesale layoffs, and has 

heard no rumors that 40 or more miners were laid off for smoking marijuana 

(Tr. 113). 

245 
On cross-examination, Mr. Warhol confirmed that he was simply the 

"go-between" Mr. Donovan and Mr. Murray in attempting to set up the 

Monday meeting in question. After his conversation with Mr. Donovan of 

Friday, he toid him to go home and to return to work on Monday. Mr. Warhol 

did not know why the meeting never took place and he did not know that 

Mr. Donovan had been terminated until later when his "termination interview" 

came back to his office. Mr. Warhol also indicated that he was not 

scheduled to be at the meeting and that Mr. Donovan never contacted him 

again after Friday to advise him that the meeting did not take place 

(Tr. 120), and the instant hearing is the first time he has seen him since 

he left his job (Tr. 139). 

Mr. Warhol stated that respondent had a good safety record during 

the Tenneco project and had no fatalities. He also alluded to an intensive 

safety program at the job site by respondent and Tenneco to insure a safe 

project (Tr. 124). Mr. Warhol confirmed that he had no knowledge that 

Mr. Donovan's pay would be cut until after he left the job. After receiving 

his "termination interview", he learned that there was talk of demoting 

him to a 2d class helper (Tr. 138). 

Joseph Erger testified that he was the mechanic general foreman at 

the Tenneco construction project site during Mr. Donovan's tenure at 

that facility and that he was responsible for the supervision of all 

equipment repairs and servicing, and that Mr. Donovan and approximately 22 

other workers worked und.er his supervision. He identified "Doc" as 

James Kauss, qnd confirmed that Mr. Kauss worked as a mechanic under his 

supervision, and had worked for him before Mr. Donovan was hired. Mr. Erger 

confirmed that Mr. Donovan worked initially as an oiler's helper, and 

was -promoted by him to me-chanic and oiler (Tr. 151). Although ··M:r :· Kauss 

was never formally classified as a "lead man", Mr. Erger confirmed that 

he instructed Mr. Kauss to "oversee the oilers" to make sure they were 

doing their tasks, and that he gave Mr. Kauss daily instructions in this 

regard (Tr. 158). 

Mr. Erger confirmed that Mr. Kauss, Mr. Donovan, and the other oilers 

worked the 9:00 a.m. to 6:30 p.m. shift, and he confirmed that he (Erger) 

had the authority to initiate any demotion, promotion, or termination 

of employees, and he also had the authority to grant employees leave. 

Mr. Kauss had none of this authority (Tr. 160). 

Mr. Erger confirmed that he observed the night shift crew after he 

had some problems, and that Mr. Donovan appeared to be the only one doing 

any work. When the crew was layed off, he decided to retain Mr. Donovan 

and to reassign the night shift foreman to another job (Tr. 163-164). 

Mr. Donovan was placed on the day shift, and while he did not supervise 

him closely there came a time when Mr. Donovan admitted that he had fueled 

a welder with gas rather than with the required diesel fuel. A second 

incident occurred when Mr. Donovan put too much oil in a welder, and the 

machine had to be repaired. As a result of these incidents, he told 

Mr. Donovan that "I didn't think he was the oiler that he was or said he 

was" (Tr. 166). 

246 
With regard to the "shouting match" between Mr. Kauss and Mr. Donovan, 

Mr. Erger stated that while he was not present, he could hear them arguing, 

and when he inquired as to what was going on, Mr. Donovan was upset and 

told him that he was "going to the office" and that he (Erger) told him 

"it would be fine". By "office", Mr. Erger meant the administrative 

office on the site where Mr. Murray, the project manager was located, 

and he explained the events which followed as follows (Tr .. 168-169): 

Q. (BY MR. McLAIN, continuing): No, okay. 

Anything else occur that day in regard to this 

argument? 

A. Yeah, there was plenty I guess that happened, 

and apparently Mr. Warhol called Mr. Murray and 

told him that Mr. Donovan come doWn there and, 

you know, was all upset and everyting. And him 

and Doc had an argument or something. And I didn't 

know what the full thing was on it. And Mr. Murray 

told me to go ahead and pick up a phone, call him 

back and find out what went on, and this was, I 

assume Donovan was probably still down there. And 

I talked to Mr. Warhol, I found out a little bit 

more about it because when Mr. Warhol first called 

I was in the office with Mr. Murray. And Mr. Murray, 

while he was getting his call, kind of pulled the 

phone down, looked at me and he says, do you know 

your oiler walked off the job. And he was kind of 

concerned about· it that he walked off t-he job. And 

well, he was upset about himself, I should say. And 

I told him, I says, I'm not going to do nothing about 

it because he stated to me he was going to the office. 

And like I say, that's why I called it a lack of 

communication. 

THE COURT: You thought he was going to the office 

right there on the site? He didn't tell you he was 

going down to Mr. --

A. I didn't pursue that. He could be terminated for 

walking off the job, because I didn't feel he was 

really at fault at all. And after talking to Mr. Warhol 

on the phone, he said that, you know, we could get 

together Monday and straighten this all out. 

Mr. Erger testified that when Mr. Donovan returned to work the 

following Monday, he spoke with him and Mr. Kauss just outside his office 

at the site, and Mr. Donovan told him that "he could work this out with 

Doc and it would be all right" (Tr. 170). No one described the precise 

problem, and Mr. Erger stated that he had heard that the two had gotten 
into a "personality conflict or whatever there was supposed to have 

been some cuss words between them", and Mr. Erger confirmed that he never 

heard anymore disagreements or arguments between the two, and if there 

were, none were ever brought to his attention. He also confirmed that 

at no time during the conversation on Monday with Mr. Donovan did he 

ever request to meet with Mr. Murray, and at no time did he ask where 

Mr. Murray was and gave no indications that he expected Mr. Murray to 

be there. Mr. Erger believed that the matter had been resolved (Tr. 171). 

Mr. Erger conceded that leaky fuel trucks were a problem, and that 

the pumps and packing glands would go bad, but that the normal procedure 

called for the trucks to be brought to the shop for repairs and he would 

not always be aware of the conditions. On one occasion, Mr. Donovan 

brought a leaky truck to the shop for repairs after the safety department 

stopped it and took it out of service, but Mr. Erger could not recall when 

this happened (Tr. 172). 

Mr. Erger testified that the incidents in which Mr. Donovan put 

gas rather than diesel in a vehicle and over-filled a welder with oil 

occurred during the Friday after the Monday meeting with him and Mr. Kauss. 

He discussed the matter with Mr. Donovan on the Monday before he left 

the job, and explained to him that he was going to "cut him back to helper". 

He also stated that he explained to Mr. Donovan that "this would give 

him an opportunity to work and learn, and he would still have his job". 

Mr. Erger claims that Mr. Donovan implied to him at that time "that he 

was glad I was doing that rather than just turning him loose" and "he 

implied to me that he was glad to keep his job" (Tr. 174). At that time, 

Mr. Donovan gave no indication that he was having problems with anyone, 

and -in fact, at no time during his employment did-Nr. Donovan ever··indicate 

that he was having any problems on the job (Tr. 174). 

Mr. Erger denied any "witchhunt" against Mr. Donovan, and denied 

that he made it a point to observe his work for reasons other than 

those which were work related. He also denied any "grudges" against 

Mr. Donovan, and at no time did he observe any employees smoking marijuana 

on the job. He also indicated that he was never advised of Mr. Donovan's 

attempts to "correct" Mr. Kauss or Mr. Barnhouse (Tr. 175). He confirmed 

that the decision to demote Mr. Donovan to an oiler's helpers was his 

decision alone, and at no time did Mr. Kauss ever advise him to demote 

or fire Mr. Donovan (Tr. 176). 

Mr. Erger confirmed that during his employment at the site the 

respondent received one safety citation for a broken front spring on a 

truck, and he denied ever instructing any of his personnel to "hide" 

the fuel trucks from the inspectors. He confirmed that he did instruct 

them to be aware of the fact that inspectors were at the site and "to 

straighten up their act, you might say to make sure that they checked 

their wheels and such" (Tr. 178). 

248 
Mr. Erger identified exhibit R-1 as the "assignment termination" 

form which he.signed on March 19, 1981, in which he rated Mr. Donovan's 

job performance as "fair". He explained his rating as "judging from 

the man's performance I had really nothing against his willingness 

to work and, you know, be a hand, but he was not an oiler as such as 

to be a journeyman" (Tr. 179). He also indicated that he had no knowledge 

that Mr. Donovan quit his job until he received the form and.received 

a phone call at his office that Mr. Donovan had quit (Tr. 179). Although 

the form shows that Mr. Donovan signed it on March 17th, Mr. Erger stated 

that he kept it until he signed it on March 19, because he thought that 

Mr. Donovan may have had some second thoughts about quitting and would 

come in to see him. When he heard nothing further from Mr. Donovan, 

he went ahead and signed the form (Tr. 180). 

Mr. Erger denied that he ever told Mr. Donovan that he no longer 

needed him, and he asserted that if this were the case he could have 

fired him. He decided to keep him because "it's a whole lot better 

to make a hand rather than run one off" (Tr. 180). He confirmed that 

he took no further steps to formally demote Mr. Donovan because he 

wanted to discuss the matter with him further, but had no opportunity 

to do so when he quit (Tr. 182). 

On cross-examination, Mr. Erger denied that Mr. Kauss ever "came 

running to him" complaining about Mr. Donovan's work performance (Tr. 183). 

During further cross-examination of Mr. Erger by Mr. Donovan, Mr. Donovan's 

recollection of the Monday meeting with Mr. Erger and Mr. Kauss is .that 

Mr. 'Erger stated that he and Mr. Kauss could "work it out" and "if .that 

was not possible, Mr. Erger didn't care if he worked there or not (Tr. 189). 

Mr. Donovan conceded that Mr. Murray may have been in his office at the 

site, and he explained that he did not seek him out because Mr. Erger 

told him that a meeting was not necessary, and that he should go back to 

work and "work it out" with Mr. Kauss and that Mr. Murray need not be 

involved (Tr. 190). Mr. Erger denied that this was true (Tr. 190). 

In response to further questions, Mr. Erger stated that he advised 

Mr. Donovan that he was going to "cut him back to helper and cut his 

pay" on Monday, March 16, the day before he quit on Tuesday, March 17, 

and when he told him that he had no indication that Mr. Donovan would 

leave his job (Tr. 196-197). Mr. Erger confirmed that after Mr. Donovan 

left the job, Mr. Barnhouse told him that everytime Mr. Donovan checked 

the oil in the machine "he had to go behind him and check it", but 

he denied that Mr. Barnhouse ever commented about Mr. Donovan's work 

before he left (Tr. 199). Reg:irding any "harassment" of Mr. Donovan 

by Mr. Barnhouse or Mr. Kauss, Mr. Erger stated as follows (Tr. 200-201): 

Q. Mr. Donovan seems to imply here that Barnhouse and Doc and you sort of conspired to run 

him off the job. What say you to that assertion? 

249 
A. It's not true. 

Q. Okay. Is it possible that Barnhouse and Doc, 

without your knowledge or, you know, gave him 

such a rough time that they ran him off the 

job? And if I can believe that, would you have 

been aware of that situation? 

A. No, I wouldn't have been aware of it, I 

wouldn't have put up with it. 

Q. So, Mr. Donovan never came to you and told 

you that Doc and Barnhouse were giving him a hard 

time? 

A. No. 

Q. He never came to you and told you that Barnhouse 

was more or less tailgating him all the way around, 

and I mean that Doc was following him around checking 

up on him, trying to find things wrong with his 

performance and all that? 

A. No, sir. 

Q. Did you ever make a statement to Mr. Donovan on 

that Monday that you'd just as soon he drag up? _,,, 

A. No. sir. 

Mr. Erger confirmed that routine safety meetings or "safety chats" 

were held among the different crafts on the job, and that a general 

safety meeting was held in each Monday (Tr. 204-206). Since the oilers 

and mechanics came in at different hours, each group was responsible for 

their own daily safety sessions (Tr. 206-212). 

James Kauss, mechanic, confirmed that his nick name is "Doc". He 

confirmed that he worked for the respondent until June 12, 1982, when he 

was laid off (Tr. 213). He described his duties while employed at the 

construction site in question, and confirmed that he reported to Mr. Erger 

(Tr. 214). He denied that he was ever classified as a "leadman" or 

ever performed the duties of a leadman. He stated that he had no authority 

to hire, fire, promote, or demote any employee, but that if he believed 

an employee deserved a raise he "could put in a word for him" with Mr. Erger 

(Tr. 215). He confirmed that he received instructions from Mr. Erger 

in the morning as to the equipment which needed to_ be serviced, and he 

confirmed that either he or Mr. Erger held safety meetings for the 

equipment people (Tr. 216). 

250 
Mr. Kauss stated that he began working with Mr. Donovan when 

he was assigned to the day shift, and that when he first worked with him 

on the fuel truck a couple of times, he needed some help with checking 

the oil and water in the radiator. He confirmed that he had one argument 

with Mr. Donovan about two weeks after he started work on the day shift 

and the argument was over his failure to properly wash down a diesel 

fuel island (Tr. 218, 220). He confirmed that the argument "was midly 

hot", but he denied swearing at Mr. Donovan (Tr. 220). 

Mr. Kauss confirmed that he and Mr. Donovan met with Mr. Erger 

for about ten minutes on the Monday after Mr. Donovan had gone to see 

Mr. Warhol, and he believed their problems had been worked out (Tr. 221). 

He denied that he and Mr. Barnhouse ever smoked marijuana on the project, 

and he denied ever observing employees doing so. He also denied that 

Mr. Donovan had ever complained to him about any marijuana smoking on 

the job (Tr. 221-222). 

Mr. Kauss identified exhibit R-12 as his "reduction in force" 

form, confirmed that it indicates his job classification as "heavy duty 

mechanic", and he confirmed that this was his job during his entire employment 

period with the respondent (Tr. 223). Mr. Kauss confirmed that he was 

currently unemployed and was never offered any employment by Tenneco, 

nor has he applied for a job with them (Tr. 223). 

Mr. Kauss confirmed that he checked on all of the oiler's work 

while he was employed and he denied that he ever went out of his way to 

check up on Mr. Donovan'~_ work. He indicated tha_J: it was his ~ftSP,onsibility 

to repair leaky fuel trucks, and denied that he ever refused to repair 

any called to his attention by Mr. Donovan (Tr. 225). He denied any 

promises or threats for his testimony in this case (Tr. 226). 

On cross-examination, Mr. Kauss confirmed his experience and education 

as a mechanic, and he also confirmed that while he has smoked marijuana, 

he never did it on the job (Tr. 234). Mr. Kauss denied that he called 

Mr. Donovan an "S.O.B." on March 6, at the time of their argument over 

the spilled fuel at the diesel island, and he confirmed that this is 

when Mr. Donovan told him "he was going to the office" over that encounter 

(Tr. 237). He denied that he and Mr. Donovan argued again on the 

subsequent Monday when they met with Mr. Erger (Tr. 238). 

In response to further questions, Mr. Kauss stated that safety 

meetings were held every Monday morning at the mechanic shop and that 

he would go over a "safety check sheet" with the men, and that Mr. Donovan 

was usually present at these meetings, which took about five minutes 

(Tr. 249). Mr. Kauss denied that he had ever threatened or harassed 

Mr. Donovan in any way, and he was not aware of any safety complaints made 

by Mr. Donovan (Tr. 251). 

251 
Findings and Conclusions 

It is clear that a miner has an absolute right to make safety 

complaints about mine conditions which he believes present a hazard to 

his health or well-being, and that under the Act these complaints are 

protected activities which may not be the motivation by mine management 

in any adverse personnel action against an employee; Sec. ex rel. Pasula 

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

grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d 

Cir. 1891), and Sec. ex rel. Robinette v. United Castle Coal Co., 3 FMSHRC 

803 (April 1981). In order to establish a prima facie case a miner must 

prove by a preponderance of the evidence that: (1) he engaged in protected 

activity, and (2) the adverse action was motivated in any part by the 

protected activity. Further, the miner's safety complaints must be made 

with reasonable promptness and in good faith, and be communicated to mine 

management, MSHA ex rel. Michael J. Dunmire and James Estle v. Northern 

Coal Company, 4 FMSHRC 126 (1982). 

The thrust of Mr. Donovan's discrimination complaint in this case 

is that he complained to certain mine management personnel about certain 

leaky fuel truck conditions and the smoking of marijuana on the job by 

miners while engaged in their work. He alleges that the smoking of marijuana 

jeopardized his safety, as well as the ~afety of other miners in that 

the smoking of marijuana and the use of drugs on the job resulted 

in at least one incident where he claims a fellow worker nearly backed 

over him with a truck whi.le under the influence of drugs. With regard 

to t:-he leaky fuel trucks,- Mr. Donovan claims that----rather than t-aking 

corrective action to insure that the conditions were repaired, certain 

mine management personnel directed the work force to "hide the trucks" 

from l1SHA inspectors who were on the scene. 

In his amended complaint, as well as in a pretrial deposition taken 

by respondent's counsel, Mr. Donovan claimed that his safety complaints 

were made to equipment supervisor and foreman Joseph Erger, p_ersonnel 

manager David Warhol, and a "leadman" known to him only as "Doc" (James Kauss). 

Mr. Donovan also claimed that Mr. Kauss, as well as Mr. Donovan's coworker, David Barnhouse, smoked marijuana on the job, and that he complained 

to them also in an effort to get them to cease and desist. 

Mr. Donovan claims that as a result of his safety complaints, he 

was harassed and intimidated by Mr. Kauss and Mr. Barnhouse on the job, 

and that Mr. Kauss became hostile and sought to discredit him by complaining 

about his work, calling him derogatory names, and provoking arguments 

with him, all of which made it difficult for him to continue working. 

Mr. Donovan claims further that rather than taking corrective action 

with regard to his complaints, Mr. Erger encouraged him to seek work 

252 
elsewhere or to quit his job, ignored his complaints, and denied him 

access to, or an opportunity to meet with superintendent John Murray, 

all in an effort to prevent complete disclosure of his complaints. In 

addition, Mr. Donovan claimed that his wages were cut by $2.50 an hour, 

with no change of duties, because of his safety complaints. In short, 

Mr. Donovan claimed that the actions taken against him by Mr. Erger 

and Mr. Kauss were motivated in large part by his safety complaints 

concerning leaky fuel trucks and the smoking of marijuana. 

The crucial question in this case is whether the respondent, acting 

through or by any of its supervisors or managers, violated Section lOS(c) 

of the Act by demoting, harassing or otherwise intimidating Mr. Donovan, 

and/or firing or constructively discharging him for engaging in protected 

activities. The parties stipulated that Joseph Erger, David Warhol, 

and John Murray were supervisors and/or managerial officials employed 

by the respondent at the time of Mr. Donovan's employment, and that 

these officials had the authority to hire, fire, discipline and independently 

direct the work force. Accordingly, as to these individuals, the issue 

is whether the record supports findings or conclusions that they individually, 

or collectively, violated any of the protections afforded Mr. Donovan 

by the law. A further issue is whether purported "leadman" James Kauss, 

was in fact a supervisory or managerial employee or agent of the respondent 

during the period in question, and if so, whether he also discriminated 

against Mr. Donovan, either individually or collectively. 

Mr. Donovan's Safety Complaints 

Employee's Use of Drugs 

With regard to Mr. Donovan's allegations concerning the smoking 

of marijuana on the job, Mr. Donovan was not shy about discussing this 

with the individuals whom he claims were using drugs. Although I can 

understand his concern for his own personal safety, I find it strange 

that he made no attempts to inform the local authorities at that time 

about such a problem, particularly in a situation where he claims "dozens" 

of persons were involved. As a matter of fact, during the course of 

the hearing in this case, Mr. Donovan contacted the local police department 

in Green River and requested someone from that department to come to 

the hearing. A "plain clothes" police lieutenant walked into the courtroom 

during the trial and testimony in this case, and after identifying himself 

to me he stated that Mr. Donovan had requested someone to come. After a 

brief conference with this individual in private, I was convinced that 

he had no personal knowledge of Mr. Donovan's discrimination complaint, 

and did not even know who he was. After a further conference with Mr. Donovan, 

the police representative departed. 

Mr. Donovan's claims concerning the use of drugs at the construction 

site in question escalated into a most serious pretrial allegation by 

the respondent that Mr. Donovan attempted to extort money or his job 

253 
back from the respondent in exchange for a promise by Mr. Donovan that 

he would not "go public" with certain video tapes which he claimed he 

had showing miners using drugs on the job. Although respondent supported 

its pretrial allegation in this regard with a sworn affidavit from the 

individual with whom Mr. Donovan purportedly had a telephone conversation 

with, and presented testimony and other documentation in support of its 

allegations of extortion, Mr. Donovan denied that he made the call in 

question and I find it unnecessary to make any findings on this question, 

particularly in light of the serious criminal implications of such an 

allegation (Tr. 106-107; 125-128; exhibits R-6 and R-10). 

Mr. Donovan and Mr. Kauss admitted smoking marijuana in the past, 

but Mr. Barnhouse and Mr. Kauss denied they ever used it on the job, and 

Mr. Erger denied that he ever used drugs or observed others smoking 

marijuana while at work. Respondent's counsel conceded that the use of 

marijuana or other drugs by employees on the job presents a serious safety 

hazard and concern. However, even if I were to accept Mr. Donovan's 

assertions and testimony as true, the critical issue is whether his 

safety concerns were in fact communicated to mine management, and in 

return, rather than taking corrective action, management harassed and 

intimidated him to the point where he was forced to leave his job. In 

short, the issue is whether Mr. Donovan's safety complaints, once 

communicated to mine management, resulted in his "constructive discharge". 

Mr. Erger and Mr. Warhol denied that Mr. Donovan ever mentioned the 

use of drugs or marijuana by anyone during their conversations and meetings, 

and I find them to be credible witnesses and believe them. I seriously 

question Hr. Donovan's credibility. In light of Mr. Donovan's "prior 

assertions and subsequent denials regarding the question of whether 

he communicated his marijuana smoking allegations to mine management, 

I seriously question his credibility on this question. 

In his deposition, at pages 12-15, Mr. Donovan stated that he 

specifically advised Mr. Erger, on at least two occasions, that Mr. Kauss 

and Mr. Barnhouse were smoking marijuana on the job in the truck and 

that he had observed them doing so. He also stated that he specifically 

told Mr. Erger that their smoking of marijuana endangered the lives of 

himself and other miners, and that Mr. Erger assured him "he would take 

care of it". Mr. Donovan also stated in his deposition that "there were 

a lot of people using dope on the job", and that this was a "daily 

occurrence". He claims that he "could get no satisfaction on the job" 

and went to complain to personnel manager Dave Warhol about the situation, 

deposition, pg. 15. 

During the hearing in this case, Mr. Donovan recanted his prior 

statements made in his deposition and confirmed that he never told Mr. Erger 

or Mr. Warhol about the alleged smoking of marijuana on the job. When 

the deposition was received in evidence (Tr. 35; 46), Mr. Donovan 

alluded to certain statements therein which he claimed "were incorrect". 

254 
He was given an opportunity to review his prior statements and to 

explain or co~rect any statements which he believed were inaccurate 

(Tr. 36-46). After doing so, he recanted his prior statements that he 

had advised Mr. Warhol and Mr. Erger about the marijuana smoking on 

the job (Tr. 36-37; 43). 

With regard to Mr. Donov~m' s asserted mariJ uana smoking "safety 

complaint" to James Kauss, I conclude and find that there is no credible 

evidence to support a finding that Mr. Kauss was in fact part of mine 

management. The fact that Mr. Donovan may have believed he was, doesn't 

make it so. Thus, I find respondent's testimony and evidence that Mr. Kauss 

was not in fact a "leadman", a manager, or an agent of the respondent credible. 

During his cross-examination of Mr. Kauss, Mr. Donovan stated that 

to his knowledge, Mr. Kauss was not a mechanic. Mr. Donovan stated 

that he considered him to be a "leadman" ·because "he would come around 

and tell us what to do every day and here and there and chew on people 

whenever he felt like, so apparently he was the leadman" (Tr. 228). 

However, respondent has rebuted Mr. Donovan's assertions and has established 

by a preponderance of the probative and credible testimony that Mr. Kauss 

was in fact a mechanic and not part of mine management. 

Even if I were to conclude that Mr. Kauss was part of mine management, 

I find no credible evidence to support a finding that he harassed or 

intimidated Mr. Donovan. Mr. Kauss had no authority to hire or fire 

anyone, and the fact that Mr. Donovan saw fit to leave his job over his 

somewhat heated arguments with Mr. Kauss does not per se mean that 

Mr. ~Kauss "ran him off th-e job" or otherwise conspiredto "get ... hiffii• for 

complaining about his marijuana smoking. 

There is nothing in the record to suggest that during his employment 

tenure with the respondent Mr. Donovan made any safety complaints to 

MSHA with regard to any alleged use of drugs by miners on the job. In 

addition, in view of the above findings and conclusions, I conclude and 

find that Mr. Donovan did not conununicate any safety complaints concerning 

the use of marijuana or other drugs by miners on the job to anyone in 

mine management during his employment at the work site in question. 

The Leaky Fuel Trucks 

It seems strange to me that at no time during his employment at the 

mine in question did Mr. Donovan make any safety complaints to any 

MSHA inspectors about the leaky fuel conditions on his truck or the fact 

that mine management was "hiding the trucks from the inspectors". 

Mr. Donovan's assertion that he didn't know of MSHA's existence until 

he filed his discrimination complaint is inconsistent with his allegations 

implying that management hid the trucks from inspectors when they were 

on the property. It is also inconsistent with Mr. Donovan's assertions 

255 
that while on the property, the inspectors never inspected the 

trucks. Further, since Mr. Donovan testified that he had several 

"encounters" ~ith respondent's safety personnel at the job site, he 

could have complained to them about the leaky truck conditions. 

Mr. Donovan's assertions of being "unaware" of MSHA is further contradicted by his own testimony that during his employment at the site 

an MSHA inspector asked him about a front-end loader which had apparently 

been involved in a fatality which MSHA was looking into (Tr. 185-186). 

In my view, Mr. Donovan had ample opportunity to bring to MSHA's attention 

any conditions concerning the trucks which he believed threatened his 

safety. In addition, he had an absolute right to refuse to work under 

such conditions, and at least on one occasion he did bring to Mr. Erger's 

attention a malfunctioning fuel pump which was corrected and repaired. 

While the record in this case does suggest that there were some 

problems with leaky fuel pumps on the trucks, respondent has established 

through the credible testimony of Mr. Erger, Mr. Barnhouse, and Mr. Kauss 

that these matters were attended to and that the trucks were either taken 

out of service or repaired. Further, there is no evidence that the 

respondent had ever been cited by MSHA or any state inspectors for any 

leaky fuel truck conditions. Further, while the record also suggests 

that there were some problems with the fueling of welders in the vicinity 

where men were working, these matters were apparently attended to by 

respondent's own safety department, and at least on one or two occasions, 

Mr. Donovan may have himself been involved in those incidents. 

~I conclude and find ~hat Mr. Donovan's assert:,_ed "safety coII],pL:i.ints" 

concerning any leaky fuel trucks amounted to nothing more than his calling 

these conditions to the attention of management, and that the conditions 

were ultimately corrected. Further, Mr. Donovan conceded that he never 

specifically brought these so-called safety complaints to the attention 

of Mr. Erger or to Mr. Warhol, and even if he did, I cannot conclude 

that they retaliated against him in any way for voicing these safety 

concerns. I make these same findings with respect to any such complaints 

that Mr. Donovan claims he made to Mr. Kauss. 

The Alleged Harassment and Intimidation 

The record in this case reflects that Mr. Donovan was hired at the 

project by Mr. Erger upon the recommendation made to Mr. Murray by 

Mr. Donovan's friend Duane Baker. After some personnel problems developed 

with the night shift crew, problems which apparently did not directly 

involve Mr. Donovan, all of the night shift, with the exception of Mr. Donovan 

and another employee, were apparently dismissed, and the night shift 

was disbanded. Mr. Donovan was retained on the day shift, and the decision 

in this regard was made by Mr. Erger and Mr. Murray. Further, even though 

Mr. Donovan had an eye condition which resulted in his failure to pass 

an initial physical examination, he was still retained in his capacity 

256 
as an oiler making more money than his co-worker Dave Barnhouse, who 

drove the truck to which he and Mr. Donovan were assigned, and Mr. Barnhouse 

also continued doing the work of an oiler. 

Mr. Warhol testified that when Mr. Donovan came to his office in 

an obviously agitated and irritated state on Friday, March 9, over his 

encounter with Mr. Kauss, Mr. Warhol suggested that he take the weekend 

off to "cool down" and to return to work the next Monday. Mr. Warhol 

testified furthe~ that he was concerned that Mr. Donovan's leaving work 

would result in his termination, and he acted as an intermediary in an 

attempt to set up a meeting with management to resolve Mr. Donovan's 

problems. At that point in time, Mr. Warhol had no knowledge of any 

specific complaints by Mr. Donovan, and he heard nothing further from 

Mr. Donovan until he later learned that he had left his job. 

I find nothing in the record to support a finding or conclusion 

that Mr. Warhol did anything to violate Mr. Donovan's rights. Mr. Warhol 

impressed me as a most honest and credible witness, and there is no 

evidence to show that he was ever informed or made aware of Hr. Donovan's 

alleged safety concerns. With regard to the abortive meetin~ with 

Mr. Murray, I find that this was outside Mr. Warhol's control, and I 

accept his testimony that once he told Mr. Donovan to take some time 

off to "cool down" and never heard from him again, he assumed that 

any problems which he may have had were resolved. In short, there is 

no credible testimony or evidence to suggest that Mr. Warhol harassed, 

intimidated, or otherwise acted to intimidate Mr. Donovan. Nor is there 

any evidence that he violated any of Mr. Donovan's rights ~nder the Act, 

or was part of any "consplracy" or "witch hunt" to force Mr. Do·fi.ovim to 

quit his job. I make these same findings and conclusions with regard 

to Mr. John Murray. 

I agree with the respondent's argument that Mr. Erger's decision 

to demote Mr. Donovan was based entirely on nondiscriminatory and nonretaliatory reasons and would have occurred regardless of any purported 

protected activity. I find Mr. Erger's testimony that he considered 

lowering Mr. Donovan's wages and reassigning him as a helper to be 

credible. I also conclude that Mr. Erger's decision in this regard was 

prompted by the two incidents concerning Mr. Donovan's putting gas in 

a diesel piece of equipment and putting too much oil in a welder. Although 

Mr. Donovan characterized these incidents as "honest mistakes", they did 

result in damage to the welder, and required Mr. Kauss to drain the gas 

out of the diesel tank. Under these circumstances, I conclude that Mr. Erger 

was justified in believing that Mr. Donovan's work performance was not 

what he expected it to be. Further, as the record in this case establishes, 

at the time Mr. Erger informed Mr. Donovan that he was going to demote 

him, Mr. Erger had no knowledge of Mr. Donovan's complaints. 
While I recognize the fact that Mr. Donovan may have made an 

"honest mistake'' when he put gasoline in a diesel piece of equipment, and 

overfilled a welder with oil, and that these two incidents came shortly 

after his Monday meeting with Mr. Erger and Mr. Kauss, there is nothing 

to suggest that Mr. Donovan was harassed by Mr. Erger over this incident. 

The over filling of the welder caused the machine to be taken out of service 

for repairs, and I can understand Mr. Erger's concern about Hr. Donovan's 

ability to perform his job as an oiler. I can also appreciate and understand 

the concern that Mr. Kauss may have had over these incidents, particularly 

in a situation where Mr. Erger apparently relied on Mr. Kauss to make 

sure that his men were doing their job right. Further, from the record 

in this case, it appears to me that any differences between Mr. Kauss 

and Mr. Donovan preceded the two incidents in question, and their "shouting 

match" took place the week before. Given the fact that Mr. Erger testified 

that he could have fired Mr. Donovan over the two incidents in question, 

his decision to retain him does not indicate to me that Mr. Erger was 

"out to get" Mr. Donovan. It seems to me that Mr. Erger could have done 

that by simply firing him on the spot rather than deciding to keep him, 

and that fact that Mr. Erger advised him that he probably would reduce his pay 

and reassign him as a helper is a management decision that Mr. Erger had 

a right to make. 

Mr. Donovan testified that when he put too much oil in a welder 

Mr. Kauss spoke to him in a "hasty type" way, was agitated over the 

mistake he had made, but. did not curse him at that time(Tr. 239). During 

the incident when Mr. Donovan put gas in the diesel truck, Mr. Kauss 

went to find the tools to drain it, and Mr. Donovan stated that he "come 

back out and was cussing this and that" (Tr. 240). When asked whether 

Mr. -Kauss was cursing at him, Mr. Donovan stated ..!-'he was cussing 1?,ecause 

he said, you guys are not doing your job correctly when you put the gas 

in a diesel rig" (Tr. 240). When asked whether Mr. Kauss was cursing at 

him or simply "over the situation", Mr. Donovan stated that Mr. Kauss 

said "you son-of-a-bitches ain't doing the job right" (Tr. 241), and 

Mr. Donovan indicated that Mr. Kauss was "apparently" referring to both 

him and Mr. Barnhouse (Tr. 241). 

i:fr. Donovan testified that "the dope issue" which he discussed with 

Mr. Kauss was prior to the time that he went to see Mr. Warhol, and that 

when he complained to Mr. Kauss about his use of drugs Mr. Kauss called 

him "a hick" or "something to that effect". When asked whether Mr. Kauss 

cursed him at that time, Mr. Donovan replied "t'he word he used, I can't 

think of right now" (Tr. 243). 

Mr. Donovan confirmed that Mr. Kauss "used such words" when something 

went wrong to agitate him, and he also confirmed that when they argued 

on March 6, he too "said a few things" but did not swear at Mr. Kauss 

(Tr. 244). These were the only instances that Mr. Donovan could recall 

Mr. Kauss using "strong words" with him (Tr. 244). 

253·. 
After careful consideration of the entire record in this case, 

including my observations of Mr. Donovan and Mr. Kauss during the course 

of the hearing, I believe that Mr. Donovan's "frustrations" stem from 

his obvious dislike of Mr. Kauss. Aside from the allegation that Mr. Kauss 

smoked marijuana, that dislike obviously flows from Mr. Donovan's 

opinion that Mr. Kauss was not a particularly competent worker, his 

resentment of Mr. Kauss for questioning his work, and the ~nsuing arguments 

which resulted from Mr. Kauss' calling Mr. Donovan's shortcomings to his 

attention. As a matter of fact, in his two-page post-hearing statements 

Mr. Donovan states "I feel I was discriminated against by the respondent 

in that they allowed an unqualified person, James Kauss, to supervise 

other employees, and allowed this man to discriminate against me and 

to report untrue statements on my working abilities". 

In his deposition of October 8, 1982, at page 17, Mr. Donovan 

states that after the Monday meeting with Mr. Erger, he made three or 

four attempts to see Mr. Murray, but that Mr. Erger "was in the way and 

would not let me go in and talk to him". However, during the hearing, 

he testified that after Mr. Erger told him to resolve his differences 

with Mr. Kauss, and that there was no need for a meeting, he made no 

further attempts to see Mr. Murray. Accordingly, there is nothing in this 

record to suggest that Mr. Murray was even aware of Mr. Donovan's 

"problems", and there is absolutely no evidence that Mr. Murray did anything in violation of any of Mr. Donovan's protected rights. 

In view of the foregoing findings and conclusions, I find no credible 

testimony or evidence to support any findings or conclusions that anyone 

connected with mine management, either singularly----or collective1y ,..·took 

any action against Mr. Donovan in retaliation for his engaging in any 

rights protected by the law. 

Mr. Donovan's Employment Termination 

I conclude and find that the preponderance of the evidence in this 

case suggests that Mr. Donovan voluntarily quit and abandoned. his job 

on or about March 17, 1981, and that he did so for reasons unrelated to 

any purported "conspiracy" on the part of mine management to "get rid of 

him" for making safety complaints. Exhibit R-1, a copy of an "assignment 

termination" document from Mr. Donovan's personnel records, and which 

contains Mr. Donovan's signature, and which he acknowledge is his, reflects 

that he left his job "to work elsewhere", and coupled with the testimony 

of respondent's responsible officials, which I find credible, support 

my findings and conclusions that Mr. Donovan voluntarily quit his job. 

Although his quitting may have been precipitated by his impending demotion 

and disputes with Mr. Kauss, the record in this case strongly suggests that 

Mr. Donovan himself had something to do with these matters, namely his 

own work related mistakes and encounters with Mr. Kauss. 

259 
Conclusion and Order 

In view of the foregoing findings and conclusions, I conclude 

and find that the record in this proceeding does not establish by a 

preponderance of any reliable, credible, or probative evidence that the 

respondent discriminated against the complainant because of any protected 

safety activities on his part. Under the circumstances, the complaint 

IS DISMISSED, and the relief requested by the complainant IS DENIED. 

Distribution: 

Lynn Donovan, 841 South Raritan, Denver, Colorado 80223 (Certified Mail) 

Peter R. McClain, Esq., Brown & Root, Inc., P.O. Box 3, Houston, TX 

77001 (Certified Hail) 

William Zosel, Esq., Bianchi & Zosel, 4908 Rainer Avenue South, Seattle, 

WA 98118 (Certified Mail) 

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

1961 Stout St., Denver, CO 80294 (Certified Mail) 

260 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX A VENUE, SUITE 400 

DENVER, COLORADO 80204 

) 

SECRETARY OF LABOR, MINE SAFE1Y AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

Petitioner, ) 

) 

v. ) 

) 

MID-CONTINENT RESOURCES, INC., ) 

) 

Respondent. ) 

~~~~~~~~~~~~~~~~> 

Appearances: 

Alan H. Yamamoto, Esq. 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 82-174 

MINE: Dutch Creek No. 1 

Office of the Solicitor, United States Department of Labor 

Arlington, Virginia 

for the Petitioner 

Edward Mulhall, Jr., Esq. 

Delaney & Balcomb 

Glenwood Springs, Colorado 

for the Respondent 

Before: Judge John J. Morris 

DECISION 

FEB 2 81983 

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

Administration, (MSHA), charges respondent, Mid-Continent Resources, Inc., 

(Mid-Continent), with violating safety regulations adopted under the 

Federal Mine Safety and Health Act, 30 U.S.C. 801 ~seq. 

After notice to the parties a hearing was held in Carbondale, Colorado 

on October 19-20, 1982. 

The parties filed post trial briefs. 

ISSUES 

The issues are whether respondent violated the regulations, and, if 

so, what penalty is appropriate. 

261 
SUMMARY OF THE CASE 

In this civil penalty proceedings the Secretary alleges respondent 

violated three safety regulations. 

The initial citation concerns a defective monitor. It is claimed to 

be defective --because it did not deenergize add on lights and because a 

warning light could not be seen when the remote control unit was in use. 

The first allegation is affirmed and the second is vacated. 

The second citation concerns electrical work performed by a nonqualified person in installing a switch box cover in April 1981 and in 

wiring a light switch in 1978. The first allegation is affirmed and the 

second is vacated. 

The third citation concerns a methane monitor maintenance program. 

This citation is vacated. 

A broad overview of the explosion at this mine may be seen in MSHA's 

official report received in evidence as Exhibit P 1. 

For convenience the decision sunnnarizes the relevant evidence as 

it relates to each citation. The evidence may relate to more than one 

cit at ion. 

Very few credibility issues arise in the case. When they do their 

resolution will be apparent in the text of the decision. 

CITATION 802484 

This citation, alleging a violation of 30 C.F.R. 75.313, provides 

as follows: 

The methane monitor installed on the 12CM continuous mining 

machine, Serial No. JM2228, located in the 102 Section was 

not installed in a manner to deenergize automatically the 

continuous miner in that the lighting system of the machine 

remained energized when the concentration of methane reached 

2.0 percent. The methane monitor also was not installed so 

as to give a warning automatically at all times when the 

concentration of methane reached 1.0 percent while the 

·machine was being operated by remote control. The warning 

light is located in a position that cannot be seen at all 

times. These conditions were observed on April 25, 1981, 

during an inspection as part of the accident investigation 

of the April 15, 1981, explosion. 

262 
The standard allegedly violated, duly promulgated in Title 30 Code of 

Federal Regulations, is likewise contained in Section 303(1) of the Act. 

The standard provides as follows: 

§ 75.313 Methane monitor [STATUTORY PROVISIONS] 

The Secretary or his authorized representative shall require, 

as an additional device for detecting concentrations of 

methane, that a methane monitor, approved as reliable by 

the Secretary after March 30, 1970, be installed, when 

availabl~, on any electric face cutting equipment, continuous 

miner, longwall face equipment, and loading machine, except 

that no monitor shall be required to be installed on any 

such equipment prior to the date on which such equipment 

is required to be permissible under sections 75.500, 75.501, 

and 75.504. When installed on any such equipment, such 

monitor shall be kept operative and properly maintained and 

frequently tested as prescribed by the Secretary. The 

sensing device of such monitor shall be installed as close 

to the working face as practicable. Such monitor shall be 

set to deenergize automatically such equipment when such 

monitor is not operating properly and to give a warning automatically when the concentration of methane reaches a maximum 

percentage determined by an authorized representative of the 

Secretary which shall not be more than 1.0 volume per centum 

of methane. An authorized representative of the Secretary 

shall require such monitor to deenergize automatically equipment on which it is installed when the concentration of methane 

reaches a maximum percentage determined by such representative 

which shall not be more than 2.0 volume per centum of methane. 

SECRETARY'S EVIDENCE 

Clarence J. Daniels, James Smith, and Cecil Lester, all MSHA 

supervisors who investigated the electrical system at the Mid-Continent 

mine, testified for the Secretary (Tr. 11, 26). 

On April 15, 1981, at 4:10 p.m. a devastating methane and coal dust 

explosion shattered the 102 section Mid-Continent's Dutch Creek Mine No. 1 

(Tr. 11, Pl). 

The last completed MSHA inspection at this mine took place January 5, 

1981 through January 19, 1981. A subsequent general inspection, began 

March 30, 1981, was in progress at the time of the explosion (Tr. 72-73, 

Pl). MSHA Coal Mine Inspector Louis Villegas was in the 102 section on two 

occasions on the day of the explosion. He left the section at 11:30 a.m. 

and was the first MSHA official to return to the mine, at 5:55 p.m. 

There have been five ignitions and two previous explosions over the 

years in this mine (Tr. 125). 

263 
From the positions of six of the victims the 1nvestigators concluded 

that at the time of the explosion the miners were attempting to remove 

methane from the face area by winging the line curtain across the face 

(Pl at 31). 

MSHA investigated the mine, including the entire electrical system 

in the 102 section, beginning April 22, 1981 and concluding May 8, 1981 

(Tr. 11, 12, Pl at 28). The purpose of the investigation was to determine 

the cause of the explosion, to create an awareness of the hazards for the 

industry, and to attempt to prevent future occurrences (Tr. 11). Pursuant 

to Section 103(a) of the Act, 30 U.S.C. 813(a), the Secretary issued a 

comprehensive detailed report concerning this incident. The report, 

received in evidence, is Exhibit Pl. 

MSHA investigated the continuous miner and its methane monitor system. 

In this decision the continuous miner is also referred to as the miner, 

the CM, the 12CM, and the Joy 12CM. 

Sixteen citations were issued. Four of the citations related to the 

explosion and three of the citations are in contest (Tr. 12, 46). 

The high voltage system was well installed and maintained (Tr. 12). 

The electrical power to the 37 foot long continuous miner comes from 

a transformer and power center through a trailing cable to a point onboard 

the 12CM. From there the power goes to a control unit for the various 

components on the machine itself (Tr. 29, 317). 

When the methane monitor was tested at the two percent methane level 

it was found that the add-on McJunkin lights on the continuous miner (Joy 

12CM) would not deenergize (Tr. 13, 27). The lighting system was not 

properly connected to the relay (Tr. 13). 

The methane monitor operates in this fashion: when the sensor detects 

a two percent level of methane in the atmosphere a red light goes on and 

the monitor automatically cuts off the 12CM at the trailing cable onboard 

the miner (Tr. 14, 17, 29, 113, 114). The monitor system, manufactured 

by BACHARACH, ]} consists of a relay, a power supply, a readout system, 

sensor heads, and cables (Tr. 34, 35). 

The McJunkin lights were connected in parallel with the existing 

monitor relay instead of being in a series as the wiring diagram of the 

add-on system required (Tr. 13, 29, 41). The hookup of lights to the 

controller is a matter of an electrician following the diagram inside the 

compartment and making the proper connections (Tr. 29). It would be simple 

for a knowledgable electrician (Tr. 30-31). 

1/ BACHARACH INSTRUMENTS: UNITED TECHNOLOGIES BACHARACH. 

264 
It is important that the methane monitor deactivate as much of the 

machine as possible (Tr. 110). This helps eliminate ignition sources 

(Tr. llO, lll)". MSHA policy requires the monitor to deenergize all 

possible moving parts and ignition sources (Tr. 112). Only that part of 

the power keeping the monitor activated remains energized (Tr. 113). The 

methane moni~or itself remains functional to give an indication of the 

presence of methane and to prevent the reactivation of the continuous miner 

(Tr. 113). 

In the great majority of instances the methane monitor shuts off the 

power on the machine and the trailing cable stays energized (Tr. 120). On 

the 12CM the trailing cable goes into the junction box on the right hand 

side next to the operator's cab. The left rear controller box controls the 

various devices on the miner (Tr. 120). The controller is the large 

explosion proof compartment containing the electrical components, wiring, 

relays, and transformers that control the motors. 

The methane monitor originates in a control compartment from the 

existing voltage on the left side of the machine (Tr. 28). The trailing 

cable (550 volts) remains energized up to the first protective device on 

the machine, that is, up to one of the controllers. If the trailing cable 

leading up to the machine has any defects then MSHA considers it part of 

the continuous miner (Tr. 47, 48). 

MSHA's regulations require the machine itself, excluding trailing 

cables, shall be deenergized up to the methane monitor leaving the methane 

monitor energized. All lights on the CM would be deenergized (Tr. 53). 

According to MSHA inspector Lester, the defect was that the McJunkin 

add-on lights stayed on when the methane monitor reached a two percent 

concentration of methane (Tr. 398). 

The Secretary's regulations further require that if the monitor senses 

a methane concentration of one percent then a warning light goes on. When 

this occurs the operator is required to make changes to reduce the methane 

concentration (Tr. 19). 

The wiring of the add-on lighting system on the miner, installed in 

1978, did not conform to the wiring diagram approved by the MSHA subdistrict manager (Tr. 13, 15, 17, 407). The wiring diagram shows a two 

pole lighting switch but there was, in actuality, only a one pole switch 

connection (Tr. 15). The two pole switch to turn the lights "on" and "off" 

was not included in the secondary circuit of the lighting transformer 

(Finding of Fact No. 21, Pl at 51). MSHA's approval of the add-on light 

installation was in accordance with the manufacturer's instructions 

(Tr. 17). If a system is maintained as directed a fire or explosion will 

not occur (TL. 16). The remote control system and methane monitor system 

were both approved by MSHA; however, after installing the add-on lights 

Mid-Continent was not required to have the system inspected before placing 

the miner back in operation (Tr. 17). Properly the add-on lights should 

have been installed in sequence behind the methane monitor system (Tr. 29). 

265 
The MSHA national policy relating to processing field changes for 

installing illumination systems on permissible equipment was issued under 

date of December 16, 1977 (Tr. 388, P6). Witness Lester formulates and 

drafts such national policy (Tr. 388). 

When the add-on lights were installed MSHA National Policy was the 

same as the local policy. It allowed an adopting company to make the 

installation and put the machine in service if the operator obtained prior 

MSHA approval (Tr. 49, 408, MSHA letter Pl at Appendix M). 

Mid-Continent officials discussed the methane monitor with MSHA 

inspectors, but had not advised MSHA that the methane monitor was 

improperly connected (Finding of Fact No. 26, Pl at 52). 

In the inspection after the explosion, other than the add-on lights, 

nothing was found to have been changed on the 12CM continuous miner from 

the way it had been manufactured (Tr. 407). Further, there were no other 

defects in the monitor itself, except for some difficulty in zeroing it in 

(Tr. 104). 

A methane readout, or indicator, mounted on the dashboard of the 

monitor (activated at a concentration of one percent) is a two inch 

circular dial with an eraser size warning light (Tr. 19, 32, 34, 35). The 

one percent warning light is observable from directly behind the cab of the 

miner. But if the operator was behind the machine itself he could not see 

it (Tr. 115). It is an important requirement for the operator to know when 

the methane concentration reaches one percent. The operator can then shut 

down the machine and do whatever needs to be done to eliminate the 

hazardous condition (Tr. 17, 19, 114)). The explosive range of methane 

is between 5 to 15 percent (Tr. 116). When operating the remote control 

device in certain positions the continuous miner operator cannot see the 

warning light (Tr. 17, 18, 20, 22, 32). 

The miner operator often stands in a crosscut 30 to 40 feet outby the 

face to operate the remote control (Tr. 21, 36-37). Generally the operator 

would be operating the remote control from the crosscut where he could see 

the face of the coal he is cutting (Tr. 36-37). Section 313 requires a 

warning light on the monitor (Tr. 22). On Mid-Continent's machine, due to 

the cab and obstructions, it was not possible to see the dial from a point 

behind the miner (Tr. 115). However, the warning device, which has little 

illumination, came on at all times on the indicator when the methane concentration reached one percent (Tr. 36, 39). 

MSHA approved the indicator gauge, its installation on the dashboard, 

and its intensity as well as the methane monitor (Tr. 41). The remote 

control and the BACHARACH monitor are parts included in the purchase order 

of the Joy 12CM (Tr. 33, 34, Pl at Appendix M). But MSHA does not 

specifically approve any method of using a remote control device but that 

does not mean the operator can use the device in any manner he likes 

(Tr. 18, 19). The regulations do not state whether the methane warqing is 

to be oral or visual. Further, there is no line of site requirement in the 

regulation (Tr. 36). That is, the regulation does not require the operator 

to be in a "line of sight" behind the indicator. In his investigation the 

inspector found he couldn't see the headlights come on when he was beyond 

the tailpiece nor when he was 50 feet back (Tr. 40). 

266 
Mid-Continent's mine liberates about one and a half million cubic feet 

of methane in a 24 hour period. This is a gaseous coal seam· (Tr. 20). 

Mid-Continent's mine is in the 103(i) category [of the Act] and, 

as such, the mine must be inspected by MSHA every five working days 

(Tr. 42). These are spot inspections; in addition, there must be at least 

one quarterly inspection. The mine also has a resident MSHA inspector 

(Tr. 42-43, Pl at 4). During regular inspections the inspector will do a 

permissibility check on the equipment and other hazards. Electrical 

inspections are not done by an electrical expert. Electrical inspections 

usually involve a visual check of the power sensor, cables, and circuit 

breakers (Tr. 43-44). An MSHA inspector might also check the monitor. He 

does not have to be an electrical inspector to test the methane monitor 

with a test kit (Tr. 45). 

RESPONDENT'S EVIDENCE 

M. J. Turnipseed, manager of mine operations, Jesus Meraz, master 

mechanic, and John Jerome, a foreman, testified for Mid-Continent 

concerning this citation. 

This mine is subject to bumps, bounces, outbursts, and pushes. These 

events cause various phenomena in a mining section and liberate methane 

(Tr. 148-151, 155, 317). 

In looking at the 102 section after the explosion, Mid-Continent's 

manager and production foreman Jerome concluded that a very small push 

occurred. This affected the airflow. Further, there was a gas explosion 

150 feet outby the face. This, in turn, triggered a dust explosion up the 

beltline (Tr. 158, 159, 309, 310, 326). 

There were two very good production crews working the 102 section. 

One crew foreman was John Jerome. In the previous shift from 7 a.m. to 

3 p.m. conditions were normal and 20 or 22 buggies of coal were mined in 

the upper entry (Tr. 303). The other production foreman was Ron Patch. 

His shift started at 3 p.m., and the explosion occurred at 4:08 p.m. 

(Tr. 290, Pl). He died in the explosion with crew members Eugene Guthrie 

(mechanic/electrician), Kelly Greene (foreman in training), Glen Sharp, 

(CM operator), Terry Lucero (miner-helper), Thomas Vetter (shuttle car 

operator), Hugh Pierce (apprentice miner), Daniel Litweller (apprentice 

miner), Brett Tucker (apprentice miner). Also killed in the slopes section 

were Johnny Rhodes (crew foreman), John Azala (CM operator), Loren Mead 

(miner-helper), Kyle Cook (shuttle car operator). Robert Ragle (foreman) 

was also killed in the explosion (Tr. 163-165, 299, 300, 312, Rl9). 

The mine manager recalls that Mid-Continent purchased several sets 

of add-on McJunkin lights which were manufactured about 1975 by Joy 

Manufacturing Company (Tr. 178-179, 202, 203). The addition of the addon lights required a field change on each piece of equipment (Tr. 179). 
The company would usually talk to MSHA and submit w1r1ng and location 

diagrams (Tr. 179). MSHA would usually tell the company to go ahead with 

the installation and they (MSHA) would check it on the next inspection 

(Tr. 180, 181). But one of the first installations of the add-on lights 

was to this particular CM machine, No. 2228. This machine was originally 

in Bear Creek No. 4 mine. It was never taken out of service and it was 

in use in Section 102 on the day of the explosion (Tr. 181-182). Since 

there were problems on the first few installations, this continuous 

miner was inspected by MSHA before it was allowed to be put into service 

(Tr. 180-181). MSHA inspected the continuous miner to see that the lights 

were installed in an approved manner. This included checking the power 

source, cable glands, permissibility, routing of cables, and conformity 

to the wiring diagram submitted to MSHA for approval (Tr. 182). The 

continuous miner was never modified in any manner as far as the McJunkin 

add-on lights were concerned (Tr. 183). Mid-Continent's manager would not 

make a field modification without a written approval and an MSHA inspection 

(Tr. 184). The equipment in the 102 section was inspected during spot 

inspections as well as during quarterly inspections. MSHA sees that the 

machine remains as originally manufactured (Tr. 185). 

It was no secret that when the methane monitor on the continuous 

miner cut the power it did not deenergize the lights. The add-on lights 

stayed on all the time unless the power was turned off at the power center. 

Foreman Jerome knew there was a switch to shut off the lights but he never 

used it. Someone at Mid-Continent had discussed this with MSHA (Tr. 183, 

184, 319, 328). The miner stayed in that condition for three years 

(Tr. 188). To change it would require another letter to Price, Utah 

(Tr. 184). 

The monitor has a sensing head called a Whetstone Bridge. The net 

result of its technical aspect is to show the percentage of methane in the 

air (Tr. 188-192, R20, Pl at Appendix M). 

The monitor also shows an amber warning devise at a one percent 

concentration of methane. At a two percent concentration the monitor 

automatically shuts down the machine by disconnecting the power at the 

main control box (Tr. 194). The monitor itself and the 550 volts in the 

trailing cable to the machine are not deenergized (Tr. 193). With this 

continuous miner (CM No. JM 2228) the add-on lights did not deenergize 

(Tr. 193, 195). 

When next to the shuttle car you can see the warning light on the 

methane monitor (Tr. 322). The miner operator does not have the duty to 

notify the foreman when he sees the warning light because the foreman is 

next to the operator (Tr. 323). 

Mid-Continent's foreman Jerome would send someone back to the 

power center to cut the power when he'd see the one percent methane 

concentration light. Shutting off the energy at the power center deenergizes the auxillary lights, the trailer cable, and the methane monitor 

(Tr. 318-321). 

268 
The continuous miner as purchased contains a remote control device. 

The readout gauge was mounted in the cab of the CM and never changed 

(Tr. 192, 193). The remote control device permits the continuous miner to 

be operated py a worker in a safe remote location such as in a crosscut 

(Tr. 192, 314, 316). When mining from a crosscut you cannot see the 

warning light on the methane monitor (Tr. 320). That's why the miners 

check for methane after each buggy (Tr. 320-321). 

The coal in the Dutch Creek ~o. 1 Mine liberates one and one half 

million cubic feet of methane (CH ) in a 24 hour period (Tr. 203, 

204). Ventilation is furnished by fans from fresh air producing 

500,000 cfm (cubic feet air per minute) (Tr. 203). Methane would be .2% 

(Tr. 203-205). Brattice cloth directs the air to the working face 

(Tr. 205-207). The air return from the 102 section was 120,000 to 

160,000 cfm. This is a large volume of ventilation air when compared 

with other mines (Tr. 208, 304, 323-324). The ventilation plan must be 

approved by MSHA. The law requires 9000 cfm. Mid-Continent's normal is 

100,000 cfm (Tr. 211). 

In addition to the monitors sensing for methane, miners also check 

at the working face with a hand held methanometer every 10 minutes and 

when the shuttle car goes to deliver its load to the belt conveyor. 

Further checks for methane are conducted in the return airways as well 

as in preshift and onshift examinations (Tr. 210, 211, 212, 304-305, 320). 

As a result of the explosion, the power center, located in the 

crosscut some 450 feet from the face, was virtually demolished (Tr. 244-

245, 307, 342). All of the brattice, usually ten feet from the face, was 

burned (Tr. 311, 318). 

The State of Colorado Division of Mines investigated the explosion 

and issued an official report (Tr. 198, 199, R21). 

DISCUSSION 

This citation centers on two allegations. Initially, it alleges 

that the McJunkin lighting system on the continuous miner remained 

energized when the concentration of methane reached 2.0 percent. The 

second allegation is that the methane monitor was not installed in such 

a fashion as to give a warning automatically when the concentration of 

methane reached 1.0 percent when the machine was being operated by the 

remote control device. 

For the reasons hereafter stated the initial allegation in the 

citation is affirmed. The latter allegation is vacated. 

A portion of Section 75.313 requires "such monitor to deenergize 

automatically equipment on which it is installed when the concentration 

of methane reaches a maximum percentage ••• which shall not be more than 

2.0 volume per centum of methane." MSHA's evidence establishes that the 

McJunkin lights did not deenergize at the two percent methane concentration. The lights were inboard the main controller. If the add-on 

lights had been installed properly they should have been deenergized by 

the methane monitor. Mid-Continent's evidence confirms this portion of 

the citation (Tr. 193, 195). 

269 
Mid-Continent's brief, an extensive review of many facts in the case, 

addresses this citation (Brief at 70-83). 

I agree with Mid-Continent that the citation as written is twofold but 

I do not agr~e that the citation is necessarily misleading. 

Mid-Continent attacks MSHA's evidence that the hookup on the lights 

"would be simple to an electrician that knows what he is doing" (Tr. 31). 

Mid-Continent's comment adds that it is "simple to the electrician who 

knows what MSHA or the MSHA electrical inspector wants" (Brief at 72). 

I am not persuaded. It was Mid-Continent that submitted the wiring 

diagram to MSHA. It was that wiring diagram that MSHA approved. Thereafter, different and incorrect wiring was installed. It is Mid-Continent's 

obligation and not MSHA's to make the actual installation. Exhibits Rl4 

and Rl5 show the electrical leads for the McJunkin light system; Rl6 shows 

the circuit breaker for the methane monitor system (Tr. 142, 143, Rl7). 

I agree with MSHA that the proper hookup should have been simple for an 

electrician. 

Mid-Continent further assails the failure of the MSHA inspectors 

between 1978 and April 15, 1981 to detect and require the correction of 

the allegedly defective hookup (Brief at 73). On this issue MSHA asserts 

that while Mid-Continent officials discussed the methane monitor system 

with MSHA they (MSHA) were never advised the monitor was improperly 

connected (Finding of Fact No. 26, Pl at 52). In addition, it could not 

be determined whether the wiring was inspected by MSHA because the records 

of inspections do not detail all of the inspectors' activities (Finding of 

Fact No. 22, Pl at 51). On the other hand Mid-Continent's manager asserts 

MSHA and Mid-Continent "did have discussions on it" (Tr. 184). 

I credit MSHA's version that it did not know of the defective wiring. 

I base this on the obvious: MSHA at this mine has never been shown to 

be timid or hesitant in issuing citations. At the time of the general 

inspection, which was in progress at the time of the inspection, 21 

citations and one withdrawal order had been issued (Pl at 3). This 

aggressiveness in enforcing the Act is further demonstrated by the 482 

citations assessed in Dutch Creek Mine No. 1 alone in the two years 

beginning April 15, 1979 (P2, P3, as limited at Tr. 412). In short, on 

this record, I conclude that had MSHA known the wiring on the monitor was 

defective it would have promptly issued a withdrawal order. I further 

reject Mid-Continent's position because witness Turnipseed's testimony is 

somewhat vague. He didn't know the people who were parties to the 

discussion about the lights and it was, at best, his "understanding" 

(Tr. 183, 184). 

But Mid~Continent's position, even if factually supported, would 

reverse the existing law. It would make MSHA rather than the operator 

responsible for complying with the regulations. To the contrary, the 

statute imposes the duty on the operator to comply, 30 U.S.C. § 817(c), 

Beckley Coal Company v. Secretary of Labor, 1 FMSHRC 1794 (1979). 

270 
Implicit in Mid-Continent's argument is the doctrine of estoppel. 

On this point the law is clear: Estoppel does not lie against the federal 

government, Secretary v. King Knob Coal Company, Inc., 3 FMSHRC 1417 

(1981), Secretary v. J & R Coal Company, 3 FMSHRC 591 (1981), Lasher, J. 

Mid-Continent further argues that the evidence establishes "without 

equivocation -or doubt", that the trailing cable from the section's power 

center to the continuous mining machine remains energized (citing Daniels, 

Tr. 47; Smith, Tr. 119; Jerome, Tr. 319; Turnipseed, Tr. 259), and the 

methane monitor system onboard the continuous mining machine stays 

energized as does the trailing cable (Turnipseed, Tr. 259; Daniels, 

Tr. 47). This was MSHA policy (Turnipseed, ibid)." 

Mid-Continent argues that the foregoing clear evidence of MSHA's 

policy is glaringly inaccurate when contrasted with MSHA's written policy 

statement (R30). Mid-Continent cites the MSHA inspection manual (R30-II 

264, 265) in support of its argument that MSHA requires that: 

The methane monitor shall be connected in such a manner 

so as to deenergize all electric circuits in the section 

when the concentration of methane reaches a maximum of 

2.0 volume per centum of methane, except that the methane 

monitor may remain energized (R30, II at 264, 265). 

I disagree. The MSHA policy statement relied on by Mid-Continent 

commences by referring to "longwall installations" (R30, page II - 264). 

This is clearly not such an installation, Further, I reject this view 

because in any event MSHA's inspection manual is not necessarily binding on 

the Commission, Secretary v. King Knob Coal Company, supra. The law is 

clear: The manual's instructions, even if they supported Mid-Continent's 

position, are not officially promulgated and do not prescribe rules of law 

binding on the Commission, Old Ben Coal Company 2 FMSHRC 2806, 2809 

(1980). In general, as in this situation, the express language of a 

statute or regulation unquestionably controls over field manual material, 

H.B. Zachry v. OSHRC, 638 F. 2d 812, 817 (5th Cir 1981). 

The primary duty of the operator is to provide for the safety of its 

miners. It is clear in this case that the methane monitor did not deenergize the add-on lights which were inboard the main controller. Hence 

a violation occurred. 

Mid-Continent contends that another possible source of ignition was 

the damaged flame safety lamp found approximately 210 feet outby the face 

in the 102 section (Brief at 75-80). 

On this record there are several possible sources of ignition. MidContinent 's manager Turnipseed concedes that the failure to deenergize the 

lights could have caused the explosion (Tr. 290). Other possible sources 

include the defective switch box flange (discussed in the following 

citation); an electrical spark, which was the conclusion reached by the 

Bureau of Mines of the State of Colorado in their statutory investigation 

(R21, R31); a defective safety lamp; a torch igniter (Pl at 45); and a 

welder striker (Pl at Appendix N2). 

271 
The testimony of witness Turnipseed concerning the flame safety lamp 

is reviewed in connection with the following citation, infra, page 17. 

I agree with Mid-Continent that the evidence, including the documentary 

detail published by the Bureau of Mines (R29A, R29B), is interesting. But 

the existence of other sources of ignition would not relieve Mid-Continent 

of liability_for a proven violation. Simply stated, the presence of 

multiple ignition sources would not constitute a defense when the operator 

violates a mandatory safety standard. In any event, concerning the safety 

lamp, I credit MSHA's evaluation that the safety lamps did not initiate the 

explosion (Pl at Appendix N-5 and N-6). 

The second allegation in this citation focuses on the proposition that 

the methane monitor should give a warning automatically at all times when 

the concentration of methane reached 1.0 percent while the machine was 

being operated by the remote control unit. 

The monitor did have such a readout, or indicator, in the cab. 

Exhibit R7 is a photograph of the gauge (Tr. 141). The amber warning light 

goes on when the concentration of methane reaches one percent. The gist of 

MSHA's theory of this portion of the citation is that the miner operator 

could not see the warning light while operating the remote control unit. 

The evidence establishes that the operator usually uses the remote control 

device for the continuous miner while standing in the crosscut. In that 

position the CM operator can avoid any outburst or push of coal which could 

possibly come as far back as to cover the front of the continuous miner. 

The regulation on this point requires the monitor "to give a warning 

automatically when the concentration of methane reaches a maximum percentage determined by an authorized representative of the Secretary which 

shall not be more than 1. 0 volume per cent um of methane." There was such 

a functioning automatic device. 

I find nothing in the regulation or in the legislative history of 

the Act that supports the Secretary's position. If the Secretary wants 

the warning device on the remote control unit itself or if he wants it 

mounted in a position on the cab of the continuous miner where it can be 

seen from all directions, then he should redraft his regulation and state 

that requirement. While mine operators are obliged to comply with every 

mandatory standard, the language of each standard must reasonably convey 

to the operator the nature of the practices or procedures required or 

forbidden, Diamond Roofing Company v. OSHRC, 528 F. 2d 645 (5th Cir. 1976); 

Phelps Dodge Corporation v. FMSHRC, 681 F. 2d 1189 (9th Cir. 1982). 

The Secretary's brief (at 7-9) only addresses the desirability of 

locating the methane monitor warning light where it can be seen at all 

times. But the regulation fails to prohibit the practice of using the 

remote control unit when the operator is not in a position to see the 

warning light. Otherwise stated, the regulation does not require the 

warning light to be located where it can be seen at all times. 

In sum, Citation 802484 as it relates to the failure of the methane 

monitor to deenergize the add-on McJunkin lighting system is affirmed. 

That portion of the citation relating to a warning light when the methane 

concentration reaches 1.0 percent is vacated. 

272 
CITATION 802486 

This citation, alleging a violation of 30 C.F.R. § 75.511, provides as 

follows: 

Electric work performed on April 6, 1981, consisting 

of_ installation of a cover on an explosion-proof compartment and the wiring of a two pole light switch on the 

Joy 12CM continuous mining machine, Serial No. JM2228, 

in the 102 Section, was not performed by a qualified 

person nor under the direct supervision of a qualified 

person. This violation was determined during an inspection 

as part of the accident investigation of the April 15, 1981, 

explosion. 

The standard allegedly violated, duly promulgated in Title 30, Code of 

Federal Regulations, is likewise contained in Section 303(12)(f) of the 

Act. The standard provides as follows: 

§ 75.511 Low-, medium-, or high voltage distribution 

circuits and equipment; repair. 

[STATUTORY PROVISION] 

No electrical work shall be performed on low-, medium-, 

or high-voltage distribution circuits or equipment, 

except by a qualified person or by a person trained 

to perform electrical work and to maintain electrical 

equipment under the direct supervision of a qualified 

person. Disconnecting devices shall be locked out and 

suitably tagged by the persons who perform such work, 

except that in cases where locking out is not possible, 

such devices shall be opened and suitably tagged by 

such persons. Locks or tags shall be removed only by 

the persons who installed them or, if such persons are 

unavailable, by persons authorized by the operator or 

his agent. 

SECRETARY'S EVIDENCE 

Clarence J. Daniels, James Smith, and Cecil Lester, all MSHA 

supervisors testified for the Secretary. 

In investigating the Dutch Creek Mine explosion inspector Daniels was 

advised by Jesus Merez (master mechanic) and John Cerise (foreman) that 

the cover plate, (also called lid), to the light switch compartment on the 

12CM was installed on the machine by the third (C) shift on April 6, 1981 

(Tr. 56-57, 72, 389, 403). The actual replacement consisted of removing 

a compartment lid without an "on" and "off" switch and replacing with a 

compartment lid with an "on" and "off" switch (Tr. 51, 66). To make the 

installation it is necessary to connect two wires to a transformer, maybe 

three if there is a ground (Tr. 66-67). It would take 30 minutes to hook 

up, reassemble, and cleanup the box (Tr. 68). It could be done in less 

than two hours (Tr. 68). Cerise examined the box on April 6 to see if 

the switch worked but he did not examine the box for permissibility 

(Tr. 57-58). At the time of his investigation inspector Lester noted and 

drew a sketch showing that the switch located in the lid cover was in the 

"off" position (Tr. 390). 

273 
When asked about who installed the cover plate, foreman Cerise stated 

he didn't know·but he thought it was Marge Thiel (Tr. 57-58). Marge Thiel, 

who is not a qualified person, was interviewed by MSHA. She stated to MSHA 

that she couldn't remember whether she put on the lid or not (Tr. 57-60, 

390). All o_f the qualified persons, except those killed in the explosion, 

were asked about the lid. None of them could recall having installed it 

(Tr. 58-60, 63). John Ball, the other electrician, said he couldn't 

remember putting the lid on. But if he had, he would have checked it for 

permissibility (Tr. 58, 389-390). Since the qualified miners said they did 

not put the cover on the box then an unqualified person would have done it 

(Tr. 58). 

The maintenance foreman on the "B" shift said his shift hadn't put on 

the cover (Tr. 59). Carl Heater, the "A" shift foreman, had no knowledge 

indicating it had been installed on his shift (Tr. 59-60). 

The maintenance shift foreman thought it might have been installed on 

his shift but he couldn't recall the name of the worker who installed it 

(Tr. 59-60). 

The installation of the cover was not satisfactory because a wire 

connecting the switch was too long. This resulted in the wire being 

trapped between two bolts of the explosion proof compartment (Tr. 61, 62, 

Exhibit Pl at Appendix L, Figures 1 to 6). 

Inspector Smith noticed that the trapped wire between two bolts was 

mashed very flat. Although deformed, the wire was not bare (Tr. 123). The 

switch box was examined for arcing but none was seen (Tr. 123). The light 

switch compartment itself was not permissible JJ because there was an 

opening in excess of 15/1000 of an inch between two bolts on the cover 

(Tr. 61, 343). The box was later removed and taken to the MSHA testing lab 

(Tr. 393, Testing results in Pl at Appendix N-4). 

Mid-Continent's permissibility books reflected that a permissibility 

check was done on April 9, 1981. The records show the check was done by 

"E.G.". One of the Mid-Continent's electricians, Eugene Guthrie, was 

killed in the explosion (Tr. 73-75). On April 9 and 13, 1981 the 12CM 

was inspected for permissibility by MSHA inspectors. The captured wire 

defeated permissibility (Tr. 75). 

On the night of April 13 Louis Villegas, an able and conscientious 

MSHA inspector, conducted an inspection of the continuous miner (Tr. 77-

78), If the installation [of the cover] was improper it would have been 

picked up by MSHA's Villegas on April 13th (Tr. 83). 

2/ There is no question but that a permissibility violation existed 

which was found during the investigation. This violation was the 

subject of Citation 802485 (P-1 MSHA Investigation Report, Appendix O). 

The citation was admitted and settled by Mid-Continent in Assessment 

Case No. 05-00301-03096F, (Tr. 346, Exhibit to Petition, Respondent's 

Brief at 87). 

274 
Usually permissibility is checked by taking a feeler gauge and moving 

it around the flange joint (Tr. 77-78). James Smith, an MSHA supervisor, 

discovered the non-permissible condition during the post explosion investigation. Lester and Meraz were present (Tr. 78, 79). Inspector Smith found 

the opening with a 5/1000 of an inch feeler gauge~ Then he went to his 

largest feeler gauge, a 15/1000. He could still insert his largest gauge 

(Tr. 122). ~n Smith's judgment the opening was more than twice the 15/1000 

of an inch opening. The largest opening allowed is 4/1000 of an inch 

(Tr. 128, 129, Pl at 41). Eventually the box was removed by MSHA for 

testing (Tr. 81). 

If the box had been installed by a non-qualified person and there 

had not beerr a trapped wire, there would still be a violation (Tr. 84). 

A qualified person is necessary in an effort to insure that explosion 

proof compartments are put back in the same manner as they were originally 

approved (Tr. 61). This requires a qualified person trained in permissibility (Tr. 61). It is important that all electrical work be done by 

a qualified person. This is because equipment should not be left in an 

unsafe condition (Tr. 124). It is also vital in this mine which liberates 

a large amount of methane (Tr. 124). 

The cover of the box is fourteen by fourteen by eight inches. It 

weighs approximately ten pounds (Tr. 62). The cover would most likely have 

been installed during the maintenance (C) shift (Tr. 65, 70). 

Eugene Guthrie, a "B" shift mechanic/electrician worked for Arch 

Cardova (Tr. 65, 77). Cardova, the graveyard maintenance foreman, told 

MSHA that the cover had not been installed on his shift (Tr. 65, 75-76). 

RESPONDENT'S EVIDENCE 

M.J. Turnipseed, Jesus Merez, and John Jerome testified for MidContinent concerning this citation. 

All workers appointed to the position of foreman at Mid-Continent 

are well qualified and have taken extensive examinations (Tr. 213-214). 

Mid-Continent also conducts classes for the mechanic/electrician job 

category (Tr. 215-216). On April 15, 1981 there was no scarcity of 

workers for the foreman/mechanic/electrician category (Tr. 216). The 

company training program arises out of a labor agreement dating back to 

1978 (Tr. 216-218, R22). 

Mid-Continent requires extensive qualifications and certification 

for an hourly employee to bid on the job vacancy known as an underground 

mechanic/electrician (Tr. 221, 224, 226, R23, R24, R25, R26, R27, R28). 

One classification of workers at Mid-Continent combines mechanicelectrician. The company does not have mechanic per se or electricians 

per se (Tr. 223). 

Any of the qualified workers including Ambrose, Ball, Guthrie 

(deceased), Clark, Cordova, Cerise, and Heater could have worked on the 

switch box (Tr. 380-381). Carl Heater was the electrician/mechanic on 

Jerome's production shift. Eugene Guthrie held the comparable position 

on the other shift (Tr. 329). 

275 
It is 

(Tr, 228). 

to have an 

custom and pr act ice at Mid-Continent to comply with the law 

Its workers are well trained enough to know it is not permitted 

uncertified person perform a job (Tr. 229, 315, 316). 

If an uncertified person started to crawl into a flame proof 

electrical compartment, reaction could be slight to violent (Tr. 229-230), 

The switch box cover was ordered March 23 and arrived March 30, 1981. It 

was installed about April 6 by the graveyard crew (Tr. 370). 

The mine manager was present when the investigation party discovered 

the impermissible main flange joint, Marks on the box indicated flame coke 

inside the box. There was some evidence this condition had entered into 

the explosion. It was felt no final determination could be made so he 

asked Robert A. Elam (MSHA's chief investigator) to remove the box for 

testing (Tr. 233-234, 340, 344). At the time of the investigation Master 

Mechanic Meraz had strong feelings about the switch box being the ignition 

source. At the time of the hearing he was baffled. Why would this box 

suddenly absorb this great amount of methane waiting for someone to light 

it (Tr. 370, 371). 

The trapped wire was in a four and a half inch spacing. The wire was 

not bare when it was exposed but it was lying like a gasket between two 

bolts (Tr. 345, 374, 375, 380). Master mechanic Meraz felt that whoever 

put the cover on had been in a great hurry. It is Meraz's policy that when 

you remove such a cover you check for permissibili~y (Tr. 376, 377). On 

another occasion Meraz sought to have an electrician fired for performing 

unsatisfactory work (Tr. 378, 379). [That worker was not near this section 

in April, 1981 (Tr. 383)]. 

A copy of Mid-Continent's permissibility book reflects that "E.G." 

(Eugene Guthrie) examined the 12CM on April 9, 1981 (Rl). 

The full extent of the actual gap was never ascertained, That fact 

would make a difference in establishing whether or not the trapped wire 

was the source of ignition (Tr. 235, 236). MSHA tested the box (Tr. 236, 

Pl at Appendix N4). In the various tests no flames or external ignitions 

occurred up to a 50/1000 of an inch gap; at 62/1000 of an inch gap ignition 

occurred six out of six times (Tr. 237). At 40/1000 of an inch it was 

doubtful if the gap would propagate a flame to initiate an explosion 

outside of the enclosure (Tr. 239). In the manager's opinion everything 

[in MSHA's report] hinges on whether the switch box could cause an 

explosion (Tr. 242). There are various theories as to how the ignition 

occurred (Tr. 243-244). The MSHA report mentions and eliminates certain 

sources (Tr. 243). 

The. knob on the switch was new and turned easily (Tr. 348). In the 

investigation, according to Meraz, no one checked the position of the 

"on/off" handle as to whether it was "on" or "off" (Tr. 347). 

276 
A flame safety lamp could have ignited the methane (Tr. 245, 246). 

Many explosions are caused by improperly assembled. flame safety lamps 

(Tr. 246). After the explosion a flame safety lamp was found 210 feet 

outby the face in the 102 section. The lower asbestos washer was broken. 

This defect destroys the integrity of the glass enclosure of the lamp 

(Tr. 247-251-, P4). MSHA's report concluded that the force of the explosion 

damaged the flame safety lamp (Tr. 247-248, Pl at Appendix N-5). 

DISCUSSION 

Citation 802486 alleges that electrical work on the Joy 12CM was 

not performed by a qualified person nor under the direct supervision of a 

qualified person. It is further alleged that the electrical work consisted 

of the installation of a cover on an explosion proof compartment and the 

wiring of the two pole light switch. 

From the record I conclude that the switch box cover was not installed 

by a qualified person. But no evidence supports the allegation that 

the wiring of the two pole light switch [in 1978] was not performed by a 

qualified person. Accordingly, that portion of the citation is vacated. 

Mid-Continent's post trial brief addresses this citation (Brief at 

84-89). 

I agree with Mid-Continent that the burden of proof of this violation 

rests with the Secretary. That proof lies with the evidence that foreman 

John Cerise stated to MSHA inspector Cecil Lester that the cover "was 

probably installed by Mrs. Marge Thiel, who was not a qualified person" 

(Tr. 389). The foregoing evidence is uncontroverted. Mid-Cuntinent's 

defense does not address it. 

Mid-Continent argues that there were an adequate number of qualified 

maintenance personnel at its mine (Brief at 87). I agree Mid-Continent 

offered extensive evidence of that fact. 

Mid-Continent's evidence further establishes that it is the custom and 

practice at Dutch Creek Mine No. 1 that only certified personnel perform 

occupational tasks which require special qualifications. Exhibits R23 

through R28 clearly reflect those requirements. In many situations an 

operator's custom and practice could be persuasive. 

Inasmuch as I rule this credibility issue against Mid-Continent, 

a detailed review of the evidence is in order. First of all is the uncontroverted evidence of the admission by foreman John Cerise to Inspector 

Lester as stated above. Namely, Cerise thought Marge Thiel installed the 

cover. Cerise stated nothing to MSHA about the custom and practice at 

Mid-Continent. The admission by Cerise to Inspector Daniels is similar but 

not quite as strong (Tr. 57-58). He stated to Daniels that he "didn't know 

but he thought it was Marge Thiel" (Tr. 57-58). The record here clearly 

establishes that Marge Thiel was not a qualified person to make this 

installation. When MSHA interviewed Marge Thiel she did not state 

something to the effect that the custom and practice at Mid-Continent 

required that only a qualified person perform such work. To the contrary 

she merely stated she "couldn't remember whether she put the lid on or not" 

( Tr • 5 7 - 5 8 ) • 
In view of the foregoing evidence I reject Mid-Continent's defense of 

custom and practice. 

As previously indicated, the Secretary does not offer any evidence as 

to the identity of the person who wired the two pole light switch. His 

evidence, as discussed in the previous citation, establishes the fact that 

the wiring was defective. To restate the finding: The McJunkin add-on 

lights were not wired in accordance with the manufacturer's specifications. 

But the mere fact that the wiring was defective does not prove that the 

installer was not a qualified person. In other words, even a qualified 

person can make a mistake. Accordingly, the second allegation in the 

citation is vacated. 

On this point the Secretary's post trial brief (at 9-11) does not 

advance any fact that would lead to a different conclusion. 

CITATION 802487 

This citation, alleging a violation of 30 C.F.R. 75.313-1, provides 

as follows: 

A definite maintenance program for keeping 

methane monitors operative was not established 

and adopted. A written description of such 

program was not available for inspection and 

had not been made available to the qualified 

persons responsible for maintenance of the 

methane monitors. This violation was determined 

during an inspection as part of the accident 

investigation of the April 15, 1981, explosion. 

The standard allegedly violated provides as follows: 

§ 75.313.1 Methane monitors, maintenance. 

The operator of any mine in which methane 

monitors are installed on any equipment 

shall establish and adopt a definite maintenance program designed to keep such 

monitors operative and a written description 

of such program shall be available for 

inspection. At least once each month the 

methane monitors shall be checked for operating accuracy with a known methane-air 

mixture and shall be calibrated as necessary. 

A record of calibration tests shall be kept 

in a book approved by the Secretary. 

278 
SECRETARY'S EVIDENCE 

Clarence J. Daniels, James Smith, and Cecil Lester, all MSHA 

supervisors, testified for the Secretary. 

During the investigation the inspectors asked Master Mechanic Jesus 

Meraz and three maintenance foreman whether Mid-Continent had a written 

maintenance program. Meraz and foreman John Cerise stated they did not 

have a written program but had adopted the program of the monitor 

manufacturer, BACHARACH (Tr. 86, 87 100, 395). Foreman Heater said he 

didn't know of any program. Foreman Cardova said the only program he knew 

was in the regulation (Tr. 86, 131, 132, 395). 

Both Heater and Cerise further stated that while they didn't know 

of any written maintenance program they use the BACHARACH Manual in 

repairing and calibrating the monitor (Tr. 131-134). Maintenance is 

bigger than repair (Tr. 137). 

All of the mechanics knew of the BACHARACH Manual and the testing kit 

(Tr. 103). 

Mid-Continent now [at MSHA's insistence] has a good maintenance 

program (Tr. 88, 89, R2). Under the regulation there must be a program 

and it must be in writing to be examined (Tr. 95). The new p~ogram 

wouldn't help at all on repairing or calibrating the monitor (Tr. 89). 

It is important to have a written program to know how the methane 

monitors are to be maintained (Tr. 87). Three of the maintenance 

supervisors were aware that when something went wrong they went to the 

BACHARACH instructions (Tr. 87). 

The maintenance workers didn't use the manual for preventative 

maintenance but they used it as a troubleshooter guide (Tr. 101). The 

purpose of the methane monitor maintenance program is to let everyone 

know what is required of them to insure daily maintenance and to be sure 

they are doing what they are supposed to be doing (Tr. 96, 103-104). 

If the MSHA inspector was working on the monitor he would use 

the BACHARACH instruction manual (Tr. 90) as evidenced by Exhibit R3. 

BACHARACH also furnishes a test kit including a bottle containing a 

methane mixture to apply to the sensor head of the system (Tr. 91, 92, 

100, 101, R4, R4A). 

279 
RESPONDENT'S EVIDENCE 

M.J. Turnipseed and Jesus Merez testified concerning this citation. 

Mid-Con~inent has an extensive maintenance program (Tr. 331-332). 

Preventive Maintenance personnel cannot be diluted by other supervisors at 

Mid-Continent (Tr. 174, 332, 333). 

In March, 1979, Mid-Continent published and distributed 200 copies of 

a booklet entitled "Mid-Continent Resources, Inc., Preventive Maintenance 

Program" (Tr. 173, RS). The booklet is broken down into several sections 

including the longwall, the miner, other equipment, and lubrication 

information. 

The 12CM Miner section of Mid-Continent's book is broken down into 

subparts including daily maintenance and lubrication, points to be greased 

(with diagrams), points to be checked and filled as needed, and parts to 

be checked by operating. Monthly maintenance checks on the 12CM include 

lubrication, oil change, and various other checks including "calibrate 

methane monitors" (Tr. 168-172, RS). The charts in the maintenance book 

showing the work performed correspond with a larger record sheet posted in 

the master mechanic's office at each mine. There was such a chart as part 

of the preventative maintenance program on April 15, 1981 (Tr. 169, 175, 

176, 353). It lists the daily preventative maintenance to be done for all 

the equipment in the mine (Tr. 351). Portions of the maintenance manual 

do not describe the action to be taken but do list the methane monitor 

as something to be checked daily, weekly, and monthly (Tr. 363). 

The duties of the company preventative maintenance engineer is to 

carry out the maintenance duties. Bernie Fenton, who has three or four 

workers, is the Preventive Maintenance Engineer at the Dutch Creek No. 1 

Mine (Tr. 170, 358). 

Mid-Continent's preventative maintenance program was in effect 

on April 15, 1981 and was still in effect at the time of the hearing 

(Tr. 174). 

As the various maintenance duties are performed the Preventative 

Maintenance Engineer marks the larger charts (Tr. 175). Weekly permissibility checks are kept in a separate book, as required by MSHA 

(Tr. 176, Rl). The maintenance books were available at the time of the 

inspection (Tr. 176-177). 

Mid-Continent also uses a BACHARACH kit to test the monitor. The 

back of the kit bottle has a complete set of instructions concerning its 

use. This was in use before April 15, 1981 (Tr. 177, 178, 336, 337). 

The test bottle injects gas into the monitor. In turn the machine reacts 

as if methane gas is present in the atmosphere (Tr. 186, 187). 

280 
Mine manager Turnipseed was present during the questioning of 

salaried employees Meraz, Cerise, Heater, and Jerome concerning the 

methane monitor maintenance program (Tr. 252-253), MSHA appeared to be 

spending a good deal of time attempting to prove that Mid-Continent 

fostered the proposition that someone tampered with the methane monitor 

(Tr. 252-253). 

The questioning was confusing about what the foremen were being asked. 

Further, the workers were confused about what the government investigators 

wanted as a definite program. No questions were asked along the lines 

of how does Mid-Continent comply with the law in this particular section 

(Tr. 255). 

Master mechanic Jesus Meraz keeps one BACHARACH manual in his desk 

and one in his files. The manual is wrapped around the BACHARACH test 

bottle (Tr. 336). Meraz taught his foreman Cardova and Heater how to 

adjust, check, and maintain the methane monitor. He used the manual to 

instruct them (Tr. 337). Mid-Continent's personnel would perform daily, 

bi-weekly, monthly examinations in accordance with the manuals instructions 

(Tr. 363). 

At the time of the explosion Meraz kept a large maintenance chart 

for all of the equipment in the mine (Tr. 349-350). The equipment is 

listed in vertical columns with the dates for maintenance noted 

horizontally (Tr. 350, 351). If the chart would be behind, it would be 

obvious and Reeves, (Meraz's supervisor) would be irate (Tr. 151). 

The BACHARACH book covers more maintenance detail than MSHA's prof~am 

(Tr. 291, 292). 

The BACHARACH methane monitor is represented by squares on the master 

mechanic's chart to show what work has been done and also to remind people 

to do monthly checks (Tr. 353). Monitor examinations would be done by 

various qualified and certified electricians (Tr. 364). The Mid-Continent 

maintenance program was in effect before the explosion (Tr. 356). It was a 

practice to use the books. Meraz taught Cardova and Heater how to use 

them. John Cerise knew how to use the book (Tr. 356-357). It never 

occurred to the master mechanic to show the manual to the investigator 

(Tr. 366). 

DISCUSSION 

The gist of the regulation, 30 C.F.R. § 75.313-1, requires the 

operator to adopt a definite maintenance program and to have such a written 

description available. 

Mid-Continent fully complied with the regulation. At the time of the 

explosion I find that the program consisted of the Preventative Maintenance 

booklet (RS), the BACHARACH Manual (R3), the BACHARACH test kit (R4A), as 

well as the wall charts described in the evidence. 

The Secretary's post trial brief addresses this citation (Brief 

at 11-14). 

281 
The Secretary contends he carried his burden of proof because his 

evidence shows that the maintenance foremen, one or more, didn't even 

know the company had a written program. 

I am not persuaded. I credit the uncontroverted testimony of 

mine manager Turnipseed that there was confusion about what the MSHA 

investigators were seeking in their investigation (Tr. 230, 231). 

Further, and in resolving this issue, I note what is obvious in this 

record: Mid-Continent fully cooperated in MSHA's post explosion 

investigation. In short, I refuse to sustain the Secretary's position. 

It would amount to ruling that for some unknown reason Mid-Continent 

kept hidden its preventative maintenance book, its BACHARACH book, its 

test kit, and its wall charts. 

The Secretary argues that the Mid-Continent program is not covered 

by the manufacturer's handbook or its preventative maintenance program. 

He contends Mid-Continent's materials do not contain the procedures 

contained in the present maintenance program. He asserts these materials 

are not a description of a maintenance program but merely aids to be used 

in carrying out the program. 

The Secretary relies on what he considers to be a proper maintenance 

program. This was the program la~er adopted by Mid-Continent. The 

Secretary's methane monitor maintenance program contains five directives 

(R2). To answer the Secretary's contentions it is necessary to review 

what MSHA considers to be a proper program and compare those directives 

with Mid-Continent's program in effect at the time of the explosion. 

The Secretary's first directive: 

Check to assure that all system compartments 

and associated components are securely attached 

to the frame of the machine (R2). 

Mid-Continent's program on this point uses different words to arrive 

at the same result. With the 12CM Miner daily duties include: 

11.13 Check and operate as indicated: 

Visual inspection - Check Each 

Body of machine 

all bolts tight 

- all guards in place and secured 

(RS at 11. 13). 

The Secre~ary's second directive: 

Check meter assembly lenses protecting lights 

to assure that they are not cracked or broken 

and the lights are operating properly and in 

proper sequence (R2). 

282 
Mid-Continent's program on the electrical system states: 

11.13 Check and operate as indicated: 

Electrical System 

All lights operating properly 

All lights secure and properly sealed 

All electrical connections in good shape 

Check cable for damage or wear - from machine to power center 

Operate cutter head motors 

Operate high, medium, and low tram - forward and reverse 

Operate conveyor - forward and reverse 

Operate gathering arms 

Check all motors for excessive heat, noise, or vibration 

Check cable conduit at machine 

Check that light conduit is secure and not damaged 

Check methane monitor - zero and operation. 

(RS at 11. 13) • 

The Secretary's third directive is that the operator should: 

Check vent holes and filters of the sensing device to assure they 

are open to permit an adequate circulation of the atmosphere (R2). 

The BACHARACH instruction book used by Mid-Continent specifically 

addresses the daily maintenance of the Detector Head. It provides: 

7.1 DAILY MAINTENANCE 

An excessive build-up of "fines" or float dust, in and around the 

Detector Head, may reduce the response of the sensing element. Free 

circulation of air, in and around the Detector Head is necessary 

for optimum performance. The main air path for convective flow 

which allows sensing of gas is located in the center of the base 

casting. Vent holes are also located in the top cover casting 

under the deflector plate, and in the sidewall. The opening in the 

center of the base casting also serves as a moisture drain hole and 

must be kept free of obstruction. The following maintenance 

schedule is recommended to prevent the buildup of float dust and 

"fines" around the Detector Head. 

a. Remove any accumulation of materials around the Detector Head, 

b. With the use of compressed air or medium water pressure, hose 

down the area around the Detector Head. 

c. Use a small metal rod (or screwdriver) and check that the vent 

holes are free of obstruction. 

After the Daily Maintenance has been performed, allow approximately 

5 minutes for sensor temperature to stabilize. Then actuate the 

Test Switch at Remote Meter Housing to Check alarm lamp circuits 

and machine power cutoff relay. Adjust meter to zero (0%) with 

Zero Adjust Control if necessary. 

(R3 at 7 .1). 

283 
The Secretary's fourth directive requires the operator to: 

Actuate the test control device to assure the proper 

sequence of the alarm lamp illumination and the 

operation of the remote relay by the deenergization 

of the machine. (R2). 

Only a minimal benefit can be derived by reciting it here in haec 

verba but the BACHARACH manual and the instructions on the BACHARACH 

calibrating gas container received in evidence address this subject in a 

much more comprehensive fashion than the Secretary's proposal (R3 at 11-12, 

R4A). In addition, one of the functions listed on the weekly 12CM chart 

concern the "remote control sequence of operation" (RS at 11.20). 

The Secretary's fifth directive is that: 

At least once each month the methane monitors shall be 

checked for operation accuracy with a known methane-air 

mixture and shall be calibrated as necessary (R2). 

Mid-Continent's more stringent program requires that the calibration 

test with a known quantity of gas be performed "at least every 2 weeks and 

more often if experience and application conditions dictate" (R3 at 7. 2). 

On the basis of the foregoing facts I conclude that Mid-Continent did 

not violate 30 C.F.R. 75.313-1. The Secretary's position has required that 

the respective programs be weighed. As a collateral matter I necessarily 

reject the Secretary's evidence that the BACHARACH Manual does not include 

the requirements in MSHA's program as evidenced by R2 (Tr. 96). MidContinent had a definite maintenance program. It was written. It was 

available. 

Citation 802487 and all proposed penalties should be vacated. 

CIVIL PENALTIES 

Concerning Citation 802484 and 802486, it 1s necessary to assess a 

civil penalty for the foregoing violations. 

Section llO(i) of the Act [30 U.S.C. 820(i)] provides as follows: 

The Commission shall have authority to assess 

all civil penalties provided in this Act. In 

assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous 

violations, the appropriateness of such penalty 

to the size of the business of the operator's 

ability to continue in business, the gravity of 

the violation, and the demonstrated good faith of 

the person charged in attempting to achieve rapid 

compliance after notification of a violation. 

284 
The record shows that respondent had 1701 violations assessed 

against it in five different mines from April 15, 1979 to April 15, 1981 

(P2, P3 as limited by stipulation at Tr. 412). At the Dutch Creek No. 1 

mine 482 violations were assessed against Mid-Continent between those dates 

(P2). This 1s obviously an adverse prior history of severe proportions. 

As to the criterion of whether payment of penalties will affect 

Mid-Continent's ability to continue in business the record is silent. 

But existing case law indicates that where respondent fails to introduce 

any financial data a judge may presume that the payment of penalties 

will not adversely affect respondent, Secretary v. Buffalo Mining, 

2 IMBA 226 (1973), Secretary v. Associated Drilling, Inc., 3 IBMA 164 

(1974). 

The facts arising in Citation 802484 (methane monitor did not 

deenergize McJunkin lights) would indicate respondent was negligent and 

the gravity was serious in that this condition permitted a source of 

ignition to exist in a gassy mine. 

The facts arising in connection with Citation 802486 (non-qualified 

person performing electrical work) indicate respondent was negligent for 

permitting such an event to occur. The gravity of such a practice is 

particularly severe since it was permissible equipment upon which the 

work was performed. MSHA's policy requires that all equipment that goes 

inby the last open crosscut in the mine must be permissible (Tr. 119). 

Considering all of the statutory criteria I conclude that the 

Secretary's proposed penalties respectively of $4000 and $10,000 for 

the violations of the first two citations are appropriate and I adopt 

said penalties on behalf of the Commission. 

Since no violation of Citation 802487 occurred the proposed penalty 

of $4000 for that citation should be vacated. 

The Solicitor and Mid-Continent's counsel filed detailed briefs 

which have been most helpful in analyzing the record, defining the issues, 

and deciding the case. I have reviewed and considered these excellent 

briefs. However, to the extent they are inconsistent with this decision, 

they are rejected. 

Based on the foregoing findings of fact and conclusions of law I enter 

the following: 

ORDER 

1. Citation 802484 for the violation of the Act and 30 C.F.R. 75.313, 

as modified herein, is affirmed and a civil penalty of $4000 is assessed. 

2. Citation 802486 for the violation of the Act and 30 C.F.R. 75.511, 

as modified herein, is affirmed and a penalty of $10,000 is assessed. 

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3. Citation 802487 for the alleged violation of 30 C.F.R. 75.313-1 

and all proposed penalties therefor are vacated. 

Distribution: 

Thomas A. Mascolino, Esq. 

Alan H. Yamamoto, Esq. 

56.hn J. Harri 

~dministrativ~ Judge 

Office of the Solicitor, United States Department of Labor 

4015 Wilson Boulevard, Arlington, Virginia 22203 

Edward Mulhall, Jr., Esq., Delaney & Balcomb 

818 Colorado Avenue, Drawer 790 

Glenwood Springs, Colorado 81602 

*U.S. GOVERNMENT PRINTING OFFICE : 1983 0-381-569/5277 

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