i 

January 2020 

TABLE OF CONTENTS

COMMISSION DECISIONS 

01-16-20 KENAMERICAN RESOURCES, INC. KENT 2013-211 Page 1 

01-22-20 MICHAEL K. McNARY v. ALCOA 

WORLD ALUMINA, LLC 

CENT 2015-279-DM Page 9 

01-22-20 SUNBELT RENTALS, INC. VA 2013-291-M Page 16 

01-29-20 ROBERT THOMAS v. 

CALPORTLAND COMPANY 

WEST 2018-402-DM Page 43 

ADMINISTRATIVE LAW JUDGE DECISIONS 

01-06-20 MARSHALL JUSTICE v. 

ROCKWELL MINING, LLC 

WEVA 2018-48-D Page 59

01-21-20 WARRIOR MET COAL MINING, 

LLC 

SE 2019-0116 Page 89

01-23-20 SUPERIOR SILICA SANDS LLC CENT 2019-0133 Page 96

01-30-20 CONSOL PENNSYLVANIA COAL 

CO., LLC 

PENN 2018-244 Page 118
ii 

Review was denied in the following case during the month of January 2020: 

Pete Tartaglia, Jr. v. Freeport-McMoran Bagdad, Inc., Docket No. WEST 2018-362-DM (Judge 

Simonton, December 23, 2019) 

No case review was granted during the month of January 2020. 
COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

January 16, 2020 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. Docket No. KENT 2013-211 

KENAMERICAN RESOURCES, INC. 

BEFORE: Jordan, Young, Althen, and Traynor, Commissioners1

DECISION

BY: Jordan, Young, Althen, and Traynor, Commissioners 

This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (2018) (“Mine Act” or “Act”) and concerns a citation issued by the Secretary of Labor’s 

Mine Safety and Health Administration (“MSHA”) to KenAmerican Resources, Inc. The 

Secretary alleges that KenAmerican’s mine-phone dispatcher provided advance notice of an 

inspection in violation of section 103(a) of the Mine Act, 30 U.S.C. § 813(a).2

 The Secretary 

asserts that the mine dispatcher answered in the affirmative when a miner underground asked “do 

we have any company outside?” 

KenAmerican contested the citation and the associated penalty of $18,742 before a 

Commission Administrative Law Judge. Initially, KenAmerican filed a motion for summary 

decision arguing that even if the Secretary’s allegations were substantiated, the exchange did not 

violate section 103(a). The Judge granted summary decision and vacated the citation after 

finding that the Secretary did not establish a violation. 37 FMSHRC 1809 (Aug. 2015) (ALJ). 

The Secretary filed a petition for discretionary review, which the Commission granted. 

On August 25, 2016, the Commission reversed the Judge and remanded the case with 

instructions that the Judge hold a hearing. 38 FMSHRC 1943 (Aug. 2016). The Commission 

concluded that there was a material fact at issue, i.e., whether the cited conversation referred to 

an MSHA inspection. Id. at 1951. Accordingly, the Commission held that summary decision was 

improper.

1

 Chairman Marco M. Rajkovich is recused from considering this matter. 

2

 Section 103(a) states in pertinent part that “no advance notice of an inspection shall be 

provided to any person . . . .” 

42 FMSHRC Page 1
On December 14, 2018, the Judge issued a decision after a hearing, finding that the 

Secretary failed to establish a violation. 40 FMSHRC 1544 (Dec. 2018) (ALJ). 

The Secretary filed a second petition for discretionary review, which we granted. On 

appeal, the Secretary contends that the Judge’s factual findings and conclusions are erroneous. 

We agree and reverse the Judge’s decision. 

I. 

Factual and Procedural Background 

KenAmerican’s Paradise No. 9 mine is a large underground coal mine in Kentucky. On 

April 19, 2019, someone filed an anonymous hazard complaint regarding conditions at the mine 

with MSHA pursuant to section 103(g) of the Mine Act, 30 U.S.C. § 813(g).3 On April 20, 2012, 

during the second shift, six MSHA inspectors arrived at the portal and informed the foreman of 

the complaint. Two inspectors then traveled to the dispatcher’s shack and warned Lance Holz, 

the dispatcher, not to provide notice of the impending inspection. Holz called for a miner to 

return to the surface with a man-trip. Meanwhile, MSHA inspector Doyle Sparks surreptitiously 

monitored a mine-phone receiver from which he could hear Holz. 

Sparks testified that he overheard an underground miner from the number four unit get on 

the phone and ask Holz “[d]o we have any company outside?” Tr. 23. Sparks heard Holz respond 

“yeah, I think there is.” Tr. 24. Further, Sparks memorialized this conversation in his notes. Gov. 

Ex. 2.4 Sparks asked the miner to identify himself, but received no response. Tr. 24. 

Holz also testified that a miner asked him if “company” was outside. Tr. 163-64. 

Importantly, he understood the miner to be inquiring about MSHA inspectors.5 Tr. 164-65, 172. 

Therefore, he knew the question presented a request for advance notice. Holz recalls responding 

“I don’t know,” but testified that it was “possible” that he instead said “yeah, I think there is.” Tr. 

163-64, 172. Holz heard Sparks ask who was on the phone and receive no response. Tr. 166.

In summary, Holz and Sparks both testified that an underground miner solicited advance 

notice of an MSHA inspection over the mine-phone and that Holz responded to the miner’s 

solicitation. Sparks asked the miner to identify himself and was met with silence. The only 

material inconsistency between their testimonies concerns the substance of Holz’s response. 

3

 Section 103(g)(1) provides that “[w]henever a representative of the miners or a miner . 

. . has reasonable grounds to believe that a violation of this Act or a mandatory health or safety 

standard exists . . . such miner or representative shall have a right to obtain an immediate 

inspection by giving notice to the Secretary . . . .” 

4

 “While manning the phone communication someone on the #4 unit called dispatcher 

and asked if there was company outside and the dispatcher (Lance) told him yeah I think there 

is.” Gov. Ex. 2, at 2-3. 

5

 Holz inferred that the miner was referring to MSHA because it was a Friday after a shift 

change, a time when corporate representatives would be unlikely to visit. Tr. 165. 

42 FMSHRC Page 2
 The Judge determined that Holz most likely stated “I don’t know” and thus found no advance 

notice. 40 FMSRHC at 1549, 1552 (“This is dispositive and ends the inquiry.”). 

The Judge also made an alternative holding: even if Holz actually responded “[y]eah, I think 

there is” the Secretary failed to prove that Holz intended to provide advance warning of an 

inspection. Id. at 1554. Because Holz’s response was intertwined with a request to procure 

transportation for the inspectors, the Judge believed that even an affirmative response would not 

have violated section 103(a). 

On review, the Secretary contends that the Judge erred in his articulation of the law. The 

Secretary maintains that the Judge failed to properly weigh and address the record evidence. The 

Secretary also alleges that the record evidence leads to the conclusion that KenAmerican violated 

section 103(a). 

KenAmerican maintains that the Commission should defer to the Judge’s factual 

findings. In addition, KenAmerican argues that section 103(a) regulates only the Secretary’s 

conduct and is applied inappropriately in this instance. Finally, KenAmerican maintains that the 

Secretary is infringing on its First Amendment rights. 

II. 

Disposition 

A. The record compels the conclusion that Holz provided an affirmative response to

a request for advance notice; the Judge abused his discretion in determining

otherwise.

The outcome of this case hinges in large part on the Judge’s determination of witness 

credibility. The Judge credited Holz’s testimony that he said “I don’t know” in response to the 

solicitation for advance notice. The Judge did not credit Holz’s testimony that it was “possible” 

that he said “yeah, I think there is” in response, even though this particular response was 

corroborated by inspector Sparks’ testimony and his contemporaneous notes regarding what had 

been said. 

A Judge's decision to credit the testimony of a witness is entitled to great weight and may 

not be overturned lightly. See Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 

1992). The Commission reviews a Judge’s credibility determinations under an abuse of 

discretion standard. See Jim Walter Res., Inc., 37 FMSHRC 1868, 1871 (Sept. 2015). There must 

be “compelling reasons” to take the “extraordinary step” of reversing a Judge’s credibility 

determination. See Fort Scott Fertilizer-Cullor, Inc., 19 FMSHRC 1511, 1516 (Sept. 1997) 

(quoting Hall v. Clinchfield Coal Co., 8 FMSHRC 1624, 1629 (Nov. 1986)). 

However, the Commission will not affirm credibility determinations if they contradict 

record evidence or are supported by no evidence or dubious evidence. In re: Contests of 

Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878, 1881 n.80 (Nov. 1995), 

aff'd sub nom. Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998). 

Although the Commission only overturns a Judge’s credibility determination in rare 

42 FMSHRC Page 3
circumstances, we will not rubber stamp them.6 Morgan v. Arch of Illinois, 21 FMSHRC 1381, 

1391-92 (Dec. 1999). 

The Commission’s approach is fully consistent with the approach taken by the courts of 

appeals. For example, the Fifth Circuit has recognized that “if a credibility determination is 

unreasonable, contradicts other findings of fact, or is ‘based on an inadequate reason, or no 

reason at all,’ [the court] will not uphold it.” NLRB v. McCullough Envtl. Servs., Inc., 5 F.3d 923, 

928 (5th Cir. 1993) (quoting NLRB v. Moore Bus. Forms, Inc., 574 F.2d 835, 843 (5th Cir. 

1978)). Similarly, the D.C. Circuit has held that “utter disregard for sworn testimony or the 

acceptance of testimony which is on its fac[e] incredible” may justify overturning a Judge’s 

credibility finding. E.N. Bisso & Son, Inc. v. NLRB, 84 F.3d 1443, 1445 (D.C. Cir. 1996) 

(quoting Amalgamated Clothing & Textile Workers Union v. NLRB, 736 F.2d 1559, 1563 (D.C. 

Cir. 1984)) (alteration in original). 

We conclude that there are compelling reasons to take the extraordinary step of 

overturning the Judge’s credibility determination and to find an advance notice violation. The 

Judge failed to reconcile his factual finding regarding Holz’s response against relevant 

conflicting record evidence, made contradictory findings, and provided a rationale that is 

otherwise unreasonable. 

First, the Judge completely failed to consider the content of Sparks’ contemporaneous 

notes. Sparks documented hearing Holz say “yeah I think there is.” Gov. Ex 2, at 3. The content 

of the notes corroborates a factual account that is both consistent with Sparks’ own testimony 

and the alternative testimony provided by Holz. The Judge’s failure to attempt to reconcile the 

content of the notes against a credibility determination is an abuse of discretion.7 Morgan, 21 

FMSHRC at 1391 (“Before a judge credits any testimony, he must reconcile all record evidence 

that is inconsistent with that conclusion.”); Cf. Pappas v. CalPortland Co., 40 FMSHRC 664 

(May 2018) (affirming the Judge’s decision to credit a witness because the Judge considered and 

reconciled the record evidence that detracted from the witnesses’ testimony). 

Second, the Judge further erred in relying upon the testimony of KenAmerican’s Director 

of Safety, Shannon Baker, that personnel did not use coded language or provide advanced notice 

at the mine. 40 FMSHRC at 1552 (“I find Baker’s testimony to be credible, and it tends to 

support Holz’ claims.”). The only “claim” of Holz in dispute is the content of his response. 

Baker was not on the mine-phone during the call and has no knowledge as to what Holz said. 

Accordingly, Baker’s testimony cannot support the Judge’s decision. 

6

 The substantial evidence standard of review requires a weighing of all probative record 

evidence and an examination of the fact finder’s rationale in arriving at the decision. See 

Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951). A Judge must sufficiently summarize, 

analyze, and weigh the relevant record and explain their reason for arriving at a decision. 

Consolidation Coal, 11 FMSHRC 966, 974 (June 1989) (citations omitted). 

7

 Instead of considering the content of the notes, the Judge focused his analysis on what 

was not in the notes. 40 FMSHRC at 1551. The Judge found that Sparks’ failure to document his 

investigation into the identity of the anonymous miner detracted from the note’s veracity, and 

accordingly the Judge disregarded the notes entirely. Id. 

42 FMSHRC Page 4
In fact, Holz’s testimony regarding the use of coded language at the mine refutes Baker’s 

testimony. Baker testified that coded language was never used at the mine in context with 

advance notice. Id. at 1552 (citing Tr. 140 (“we just never had any kind of euphemisms or 

anything, any kind of coded language . . . .”)). The Judge credited Baker. Id. In contrast, Holz 

testified that he understood the question about “company” to be directed at determining whether 

MSHA was present.8 Tr. 164-65, 172; supra at 2 n.5. The Judge credited Holz on this point. 40 

FMSHRC at 1549 n.8 (“I credit Holz’ statement and find ‘company’ was in reference to 

MSHA.”). Therefore, the Judge himself recognized the inquiring miner was using coded 

language. The Judge’s contradictory findings undermine his credibility determination. 

Third, the Judge provided a rationale for his determination that is not supported by the 

record. The Judge believed that Sparks misunderstood the law and that Sparks had issued the 

citation merely because a miner had solicited advance notice. 9 Id. at 1549. In fact, Sparks 

testified that he considered the question and answer to constitute advance notice. Tr. 103 (“I 

don’t necessary think it’s a violation if they said we got company outside. I think what brought 

the problem on was when they said, yeah, I think there is.”). 

Fourth, the Judge made unreasonable assumptions. For instance, the Judge found that it 

was unlikely that Holz would have given an answer that violated the law in the presence of two 

MSHA inspectors. In so concluding, the Judge did not acknowledge that the inspectors at the 

dispatcher’s shack were not on the mine-phone, could not hear the preceding question, and 

would not have been aware of the significance of Holz’ response. In fact, Holz testified that it 

was “possible” that he had given the affirmative answer in the presence of the inspectors.10 

Moreover, the Judge erred in finding no violation on the grounds that the miner might 

have asked the question for many reasons, such as the need to provide mantrips. He held that 

Holz’s confirmation of visitors was only a violation if Holz intended to convey advance notice. 

That is incorrect. Advance notice of an inspection is a violation. Proof of intent is not required. 

Wake Stone Corp., 36 FMSHRC 825, 827 (Apr. 2014). If the effect of the communication is to 

8

 The Judge also found that Inspector Sparks was not able to substantiate that “the 

question he heard over the mine-[phone] system was consistent with such coded language.” 40 

FMSHRC at 1550. As previously stated, there is not a factual dispute on this issue; Holz 

understood the term “company” to mean MSHA. Tr. 25, 164-65, 172. 

9

 Inspector Sparks testified as a fact witness. The legal conclusions of an inspector are 

neither binding nor dispositive. Big Ridge, Inc., 37 FMSHRC 213, 216 n.6 (Feb. 2015) (citing

Penn Allegh Coal Co., 4 FMSHRC 1224, 1227 n.2 (July 1982)). 

10 We note that the Judge found that Holz had no reason to skew his testimony as he was 

longer employed by KenAmerican. In so finding, the Judge failed to consider that Holz faced the 

possibility of criminal prosecution. 30 U.S.C. § 820(e). The refusal to follow a Judge’s 

credibility determination is particularly justified where the testimony in question is given by an 

interested witness and relates to his own motives. Morgan, 21 FMSHRC at 1391. Indeed, we 

note that two mine superintendents and a foreman working at the Paradise No. 9 mine were 

previously convicted of the crime of providing advance notice. United States v. Gibson, 409 F.3d 

325, 333 (6th Cir. 2005). 

42 FMSHRC Page 5
convey advance notice then the violation is complete. Here, Holz thought the caller was asking 

whether MSHA inspectors were on site and Holz’s statement informed him that inspectors were 

present. At that point, the violation occurred.11 

Finally, the operator argued before the Administrative Law Judge and before us that the 

language of section 103(a) applies only to the Secretary. The Judge correctly rejected that 

argument. The Commission’s application of section 103(a) to operators in Topper Coal Co., Inc., 

20 FMSHRC 344 (Apr. 1998), is consistent with the statutory text and the Mine Act overall, 

including section 110(e), which provides that it is a crime for “any person” to provide advance 

notice of an inspection. 30 U.S.C. § 820(e) (emphasis added). In short, the plain language of the 

Act is flatly inconsistent with the operator’s argument.12 

For all the aforementioned reasons, we find that the Judge abused his discretion. While it 

is the province of the Judge to access credibility, it “involves more than a witness’ demeanor and 

comprehends an overall evaluation of testimony in light of its rationality it’s or internal 

consistency and the manner it hangs together with other evidence.” 9A Charles Alan Wright & 

Arthur R. Miller, Federal Practice and Procedure § 2586, at 578-79 (2d ed. 1995). 

We conclude that the record evidence demonstrates that Holz said “yeah, I think there is” 

in response to the miner’s question. See ICG Hazard, LLC, 36 FMSHRC 2635, 2640 (Oct. 2014) 

(“Where the evidence supports only one conclusion, remand on that issue is unnecessary.”) 

(citations omitted). 

11 Advance notice cases may not always be resolved easily. In some instances, if a miner 

seeks advance notice from a dispatcher or other employee, it may be difficult to discern whether 

a superficially noncommittal response is affirmative or affirmatively coded language. Operators 

must train miners not to seek advance notice. Ambiguities that may exist in any interchange can 

produce situations that are difficult to judge. In such cases, the Judge must exercise his/her 

discretion in light of the totality of the circumstances. 

Second, we recognize that requests for mantrips and personal observations by miners 

may lead individual miners to infer the presence of inspectors. Inferences drawn by individual 

miners from their observations are not violations but such personal inference may not lead to 

advance notice to other miners. Operators must avoid to the extent possible the occurrence of 

such inferences. 

12 We similarly reject the Judge’s attempt to limit Topper Coal’s holding to mines of 

small size. See 40 FMSHRC at 1554-55. Section 103(a) by its plain language applies to “coal or 

other mines.” 30 U.S.C. § 813(a). The definition of a “coal or other mine” in section 3(h) of the 

Mine Act is broad, sweeping and expansive. See Jim Walter Res., Inc., 22 FMSHRC 21, 24 (Jan. 

2000). Section 103(a)’s prohibition against advance notice clearly applies to mines of all sizes. 

42 FMSHRC Page 6
B. The Secretary did not infringe on KenAmerican’s First Amendment Rights.

KenAmerican argues that section 103(a) has been applied in a manner which infringes on 

its freedom of speech in violation of the First Amendment. We disagree.13 

The Commission has jurisdiction to consider constitutional challenges raised against the 

enforcement of the Mine Act. Sec’y of Labor v. Kenny Richardson, 3 FMSHRC 8, 18-21 (Jan. 

1981). The First Amendment guarantees that “Congress shall make no law abridging the freedom 

of speech.” U.S. Const. amend 1. The First Amendment requires a heightened scrutiny whenever 

the government regulates speech because of a disagreement with the message it conveys. See 

Sorrell v. IMS Health Inc., 564 U.S. 552, 566 (2011) (citations omitted). Content-based 

restrictions on speech may be justified only if the government proves that it is narrowly tailored 

to serve compelling state interests. R.A.V. v. St. Paul, 505 U.S. 377, 395 (1992). 

Even if we were to assume that sanctioning KenAmerican for providing advance notice 

of an impending inspection is a restriction on protected expression, we conclude it is narrowly 

tailored to allow a meaningful inspection of the mine. The Supreme Court’s decision in Donovan 

v. Dewey, 452 U.S. 594 (1981), made clear that unannounced inspections of mines under the Act

are vital and fully constitutional. Congress enacted the Mine Act to ensure the health and safety

of all miners. 30 U.S.C. § 801(a)-(f). In order to comply with Congress’ directives, MSHA must

conduct inspections that reflect the normal day-to-day working conditions of the mine. Such

meaningful inspections cannot occur when the mine environment is altered by advance notice of

an inspection. Donovan v. Dewey, 452 U.S. at 603 (“[I]f inspection is to be effective and serve as

a credible deterrent, unannounced, even frequent, inspections are essential.”); see also Solis v.

Manalapan Min. Co., No. 10-115-GFVT, 2010 WL 2197534, at 5 (E.D. Ky. May 27, 2010)14

(“The giving of advance notice prevents the discovery of safety and health violations and allows

potential hazards to be concealed.”); S. Rep. 95-181, at 27 (1977), reprinted in Senate Subcomm.

on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act

13 The Secretary did not respond to this argument. Instead, he contends that 

KenAmerican is impermissibly attempting to enlarge its rights on review. The Secretary is 

incorrect; KenAmerican had previously presented this argument to the Judge. 40 FMSHRC at 

1556 n.15; KA Post-Hearing Br. at 22-25. On appeal, a prevailing party may defend a decision 

based on anything in the record without filing a cross-appeal. Mass. Mut. Life Ins. Co. v. Ludwig, 

426 U.S. 479, 480-81 (1976); Jim Walter Res., Inc., 12 FMSHRC 1521, 1528-29 (Aug. 1990). 

14 In Manalapan, a federal district court judge granted the Secretary’s motion for a 

preliminary injunction ordering the defendant mine operators to comply with section 103(a)’s 

prohibition against advance notice. MSHA cited the mine operators for violations of section 

103(a) after its inspectors allegedly overheard advance notice of an inspection provided over the 

mine’s phones. Slip op. at 2, 5. 

42 FMSHRC Page 7
of 1977, at 615 (1978) (recognizing the “notorious ease with which many safety or health 

hazards may be concealed if advance warning of inspection is obtained.”).15 

III. 

Conclusion 

In summary, we conclude that the evidence in the record compels the conclusion that 

advance notice of the MSHA inspection was provided by the operator. For the reasons herein, we 

reverse the decision of the Judge and find that KenAmerican violated section 103(a). The case is 

remanded to the Judge so that he may assess a civil penalty for the violation consistent with 

section 110(i) of the Mine Act, 30 U.S.C. § 820(i).16 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

15 Furthermore, KenAmerican has not demonstrated that the Secretary is applying the law 

in a way that inhibits its statutory right, pursuant to section 103(f), for an escort to accompany 

the inspection. Section 103(a) does not prohibit the mine operator from simply calling a miner to 

return to the surface. 

16 The Judge’s analysis regarding whether KenAmerican was negligent in violating the 

Act is more appropriately confined to the penalty assessment for the violation. 

42 FMSHRC Page 8
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

January 22, 2020 

MICHAEL K. McNARY 

v. Docket No. CENT 2015-279-DM 

ALCOA WORLD ALUMINA, LLC 

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners 

DECISION 

BY THE COMMISSION: 

This proceeding, arising under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), is before the Commission a second time. 

At issue is a complaint filed by Michael McNary alleging that Alcoa World Alumina, LLC 

(“Alcoa”) discriminated against him and interfered with the exercise of his statutory rights in 

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

 The complaint arose from an 

incident between McNary and Alcoa Digestion Department Superintendent, Steve Emig. 

During its first review, the Commission determined that the Administrative Law Judge 

erred in entering summary decision in favor of Alcoa and remanded the matter for further 

proceedings, including an evidentiary hearing. 39 FMSHRC 433, 440 (Mar. 2017). After the 

hearing, the Judge dismissed the complaint, holding that there was no cognizable Mine Act 

discrimination or interference by Alcoa against McNary. 39 FMSHRC 2083 (Dec. 2017) (ALJ). 

For the reasons that follow, we affirm the Judge’s dismissal.

1

 Section 105(c)(1) of the Mine Act provides in relevant part: 

No person shall discharge or in any manner discriminate 

against . . . or otherwise interfere with the exercise of statutory 

rights of any miner . . . because such miner . . . has filed or made a 

complaint under or related to this Act . . . or because of the 

exercise by such miner . . . of any statutory right afforded by this 

Act. 

30 U.S.C. § 815(c)(1). 

42 FMSHRC Page 9
I. 

Factual and Procedural Background 

Alcoa operated the Bayer Alumina Plant in Point Comfort, Texas, to produce alumina. 

Alumina was produced by a process that involved miners working in four departments: 

digestion, clarification, precipitation, and calcination.2

 In the digestion department, where the 

incident occurred, the material being treated was caustic, corrosive, and heated under pressure to 

temperatures of 400 to 450 degrees Fahrenheit. 

In January 2014, McNary was a gland3 manager in the digestion department. McNary’s 

job as gland manager was to check the pumps, making daily rounds and troubleshooting. 39 

FMSHRC at 2095. 

McNary was also the No. 2 miners’ representative (“miners’ rep.”).4

 Carlos Delgado was 

the lead miners’ rep. at the plant. When Delgado was unavailable for any reason, McNary 

assumed the responsibilities of the lead miners’ rep. for the plant. 

On January 8, 2014, McNary was checking the pumps in the digestion area while 

performing his daily safety rounds. McNary saw hot slurry spewing out of a valve on a pump in 

the L-5 area and two employees walking toward him wiping off slurry. Miners were suiting up 

in clothes variably described as Tyvek suits, Tychem suits, paper suits, and raincoats. 

While the miners were putting on their suits, Emig approached McNary and Delton Luhn, 

the miners’ rep. for the digestion area. Emig asked them if they had any duct tape. Both men 

answered, “No.” McNary asked why he needed tape, and Emig said that he wanted to put tape 

around the wrists of the employees who were suited up. Emig instructed that one of them should 

go to the tool room to get some tape. McNary went to the tool room but did not find tape. 

McNary asked a miner to contact Health and Safety Manager Kelly Grones. McNary 

then went to a different area to see if another valve was blowing out. He determined that there 

were no problems in that area and returned to the L-5 area. 

2

 A description of the production process is set forth in the Commission’s first decision. 

39 FMSHRC at 434. 

3

 A gland is two pieces of metal on a pump that hold packing in place. If the packing 

fails, the valve may blow out. See 39 FMSHRC 2095 n.12. 

4

 A miners’ representative has various rights and responsibilities under the Mine Act. 

Among them are the right to accompany an inspector from the Department of Labor’s Mine 

Safety and Health Administration (“MSHA”) during inspections of a mine, to be involved in preor post- inspection conferences (30 U.S.C. § 813(f)), and to request an immediate inspection of a 

mine (30 U.S.C. § 813(g)). 

42 FMSHRC Page 10
While McNary was away, miners accessed the area of the blowing valve.5

 Tr. 70, 241. 

The miners were unsuccessful in resolving the problem. 

When McNary returned to the L-5 area, he motioned for Emig, who was then managing 

the situation, to join him. McNary informed Emig that he had called Grones, who was coming to 

the area. 

There is conflicting evidence as to what occurred next in this conversation. Although we 

recite both versions below, the Judge credited Emig’s version.6 

According to McNary, Emig replied that McNary should not have called anyone, that it 

was Emig’s department, and that he directed the workforce. McNary asked why he had directed 

the miners into the hot slurry after sending him off to get tape. Emig replied that he did not send 

the miners in and that they had volunteered. McNary stated that Emig had watched the miners 

go into the area without stopping them and had helped them suit up. Emig replied that McNary 

should not be involved in these matters, to which he disagreed, stating that he was the miners’ 

rep. and concerned for the miners’ safety. McNary stated that Emig replied that he would 

remove him as miners’ rep., from the department, and from the plant. Tr. 145-46. 

In contrast, according to Emig, McNary stated that he had contacted some people to come 

down, assess the situation, and instruct him on what to do. Emig informed McNary that they 

were in a “full stand-down mode,” he also had contacted Grones, he was directing the group, and 

McNary could be involved. McNary responded that as a miners’ rep. he did not have to listen to 

Emig. Emig replied that he did have to listen to him, as the department superintendent and as an 

employee of the department. Emig stated that McNary’s behavior ultimately became unsuitable 

and irate and he told him that he (Emig) could or would have him removed. They had a brief 

argument about whether Emig had the right to do that. Tr. 246-48. 

At that point, Lead Miners’ Rep. Carlos Delgado and an inspector with the Department of 

Labor’s Mine Safety and Health Administration (“MSHA”), Brett Barrick, arrived. Delgado and 

Barrick started to discuss the situation with Emig. McNary had stepped aside momentarily but 

then interrupted the discussion to complain that Emig had sent him on a wild goose chase and 

directed miners into danger. Emig denied both accusations. Then, McNary challenged Emig, 

“Oh, you’re through with me for good?” Emig stated, “No, just right now.” Tr. 149, 253. Emig 

made no effort to remove McNary and McNary remained on the scene with Delgado, Barrick, 

and Emig until the emergency was over. There were no further acrimonious interactions 

between McNary and Delgado. 

Health and Safety Manager Grones arrived at the scene. Grones, Delgado, Emig, and 

Barrick discussed how to resolve the emergency. McNary continued to remain with that group 

considering the situation. After Grones left the scene to speak with engineers and gather more 

5

 Miners had also accessed the area before Emig had arrived at the scene. Tr. 239. 

6

 In discussing the interaction between McNary and Emig, the Judge opined, “To be 

specific, for this moment, which involves an important credibility determination, and having 

heard Emig’s and McNary’s versions of their interaction, the Court finds Emig’s recounting to 

be the more credible telling.” 39 FMSHRC at 2112. 

42 FMSHRC Page 11
information, the emergency resolved itself when the valve pressure died out without further 

intervention. 

After these events, McNary continued as an employee of Alcoa and a miner’s 

representative. He did not claim that he suffered any discipline, loss of wages or any other form 

of retribution after and/or because of his actions toward Emig on the day of these events. 

McNary filed a complaint with MSHA under section 105(c)(2) of the Mine Act alleging 

that Alcoa had violated section 105(c)(1) of the Mine Act. After investigation, MSHA declined 

to pursue any charges. McNary then filed a claim on his own behalf under section 105(c)(3) of 

the Mine Act, 30 U.S.C. § 815(c)(3). 

After discovery, the Judge granted a motion for summary decision filed by Alcoa and 

dismissed the proceeding. The Commission later granted McNary’s petition for review of the 

summary decision, vacated the decision, and remanded the matter to the Judge for further 

proceedings, including an evidentiary hearing. The matter then proceeded to hearing, and the 

Judge issued this decision currently under review. 

As noted above, after the hearing, the Judge credited the testimony of Emig and 

discredited the testimony of McNary. 39 FMSHRC at 2112, 2118. The Judge held that there 

had been no cognizable Mine Act discrimination or interference in violation of section 105(c) 

against McNary. Id. at 2083, 2118.7

 

McNary filed a petition seeking review of the Judge’s decision. The Commission granted 

the petition and heard oral argument. 

 

7

 The Judge summed up the evidence: 

[T]he Court concludes that, under the totality of the 

circumstances, it was McNary’s own conduct which brought 

about the exchange with Emig. 

The Court would note again that, in its view, it is a 

mischaracterization to label McNary’s actions and statements 

with the words used by his Counsel, as discussing a safety 

situation. McNary was not discussing a safety situation. Rather, 

he was making assertions about Emig’s conduct and attempting 

to orchestrate which management official would control the 

event. 

39 FMSHRC at 2100 (emphasis in original). 

42 FMSHRC Page 12
II. 

Disposition

Section 105(c)(1) states in relevant part that “[n]o person shall discharge or in any 

manner discriminate against . . . or otherwise interfere with the exercise of the statutory rights of 

any miner [or] representative of miners . . . because of the exercise by such miner [or] 

representative of miners . . . of any statutory right afforded by this Act.” 30 U.S.C. § 815(c)(1). 

Section 105(c)(3) permits an individual to file a complaint charging “discrimination or 

interference” in violation of section 105(c)(1). 30 U.S.C. § 815(c)(3). McNary’s claim was that 

Emig’s conduct could chill his exercise of his miner’s rights. 

Commission case law is clear that unless McNary can provide sufficient evidence that 

Emig’s statements would dissuade a reasonable miner from engaging in protected activity, 

McNary’s claims must fail. Sec’y of Labor on behalf of Pendley v. Highland Mining Co., 34 

FMSHRC 1919, 1931 (Aug. 2012) (citing Burlington No. & Santa Fe Ry Co. v. White, 548 U.S. 

53, 57 (2006)). Thus, McNary needed to prove, as a threshold matter,8

 that his interaction with 

Emig would dissuade a reasonable worker from exercising his protected rights. We conclude 

that substantial evidence in the record supports the Judge’s determination that McNary failed to 

establish that the incident with Emig would deter a reasonable miner from engaging in activity 

protected under the Mine Act.9 

The sole basis of McNary’s claim is his allegation that Emig threatened him during the 

brief heated conversation during the emergency. The Judge applied the factors set forth in MultiAd Services, Inc. v. NLRB, 255 F.3d 363, 372 (7th Cir. 2001) in evaluating the brief encounter 

between McNary and Emig. These include the tone and setting of the encounter; the relative 

positions of the employees; the duration of the conduct; and whether the subject was brought up 

repeatedly. 

8

 In Secretary of Labor on behalf of Greathouse v. Monongalia Coal Co., 40 FMSHRC 

679 (June 2018), a four-member Commission divided evenly regarding the proper analytical 

framework for interference claims. Two Commissioners stated that they would apply a test 

developed by two Commissioners in UMWA on behalf of Franks and Hoy v. Emerald Coal 

Resources, LP, 36 FMSHRC 2088 (Aug. 2014), in which protected activity need not cause the 

operator action giving rise to an interference claim. The other two Commissioners concluded 

they would apply Secretary of Labor ex rel. Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 

(Oct. 14, 1980), rev’d on other grounds, 663 F.2d 1211 (3d Cir. 1981), and its progeny to claims 

of interference. Id. at 681, 708-16. Because the outcome of this case does not depend on which 

standard should be applied, it is not necessary for the Commission to consider this issue. No 

inference should be drawn from our decision not to address it herein. 

9

 When reviewing an administrative law judge’s factual determinations, the Commission 

is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. 

§ 823(d)(2)(A)(ii)(I). “Substantial evidence” means “such relevant evidence as a reasonable 

mind might accept as adequate to support [the judge’s] conclusion.’” Rochester & Pittsburgh 

Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 

197, 229 (1938)).

42 FMSHRC Page 13
After a thorough review of the entire record, the Judge discredited McNary’s account of 

the event and found the incident involved a single, isolated event of quite brief duration 

precipitated by heated accusations by McNary toward Emig and a refusal to accept Emig’s 

supervisory authority. 39 FMSHRC at 2126-27. The Judge further found that McNary initiated 

the incident by calling Emig away from direct handling of the emergency to tell him that he 

called others asking to replace him, accusing him of misconduct, and asserting that he did not 

have to take instructions from his supervisor.10 Indeed, Lead Miners’ Rep. Delgado agreed that, 

if McNary had told Emig that he could not tell him what to do, this would have been a reason for 

Emig to have been upset with McNary. Tr. 93-94 

 As noted above, the evidence is also undisputed that the brief, one-time conversation 

initiated by McNary occurred during a stressful situation involving a significant valve failure in 

Emig’s department, while Emig was responsible for dealing with the situation and needed to 

focus his attention and concentration upon the emergency. At the time of the confrontation, the 

valve was still “blowing out pretty good.” Tr. 53. The testimony demonstrated to the Judge that 

McNary was upset and angry when he interrupted Emig’s handling of the event and informed 

him that he, McNary, was initiating action and disregarding Emig’s authority. Considering the 

exchange between McNary and Emig from the perspective of a reasonable miner, it is significant 

that robust, heated discussions about safety between miners’ reps. and management were not 

uncommon at the mine. Tr. 75-77, 100-02. 

Moreover, even if one could view Emig’s initial response to McNary’s refusal to accept 

his authority as intemperate, Emig quickly walked back any negative aspect, and McNary 

continued within the same event to participate without restraint or hindrance. A reasonable 

miner would not see interference with his protected rights under these circumstances. Further, 

Delgado, the lead miners’ rep., arrived at the scene near the end of Emig and McNary’s 

conversation and heard the end of that conversation. The Judge found that when Delgado then 

made complaints to Emig about the handling of the actual situation rather than about his 

authority or lack thereof, Emig responded in a calm and professional manner. 

When McNary questioned Emig regarding whether he was done with him, Emig replied 

that he was just done with McNary for “right now” and the follow-up indicated, as the Judge 

found, that Emig had no further concern with the incident. Tr. 53, 149, 184, 253; 39 FMSHRC 

at 2114. Importantly, McNary never left the scene with the group of management, union, and 

MSHA personnel discussing solutions. He continued to be present with the group discussing the 

handling of the emergency throughout the duration of the emergency. 

The Judge’s opinion turns in part on his credibility determinations. The Commission has 

recognized the Judge’s credibility determinations are entitled to great weight and may not be 

overturned lightly. Eastern Assoc. Coal Corp., 32 FMSHRC 1189, 1196-97 n.8 (Oct. 2010); 

Dynamic Energy, Inc., 32 FMSHRC 1168, 1174 (Sept. 2010). McNary has not provided a basis 

for overturning the Judge’s credibility determinations. 

10 A complainant’s demeanor and tone as he approaches a supervisor, standing alone, do 

not necessarily prove that his statements are unprotected. But, as here, they are appropriately 

considered by the Judge along with other evidence as part of the “totality of the circumstances.”

42 FMSHRC Page 14
In summary, therefore, the incident involved a brief, spontaneous event arising from a 

provocative challenge by McNary to Emig’s supervisory authority and accusations made by 

McNary against Emig in an extremely stressful situation. Emig did not take any action to 

remove or dissuade McNary’s continued participation. 39 FMSHRC at 2126-27; Tr. 53, 79-80, 

93, 165, 214. 

We conclude that substantial evidence supports the Judge’s determination that, in light of 

the totality of the circumstances, Emig’s words did not chill nor would they tend to chill a 

reasonable miners’ rep. from making safety complaints in the future nor would they have chilled 

the exercise of protected rights by those miners who may have witnessed the encounter. 

Accordingly, we affirm the Judge’s dismissal of the interference complaint. 

III. 

Conclusion

 For the foregoing reasons, we affirm the Judge’s dismissal of McNary’s complaints 

alleging discrimination and interference under section 105(c) of the Mine Act. 

 /s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

 /s/ Mary Lu Jordan 

 Mary Lu Jordan, Commissioner 

 /s/ Michael G. Young 

 Michael G. Young, Commissioner 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

 Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 15
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710

January 22, 2020 

 BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners 

DECISION 

BY: Young and Althen, Commissioners 

This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2018) (“Mine Act”). At issue is a citation issued to Sunbelt Rentals, Inc.,

(“Sunbelt”) by the Department of Labor’s Mine Safety and Health Administration (“MSHA”)

after an accident at a concrete plant. The citation alleged that Sunbelt failed to conduct an

adequate examination of a “working place” in the pre-heat tower, which processed limestone to

make concrete. MSHA charged a violation of 30 C.F.R. § 56.18002(a)1 and designated the

violation as significant and substantial (“S&S”)2 and a result of high negligence. MSHA also

proposed a penalty of $51,900.

An Administrative Law Judge of the Commission was assigned to this matter. The Judge 

granted Sunbelt’s motion for summary decision, reasoning that the standard does not explicitly 

require that exams be “adequate” and therefore that an exam need not necessarily identify all 

hazards which a reasonably prudent person would identify. 35 FMSHRC 3208 (Sept. 2013) 

(ALJ). 

Subsequently, the Commission vacated the summary decision and remanded the case to 

the Judge, holding that the regulatory requirement that a “competent” person conduct the 

examination means that the examination must be adequate. 38 FMSHRC 1619, 1625-28, 1629 

(July 2016). 

1

 Section 56.18002(a) provides that “[a] competent person . . . shall examine each 

working place at least once each shift for conditions which may adversely affect safety or 

health.” 30 C.F.R. § 56.18002(a) (2017) (amended Apr. 9, 2018). 

2

 The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1), 

which distinguishes as more serious any violation that “could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.” 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

SUNBELT RENTALS, INC. 

Docket No. VA 2013-291-M 

42 FMSHRC Page 16
After a hearing on remand, the Judge determined that the operator had failed to examine 

adequately the working place at issue. He held that the violation was S&S and a result of the 

operator’s high negligence. He assessed a penalty of $23,750. 40 FMSHRC 573, 578-79 (Apr. 

2018) (ALJ). 

The operator petitioned the Commission for review, which was granted, and challenged 

the Judge’s findings regarding the violation, S&S, and negligence.3

 Upon review, a majority of 

Commissioners affirms the Judge’s finding of a violation and the S&S finding because they 

conclude that substantial evidence supports the Judge’s ruling that the operator did not conduct 

an adequate examination.4

 Chairman Rajkovich, writing separately, would find no violation. 

Commissioners Jordan and Traynor would affirm the Judge’s finding of high negligence, while 

Commissioners Young and Althen conclude the violation was instead the result of ordinary 

negligence. Chairman Rajkovich, while finding no violation, concurs with Commissioners 

Young and Althen solely for the purpose of forming a majority decision of ordinary negligence 

to remand for a new penalty assessment. The Judge’s negligence determination and penalty 

assessment are reversed, and the case remanded for a new penalty. 

I.

Background 

 Roanoke Cement Co. (“Roanoke”) operated a cement plant that included a pre-heat 

tower. The inside of the pre-heat tower contained six numbered, vertically connected conical 

vessels – each about 50 feet tall. The accident resulting in the citation occurred in a vessel 

denominated as the fourth vessel. That vessel consisted of an upper and a lower compartment 

connected through an opening, called a “thimble,” between them. The inspector did not measure 

the compartments or the thimble and did not testify to their size. An operator witness testified 

that each floor in the tower was about 20 to 30 feet high and that the upper compartment of the 

fourth vessel was smaller than the lower compartment. 

3

 The operator also claims that it lacked notice that exams of working places must be 

“adequate.” However, as set forth below, this issue was already resolved in our prior decision on 

this matter. 

4

 When reviewing an administrative law judge’s factual determinations, the Commission 

is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. § 

823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as a reasonable mind 

might accept as adequate to support [the Judge’s] conclusion.’” Rochester & Pittsburgh Coal 

Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 

197, 229 (1938)). Under the substantial evidence test, the “possibility of drawing two 

inconsistent conclusions from the evidence does not prevent an administrative agency’s finding 

from being supported by substantial evidence.” Sec’y on behalf of Wamsley v. Mutual Min., Inc., 

80 F.3d 110, 113 (4th Cir. 1996) (citation omitted). 

42 FMSHRC Page 17
 Nine floors were located on the outside of the tower, adjacent to the vessels on the inside. 

A miner could use an exterior staircase or elevator to reach each floor. The floors outside the 

vessels were numbered in ascending order. The sixth floor was adjacent to the lower 

compartment of the fourth vessel while the seventh floor was adjacent to the upper compartment 

of the fourth vessel. Tr. 118. 

The interior walls of each vessel were lined with heat-resistant refractory brick to prevent 

corrosion. Over time, some of the limestone could adhere to the refractory, resulting in limestone 

building up inside the vessels. There were three two feet by two feet portholes (“large 

portholes”) and an one inch by one inch porthole (“small porthole”) on the sixth floor, outside 

the lower compartment of the fourth vessel. The smaller upper compartment of that vessel also 

contained two large portholes, two feet by two feet in size. Tr. 256-58. The small porthole in the 

lower compartment allowed miners to clear buildup of loose material in each vessel with an air 

lance.5

 The large portholes allowed miners to look into each vessel while standing on an adjacent 

floor of the tower. 

 

Sunbelt contracted with LVR, Inc. (“LVR”) to erect scaffolding inside the vessels of the 

tower. Once the scaffolding was erected, LVR would perform annual maintenance on the tower, 

as per its contract with Roanoke. However, before scaffolding was erected, a miner could 

examine the inside of each vessel by standing on an adjacent floor and looking through the 

corresponding portholes. 

 

On December 30, 2012, the tower was shut down. On that day or shortly afterwards, each 

vessel of the tower was air lanced through the small portholes. Subsequently, an employee of 

Roanoke, Jason Oedel, inspected the tower through the portholes in early January 2013. He 

looked through the portholes on the seventh floor in the upper compartment of the fourth vessel 

and did not observe any loose hanging material in the vessel. Instead, he testified that if there 

was any potentially loose material, it was indistinguishable from the solid refractory of the 

vessel. 

A few days later, Sunbelt began to work in the fourth vessel. As stated a large open tube 

(the “thimble”) was located between the lower and upper compartments of the fourth vessel. 

Sunbelt planned to erect scaffolding in the lower compartment of the fourth vessel between the 

sixth and seventh floors, after which LVR would replace the thimble in the vessel. 

On January 8, at approximately 7:30 a.m.,6

 Kendrick Davis examined the interior of the 

fourth vessel by looking through portholes on the sixth floor. At the time, Davis, an employee of 

5

 An air lance uses “compressed air . . . blown . . . to free choked passages.” U.S. Dep’t of 

Interior, A Dictionary of Mining, Mineral and Related Terms 21 (1st ed. 1968). 

6

 The pre-shift hazard assessment form indicated that Davis conducted his exam at 7:00 

a.m. However, the Judge credited Davis’s testimony that he met with an individual at 7:00 a.m. 

for approximately 20 to 30 minutes and began to examine the fourth vessel afterwards. 40 

FMSHRC at 583. 

42 FMSHRC Page 18
Sunbelt, had been designated by Sunbelt as its examiner for working places inside the fourth 

vessel and had received site-specific training from Roanoke to inspect for falling material 

hazards in the vessel. 

Unlike Oedel, Davis did not examine the top of the vessel by looking through any 

seventh floor portholes. It is undisputed that instead, he simply examined this portion of the 

vessel while standing on the sixth floor, 20-30 feet below. The interior of the vessel lacked a 

lighting system, and Davis did not use any portable lights to examine the top of the fourth vessel. 

Instead, he relied on the early morning sunlight to inspect the portion of the vessel above the 

seventh floor. 40 FMSHRC at 579-80, 83-86. 

During his examination, Davis did not observe any loose hanging material in the part of 

the vessel above the seventh floor. Id. at 584-85. Davis documented his examination of the fourth 

vessel in his Pre-Shift Hazard Assessment. While filling out the Pre-Shift Hazard Assessment, 

Davis listed falling material and poor lighting as potential hazards. Gov’t Ex. 6. Subsequently, on 

Davis’s instruction, other employees of Sunbelt beat the side of the fourth vessel to dislodge any 

loose material. 

Shortly afterwards, at 10:30 a.m. on January 8, loose material fell from the top of the 

vessel. The falling material struck and knocked unconscious an employee of Sunbelt, Brian 

Tyler, while he was helping to erect scaffolding in the fourth vessel. At the time of the accident, 

Tyler was on a platform in the scaffolding below the open thimble. Material in the upper 

compartment of the vessel, above the adjacent seventh floor of the tower, fell and knocked Tyler 

unconscious. Three of the four straps on the headband to his hard hat were broken. The exact 

nature of the material that struck Tyler is unclear. Subsequently, a “headache board”7

 was 

installed to protect miners from falling material. Id. at 589. 

After being notified of the accident that morning, MSHA issued an order at 11:00 a.m. 

under 30 U.S.C. § 813(j) to preserve the conditions of the tower.8 MSHA Inspector David 

Nichols arrived at the tower soon afterwards, just after Tyler had been placed into an ambulance 

following his injury. Subsequently, Inspector Nichols peered through portholes on the seventh 

floor and observed a buildup of material on the walls of the fourth vessel above the seventh floor 

of the tower. 

Inspector Nichols inferred that the buildup indicated that loose, hanging material was 

present in the upper compartment of the vessel, above the seventh floor, during Davis’s 

examination. Following his inspection, the inspector issued a citation to Sunbelt for a violation of 

30 C.F.R. § 56.18002(a). The citation was issued for failure to conduct an adequate examination 

based upon the failure of Davis to look through portholes on the seventh floor. 

7

 A “headache board” is a board placed above the point where miners would be working 

to protect them from falling material. 

8

 This provision of the Mine Act authorizes the Secretary to supervise and direct rescue 

and recovery activities in a mine. 

42 FMSHRC Page 19
The standard provides that “[a] competent person designated by the operator shall 

examine each working place at least once each shift for conditions which may adversely affect 

safety or health. The operator shall promptly initiate appropriate action to correct such 

conditions.” 30 C.F.R. § 56.18002(a). The citation alleged that Sunbelt “did not do an adequate 

work[ing] place exam in the [relevant area] as there [was] hanging material overhead that had 

not been noted on the work[ing] place exam. The area above was never checked.” Gov’t Ex. 8. 

MSHA proposed a penalty of $51,900. 40 FMSHRC at 573. 

As set forth at the outset, the Judge initially granted summary decision in favor of 

Sunbelt. On appeal, the Commission vacated the citation and instructed the Judge, on remand, to 

consider whether the area of the fourth vessel above the seventh floor was a “working place” and 

whether Sunbelt violated the standard by failing to conduct an adequate exam of such area. 38 

FMSHRC at 1628. More specifically, the Commission held that the examination “must be 

adequate in the sense that it identifies conditions which may adversely affect safety and health 

that a reasonably prudent competent examiner would recognize.”9 Id. at 1627. 

II.

Judge’s Decision on Remand 

 On remand, the Judge applied the standard identified by the Commission and determined 

that the standard required Davis to (1) examine the upper compartment of the fourth vessel, (2) 

look through the seventh floor portholes while conducting such an exam, and (3) identify and 

correct the hazard of loose hanging material in the upper compartment above the adjacent 

seventh floor of the tower. 40 FMSHRC at 599. 

 

The examination requirement under section 56.18002(a) applies to a “working place.” 

The Judge found that the area of the upper compartment of the fourth vessel above the seventh 

9

 The Commission further found: 

The Commission has consistently applied the reasonably prudent 

person test to broadly worded standards. See U.S. Steel Mining 

Co., 27 FMSHRC at 439. The reasonably prudent person test 

provides that an alleged violation is appropriately measured against 

whether a reasonably prudent person, familiar with the factual 

circumstances surrounding the allegedly hazardous condition, 

including any facts peculiar to the mining industry, would 

recognize a hazard warranting correction within the purview of the 

applicable standard. Spartan Mining Co., Inc., 30 FMSHRC 699, 

711 (Aug. 2008); see also Asarco, Inc., 14 FMSHRC 941, 948 

(June 1992); Alabama By-Products Corp., 4 FMSHRC 2128, 2129 

(Dec. 1982). 

38 FMSHRC at 1626 (footnote omitted). 

42 FMSHRC Page 20
floor (the area at issue) was a working place. Therefore, the Judge determined that the operator 

was required to conduct an exam of this area. Id. at 598. 

The Judge ruled that Sunbelt’s examiners failed to adequately examine a working place – 

that is, the vessel’s walls and ceiling above the seventh floor. Id. at 600. He rejected Davis’s 

testimony that he could see the entire upper compartment of the vessel while standing on the 

sixth floor. Id. at 584. The Judge found that the sixth floor portholes provided an incomplete 

view of the area of the upper compartment above the adjacent seventh floor of the tower. 

Therefore, the Judge agreed with Inspector Nichols’ determination that a reasonable examiner 

would have looked through the seventh floor portholes when examining the area of the upper 

compartment above the seventh floor. Id. at 597-99. 

 

Furthermore, the Judge found that if Davis had looked through the seventh floor 

portholes, he would have seen loose material in the area at issue above the seventh floor and 

would have identified such loose material as a falling material hazard. He concluded that a 

reasonably prudent examiner would not only have examined the area at issue from the seventh 

floor portholes, but would have identified and corrected the hazard. Id. at 599. 

 In addition, the Judge determined that the violation was S&S and resulted from the 

operator’s high negligence. The Judge found that Sunbelt was highly negligent because it failed 

to identify and correct a loose material hazard despite being informed by another operator, 

Roanoke, of potential hazards of falling material in the pre-heat tower. Specifically, the Judge 

noted that Roanoke had provided site-specific training to Davis, which alerted Davis to a 

potential hazard of falling material in the tower. The Judge assessed a penalty of $23,750. Id. at 

601, 604-05, 608. 

On appeal, Sunbelt challenges the Judge’s conclusion that there was a violation, that the 

violation was S&S, and that it was the result of high negligence. Sunbelt also claims that it 

lacked notice that its examination of the working place at issue – the area of the fourth vessel 

above the seventh floor – needed to be adequate. In its subsequent reply brief, the operator 

claims for the first time that the Judge was not appointed in accordance with the Appointments 

Clause of the U.S. Constitution. 

 

III.

 Disposition 

 

A. The Appointments Clause Issue Has Not Been Properly Raised Before the 

Commission on Review. 

 

Judges deemed to be officers of the United States are subject to the Appointments Clause 

of the Constitution of the United States. U.S. Const. Art. II, § 2, cl. 2. In Lucia v. S.E.C., 138 S. 

Ct. 2044, 2053 (2018), the Supreme Court ruled that administrative law judges of the Securities 

and Exchange Commission were subject to the Appointments Clause because they were “inferior 

officers” of the United States. In Jones Bros. Inc. v. Sec’y of Labor, 898 F.3d 669, 679 (6th Cir. 

2018), a decision rendered a month after Lucia, the Sixth Circuit concluded that administrative 

42 FMSHRC Page 21
law judges of this Commission are officers of the United States. As such, they are subject to the 

Appointments Clause and must be appointed by the President, a Court, or the Head of a 

Department. Id. 

In its reply brief in this case, Sunbelt claimed for the first time that the Judge who 

presided over this case was not constitutionally appointed, as he had not been appointed by the 

President, a court, or the head of a department when he conducted the hearing in this matter in 

May 2017. Sunbelt Reply Br. at 10-13. 

Sunbelt failed to raise the issue in its petition for discretionary review (“PDR”). If an 

issue is not raised before the Judge, the Mine Act allows a party to raise the issue before the 

Commission only if the party shows there is “good cause” to excuse its failure to raise the issue 

below. 30 U.S.C. § 823(d)(2)(A)(iii). Going further, however, the Mine Act limits the 

Commission’s appellate authority to those issues that were raised in the PDR. Specifically, the 

Mine Act states that “if [a PDR is] granted, review [by the Commissioners] shall be limited to 

the questions raised by the petition.” Id. Commission Procedural Rule 70(g), 29 C.F.R. § 

2700.70(g), reiterates that the scope of appellate review by the Commission is limited to issues 

which were raised in the PDR unless Commissioners decide to review additional issues on their 

own motion, pursuant to the rule.10

Contrary to Sunbelt’s argument, our disposition of the Appointments Clause issue is fully 

consistent with the Sixth Circuit’s decision in Jones Bros. In that case, the court concluded that 

the operator had forfeited the appointments clause issue because it had failed to properly raise 

the issue in its PDR. Jones Bros., 898 F.3d at 677-79. The operator had briefly mentioned the 

issue in a footnote in its PDR, but the court ruled that the footnote language was not sufficient to 

constitute a developed argument that could be acted upon by the Commission. 

The court then addressed the question of whether the operator’s forfeiture could be 

excused pursuant to section 106(a)(1) of the Mine Act, 30 U.S.C. § 816(a)(1), which allows 

appellate courts to excuse forfeiture “because of extraordinary circumstances.” The court 

determined that because of confusion about whether the Commissioners could entertain this 

constitutional claim, it would excuse the forfeiture in that case under the “extraordinary 

circumstances” provision. 

In contrast to the court in Jones Bros., the Commission is bound to apply the twin 

requirements that the Commission may only consider an issue not raised before a Judge upon a 

showing of “good cause,” and that the Commission may only review issues raised in the PDR. 

Second, the operator in Jones Bros., unlike Sunbelt in this case, did raise the appointments clause 

issue in its PDR. Therefore, the Mine Act did not foreclose review. In short, Jones Bros. 

provides no support for Sunbelt’s position. 

10 Applying this rule in Central Sand and Gravel Co., 23 FMSHRC 250, 261 (Mar. 

2001), the Commission declined to consider an issue which the petitioner did not raise in its 

PDR, even though the petitioner belatedly raised the issue in a subsequent appellate brief. 

42 FMSHRC Page 22
Here, Sunbelt did not raise the Appointments Clause issue in its PDR (or in its opening 

appellate brief). Only in its reply brief responding to the Secretary did Sunbelt raise the 

Appointments Clause issue. Furthermore, Sunbelt failed to ever address, in its reply brief or in 

subsequent oral argument, the statutory provision (30 U.S.C. § 823(d)(2)(A)(iii)) which limits 

the Commission’s scope of review to issues raised in the PDR. 

For the foregoing reasons, we decline to review the Appointments Clause issue. 

B. The Judge Properly Held That The Area of the Vessel above the Seventh Floor Was 

a “Working Place.”

The standard in question, 30 C.F.R. § 56.18002(a), provides that “[a] competent person 

designated by the operator shall examine each working place at least once each shift for 

conditions which may adversely affect safety or health” (emphasis added). MSHA’s regulations 

define a “working place” as any place in or about a mine “where work is being performed.” 30 

C.F.R. § 56.2. 

The Judge found that the upper compartment of the fourth vessel above the adjacent 

seventh floor of the tower was a working place because the entire vessel was the working area, 

rendering the upper compartment part of the working area. In addition, the Judge noted that the 

area of the vessel above the seventh floor was directly above miners who were working between 

the sixth and seventh floors. 40 FMSHRC at 598. In contrast, Sunbelt claims that on the day in 

question, it planned to erect scaffolding to the top of the lower compartment of the fourth vessel 

and did not plan to work in the upper compartment. 

 The regulatory definition of “working place” in a surface metal and nonmetal mine is “any 

place in or about a mine where work is being performed.” 30 C.F.R. § 56.2. It is undisputed that 

Tyler was a miner working in the lower compartment of the double-compartmented fourth 

vessel. PDR at 13-15. The thimble created a large opening between the lower and upper 

compartments of the vessel through which materials could fall. In fact, the very reason for the 

thimble was to allow passage of materials from the upper to the lower compartment. Therefore, 

the fourth vessel clearly constituted one integrated work site in which falling material from the 

upper compartment would threaten a miner below it within the vessel. Without a doubt, that 

entire vessel was a place where work was being performed. 

 

Indeed, the Pre-Shift Hazard Assessment form, completed by Davis, indicated that the 

entire fourth vessel, not just a particular area in that vessel, constituted the “designated work 

area” on January 8. Gov’t Ex. 6. Moreover, Davis testified that while standing on the sixth floor, 

he raised his head to look through the thimble at the top of the vessel above the seventh floor. Tr. 

350-51. That was a natural act demonstrating that the upper compartment of the vessel was a 

working place. Given the opening from that area, there obviously was a danger of material 

falling though the thimble that required an examination of the upper compartment. 

42 FMSHRC Page 23
C. The Judge Correctly Concluded that the Operator Violated 30 C.F.R. § 56.18002(a). 

In the Commission’s earlier decision, the Commission found that under 30 C.F.R. § 

56.18002(a), the operator must conduct “adequate” exams of any working place. 38 FMSHRC at 

1625-29. The Commission further defined such adequate exams as those which would identify 

all hazards which a reasonably prudent examiner would recognize. In addition, the Commission 

concluded that Sunbelt had notice that 30 C.F.R. § 56.18002(a) contains an adequacy 

requirement, i.e., that the reasonably prudent examiner test would be used to determine 

violations of the standard. 38 FMSHRC at 1627-28. The Commission’s prior decision on this 

exact issue is the “law of the case.” Black Beauty Coal Co., 38 FMSHRC 1307, 1311-12 (June 

2016). Under the Commission’s prior decision, the operator had notice of the adequacy 

requirement, for the reasons set forth in that decision. 

On appeal, the operator argues that there was no violation because the Secretary 

conceded that the hazard in the working place at issue – the portion of the fourth vessel above the 

seventh floor — was “latent”11 rather than “obvious” during Davis’s examination and that an 

operator cannot be required to identify a latent hazard. However, it is unnecessary to resolve this 

issue because the Judge’s finding of a violation is supported by substantial evidence even if the 

hazard was latent during Davis’s exam. 

Sunbelt’s argument misapprehends the nature of the violation in this case. It is not 

necessary for the Secretary to prove that there was loose material that would have been noted by 

Davis in his examination. Rather, the Secretary need only prove that the examination was 

inadequate – that is, that a reasonably prudent examiner would have gone to the seventh floor 

and examined the vessel from those portholes. 

The Judge predicated his determination that Sunbelt failed to conduct an adequate exam 

on “Sunbelt’s . . . [failure] to identify conditions which a reasonably prudent and competent 

examiner would recognize as hazardous.” 40 FMSHRC at 599. While substantial evidence 

supports the Judge’s conclusion as to the consequences of the inadequate examination, he, too, 

misses the fundamental deficiency. It is a failure to look, not a failure to see. The operator’s 

examiner must perform a complete examination of the entire working place. That required Davis 

to place himself in a position to identify hazards in the working place at issue – the upper 

compartment of the vessel above the adjacent seventh floor. In other words, Sunbelt needed to 

examine this working place from all vantage points a reasonable examiner would use, i.e., all 

vantage points that were reasonably necessary for an examination of such area. In a nutshell, an 

adequate exam must include areas where a hazard might endanger miners – which here includes 

the area from which objects could fall on miners working below. 

The Judge concluded that Sunbelt did not adequately examine the seventh floor walls and 

ceiling. Id. at 600. The Judge found that the portholes on the seventh floor were reasonably 

11 By “latent” the operator apparently meant that material that later fell could not have 

been discovered before the material fell. But there is no evidence to support this theory because 

neither Davis nor any other qualified person examined the area from the seventh floor portholes 

before the accident. 

42 FMSHRC Page 24
necessary vantage points because the sixth floor portholes provided an incomplete view of the 

working place at issue. Id. at 584. In turn, this factual determination was predicated on a 

credibility determination, where the Judge “discredited Davis’s testimony that he could see any 

loose material hanging [in the upper compartment] from the sixth floor [portholes].” Id. at 604. 

We find no basis for overturning this credibility determination.12 

The Judge’s finding that the examination was not adequate is supported by his credibility 

determination, as well as by facts recounted in the decision.13 First, the Judge noted that Davis 

examined the portion of the fourth vessel above the seventh floor while standing on the sixth 

floor approximately 20 to 30 feet below. Tr. 339; 40 FMSHRC at 580-84. Second, the Judge 

noted that there was no lighting system inside the vessel and that Davis did not use any portable 

light during his exam.14 While some natural light came into the vessel through the portholes, 

artificial light was only installed following Davis’ examination. Tr. 101-02, 371-72, 392; 40 

FMSHRC at 580, 586. 

The Judge discredited Davis’s testimony that his view of the upper compartment of the 

vessel would be partially restricted if he looked through the seventh floor portholes.15 However, 

it is unnecessary for us to discuss this credibility determination. As stated above, the Judge found 

that the sixth floor portholes provided an incomplete view of the working place at issue. 

Therefore, even if Davis’s view from the seventh floor portholes was restricted, a reasonably 

prudent examiner would have used these portholes to further examine the working place rather 

than simply relying on the sixth floor portholes. 

12 Credibility determinations “reside in the province of the administrative law judge’s 

discretion, are subject to review only for abuse of that discretion, and cannot be overturned 

lightly.” Dynamic Energy, Inc., 32 FMSHRC 1168, 1174 (Sept. 2010) (citing Buck Creek Coal 

Co., 52 F.3d 133, 135 (7th Cir. 1995)); see also Farmer v. Island Creek Coal Co., 14 FMSHRC 

1537, 1540-41 (Sept. 1992). When reviewing a Judge’s credibility determination, we simply 

review whether his credibility determination was amply supported by factual evidence, not 

whether we would have made the same credibility determination as the Judge. 

13 The record contains evidence that another Sunbelt employee, Douglas Redmond, 

examined the fourth vessel before the shift began on the day of the accident. However, the 

operator does not appeal the Judge’s decision to ignore the alleged working place exam of the 

upper compartment of the vessel conducted by Redmond. Therefore, there is no dispute in this 

appellate proceeding that Davis bore the responsibility to conduct Sunbelt’s working place exam 

of the fourth vessel. 40 FMSHRC at 583, 596. 

14 The Judge credited Davis’s testimony that during his exam there was first light at 

daybreak over Nichols’ testimony suggesting that the working place would have been dark 

during Davis’s exam. However, the Judge did not discuss the exact amount of light in the fourth 

vessel during Davis’s exam. 40 FMSHRC at 583. 

15 Davis claimed that he could only see straight across through the seventh floor 

portholes. 40 FMSHRC at 584. 

42 FMSHRC Page 25
 The inspector testified that he issued the citation for failure to perform an adequate 

workplace examination because: 

After surveying the area, and looking at the seventh floor, sixth 

floor, I determined that it would have been very easy for them to 

have went [sic] to the seventh floor as part of their inspection, 

since it was overhead of the sixth level. 

Tr. 152, 40 FMSHRC at 593. The inspector added that “Anytime you are in that area, if there 

could possibly be a hazard overhead, then you should examine that.” Tr. 154. 

Roanoke and LVR employees examined the area at issue from the seventh floor 

portholes. As previously noted, during a walkthrough in early January, Jason Oedel, Roanoke’s 

pyro supervisor (who was responsible for the pre-heat tower and kiln system), inspected every 

open porthole throughout the tower (although he was not performing or documenting any formal 

workplace examination at that time). He testified that he was looking “for any damage [that he] 

didn’t know about, or work that needs to be replaced, and any type of buildup that we need to 

remove before contractors showed up on site.” Tr. 264; 40 FMSHRC at 579, 582. After this 

initial walkthrough, he testified that he conducted an additional walkthrough of each floor of the 

tower with construction supervisor Gary Snyder from LVR, and that Roanoke and LVR 

inspected each level of the pre-heat tower, including the seventh floor, by looking through the 

exterior doors for loose refractory and build-up. 40 FMSHRC at 582. The Judge also pointed out 

that right after the accident, Oedel and Gary Snyder from LVR went to the seventh floor to look 

at the area above where the miners had been working. Tr. 271. When they looked at the upper 

compartment of the vessel through the seventh floor portholes, they saw buildup. 40 FMSHRC at 

598. 

Moreover, the Judge found, and the operator does not dispute, that the seventh floor 

portholes were reasonably accessible to Davis on February 8. Id. at 600. Rather, Davis claims 

that he did not look through the seventh floor portholes simply because none of the miners would 

be physically standing or walking in the area of the vessel above the seventh floor. 

We respectfully disagree with the Chairman’s dissenting/concurring analysis of the 

examination standard at issue. As previously stated, the standard requires that “a competent 

person . . . shall examine each working place . . . for conditions which may adversely affect 

safety or health.” The standard thus mandates that an operator conduct an examination (which 

the Commission has interpreted as an “adequate” examination) for potential hazards. To prove a 

violation, therefore, the Secretary need only show that this adequate examination was not 

conducted. Nothing in the language of the standard requires a showing that the Secretary present 

evidence of hazards missed by the examiner. But this is exactly what the Chairman’s 

dissent/concurrence would require as he emphasizes that “the focus should hone in on what was 

loose, or fractured, or on the point of material failure at the time of the examination.” Slip op. at 

22. This approach would eviscerate the protective purpose of examinations, and jeopardize miner

safety.

42 FMSHRC Page 26
 For example, what if a Sunbelt examiner failed to look into the sixth floor portholes 

(which no one disputes is required for an adequate examination here), but the evidence at trial 

revealed that no hazards had existed in the vessel? Clearly, the operator is liable for a failure to 

examine a working place “for conditions which may adversely affect safety and health.” 

Manalapan Mining Co., 18 FMSHRC 1375, 1396 (Aug. 1996) (“[T]he determination of risk to 

be accorded to a failure to conduct the pre-shift exam should not turn on the fortuitous 

circumstance that the unexamined area did not contain the hazardous conditions the exam was 

designed to detect”) (opinion of Chairman Jordan and Commissioner Marks); Jim Walter Res., 

Inc., 28 FMSHRC 579, 604 (Aug. 2006) (“because pre-shift examinations have a prophylactic 

purpose and because certain mine conditions are transitory in nature, later examinations are not 

sufficiently indicative of the conditions that may have existed at the time the area should have 

been examined”). 

 The Chairman’s dissent/concurrence asserts that the Secretary is imposing a 

“presumption . . . that something could have been seen from the seventh floor that would have 

indicated the presence of a hazard.” Slip op. at 22. This is incorrect. We do not know what a 

competent examiner would have seen from the seventh floor before the accident occurred, 

because Davis did not view the tower from that perspective – as we hold a reasonably prudent, 

competent person should have done. But, more significantly, the conditions that might 

subsequently have been discovered are not relevant to the inquiry of whether an adequate 

examination was conducted in the first place. 

 The Chairman’s dissent/concurrence also relies repeatedly on Davis’s assertion that he 

could see to the top of the vessel, beyond the seventh floor, from port holes on the sixth floor. 

Slip op. at 20. This ignores the fact that the Judge explicitly rejected this testimony (“I do not 

credit Davis’s testimony that he could see any loose material hanging from the sixth floor 

[portholes] and that he could only see straight across from the portholes on the seventh floor”). 

40 FMSHRC at 584. 

 

 Finally, our dissenting/concurring colleague’s reliance on Asarco, Inc., 14 FMSHRC 

941 (June 1992), is misplaced. In Asarco, which involved a roof examination, the examiners 

testified that they had looked at the relevant area, and the Secretary did not dispute this assertion. 

The violation was based on the fact that a roof fall had occurred, rather than on evidence that an 

exam had not adequately been conducted. In contrast, Sunbelt’s liability centers on its failure to 

examine a portion of the “working place” – the finding of violation is not based on the fact that 

an accident occurred. 

 The Judge’s finding that the portholes on the seventh floor were a reasonably necessary 

and accessible vantage point is supported by substantial evidence. Therefore, we affirm the 

Judge’s finding that Sunbelt violated the standard because Davis failed to act as a reasonably 

prudent examiner and did not perform an adequate examination. 

 

42 FMSHRC Page 27
D. The Judge Did Not Err in Finding that the Violation was S&S. 

The Judge determined that the violation at issue was S&S. 40 FMSHRC at 603. The 

operator argues that because there was no violation, the Judge erred in finding that the violation 

was S&S. Crucially, the operator did not claim that any of the other elements of the S&S 

analysis were not met. 

As set forth above, substantial evidence supports the Judge’s finding of a violation, which 

was the only element of the S&S analysis challenged by the operator. Furthermore, the exhibits 

and the operator’s own witnesses noted the potential hazard of falling material, and the standard 

requires the examination in order to identify such hazards. Finally, the serious injury that resulted 

from an identified hazard here demonstrates the significant potential for serious injury here. 

Therefore, the Judge’s S&S determination should be affirmed. 

E. The Judge Erred in Finding that the Violation was a Result of High Negligence. 

The Judge found high negligence. The bases for his finding are that Sunbelt “ignored” 

site-specific training requiring it to inspect working places for falling material hazards and 

breached its duty to identify loose hanging material. 40 FMSHRC at 604-05. 

The Judge below correctly stated that Commission Judges are not bound by the 

Secretary’s characterizations and that in assessing negligence, a Judge must consider “what 

actions would have been taken under the same circumstances by a reasonably prudent person 

familiar with the mining industry, the relevant facts, and the protective purpose of the 

regulation.” 40 FMSHRC at 603 (citing Brody Mining, LLC, 37 FMSHRC 1687, 1701-03 (Aug. 

2015)). This is, of course, the same as the normal civil law definition of negligence. The Judge 

further correctly found that “the gravamen of high negligence is ‘an aggravated lack of care that 

is more than ordinary negligence.’ Brody Mining, 37 FMSHRC 1687, 1701 (Aug. 2015) (citing

Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998)).” 40 FMSHRC at 603. 

 The Judge found that Sunbelt demonstrated an “aggravated lack of care,” asserting 

Sunbelt “ignored” site-specific training requiring it to inspect working places for falling material 

hazards and did not identify a buildup of materials on the inside of the upper compartment of the 

vessel. 40 FMSHRC at 605. We disagree. The record simply does not support the notion that 

Davis showed an aggravated lack of care, “ignored” the danger of falling material or that, had 

Davis gone to the seventh floor, he would have observed loose and hanging material. 

 While we accept that substantial evidence supports the Judge’s decision that Sunbelt 

erred by Davis’ failure to go to the seventh floor and therefore, was negligent, substantial 

evidence does not support the claim that Sunbelt “ignored” the hazards of falling material or 

would have found loose material if the Sunbelt inspectors had looked through the portholes on 

the seventh floor. The totality of the evidence shows a measure of respect for safety inconsistent 

with a finding of an aggravated lack of care. 

 Jason Oedel, the Safety Manager for Roanoke who at the time of the accident was the 

Pyro Manager in charge of the pre-heat tower, inspected the pre-heat tower twice before the day 

42 FMSHRC Page 28
of the accident. On the latter of those inspections, Gary Snyder, a manager for LVR, the 

subcontractor charged with cleaning the pre-heat tower, accompanied him. Oedel looked through 

portholes on the seventh floor. He clearly testified that he did not see any loose material that was 

in danger of falling. Tr. 260, 282, 294-95, 298, 308-09. 

 Oedel testified that the inside of the upper compartment appeared to be a monolith — that 

is, poured shotcrete over bricks used to form a consistent smooth surface near the bottom of the 

chamber. Oedel explained that before the accident, the interior material all “looked one color, 

one shape. It was completely smooth.” Tr. 308. He further testified: 

Like I said, when we went through — well, I went through twice 

myself — neither did Gary Snyder — neither one of us saw that as 

a potential hazard, because we thought it was all part of the 

monolithic. We didn’t know until after it had fractured that there 

was buildup on there. 

Tr. 298.16

This testimony undercuts the view that going to the seventh floor certainly would have 

revealed problems. Further, these views are consistent with LVR Foreman Snyder’s view. Davis 

testified that he went to Snyder the morning of the accident, which would have been after Snyder 

had examined the pre-heat tower with Oedel. According to Davis, “I always go to him in the 

mornings at 7:00 to meet with him about our next work area and what we are going to be doing. 

So I went to meet with him that morning, and ask him what areas would he like us to proceed 

with for our work. And he referred to stage four. And I asked him, had it been inspected by him, 

Roanoke Cement? Was it safe for us to go in? And he said, ‘[Y]es, everything is safe.’ You can 

go ahead and proceed with your work.” Tr. 343. 

Snyder’s answer did not relieve Sunbelt of the obligation to do an adequate pre-shift 

inspection. However, it does demonstrate that both LVR and Roanoke had inspected the stage 

four vessel and did not see any danger of material falling as the Judge simply speculates Davis 

would have found. Further, separate from the Judge’s unfounded speculation of what Sunbelt 

would have seen through the seventh floor portholes, many acts by Sunbelt demonstrate that it 

did not engage in an aggravated lack of care or wholly fail to examine the upper compartment.17

16 The opinion notes that at one point during the hearing, Oedel testified that Sunbelt 

inspectors should have gone to the seventh floor. It does not note that Oedel separately testified 

that it was not necessary to go to the seventh floor. During a lengthy examination by the Judge 

himself, the Judge and Oedel had the following colloquy, “Q. Do you know whether he went to 

the seventh level? A. Me personally? Q. Yeah. A. No. Q. In your judgment, should he have done 

so? A. No.” Tr. 313. 

17 It appears that the occurrence of a serious injury weighed heavily on the Judge’s 

negligence consideration. The Judge said, “The opening statement, although it is not evidence in 

this Court, said a serious injury occurred, which is high negligence.” Tr. 233. 

42 FMSHRC Page 29
Davis testified that he could see the upper compartment of the fourth vessel through the 

thimble. Indeed, he testified he had a better look at it from the sixth than the seventh floor. 

Although the Judge discredited the latter testimony, there is no doubt that Davis could see 

through the thimble to the upper compartment. Pictures taken by the MSHA inspector depict 

views of the upper compartment through the thimble. Indeed, photographs taken by the MSHA 

inspector from the sixth floor porthole through the thimble show an area that witnesses believed 

may have been the point from which material fell. Tr. 75-77, 91-92, 307. Clearly, because it is 

visible in the photograph, that area was visible from the sixth floor porthole and may have been 

part of the monolith referred to by Oedel. 

 Davis in fact testified that he believed he could see the area above better from the sixth 

level because of the inability to see parts of the upper compartment of the vessel from the 

seventh floor. Tr. 421. He also testified that there was sufficient light to conduct the examination. 

He had 26 years’ experience conducting workplace examinations. Tr. 325. Indeed, Davis had 

conducted approximately 100 to 130 workplace examinations at the Roanoke cement plant.18

When asked, Davis supplied a cogent reason for his examination from the sixth floor. He 

explained: 

And my thoughts was, looking from the sixth up through the 

seventh, I can see any loose material hanging from there, and also I 

could see the thimbl[e] from the inside and outside and the brick 

on the outside of the thimble. 

Tr. 350-51. 

 We accept the Judge’s decision on the violation but it is clearly not correct that Davis 

“ignored” safety. Indeed, although the absence of testimony by Foreman Douglas Redmond 

renders his participation immaterial to the adequacy of the investigation, he conducted a second 

inspection. Multiple inspections the same day show a concern for safety rather than a lack of 

care. 

 Moreover, even after Davis’ examination did not disclose hazards, he had workers beat 

the sides of the vessel in an effort to dislodge any material he had not seen. This was not an 

aggravated lack of care and additionally undercuts the notion that Sunbelt was blindly cavalier 

about safety. 

 Further, two exhibits belie the Judge’s notion that Sunbelt “ignored” overhead dangers. 

The Judge refers to Government Exhibit 6, a pre-shift hazard assessment given to Sunbelt by 

Roanoke. 40 FMSHRC at 604. The Judge fails to note, however, that it was Davis, the Sunbelt 

examiner, who filled out the report. Davis expressly included “loose objects falling” in his List 

of Potential Hazards. Thus, far from ignoring the hazard of falling materials as the Judge asserts, 

Sunbelt’s examiner expressly noted it in writing for the crew. Separately, Respondent’s Exhibit 

10 is a Job Safety Analysis used by Sunbelt to provide for the safety of workers. Sunbelt 

18 Davis had worked at Roanoke for the past 13 years during which time he conducted 8 

to 10 examinations each year. Tr. 335. 

42 FMSHRC Page 30
Foreman Redmond completed it and specifically noted the danger of falling material. Rather than 

ignoring task training by Roanoke, therefore, Sunbelt trained its own employees on the concern 

for falling material. It is simply incorrect to assert that Sunbelt “ignored” the concern of falling 

material because Davis later examined the upper compartment through a position he thought was 

appropriate. 

 Although an examiner should avail himself of every reasonably accessible perspective 

when examining for the type of hazards present here, the actions of this experienced safety 

inspector do not reflect aggravated misconduct. The steps Davis did take go significantly beyond 

the Judge’s mischaracterization of the evidence as showing “a standard of care slightly 

surpassing not conducting the examination at all.” 38 FMSHRC at 1625. 

 

We therefore find that the violation here was a result of the operator’s ordinary 

negligence.19 

IV.

 Conclusion 

As discussed above, we affirm the Judge’s finding of a violation on the ground that a 

reasonably prudent examiner would have used the seventh floor portholes to examine the portion 

of the fourth vessel above the seventh floor. We also affirm the Judge’s finding that the violation 

was significant and substantial. However, we reverse the Judge’s finding of high negligence and 

instead find that the violation was a result of ordinary negligence. Therefore, we remand this 

matter for a reassessment of the penalty. 

 /s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

19 The Judge made a laudably thorough and independent penalty assessment in which he 

considered and evaluated the facts and circumstances in the context of his findings on the penalty 

criteria. Nonetheless, because a change in the degree of negligence is an important penalty 

consideration, we remand the case for reassessment of the penalty. 

42 FMSHRC Page 31
Commissioner Jordan, Concurring in Part and Dissenting in Part: 

I join my colleagues, Commissioners Young and Althen, in declining to consider the 

Appointments Clause issue and in affirming the Judge’s finding that the area at issue was a 

working place. I further join them in affirming the Judge’s finding of a violation and the Judge’s 

finding that the violation was S&S, for the reasons set forth in their opinion. 

However, I respectfully disagree with their analysis of the negligence issue and 

subsequent reversal of the Judge’s high negligence determination. Instead, I would affirm the 

Judge’s ruling that the violation was the result of Sunbelt’s high negligence. High negligence 

“suggests an aggravated lack of care that is more than ordinary negligence.” Mach Mining, LLC,

40 FMSHRC 1, 5 (Jan. 2018). Here, the Sunbelt supervisor, who was fully aware of the potential 

hazard of falling material, chose not to go up to the seventh level of the tower while conducting 

his examination. The supervisor’s actions “involved[d] a conscious choice to take actions with 

knowledge of facts that would disclose to a reasonable foreman an unjustifiably high risk of 

potentially fatal injury to a miner.” Lehigh Anthracite Coal, LLC, 40 FMSHRC 273, 283 (Apr. 

2018) (holding that operator’s conduct amounted to reckless disregard). 

Substantial evidence supports the Judge’s finding that Sunbelt knew that the nature of the 

work exposed miners to falling materials. 40 FMSHRC 573, 604 (Apr. 2018) (ALJ). The Judge 

noted that Roanoke had provided the Sunbelt supervisor and his crew with training instructing 

them to remain alert and check for overhead hazards. Roanoke had instructed the supervisor, as 

well as all contractors performing work inside the pre-heat tower that “[p]rior to vessel entry, 

inspect vessel overhead and remove any potential loose material” (emphasis added). Tr. 149-50, 

Tr. 288 (testimony of Roanoke safety manager), Tr. 384. In fact, Jason Oedel, a Roanoke 

supervisor responsible for the pre-heat tower, testified that material could fall due to the cooling 

of the tower. Tr. 276-77. Thus, Sunbelt was on notice that an adequate examination was 

especially important because of these possible overhead safety hazards. In addition, as previously 

noted, Davis’ pre-shift hazard assessment documenting the exam at issue listed potential hazards 

of loose objects falling and dust. Gov’t Ex. 6. Nonetheless, “Davis said he never thought of the 

area on the 7th level.” 40 FMSHRC at 604. 

A finding of high negligence is also supported by the fact that, when Roanoke and LVR 

personnel conducted an inspection, they inspected each level of the pre-heat tower, including the 

seventh floor. This indicates that going to the seventh floor was considered an integral part of the 

inspection process. 

 In short, the Judge here could reasonably conclude that the violation was due to high 

negligence, and his finding is supported by substantial evidence. See, e.g., Mach Mining, 40 

FMSHRC at 15 (affirming Judge’s high negligence determination partly because an examiner 

conducted his inspection while driving on a travelway, and stating that “the operator should have 

at least ensured that a closer examination was made in areas more prone to accumulations, 

especially in light of what the operator acknowledged as an ongoing problem”); Matney, 

employed by Knox Creek Coal Corp., 34 FMSHRC 777, 786 (Apr. 2012) (finding aggravated 

42 FMSHRC Page 32
conduct in a section 110(c) case1

 for failure to conduct an adequate pre-shift examination in part 

because the examiner observed the relevant area from 65 feet away and from behind equipment 

approximately 45 feet away). 

 For the foregoing reasons, the Judge’s negligence ruling should be affirmed. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

1

 Section 110(c) of the Mine Act, 30 U.S.C. § 820(c), provides for individual liability 

under certain circumstances. 

42 FMSHRC Page 33
Chairman Rajkovich, Dissenting on Part III C, D and Concurring on Part III A, B, and in 

Result Only, on the Issue of Negligence: 

I join the majority with regard to the Appointments Clause and “working place” issues. I 

dissent with respect to whether a violation of the standard was established by the Secretary. 

Considering the split of opinion among my colleagues with respect to the issue of negligence, I 

find no support in the record warranting a label of “high negligence.” Accordingly, and in order 

to form a majority on that issue, I concur in result only in the opinion of Commissioners Young 

and Althen. 

A. The Appointments Clause Issue was Waived by the Respondent and an Adequate

Examination of the “Working Place” Includes the Area Above Both the Sixth and

Seventh Floors of the Fourth Vessel.

I join my colleagues in their rejection of the issue raised by the Respondent regarding the

Appointments Clause of the Constitution. U.S. Const. Art. II, § 2, cl. 2. Our appellate 

proceedings are governed by section 113(d)(2)(A)(iii) of the Mine Act. See 30 U.S.C. § 

823(d)(2)(A)(iii). Accordingly, Commission Procedural Rule 70(g), 29 C.F.R. § 2700.70(g), 

mandates that the scope of appellate review is limited to issues that were raised in the Petition for 

Discretionary Review. Given that this particular issue did not debut until the Respondent’s Reply 

Brief to the Commission, it is waived. 

I also agree with the majority in their analysis of what constitutes a “working place” 

under these particular facts. Under 30 C.F.R. § 56.2, a “working place” is any place in or about a 

mine “where work is being performed.” The complicating factor, in this instance, is that this 

particular structure is a multi-leveled facility with six vertically connected conical vessels, each 

chamber-like with offsets and approximately fifty feet tall. Regarding the examination at issue in 

this case, Sunbelt employee-examiner Kendrick Davis testified that he conducted a working 

place exam of the fourth vessel by standing on the sixth floor, looking through the sixth floor 

portholes, and raising his head to look at the top of the vessel beyond the seventh floor. 40 

FMSHRC at 573, 583-84 (Apr. 2018) (ALJ). 

As we unanimously found in the previous appeal of the Judge’s summary decision in this 

case (38 FMSHRC 1619, 1626 (July 2016)), the examination standard1

 requires “adequate” 

working place exams in the sense that such exams must identify all hazards that a reasonably 

prudent examiner would identify. That is just plain common sense. Common sense also dictates 

that any examiner must look to the conditions around, below, and above to insure that any area is 

safe for work to be performed. Davis, by his own testimony, looked above the sixth floor level 

and therefore, defined the “working place” to include more than just the sixth floor. Accordingly, 

1

 The standard provides that “[a] competent person designated by the operator shall 

examine each working place at least once each shift for conditions which may adversely affect 

safety or health. The operator shall promptly initiate appropriate action to correct such 

conditions.” 30 C.F.R. § 56.18002(a). 

42 FMSHRC Page 34
the “working place” delineated by the majority as the fourth vessel, including the areas above the 

sixth and seventh floors, is proper in this case.2

B. There was No Substantial Evidence of a Violation. 

I cannot agree, however, with the majority finding that there was a violation in this case. 

There was no substantial evidence of a violation of 30 C.F.R. § 56.18002(a) here. 

1. The Facts Show that there was an Adequate Examination. 

On or about December 30, 2012, Roanoke Cement Co., operator of the cement plant, 

which included this pre-heat tower, shut it down and conducted its last workplace examination 

of the area as part of the shutdown activities. Tr. 121-23. Once the tower began cooling, 

Roanoke employees commenced air-lancing through one-inch square portholes in an effort to 

blow down any “build-up” material. Tr. 108, 123-25, 259-60. Because of the intense heat, no 

one performing the air lancing could enter the tower at that time. Tr. 122. 

On January 2, 2013, Sunbelt arrived on site and started preparing to construct the 

scaffolding inside the preheat tower. Gov’t Ex. 3, at 4. Roanoke instructed Davis, as well as 

all contractors performing work inside the preheat tower, that “[p]rior to vessel entry inspect 

vessel overhead and remove any potential loose material.” Gov’t Ex. 7, at 3; Tr. 149-50,

288-92. 

 Davis3 testified that he took the elevator to the sixth floor of the pre-heat tower, 

walked the floor looking for tripping hazards, and then visually inspected the interior of the 

vessel through the three port hole s on the sixth floor, “looking for loose material, missing 

refractory, loose brick, loose thimbles - anything out of the ordinary.” Tr. 348-49. Davis 

testified (credited by the Judge) that there was daylight when he performed his workplace 

examination. 40 FMSHRC at 583. Davis testified that he could see inside the vessel. Tr. 363. 

He testified that he could see all the way up to the ceiling of the seventh floor and could see 

the roof from the sixth floor up to the seventh. Tr. 349-50. Davis noted that the sixth floor 

port holes gave a better vantage point to examine the seventh since from the sixth floor, “you 

can see the under-roof of the sixth floor, and you can see the top roof of the seventh floor 

from the sixth.” Tr. 349-50. As to this examination, Davis testified that he did not see any 

“hanging material” nor did he see “any hazard.” Tr. 351. 

2

 While it would be optimum to establish defined boundaries of a “working place” for 

concentration of efforts on examination, a general rule is difficult to formulate for multi-leveled 

facilities like this one. However, again, common sense dictates that conditions around, below, 

and above must be examined to insure safety. 

3

 Davis had 26 years of experience working with scaffolding, safety supervision, and 

workplace examinations (Tr. 324-25) and was trained to recognize potential hazards related to 

scaffold erection. Tr. 326-27, 329; R. Ex. 9. Davis testified that he had never received any 

reports of material falling inside the preheat tower, and never had an injury or accident on his 

crew. Tr. 335-37. 

42 FMSHRC Page 35
The Secretary presented one witness for testimony in his case-in-chief—MSHA 

Inspector David Nichols. Nichols testified that he had never been trained on how to look for 

hazards in a pre-heat tower. Tr. 180. He had never been trained on how to look for hazards 

in cyclones. Id. He had never performed any work in a cement plant. Id. He had never 

performed any work in a cyclone. Id. He had never performed any work related to 

scaffolding. Id. He did not know that the accident site was “stage four” of the unit.4 Tr. 177. 

He had never seen the inside of the cyclone prior to the accident. Tr. 172. He had no 

evidence as to what the inside of the cyclone looked like prior to the accident. Tr. 179-80. 

Nichols did not know whether Davis could see all the way to the top of the vessel, above the 

seventh floor, from portholes on the sixth floor. Tr. 189. Nichols was not aware of any other 

employee ever being struck by falling material at the facility. Tr. 183. He did not find any 

issues with Sunbelt’s training program nor the training of its personnel. Tr. 182-83. 

Nichols began his investigation at the accident site on the sixth level and took a series 

of photographs through those port holes. Tr. 91. He testified that “[o]n the sixth floor, the 

concrete and everything looks like the seventh.” Tr. 96 (emphasis added). He further noted 

that: 

There is no way to get inside at the seventh level. There was no 

floor. There was no scaffolding. There is nothing in there. 

There is an elbow. So I just basically reached in through the 

open door and took the pictures from my camera. 

Tr. 111. 

There was no evidence presented in the record of any direct concerns about 

conditions that needed to be immediately remedied during the course of Nichols’ 

investigation. There was no evidence of any Section 107(a) Imminent Danger orders issued 

or even discussed. At the conclusion of his inspection on January 8th, Nichols was on a 

telephone call at which he was purported to have said, “Well, I didn’t find anything that 

Sunbelt did wrong” (emphasis added). Tr. 380. This quotation was cited in the Judge’s 

Decision (40 FMSHRC at 594) and never refuted at the hearing. 

 Two days later, on January 10th, Nichols issued the citation, which is the subject of 

this litigation, citing that Sunbelt “did not do an adequate work place exam in the area they 

were working as there were hanging material overhead” and that “the area above was never 

checked.” Gov’t Ex. 8. Yet, on cross-examination, Nichols did not know, for a fact, that the 

material hitting the victim actually came from the seventh floor, nor did he know how much 

the material actually weighed. Tr. 178-79, 191. He could not pick out the exact area from 

which anything fell. Tr. 206. More importantly, however, is that Nichols admitted that, 

regarding the “build-up” that he saw, there was no way to tell when or if it would ever fall.

Tr. 179. That statement was never refuted at the hearing. 

4

 Nichols did not know the height of the tower or the height of each stage. Tr. 183. Other 

than the dimensions of the porthole into which he peered, he took no measurements, at all, 

during his investigation. Tr. 186-87.

42 FMSHRC Page 36
2. The Secretary has Failed to Prove a Violation. 

The Secretary is required to prove a violation by a preponderance of the evidence. See

Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989); Consolidation Coal Co., 

11 FMSHRC 966, 973 (June 1989). Regarding this evidentiary standard, we have stated: “[t]he 

burden of showing something by a ‘preponderance of the evidence,’ the most common standard 

in the civil law, simply requires the trier of fact ‘to believe that the existence of a fact is more 

probable than its nonexistence.’” In re: Contests of Respirable Dust Sample Alteration Citations, 

17 FMSHRC 1819, 1838 (Nov. 1995), aff'd sub nom. Sec’y of Labor v. Keystone Coal Mining 

Corp., 151 F.3d 1096 (D.C. Cir. 1998). Here, the Secretary’s burden was to persuade the Judge 

that it was more likely than not that an inadequate examination occurred through a combination 

of direct and circumstantial evidence. The Secretary has fallen far short. 

 The Secretary claims that the violation here is that Sunbelt’s examiner should have gone 

to the seventh floor on his inspection. The presumption is that something could have been seen 

on the seventh floor that would have indicated the presence of a hazard. Therein lies the problem. 

The real question in this case is – what should have been seen from the seventh floor? 

The Secretary’s only witness could not identify that “something,” nor could he say where 

it was. His own testimony was about the presence of “build-up.” Yet, the presence of “buildup” was no secret in this situation. That was precisely what this entire operation was focused 

upon. The whole idea of this project was that some “build-up” was going to be removed, any 

needed repairs would be done to the “monolith,” and damaged “refractory bricks” were going to 

be repaired. 

Obviously, this examiner actually saw the build-up, and the monolith, and the 

refractory.5 The examiner saw things that the following clean-up crew was charged to remedy. 

The purpose of the examination – what the examiner was really supposed to be looking for – was 

whether the area was safe enough to install the scaffolding so that the whole tower could be 

cleaned and/or repaired. Even Nichols, himself, admitted there was no way to tell when or if

the build-up that he saw would ever fall.

By no means is the accident and serious injury here to be discounted. Something fell 

from somewhere and hit this miner. The prime focus should be to determine what happened and 

to take measures to insure that it does not happen again.6

 Further, the focus should hone in on 

what was loose, or fractured, or on the point of material failure at the time of the examination. 

5

 Both the monolith and refractory were part of the design and not excess build-up of 

material. 

6

 Subsequent remedial measures (Tr. 124-25) were taken in the manner in which the 

removal/repair process proceeded post-accident. While this goes to the heart of making sure this 

situation does not occur again via another process, it still leaves unanswered as to what should 

have been seen on an examination. 

42 FMSHRC Page 37
That is the question that went unanswered here. That is the key cadre of evidence that is 

completely missing in this case. 

To assert that something hit this miner, in and of itself, is not dispositive of an inadequate 

examination. In Asarco, Inc., 14 FMSHRC 941 (June 1992) we concluded that: 

Neither the presence of loose materials, nor the fact that the roof 

fell, by themselves, indicate that the area was not properly 

examined. Roof conditions in a mine are dynamic; a miner can 

perform a thorough and competent examination as required by the 

standard and determine that the roof is secure and yet, at a later 

time, material can become loose and fall. 

Id. at 946. In Asarco, an underground drill operator conducted an examination of his 

surroundings by making a “visual examination of the area and found no cracks, discoloration, 

loose ground, or fallen material on the floor.” Id. at 942. That same operator was later found 

crushed under a slab that had fallen from the mine roof and he died of the injuries sustained. Id. 

at 943. An MSHA Inspector who arrived at the scene shortly after the incident concluded that the 

ground fall that killed the victim was unpredictable. Id. at 944. On the day after the accident, 

however, two MSHA investigators issued a citation charging Asarco with a violation of failure to 

examine and test for loose ground prior to the accident. Id. In Asarco, we stated: 

The Secretary introduced no evidence to show that the area was 

not examined before Norton started working there on the day of 

the accident. The only evidence that the roof was not examined is 

(a) the fact that part of the roof fell and (b) the testimony of MSHA 

inspectors that they observed some areas of loose roof in the 

heading at the time of the accident investigation. 

Id. at 946. 

In this case, there was evidence of an examination. Davis, the examiner, testified that he 

could see all the way up to the ceiling above the seventh floor and could see the roof from the 

sixth floor up to the seventh. Tr. 349-50. Nichols did not refute Davis’ testimony that he 

could see all the way to the top of the seventh floor from portholes on the sixth floor. Tr. 

189. The Secretary only asserts that Davis did not physically go to the seventh level. Unlike 

Asarco, the MSHA inspector, here, had no evidence or any way to tell when or if anything 

would ever fall. 

No witnesses were specifically called to provide expert testimony in this case. No 

testifying witness pointed to any cracks anywhere in the structure to predict a failure. No 

witness pointed to any stress points. Regarding any differences in coloration, no witness testified 

as to what any such variations would mean regarding any imminent failure. 

There was a spot on the inside wall speculated to be an area from which some material 

had fallen. Tr. 75-77, 91, 307. Given that the exhibit photo of that area was taken by Nichols 

42 FMSHRC Page 38
from the sixth floor, obviously this area was visible from the sixth floor. Even if that were the 

actual area from which this material had fallen, there is still no analysis of that spot. There was 

no expert testimony of the strength of material at that spot. There was no discussion of any 

cracking or stressing seen around that spot. To the point, there was no expert testimony to say, 

“this material was likely to fall and here’s why it should have been seen on an examination.” 

3. An Examiner must be given Specific Guidance On Where an Examination was

Deficient and Why.

As noted in the Preamble to the Mine Act: 

[T]here is an urgent need to provide more effective means and

measures for improving the working conditions and practices in

the Nation’s coal or other mines in order to prevent death and

serious physical harm, and in order to prevent occupational

diseases originating in such mines.

30 U.S.C. § 801(c). A workplace examination is crucial to providing the most effective means 

and measures for assessing working conditions and practices. It is therefore imperative that an 

examiner be given thorough training on what conditions to observe. It is also imperative to give 

an examiner a thorough explanation of where his or her examination has been deficient. That is 

my concern with the majority opinion in this case. There is no guidance. 

The examiner, here, is told only that he should have gone to the seventh floor of the 

tower – but he is not being told what, if anything, that he missed. What were any signs of 

material failure that he should have seen? What conditions of the “build-up” signaled imminent 

failure? What were any signs of loose monolithic structure? What indicated any break-down of 

the refractory bricks? 

The investigating inspector actually went to the seventh floor, and purportedly looked 

directly at the seventh floor area from that vantage point. From that vantage point, looking 

straight into the seventh floor area, the inspector could not find the source of the falling material. 

He found nothing but the existence of build-up, monolith and refractory brick. At the time of 

these observations, Nichols gave no indication of anything that needed to be corrected 

immediately to prevent others from encountering hazards. The inspector’s own conclusion, after 

direct visual inspection, was that there was no way to tell when or if it would ever fall. His 

initial unrefuted statement was that he did not find anything that Sunbelt did wrong. Tr. 380. 

We cannot blame the examiner for something no one else could find. 

The Secretary has failed to prove a violation by a preponderance of the evidence. In fact, 

the evidence, as a whole, shows quite the opposite. There was no substantial evidence of a 

violation of 30 C.F.R. § 56.18002(a) and I would reverse the Judge’s findings on that issue and 

respectfully dissent. 

42 FMSHRC Page 39
C. Alternatively, Even if There Was a Violation, it was Due to No More than Ordinary 

Negligence. 

If my view had prevailed—that there was no violation—that would be the end of the 

matter. When there is not a finding of violation, the issue of negligence is never reached, as a 

finding on operator negligence is only necessary when the Commission assesses a penalty. See

30 U.S.C. § 820(i). My colleagues, however, have upheld the finding of violation, and both 

parties have raised important concerns regarding an operator’s duty of care under section 

56.18002(a). As noted earlier, I find nothing in the record to support the notion of an aggravated 

lack of care, warranting a label of “high negligence,” and neither do Commissioners Althen and 

Young. 

It defies logic that if a majority of Commissioners find no evidence of “high negligence” 

in this case, the ultimate decision would be a finding of “high negligence.” Moreover, given my 

view that there was no violation, it would be wholly inconsistent for me to find that the record 

supports the notion of an aggravated lack of care, warranting a label of “high negligence.” 

In its Petition for Discretionary Review, Sunbelt specifically requested review on the 

finding of negligence. As an appellate body we are obligated to, whenever possible, fully vote on 

all issues presented, regardless of the resolution of underlying issues. In Douglas v. Comm’r of 

Internal Revenue, 322 U.S. 275, 287 (1944), the Supreme Court stated “[t]he members of this 

Court who join in the dissent do not reach this question but their position on other issues results 

in their voting for a reversal of the entire judgment of the” court below, thus determining the 

result of the appeal. More recently, however, in Dep’t of Commerce v. New York, 588 U.S. ___, 

139 S. Ct. 2551, 2596, 2606 n.15 (2019), Justice Alito, concurring in part and dissenting in part, 

explained that “[a]lthough I would hold that the Secretary [of Commerce]’s decision is not 

reviewable under the [Administrative Procedure Act], in the alternative I would conclude that the 

decision survives review under the applicable standards. I join Parts IV–B and IV–C on that 

understanding,” thus determining the outcome of those parts of the case. 

With the other Commissioners having split on the issue of the degree of negligence that 

the Secretary established, my vote in the alternative is with Commissioners Althen and Young on 

the lower level of negligence. Contrary to my concurring colleague’s opinion set forth below, 

Douglas and, most recently, Dep’t of Commerce are precisely on point and consistent with my 

reasoning to reach this opinion. Following Justice Alito’s lead, I dissent on Part III C, D and 

concur on Part III A, B, and in result only, on the issue of negligence. 

 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Chairman 

42 FMSHRC Page 40
Commissioner Traynor, Concurring with Commissioner Jordan: 

I join Commissioner Jordan’s opinion in its entirety. However, I write separately to note 

the Commission in this case has not arrived at a valid majority necessary to reverse the Judge’s 

negligence determination. 

For the first time, a Commissioner attempts to cast two “votes” on a single issue. We 

arrived at a 2-2 split on the question of whether the operator’s violation was the result of high or 

ordinary negligence, with a fifth dissenting Commissioner deciding no violation occurred and 

therefore the operator was not at all negligent. Unhappy as we all are with split decisions, my 

dissenting colleague purports to cast a second vote in an attempt to form a majority decision 

finding de novo that the record evidence compels the conclusion that the operator exhibited 

ordinary negligence. This second vote to find ordinary negligence is plainly inconsistent with his 

principal decision that the operator was not at all negligent. 

 

And it is this inconsistency that prevents my dissenting colleague’s decision that there 

was no negligence from counting toward a majority finding the operator was negligent. The 

cases he cites in support of his claim to a second vote are inapposite, as neither involves a jurist 

taking two inconsistent positions on a single issue. 

In Douglas v. Comm’r of Internal Revenue, 322 U.S. 275 (1944), the Supreme Court took 

review of an Eighth Circuit decision affirming a tax agency’s rule counting a capital depletion 

deduction as reportable income in four consolidated administrative tax cases. But in one of the 

four cases, the Eighth Circuit had reversed the tax agency’s decision to exclude the depletion 

deduction from the income of a taxpayer who saw “no tax benefit” from the deduction due to a 

net negative income. Douglas, 134 F.2d 762, 766 (8th Cir. 1943). In disposing of the fourth case, 

the Court counted the votes of two dissenting Justices who had not reached the issue in dispute – 

but had voted to reverse the Eight Circuit’s decision in its entirety – as votes to reverse as to the 

fourth case.1

 

The Supreme Court more recently counted a dissenting Justice’s view to form a majority 

on which the other Justices were split. Dep’t of Commerce v. New York, 588 U.S. ___, 139 

S.Ct. 2551 (2019). In Dep’t of Commerce, the dissenting Justice’s decision that a regulation was 

1

 More specifically, in Douglas, the Supreme Court voted 6-2 to affirm the Court of 

Appeals decision approving the depletion deduction rule, with one Justice recused from the case. 

322 U.S. at 281, 287, 291. But on the question presented in the fourth case, whether a taxpayer 

who received ‘no tax benefit’ must report the deduction, the Supreme Court split. The two 

Justices who dissented from the majority affirming the Court of Appeals’ approval of the 

depletion deduction rule were counted with the vote of two other Justices who would reverse the 

Court of Appeals only on the agency’s decision that the deduction should be excluded from 

income where the taxpayer sees “no tax benefit” due to negative net income. With four Justices 

on the other side of the “no tax benefit” issue, the Court arrived at a split 4-4 decision. In sum, 

the Court added two dissenting Justices’ votes to reverse the Court of Appeals in its entirety with 

two other Justices’ votes to reverse the Court of Appeals in the fourth case to arrive at a split 

decision affirming the fourth case. 

42 FMSHRC Page 41
not subject to judicial review was counted to form a majority reaching the same result in a 

consistent decision that the regulation survives judicial review. Id. at 2596, 2606 n.15. 

In both of these cases, the decision of a dissenting jurist was incorporated by the majority 

as a vote that was consistent with the result of the dissent. But my dissenting colleague in this 

case seeks to have his decision that the operator was not negligent and therefore should pay no 

civil penalty counted toward a decision that the operator was in fact negligent and liable for a 

penalty. There is no coherent logic or precedent for resolving a split this way. Neither Douglas

nor Dep’t of Commerce is authority for the counterintuitive proposition that a dissenting jurist 

may be counted to form a majority position that is inconsistent with the decision he reached in 

dissent. 

My dissenting colleague could have formed the majority he seeks. Jurists who would 

prefer to dissent often nevertheless file a “reluctant concurrence” to create a majority and avoid a 

split decision while nevertheless expressing their disagreement with that majority decision. See 

e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 354 (1974) (Blackmun, J., concurring) (“If my 

vote were not needed to create a majority, I would adhere to my prior view. A definitive ruling, 

however, is paramount”). Had he filed a “reluctant concurrence” with the opinion of 

Commissioners Althen and Young, my dissenting colleague would have been able to set forth in 

that opinion every one of the views he expresses in dissent. And there would be no cause to 

question the existence of a valid majority on the issue of negligence, which I reluctantly must. 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 42
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710

January 29, 2020 

ROBERT THOMAS 

v. Docket No. WEST 2018-402-DM 

CALPORTLAND COMPANY 

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners 

DECISION

BY: Rajkovich, Chairman; Young and Althen, Commissioners 

This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (2018) (“Mine Act” or “Act”). It involves a complaint filed by miner Robert Thomas 

alleging that CalPortland Company (“CalPort”) discriminated against him in violation of the 

Mine Act.1 After a Commission Administrative Law Judge found that CalPort discriminated 

against Thomas, CalPort filed a petition for discretionary review challenging the Judge’s 

decision on the ground that the miner had failed to establish a prima facie case of discrimination. 

For the reasons discussed below, we hold that the Judge erred in concluding that Thomas 

established a prima facie case of discrimination. Accordingly, we reverse the Judge’s decision 

and dismiss this case. 

1 The Act states in pertinent part that: 

No person shall discharge or in any manner discriminate against . 

. . any miner . . . because such miner . . . filed or made a complaint 

under or related to this chapter, including a complaint notifying the 

operator or the operator’s agent . . . of an alleged danger or safety 

or health violation in a coal or other mine, . . . or because such 

miner . . . has instituted or caused to be instituted any proceeding 

under or related to this chapter . . . . 

30 U.S.C. § 815(c)(1).

42 FMSHRC Page 43
I.

Factual and Procedural Background 

A. Factual Summary

The Sanderling Dredge is a surface sand mine located in Vancouver, Washington.

CalPort is the owner and operator of the dredge and is a mine operator subject to the jurisdiction 

of the Mine Act. Robert Thomas worked for CalPort in Oregon and Washington from March 

2002, through the beginning of 2018. At the beginning of 2018, Thomas worked as a dredge 

operator on the Sanderling dredge with deckhand Joel McMillan and Roger Ison, a contractor 

and captain of the Johnny Peterson tugboat. The Johnny Peterson pulls the Sanderling Dredge up 

and down the Columbia River between Vancouver, Washington, and Scappoose, Oregon. The 

Dredge requires two miners to operate it, and one person to operate the tugboat. Thomas was the 

most senior of the two dredge miners and was designated the Person in Charge (“PIC”).2 Tr. 40, 

289; 40 FMSHRC 1503, 1504 (Dec. 2018) (ALJ). 

At the beginning of 2017, when the mine changed from two shifts to a single day shift, 

the miners on the Sanderling Dredge began working long hours, sometimes around 80 hours per 

week. 40 FMSHRC at 1504. In July 2017, Dean Demers took over the job as Marine Manager, 

which gave him management authority over four sand and gravel barges, as well as the 

Sanderling Dredge. The barges under Demers’ management are subject to the jurisdiction of the 

Occupational Safety and Health Administration (“OSHA”) and the Sanderling Dredge is subject 

to the jurisdiction of the Mine Safety and Health Administration (“MSHA”). 

1. Thomas’ Concerns and the Phone Call Hang-up

Thomas and McMillan grew concerned that working so many hours had resulted in them 

being exhausted, which caused difficulty in paying attention while working with equipment. The 

two men eventually voiced their concerns to Demers and asked for help to avoid the long days 

and safety concerns. Id. Thomas had expressed his concerns to Demers as recently as November 

2017. Tr. 118-20; 40 FMSHRC at 1504. Demers responded that he “was working on it” and 

subsequently brought in personnel from the rock barges to work some of the shifts. This 

alleviated the problem of long hours for Thomas. Tr. 120-21. 

Thomas also believed that the barge workers were not receiving adequate task training to 

safely perform their work on the Dredge. Tr. 121-22. When asked by Demers to sign the task 

training sheets of the barge workers, Thomas refused, responding that the barge workers were 

not being properly trained in his view.3 Tr. 122. 

2

 30 C.F.R. § 56.18009 requires that: “When persons are working at the mine, a 

competent person designated by the mine operator shall be in attendance to take charge in case of 

an emergency.” 

3 Generally, Demers signed off on task training records as the “person responsible for 

health and safety training,” while Thomas or McMillan were the competent persons conducting 

the training. Tr. 414-16. 

42 FMSHRC Page 44
In November 2017, Thomas called Demers saying that he would not be coming into work 

the following day and would be taking a sick day. Tr. 123-24. A disagreement ensued and 

Thomas abruptly hung up the phone on Demers. Tr. 47-48, 123-24, 371, 445. McMillan testified 

that the next day Demers said to him that “after the way Rob talked to him on the phone that Rob 

Thomas was done, he was f****** done at CalPortland.” Tr. 48, 88. Thereafter, Thomas met 

with Demers and Candy Strickland in CalPort’s Human Resources Department (“HR”) to resolve 

the incident, which included discussing protocol, the proper way to call out sick, and how to 

communicate with your manager and peers in a professional manner. Tr. 445. CalPort did not 

discipline Thomas for this incident, and Thomas testified at the hearing that after the meeting 

“everything was fine.” Tr. 202. 

2. The Personal Flotation Device Incident and Suspension

At the end of the shift on January 24, 2018, the Sanderling Dredge was traveling 

downriver on its return to the dock in Vancouver. Thomas and McMillan were changing out a 

valve above deck on the dredge, which sits 14 feet above the waterline. Thomas stood on the 

ladder to help lower the valve down from its position. He and McMillan testified that they were 

both wearing their personal flotation devices (“PFDs”) during the change out. McMillan then 

climbed up on the ladder in order to weld the studs while Thomas went to perform another task. 

As McMillan was welding, Thomas removed his PFD and hung it outside of the lever room, then 

walked over to the welding table, in the middle of the barge, to use the cutting torch. 

At some point, McMillan had to pause his work and go over to the tugboat to help Ison 

with a transmission problem. He was gone for about 30 minutes during which he did not see 

Thomas working. As McMillan was returning to the dredge, and as Thomas had just completed 

cutting and was putting his PFD back on, they noticed MSHA Inspector Mathew Johnson 

standing on the dock. Tr. 51-57, 61, 124-25, 131-34; 40 FMSHRC at 1505. 

As the dredge neared the dock, Inspector Johnson called out and asked if it was company 

policy to not wear a PFD. Thomas responded that CalPort’s policy requires miners to wear 

PFDs. Once in port, Thomas admitted to Inspector Johnson that he had not worn his PFD while 

operating the cutting torch at the welding table. Thomas then called Demers, who was working at 

a different location, to explain what had happened and then handed the phone to Inspector 

Johnson. After speaking with Demers, Inspector Johnson completed his inspection of the dredge 

and issued a citation to CalPort for Thomas’ failure to wear a safety device or to be tied off while 

working on the open portion of a dredge.4 40 FMSHRC at 1506. The inspector determined that 

Thomas engaged in aggravated conduct. He deemed the action an unwarrantable failure and a 

significant and substantial violation that could reasonably likely result in a fatality.5

4

 30 C.F.R. § 56.15020 states that: “Life jackets or belts shall be worn where there is 

danger from falling into water.” 

5 McMillan also testified that Johnson told Thomas that he could be cited personally for 

the violation and that it could be a fireable offense, although unlikely, given Thomas’ history of 

having no safety violations. Tr. 62. 

42 FMSHRC Page 45
The next day, Thomas told Demers that he was not on the ladder without his PFD.6

 Tr. 

139. Inspector Johnson returned that day and met with Demers to discuss the previous day’s 

violation. Demers called Thomas to join them. Thomas and Inspector Johnson disagreed about 

whether Thomas was on the ladder without his PFD. Tr. 141, 380-81. After Inspector Johnson 

left, Thomas returned to the tugboat to help McMillan, and Demers called David McAuley, 

CalPort’s Regional Operations General Manager, to discuss the matter. Based on the differing 

versions of events by Inspector Johnson and Thomas, McAuley and Demers decided to suspend 

Thomas, without pay, pending further investigation. Having decided to suspend Thomas, Demers 

called the dock and instructed McMillan not to let Thomas go because he needed to come down 

to “get rid of him.” Tr. 67. 

During the course of Thomas’ career at Calport, the record reflects that he had been 

involved in a previous disciplinary incident in 2012. He received a verbal warning, as well as a 

three-day suspension for violating company work rules after it was determined that he lied to 

government and CalPort officials during an investigation. Decl. of Erik M. Laiho, Ex. L at 1; 

Tr. 203-04. 

3. The Draft Disciplinary Recommendation and Premature E-mail

Demers returned to the Dredge to notify Thomas that he was suspended pending an 

investigation. Tr. 142, 179, 180, 182-83. Thomas gathered his things and punched out for the 

day. The next morning, Demers contacted Thomas and asked him to provide a written statement 

about the incident that led to the citation. Thomas prepared and emailed his statement to Demers 

two days later. Tr. 142; Thomas Ex. 19. On Saturday, January 27, Demers called Thomas and 

asked him to come to the office on Monday, January 29, at 8:00 a.m. 

When Thomas arrived that Monday, he met with Demers and Safety Manager Jeff 

Woods. Demers read the narrative portion of the MSHA citation aloud to Thomas. Thomas 

disagreed with the inspector’s statement, proclaiming that: “This whole thing is nothing but a 

sham[]. . . . It’s completely false.” Tr. 145, 386. Woods asked Thomas if it was common practice 

for Thomas to not wear his PFD. Thomas refused to answer the question saying that he did not 

believe they would listen to him and he did not want to “incriminate [him]self.” Tr. 145, 385-86, 

438. While at the meeting, Thomas was asked to fill out an employee incident report and to 

submit a lengthier statement, which he completed at home and emailed to Demers that afternoon. 

McMillan also completed an employee incident report that same day. 

Following the meeting with Thomas, Demers met with McAuley and Strickland to 

discuss the matter further. McAuley asked Demers to work with Strickland to prepare a draft 

disciplinary recommendation. Demers sent the first draft of his recommendation in an email to 

Strickland entitled “Wordsmith Please” the same day. Tr. 306-07, 387, 443, 448; CPC Ex. N at 

1. On January 30, Strickland, Demers, and McAuley participated in a meeting with upper 

management to brief them on the situation with Thomas. Demers was asked to set up another 

meeting with Thomas for 11:00 a.m. the next day, which he did. 

6

 McMillan’s position on whether or not Thomas was on the ladder without his PFD was 

inconsistent. Thomas Ex. 5; Tr. 54-55, 82-83. 

42 FMSHRC Page 46
After the management meeting, Demers sent a second draft of his recommendation to 

Strickland in an email entitled “Wordsmith Take II,” attaching an unsigned and undated draft 

corrective action form. CPC Ex. N at 2-7. The form contained Demers’ recommendation to 

discharge Thomas based on Thomas’ violation of the PFD rule, his lack of cooperation with the 

company investigation, and his perceived lack of candor.7 CPC Ex. N at 4-5. Mistakenly, 

Demers’ had also sent the same email to the barge scheduling list, which included Thomas, other 

employees of CalPort, and contractors. Demers attempted to recall the email immediately. He 

then sent a follow-up email, which stated “Please delete last e-mail it was sent by mistake.” Tr. 

389-93; CPC Ex. N at 8. He also contacted McAuley and Strickland to let them know what had

happened.8

4. The Engagement of Thomas’ Attorney

Around 6:30 a.m. the following morning, January 31, Thomas was preparing to go to the 

11:00 a.m. meeting when he received a phone call from Ison, the tugboat captain, telling him to 

check his email. When Thomas checked, he saw the email from Demers containing the 

corrective action stating “that [he] was terminated effective immediately,” and that the email had 

been sent to his co-workers and to contractors. Tr. 149; Thomas Exs. 1 and 2, 71; CPC. Ex. N at 

4-6. Thomas notified his wife that he had been terminated and then texted Demers to let him

know that he would not attend the 11:00 a.m. meeting. There is no evidence that Thomas told

Demers that he had seen his termination email. That same afternoon, Thomas hired an attorney

and directed his attorney to send a letter to Demers and CalPort about his intent to file a

discrimination claim against them.9 Tr. 155-56. CalPort witnesses testified that they did not

receive anything from Thomas’ counsel until February 13. Tr. 158, 191.

7

 In part, the memorandum states: 

Your explanation of what took place does not match what others 

had to say. During the interview, you were asked ‘if it was normal 

policy to take off your PFD to conduct hot work’ and you refused 

to answer the question. During the interview, you were 

uncooperative and aggravated with the questioning. You also 

stated that you thought that the whole process was ‘a sham.’ 

However, you admit to being on deck conducting work underway 

without wearing a PFD. It is impossible to work on that valve 

without a ladder or something to stand on. 

CPC Ex. N at 5. 

8

 Demers thereafter received a written warning from McAuley for his mishandling of the 

sensitive email. Tr. 314-15; CPC Ex. O. 

9

 Counsel for Thomas alleged that on February 2, 2018, he sent an email to Demers 

containing a letter notifying CalPort that Thomas was now being represented by an attorney. 

Demers testified that he did not receive the email until February 13 and that it did not have a 

letter attached. Tr. 157-160, 421-22. 

42 FMSHRC Page 47
The following morning, Thomas received a call from McAuley on his personal cell 

phone. With his stepdaughter present, and before hanging up, Thomas told McAuley that he 

should not be calling him on his personal phone, not to call him again, and to contact him by 

mail or contact his attorney.10 Tr. 156-57, 186, 318-19, 452; CPC Ex. P. There is no evidence 

that the termination email was mentioned during the call. After speaking with Thomas, McAuley 

contacted Strickland the same day to discuss the situation, and they collectively determined that 

the matter was now one for HR to address. In light of Thomas’ comments to McAuley and his 

failure to come in for the meeting, Strickland immediately began working on a letter advising 

Thomas that a failure to contact the company would result in his discharge. 

5. The Voluntary Resignation 

On February 2, Strickland was directed to begin processing a “voluntary resignation” for 

Thomas based on his actions foreshadowing violation of the company’s attendance policy. CPC 

Ex. FF at 3. That same day, she drafted the letter to Thomas informing him that his continued 

silence would result in his voluntary resignation. That Monday, February 5, Strickland sent the 

letter to Thomas via standard mail and UPS, which stated that if Thomas did not contact HR by 

Thursday, February 8, “he will be considered to have voluntarily resigned.” Tr. 456-57; CPC Ex. 

R. Thomas refused receipt of both copies of the letter and did not forward them on to his 

attorney. 40 FMSHRC at 1507-08. 

On February 5 and 6, Demers spoke with MSHA Special Investigator Diane Watson who 

indicated that “she wasn’t going to open a 101 case against Rob because she knew he had been 

terminated,” and that he may be filing a “decimation” law suit.11 Tr. 106-07, 403-05; Thomas Ex. 

61. The following day, Demers called Watson back, in accordance with McAuley’s instructions, 

to tell her that Thomas had not been “terminated.”12 On February 9, after Thomas did not 

respond to the letter of February 5, CalPort sent Thomas another letter, notifying him of his 

voluntary resignation. 

 

10 McAuley testified that he did not recall hearing Thomas mention an attorney during 

that phone call. Tr. 319-20. 

11 While the Judge stated in her finding of facts that Watson said “discrimination” 

complaint, CalPort refutes the Judge’s description and maintains that Watson said “defamation” 

complaint. Demers wrote “decimation” law suit in his notes. CPC PH Br. at 17-19; PDR at 22; 

CPC Op. Br. at 5, 17; Tr. 405-06; Ex. 61; 40 FMSHRC at 1508. The Judge did not resolve the 

discrepancy in her decision. 

12 The Judge inaccurately stated that “Demers told McAuley that Thomas thought he had 

been terminated based on Demers’ January 30 email.” 40 FMSHRC at 1508 (emphasis added). 

According to Demers’ testimony, which is consistent with McAuley’s, Demers simply stated that 

Watson said that she understood that Thomas had been terminated. Tr. 323-24, 404. Demers 

never stated that Thomas believed he was terminated based on Demers’ action. 

42 FMSHRC Page 48
6. The Discrimination Complaint

Thomas filed his written discrimination complaint with MSHA on February 13, 2018, 

pursuant to section 105(c)(2) of the Act.13 Tr. 206; Thomas Ex. 46; 40 FMSHRC at 1508-09. He 

did not request temporary reinstatement. His attorney reviewed the complaint before it was filed. 

Oral Arg. Tr. 63. On February 21, 2018, MSHA Investigator Watson emailed Demers to notify 

CalPort that Thomas had filed a section 105(c)(2) complaint. Two months later, on April 23, 

2018, MSHA declined to pursue a discrimination case on Thomas’ behalf. See Thomas Compl. 

Ex. 1. On May 23, 2018, Thomas filed a section 105(c)(3) complaint with the Commission, 

which was contested by CalPort on June 18, 2018.14

B. The Judge’s Decision

After a hearing on the merits, the Judge issued a decision finding that CalPort had

discriminated against Thomas in violation of the Mine Act and awarded Thomas back pay, lost 

benefits, and attorney’s fees. 40 FMSHRC at 1517-18. The Judge found that Thomas engaged in 

four activities protected by the Act. First, she determined that Thomas’ discussions with 

Inspector Johnson, beginning on January 24 arising from his unwarrantable failure to wear his 

PFD, were protected. Second, she found that he complained to Demers that he was tired from 

working so many hours, and that he could not concentrate, making it unsafe. Third, she found 

that Thomas expressed concern about the lack of task training for the rock barge employees. 

Lastly, she determined that Thomas let the mine know that he had hired an attorney and the mine 

was alerted that Thomas was filing this discrimination complaint with MSHA.15 40 FMSHRC at 

1509. 

13 30 U.S.C. § 815(c)(2) states that: “Any miner . . . who believes that he has been 

discharged, interfered with, or otherwise discriminated against by any person in violation of this 

subsection may, within 60 days after such violation occurs, file a complaint with the Secretary 

alleging such discrimination. Upon receipt of such complaint, the Secretary . . . shall cause such 

investigation to be made as he deems appropriate.” 

14 30 U.S.C. § 815(c)(3) states that: 

Within 90 days of the receipt of a complaint filed under paragraph 

(2), the Secretary shall notify, in writing, the miner . . . of his 

determination whether a violation has occurred. If the Secretary, 

upon investigation, determines that the provisions of this 

subsection have not been violated, the complainant shall have the 

right, within 30 days of notice of the Secretary’s determination, to 

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

discrimination or interference in violation of paragraph (1). 

15 The Judge did not find the call between Thomas and Demers regarding sick leave to be 

protected activity.

42 FMSHRC Page 49
The Judge also determined that there was adverse action against Thomas demonstrated by 

his suspension pending investigation, his termination under the company’s voluntary resignation 

policy, and the accidental termination email sent out by Demers. In finding the elements of 

knowledge and timing most persuasive, she concluded that there was “sufficient circumstantial 

evidence to demonstrate a connection between Thomas’ discharge and his protected activity.” Id. 

at 1512. 

II.

The Standard of Review 

A. Substantial Evidence 

When reviewing an administrative law judge’s factual determinations, the Commission is 

bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. 

§ 823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as a reasonable 

mind might accept as adequate to support [the judge’s] conclusion.’” Rochester & Pittsburgh 

Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 

U.S. 197, 229 (1938)). Under the substantial evidence test, the “possibility of drawing two 

inconsistent conclusions from the evidence does not prevent an administrative agency’s finding 

from being supported by substantial evidence.” Sec’y on behalf of Wamsley v. Mutual Min., Inc., 

80 F.3d 110, 113 (4th Cir. 1996). 

B. Prima Facie Case of Discrimination 

The Commission has held that a complaint alleging discrimination under the Mine Act 

establishes a prima facie case of prohibited discrimination by presenting evidence sufficient to 

support a conclusion that the individual engaged in protected activity and that the adverse action 

complained of was motivated in any part by that activity. See Jayson Turner v. Nat’l Cement Co., 

33 FMSHRC 1059, 1064 (May 2011); Driessen v. Nev. Goldfields, Inc., 20 FMSHRC 324, 328 

(Apr. 1998); Sec’y on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 

1980), rev’d on other grounds, Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 

1981); Sec’y on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 805, 817-18 (Apr. 

1981). 

The Complainant bears the burden of establishing protected activity. Pasula, 2 FMSHRC 

at 2797-2800, rev’d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 

1211 (3rd Cir. 1981); SOL on behalf of Riordan v. Knox Creek Coal Corp., 38 FMSHRC 1914, 

1920-21 (2016). “Direct evidence of motivation is rarely encountered; more typically, the only 

available evidence is indirect.” Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 

FMSHRC 2508, 2510 (Nov. 1981). 

In evaluating whether there exists a causal connection between the protected activity and 

the adverse action, the Commission has identified several indicia of discriminatory intent, 

including: (1) knowledge of the protected activity; (2) hostility towards the protected activity; (3) 

coincidence in time between the protected activity and the adverse action; and (4) disparate 

treatment of the complainant. Id. at 2510. 

42 FMSHRC Page 50
It is upon these standards that we find that the Judge erred in concluding that Thomas had 

established a prima facie case of discrimination. 

III. 

Disposition 

Thomas failed to introduce any evidence that his suspension and eventual discharge were 

in any way motivated by protected activity. In fact, the available evidence strongly suggests that 

the adverse actions he experienced were direct results of his own unprotected and dangerous 

activity of failing to wear a PFD and his walking away from the operator’s necessary 

investigation. 

Citing Hatfield v. Colquest Energy, Inc., 13 FMSHRC 544 (Apr. 1991), the operator 

argued before the Judge and the Commission that Thomas’ claim must be limited to the 

protected activities alleged in his initial section 105(c)(2) complaint because issues regarding his 

work hours, task training, and intent to file suit were not included in his section 105(c)(2) 

complaint, and thus, not investigated by MSHA. In Hatfield, the Commission held that a miner’s 

section 105(c)(3) complaint could include any matter investigated by MSHA in response to the 

section 105(c)(2) complaint. Id. at 545-46. We need not address the operator’s Hatfield

objection. We do address those claims below only for the purpose of completeness and in case of 

appeal to show that even were we to consider activities beyond those arising out of Thomas’ 

responding to the Inspector in January 2019, substantial evidence could not support a finding in 

Thomas’ favor. Consequently, our discussion of those alleged activities does not portend any 

change in Hatfield. It only demonstrates that the evidence does not support the Judge’s decision 

under any conceivable theory. 

A. Cooperation with MSHA Inspection 

The Judge found Thomas’ cooperation with the MSHA inspection on January 24, to be 

protected. However, neither Thomas nor the Judge was able to identify any signs of hostility, 

circumstantial or direct, displayed by CalPort regarding Thomas’ cooperation with MSHA 

Inspector Johnson. 40 FMSHRC at 1510-12. Instead, CalPort engaged in the necessary task of 

evaluating the circumstances resulting in issuance of an unwarrantable failure order.16

Thomas conceded at the hearing that the company did not display any animus or hostility 

towards his participation in the inspection. Tr. 208. Additionally, given Inspector Johnson’s 

eyewitness account of Thomas’ unsafe and violative conduct, the circumstances compelled 

Thomas’ cooperation. There is no evidence that CalPort officials were upset with or suspended 

16 As to the factors set forth in Chacon that might demonstrate motivation, CalPort 

obviously learned almost immediately from the MSHA Inspector that Thomas had committed a 

violation by failing to comply with CalPort’s PFD policy and acted, as it should, to investigate 

such wrongful misconduct. Such events, therefore, were necessarily close in time and do not 

indicate any discrimination. 

42 FMSHRC Page 51
him because of his necessary cooperation in MSHA’s investigation. Clearly, their investigation 

and meetings with him arose out of, and only out of, his failure to wear a PFD.17

B. Complaints about Long Hours

The evidence does not support a finding of any adverse action motivated by the

complaint over hours. The Judge did not consider Thomas’ continued testimony where he 

explained that “he knew [Demers] had a lot on his plate. . . . [H]e was trying to man – take care 

of three barges, shorthanded, and taking care of a new item, the dredge, Sanderling.” Tr. 120-21. 

Demers explained to McMillan that he had a stack of applications, that he was trying to find 

someone, and that several successful applicants made it through the hiring process but turned out 

to be uninsurable due to DUIs. Tr. 79. McMillan did not testify that he felt or saw animus 

towards his request. 

Thomas was asked if he thought that Demers did anything to alleviate his concerns about 

the hours, and even Thomas testified: “Yes, he started bringing out the rock barge guys . . .” Tr. 

121; see also Tr. 43-44. He further stated that Demers’ solution to this complaint resolved the 

issue of excessive hours for him. Tr. 210. Thomas conceded that Demers’ response to his request 

to work fewer hours was not one of animosity or hostility. Tr. 208-11. Contrary to the Judge’s 

determination, there was more than ample evidence through Thomas’ own words that Demers 

did not develop animus toward Thomas as a result of his complaint about the hours being 

worked.18

C. Complaint about Task Training

The Judge found that the barge workers worked under OSHA regulations, and that they

required task-training and “an introduction to MSHA regulations.” 40 FMSHRC at 1505. 

However, the record shows that while the barge workers may have required task training for the 

Dredge, CalPort’s dredge and barge workers are all trained miners. Tr. 210, 229. CalPort’s 

Corporate Safety Director Chad Blanchard testified, without contradiction, that its employees 

undergo MSHA new employment training during their new-hire orientation and are trained in 

waterborne safety and their discrimination rights. There is undisputed testimony that CalPort had 

its task training records inspected by MSHA in December 2017 and March 2018, with no 

17 Moreover, Thomas was well aware that company policy required his full participation 

with government investigations. In the 2012 incident, Thomas was disciplined for making false 

statements to government investigators and failing to cooperate with an investigation. He was 

specifically warned that such behavior could lead to termination in the future. 

18 The Judge relied on Demers’ statement that “Rob Thomas is f---ing done.” 40 

FMSHRC at 1511. But this was not in response to the conversation involving hours. Rather, it 

resulted from a discussion of a sick day not found by the Judge to be protected activity. 

Moreover, the facts suggest the comment resulted from Thomas’ insubordinate behavior of 

hanging up on Demers in the middle of the conversation on the prior day. There is no evidence to 

link that statement to any safety complaints. Finally, Thomas testified that after he and Demers 

discussed the telephone call “everything was fine.” Tr. 202. 

42 FMSHRC Page 52
citations issued. Tr. 418; CPC Exs. DD, EE. There is no indication that MSHA found it improper 

that the person signing off on the task-training sheets was different from the “competent person” 

conducting the training. 

 There is no testimony or other evidence regarding Demers’ response to Thomas’ 

complaints about the lack of task training for the substitute miners. Obviously, there are many 

reasons unrelated to animus towards safety that might lead to not discussing Thomas’ action, 

including, most likely, that Demers was not concerned by Thomas’ refusal. Establishing 

discriminatory motivation as part of a complainant’s prima facie case requires more than a lack 

of responsiveness to a miner’s action. Again, it is most compelling that Thomas explicitly 

testified that he did not sense animus from Demers regarding his complaints, and he agreed that 

he did not believe anything MSHA-related motivated CalPort to take an adverse action against 

him. Tr. 205-08. 

Moreover, McMillan made the same complaints and refused to sign task training sheets, 

just as Thomas. McMillan did not suffer any adverse action by Demers or any other CalPort 

official. See Metz v. Carmeuse Lime, 34 FMSHRC 1820, 1827 (Aug. 2012) (finding operator 

lacked animus against complainant’s safety-related complaints where other employees 

complained of same safety issue and none of them experienced retaliation). 

D. Notice of Legal Action 

The first sign that Thomas was involving an attorney occurred on February 1, 2018, two 

days after Demers had already made his recommendation to terminate Thomas’ employment on 

January 30, 2018. That was also six days after he was suspended pending investigation. Thus, 

any adverse action experienced by Thomas prior to February 1 cannot be attributed to Thomas’ 

decision to involve his lawyer. According to the Judge’s finding of fact, CalPort became aware 

of the discrimination complaint by February 6. 40 FMSHRC at 1509. That was four days after

the decision was made to process Thomas as a voluntary resignation based on the company’s last 

communication with Thomas about CalPort’s attendance policy. 

Thomas has not presented any evidence demonstrating that, after his February 1 

statement that he was involving his lawyer, Demers, McAuley, Strickland, or any other CalPort 

official even knew of, let alone, harbored or directed any animus towards Thomas’ decision to 

involve an attorney. Since February 1, Thomas had refused to communicate with his employer. 

Prior to issuing the voluntary resignation on February 9, CalPort made several attempts to reach 

Thomas to resolve the communication breakdown. He refused to communicate or even open his 

mail thereby choosing to forego the possibility of being retained as an employee. 

Thus, there is insufficient evidence to support a finding that any animus resulted from 

Thomas’ alleged protected activity. To the contrary, the evidence demonstrates that Thomas’ 

suspension and then discharge arose from actions other than protected activity. These actions are, 

at least, the commission of an unwarrantable failure, his uncooperative and disrespectful conduct 

in a meeting with company personnel, and, ultimately, his ill-considered refusal to take or 

respond to calls and mail asking that he come to the office to discuss his situation. 

 

42 FMSHRC Page 53
III. 

Conclusion 

In conclusion, we hold that there is not substantial evidence in the record to establish that 

any protected activity by Thomas motivated the operator in any part to take any adverse action 

toward him. For the reasons set forth above, we reverse the Judge’s finding of discrimination by 

CalPort and dismiss this case. 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ William I. Althen

William I. Althen, Commissioner 

42 FMSHRC Page 54
Commissioners Jordan and Traynor, concurring: 

We concur with the majority, but write separately to address more fully the Respondent’s 

argument that our decision in Hatfield v. Colquest Energy Inc., 13 FMSHRC 544 (Apr. 1991), 

precludes our Judges from considering evidence of certain protected activities when examining 

what motivated a properly pled adverse action. 

Section 105(c) of the Mine Act provides to miners a full administrative investigation and 

evaluation of an allegation of discrimination, as well as the right to commence a private action 

before the Commission in the event that the Secretary’s administrative evaluation results in a 

determination that there is not evidence that the provisions of section 105(c) were violated. 

Section 105(c)(2) provides that, upon receipt of a complaint of discrimination or interference, the 

Secretary “shall cause such investigation to be made as he deems appropriate,” and that “[i]f 

upon such investigation, the Secretary determines that the provisions of this subsection have 

been violated, he shall immediately file a complaint with the Commission. . . . ” 30 U.S.C. § 

815(c)(2). Section 105(c)(3) of the Act provides that, if the Secretary determines he has not 

found evidence that a violation has occurred, “the complainant shall have the right, within 30 

days of notice of the Secretary’s determination, to file an action in his own behalf before the 

Commission, charging discrimination or interference in violation of [section 105(c)(1)].” 30 

U.S.C. § 815(c)(3). Though section 105(c) contains no explicit restriction on the subjects a miner 

may include in the action he files on his own behalf, the structure of the subsection necessarily 

implies that an action a miner brings on his own behalf must be related to his initial complaint 

submitted for administrative investigation. 

On occasion, we must determine whether a private action under section 105(c)(3) 

concerns matters that were first submitted for investigation and evaluation as required by section 

105(c)(2). In Hatfield, an operator argued on interlocutory appeal that certain discrete allegations 

of protected activity a pro se miner included for the first time in his amended section 105(c)(3) 

complaint should be stricken for his failure to explicitly allege them in his initial administrative 

complaint. 13 FMSHRC at 544. We interpreted section 105(c) expansively to hold that a miner 

could allege in his private right of action any matter investigated by the Secretary, not merely 

those allegations explicitly alleged in the four corners of the administrative complaint. We 

therefore directed the Judge to determine whether protected activities alleged in the miner’s 

amended complaint “were part of the matter that was investigated by the Secretary in connection 

with [the miner’s] initial discrimination complaint to MSHA.”1 Id. at 546. Our decision 

1

 Notably, the Secretary of Labor did not participate in the Hatfield case and had no 

opportunity to file an amicus brief as the Commission granted the operator’s petition for 

interlocutory review, vacated the Judge’s order, and remanded the proceeding without taking 

briefs. The Secretary has not had occasion to offer the agency’s view as to how Mine Act 

provisions requiring him to investigate administrative complaints filed pursuant to section 

105(c)(2) should be interpreted to accommodate his own investigatory role with the 

Congressional directive that we should “expansively” construe section 105(c) “to assure that 

miners will not be inhibited in any way in exercising any rights afforded by the legislation.” S. 

Rep. No. 95-181, at 35-36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human 

(continued...) 

42 FMSHRC Page 55
preserved and balanced both the Secretary’s investigatory role and a miner’s right to file and 

process a complaint of discrimination through a system intended for use by laypersons 

unfamiliar with the technical science of pleading. 

The Hatfield decision served to shelter from summary decision those allegations 

advanced in a section 105(c)(3) private right of action that were not explicitly referenced in the 

section 105(c)(2) complaint submitted for investigation, but were investigated. See, e.g., Saffell 

v. National Cement Co., 14 FMSHRC 1053, 1055 (June 1992) (ALJ); Womack v. Graymont

Western U.S. Inc., 25 FMSHRC 235, 248 (May 2003) (ALJ). Under Hatfield, a miner’s lay

explanation in an administrative complaint of why he or she “believes that he has been

discharged, interfered with, or otherwise discriminated against,” 30 U.S.C. § 815(c)(2), is not

scrutinized like a formal pleading in order to preclude a miner from advancing a related

allegation the Secretary investigated. We extended this approach to hold a section 105(c)(2)

complaint filed by the Secretary on behalf of a miner could include any allegations addressed in

the administrative investigation. Sec’y of Labor on behalf of Dixon v. Pontiki Coal Corp., 19

FMSHRC 1009, 1017 (June 1997).

Our approach in Hatfield and Pontiki was intended to preserve miners’ rights to an 

administrative investigation and evaluation, while ensuring they are not denied their right to 

pursue a private section 105(c)(3) action for reasons unrelated to the merits of their claims. 

However, recent ALJ decisions applying Hatfield reveal miners are too frequently denied access 

to specific proof of the scope and content of the administrative investigation. See, e.g., Willis v. 

Jeffrey Tyler for Heart of Nature (NV), LLC, 2018 WL 2529561, Unpublished Order at 3 (May 

11, 2018) (ALJ) (recounting Secretary’s refusal to produce a transcript of the investigatory 

interview); Justice v. Gateway Eagle Coal Co., 36 FMSHRC 2371 (Aug. 2014) (ALJ) (renewing 

motion to enforce a subpoena).2

 And sometimes a complainant has no access to facts about the 

scope of the administrative investigation because no adequate investigation was conducted. See, 

e.g., Deuso v. Shelburne Limestone Corp., 41 FMSHRC 232, 242 (Apr. 2019) (ALJ); Myers v.

Freeport-McMoRan Morenci, Inc., 34 FMSHRC 1593 (July 2012) (ALJ). In these cases,

Hatfield has been misapplied to the extent miners have been barred from advancing a case of

discrimination solely because they are denied access to evidence delineating the scope of the

Secretary’s investigation of his or her protected activities, or denied an adequate investigation.

Our holding in Hatfield must not operate to prevent a miner complainant from identifying 

and offering instances of protected activity as evidence in support of a private action. Hatfield

only precludes a miner from broadening his complaint to request relief for an adverse action that 

1

 (... continued) 

Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 623-24 (1978). 

However, this is not surprising, given miners may only file a private action under section 

105(c)(3) if and when the Secretary declines to pursue the complainant’s case. 

2

 MSHA should ensure its policies for responding to requests for information from 

section 105(c)(3) complainants do not thwart their ability to advance a claim on matters 

investigated by MSHA. 

42 FMSHRC Page 56
was neither pled in the initial administrative complaint or investigated by the Secretary after 

receipt of such complaint. 

In the instant case, the only protected activity explicitly referenced in the administrative 

complaint filed in the wake of Thomas’ suspension is his interaction with MSHA inspector 

Johnson at the dock. However, Thomas alleges in his section 105(c)(3) private action that his 

reports to his supervisor of inadequate training and excessive work hours are additional protected 

activities that also motivated, at least in part, his suspension and subsequent termination. These 

pleaded protected activities concern the adverse action raised in Thomas’ administrative 

complaint. Importantly, Thomas did not seek additional or separate relief. 

It is significant that the protected activities not referenced in Thomas’ initial complaint 

but alleged in his private action are claimed to have motivated the same adverse action explicitly 

referenced in his initial complaint. The adverse action element of a discrimination case is a 

particularly helpful lens for understanding appropriate application of our Hatfield decision. A 

miner can be expected to be especially familiar with the facts establishing the adverse action 

prong of a discrimination case. He or she will be able to easily identify and explain in lay terms a 

termination, suspension, reassignment, threat, etc. These facts describing the adverse action are 

those a lay miner is most likely to identify as salient and necessary for inclusion in the initial 

filing explaining why he or she “believes that he has been discharged, interfered with, or 

otherwise discriminated against.” 30 U.S.C. § 815(c)(2). By contrast, miners are comparatively 

less likely to specifically reference in their initial complaint other allegations critical to the 

evidentiary burden of establishing a discrimination case, such as protected activity and unlawful 

motivation, because their importance is only apparent to those familiar with the legal 

requirements of our Pasula-Robinette framework.3

 These are the types of facts an effective 

administrative investigation and evaluation is reasonably expected to uncover.4

Permitting a miner to plead other discrete instances of protected activity alleged to have 

motivated a properly pled and investigated adverse action does not interfere with or diminish the 

3 Sec’y on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 

1980), rev’d on other grounds, Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 

1981); Sec’y on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 805, 817-18 (Apr. 

1981). 

4

 This point is echoed in both the majority and dissenting opinions accompanying our 

decision in Hopkins County Coal, LLC, 38 FMSHRC 1317 (June 2016), where the majority 

stated in footnote 11 of their opinion that “MSHA’s initial interview with the miner can provide 

the investigator with much needed clarity regarding the allegations, and can possibly lead to the 

discovery of other violative conduct the miner did not know to allege or had trouble articulating 

in his charging complaint.” The dissenters agreed, observing at footnote 2 of their opinion that 

“Miners may initially fail to assert in precise legal terms the elements of a discrimination claim 

in their written complaint. When, as here, a miner’s complaint is facially invalid, MSHA is 

entitled to ask questions and investigate whether any facts asserted by the miner at that point 

might support a discrimination claim--that is, can the miner allege the elements of protected 

activity and adverse action because of such activity.” Id. at 1339 n.2. 

42 FMSHRC Page 57
Secretary’s ability to ensure every administrative complaint receives a full investigation. An 

investigator helping determine whether Thomas’ administrative complaint makes out a case for 

relief would have had a reasonable opportunity to investigate whether Thomas had engaged in 

other protected activity – in addition to the interaction with the inspector - that could have 

possibly motivated his suspension and termination. Though the Secretary’s evaluation of 

Thomas’ administrative complaint determined there was not sufficient evidence to establish a 

violation, a reasonably diligent investigation would have thoroughly examined Thomas’ 

participation in protected activity. 

To resolve this case, we considered whether Thomas’ putatively protected complaints 

about inadequate training and excessive work hours motivated in any way the same adverse 

action referenced in his administrative complaint - his suspension and ultimate termination.5

Along with the majority, we find no proof that they did. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

5

 We do not address here whether these additional activities are the type that are protected 

under Pasula-Robinette. 

42 FMSHRC Page 58
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, N.W., SUITE 520N 

WASHINGTON, D.C. 20004

January 6, 2020 

MARSHALL JUSTICE, 

Complainant,

v.

ROCKWELL MINING, LLC,

Respondent.

 DISCRIMINATION PROCEEDING 

 Docket No. WEVA 2018-48-D 

 PINE-CD-2016-07 

 Mine: Gateway Eagle Mine 

 Mine ID 46-06618 

DECISION 

Appearances: Samuel B. Petsonk, Esq., Petsonk PLLC, Beckley, WV; for Marshall Justice, 

Complainant. 

Jonathan R. Ellis, Esq., and Joseph U. Leonoro, Esq., Steptoe & Johnson PLLC, 

Charleston, WV; for Rockwell Mining, LLC, Respondent. 

Before: Judge Paez 

This long-pending discrimination proceeding is before me pursuant to section 105(c)(3) 

of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(3). 

Complainant Marshall Justice (“Complainant” or “Justice”) filed his discrimination complaint 

with the Commission against Respondent Rockwell Mining, LLC (“Respondent” or “Rockwell”) 

after the Mine Safety and Health Administration (“MSHA”) investigated Justice’s claims and the 

Secretary of Labor (“Secretary”) declined to take action under section 105(c)(2) of the Mine Act. 

This case examines four discrete incidents at an underground coal mine that the 

Complainant alleges constitute a claim of discrimination and three claims of interference under 

section 105(c) of the Mine Act. To prevail, the Complainant must prove his discrimination and 

interference claims by a preponderance of the evidence. See Sec’y of Labor on behalf of Pasula 

v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds, 663

F.2d 1211 (3d Cir. 1981). As the Commission observed, “[p]reponderance of the evidence”

requires demonstrating that “the existence of a fact is more probable than its nonexistence.” RAG

Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000) (citations and internal quotation

marks omitted), aff’d, 272 F.3d 590 (D.C. Cir. 2001).

Having considered the testimony from Justice himself and Rockwell’s five witnesses, as 

well as the pleadings, exhibits, post-hearing briefs, and reply briefs, I conclude that the 

Complainant has failed to prevail in his three interference claims. Additionally, although I 

determine the Complainant established a prima facie case in his discrimination claim, I conclude 

that Rockwell provided sufficient evidence to affirmatively defend itself, and thus the 

Complainant’s discrimination claim also fails.

42 FMSHRC Page 59
I. STATEMENT OF THE CASE 

 On July 20, 2016, Marshall Justice filed a discrimination complaint with MSHA using 

the agency’s Form 2000-123 and naming Rockwell as the violator. (Compl., Ex. A.)1 On 

September 14, 2017, MSHA notified Justice that the agency had investigated Justice’s 

discrimination complaint and determined Rockwell had violated section 105(c) of the Mine Act. 

(Compl., Ex. C.) Thereafter, on October 3, 2017, the Secretary in Docket No. WEVA 2018-10-D 

filed a complaint with the Commission under section 105(c)(2) regarding Rockwell’s specific 

failure to provide mine ventilation maps to Justice due to his status as a miner’s representative. 

However, the Secretary in his section 105(c)(2) complaint did not pursue Justice’s claims 

regarding an allegedly unsafe diesel scoop nor any other claims by Justice. (See id. at 1–5.) 

 On October 30, 2017, Justice filed his own complaint of discrimination with the 

Commission under section 105(c)(3) of the Mine Act, regarding the claims rejected by the 

Secretary. Justice attached to his section 105(c)(3) complaint copies of his MSHA Form 

2000-123, his supplemental statement to MSHA with his timeline dated August 10, 2016, and 

MSHA’s September 14, 2017, determination letter. (Compl., Exs. A, B, C.) 

 On December 4, 2017, then-Chief Administrative Law Judge Robert J. Lesnick assigned 

me this matter. On December 6, 2017, Rockwell filed a Motion to Dismiss, which I granted, in 

part, on January 31, 2018, with regard to the claim about interference with Justice’s right as a 

miners’ representative to obtain copies of ventilation maps, which I found duplicative of the 

section 105(c)(2) claim contained, and later disposed of, in Docket No. WEVA 2018-10-D.2

 The 

other claims survived Rockwell’s motion. Thereafter, Rockwell filed its answer on February 13, 

2018, per my request. On February 9, 2018, the parties filed a joint motion requesting that I set a 

hearing date in September, which I granted, setting the hearing for September 11–13, 2018. 

Thereafter, on August 13, 2018, I granted the parties’ joint motion to continue the September 11–

13, 2018 hearing, and set the hearing for January 23–25, 2019. Yet again, on December 21, 

2018, the parties filed a Joint Request to Continue Hearing Date, whereby I set the hearing for 

May 14–15, 2019, in Charleston, West Virginia. 

 Prior to the hearing, on April 19, 2019, Rockwell filed a Motion for Summary Decision 

against which Justice filed his Opposition on April 26, 2019. Rockwell filed a Motion for Leave 

to File Reply on May 3, 2019, which I granted. I denied Rockwell’s Motion for Summary 

Decision on May 8, 2019, because genuine issues of material fact remained. A full-day, extended 

hearing took place on May 14, 2019, in Charleston, West Virginia. Justice himself served as the 

only witness in the Complainant’s case. For its case, Rockwell called mine superintendent 

1 In this decision the following abbreviations are used: Complaint (“Compl.”); Transcript 

(“Tr. #”); Complainant Exhibit (“Ex. C–#”); Respondent Exhibit (“Ex. R–#”); Respondent’s 

Motion for Summary Decision (“Resp’t Mot. Summ. Dec.”); Complainant’s Post-Hearing Brief 

(“Compl’t Br.”); Respondent’s Post-Hearing Brief (“Resp’t Br.”); Complainant’s Reply Brief 

(“Compl’t Reply”); and Respondent’s Reply Brief (“Resp’t Reply”). 

2

 The Secretary of Labor and Rockwell settled Docket No. WEVA 2018-10-D prior to 

hearing per my Decision Approving Settlement dated April 18, 2018.

42 FMSHRC Page 60
Kermit “Rex” Osborne; evening shift foreman Harry Frank Javins; maintenance foreman 

William Luke Stepp; outby foreman and fireboss Rondal Gillispie; and regional human resource 

and labor relations manager Colin Milam. The parties filed their initial post-hearing briefs on 

July 10, 2019. On July 19, 2019, Rockwell filed a bankruptcy petition titled “Notice of 

Suggestion on Pendency of Bankruptcy for Blackhawk Mining LLC, et al. and Automatic Stay 

of Proceedings.” On July 25, 2019, I issued my Order Staying Proceedings due to Respondent’s 

Bankruptcy Filing.3

 On November 13, 2019, I lifted the Stay of Proceedings and ordered the 

parties to submit their pending reply briefs, which I received on December 2, 2019. 

II. ISSUES 

 Complainant’s pleadings were initially unclear regarding the scope of the claims Justice 

would pursue at hearing. On May 13, 2019, the eve of hearing, counsel for Rockwell e-mailed 

my law clerk, stating that the parties had agreed to limit the scope of the hearing to four issues. 

At hearing, counsel for Rockwell recited these issues and counsel for Justice agreed that these 

were the issues to be adjudicated. (Tr. 9:3–25.) Therefore, the four issues before the court are: 

(1) Whether Rockwell interfered with Justice’s right to make safety complaints about the 

use of a caged scoop for long-distance haulage by continuing to assign him to the caged scoop 

and discontinuing the use of the uncaged scoop Justice preferred; 

(2) Whether Rockwell discriminated against Justice for making safety complaints by not 

selecting him to work during the “miners’ vacation” of the first week of July 2016; 

 (3) Whether, on July 18, 2016, Rockwell interfered with Justice’s attempt to make a 

complaint about a tire to an MSHA inspector; and 

 (4) Whether, on July 19, 2016, Rockwell interfered with Justice’s right, as a miners’ 

representative, to travel with an MSHA inspector on section 103(f) “walkarounds.” 

 For the reasons set forth below, I dismiss Justice’s complaint of discrimination and 

interference in its entirety. 

III. FINDINGS OF FACT 

 Gateway Eagle Mine is a two-section coal mine located in Boone County, West Virginia. 

(Tr. 19:6–16, 220:15–17.) It is a union mine with a collective bargaining agreement (“CBA”) 

between Rockwell and the United Mine Workers of America (“UMWA”). (Ex. R–2.) In 2012, 

Marshall Justice began a job as a coal miner at Farley Eagle Mine, operated by Patriot Coal 

Corporation’s subsidiary Gateway Eagle Coal Company, LLC. (Resp’t Mot. Summ. Decision, 

Ex. A.) He then worked for the same operator, Patriot Coal, at Gateway Eagle Mine from 

January 1, 2014, to October 25, 2015. (Resp’t Mot. Summ. Decision, Ex. B.) He worked at the 

same mine for a subsidiary of Blackhawk Mining LLC while the mine was operated by Rockwell 

3 Under section 362(a) of the Bankruptcy Code, the filing of the petition with the 

Bankruptcy Court gives rise to an automatic stay, applicable to all entities, of the commencement 

or continuation of any judicial, administrative, or other action or proceeding against the debtors. 

Justice, and not the Secretary, brought this case under section 105(c)(3) of the Mine Act. 

Accordingly, I stayed these proceedings, as the parties had not yet submitted their reply briefs 

before the filing of the bankruptcy petition. 

42 FMSHRC Page 61
from October 26, 2015 through December 2015. (Resp’t Mot. Summ. Decision, Ex. C.) Justice’s 

last position at Gateway Eagle Mine was as a supply scoop operator from February 22, 2016, 

until his resignation on November 3, 2016. (Resp’t Mot. Summ. Decision, Ex. RR.) During his 

employment at Gateway Eagle Mine, possibly in 2015 when Patriot owned the mine,4 Justice 

filed internal complaints about one incident that took place on the road to work and about 

another incident that took place in the mine’s changing room. (Tr. 113:8–114:7, 168:2–169:21, 

250:22–251:8, 337:9–338:24.) Beginning on February 19, 2016, during training, Justice began to 

keep a journal where he would record events during his shifts at the Gateway Eagle Mine, as 

well as some personal thoughts interspersed with religious affirmations. (Exs. R–1, C–1.) 

The main incidents surrounding the four claims in this proceeding took place during June 

and July of 2016. 

A. Justice’s Safety Complaint About the Caged Scoops 

 As a supply scoop operator or “supply man,” Justice hauled supplies to the two coalproducing mine sections, sometimes using diesel scoops. (Tr. 20:2–8, 37:12–38:14.) Rockwell 

had three diesel scoops: #873, #874, and #882 (although #882 only came into service at the mine 

in July 2016 after #873 was taken out of service). (Tr. 87:20–88:4, 271:18–20, 276:6–24.) An 

approved safety cage enclosed scoop #874 and scoop #882 to protect its operators from a 

manufacturer-installed winch. (Tr. 26:6–7, 183:9–14.) Rockwell ordered miners, including 

Justice, to haul supplies between mine sections using the caged scoops. (Tr. 183:18–20.) Indeed, 

on Justice’s first day on February 22, 2016, he operated the #874 caged scoop, and the next day 

hauled supplies to both section #1 and #2. (Ex. R–1.) Scoop #873 had no safety cage or winch, 

and Justice typically, though not exclusively, used scoop #873. (Tr. 25:1–10, 26:6–7, 276:6–21.) 

Justice preferred to use the #873 diesel scoop not only because of the visibility but because of the 

design of the equipment. As Justice explained, the #873 scoop was better designed for supply 

haulage due to an additional lever allowing the operator to raise the scoop like a forklift rather 

than the #874 scoop which required more maneuvering to raise the supplies to the appropriate 

height. (Tr. 68:6–70:2.) 

On June 21, 2016, Rockwell assigned a contractor to operate uncaged scoop #873 to clear 

the intake and lifeline entries of rock material. (Tr. 42:8–21, 45:4–7, 179:2–25; Ex. C–1 at 139.) 

Justice had to use caged scoop #874 and complained to Rockwell that the cage on his scoop 

reduced his visibility and that, as a result, the cage posed a danger to the scoop operator and to 

others during long-distance haulage. (Tr. 44:8–45:15.) Justice made a “step-one” grievance with 

Gillispie, his direct supervisor, about the reassignment to the contractor of the scoop “that I run.” 

(Tr. 42:12–21.) Justice complained that he should be allowed to use the #873 scoop because it 

4 Despite requests for clarification at hearing, the witnesses had only a vague recollection 

of when these incidents, which are not at issue in this decision, took place. (Tr. 250:22–251:8.) 

Regional human resource and labor relations manager Colin Milam investigated the changing 

room incident when Patriot Coal Corporation operated the mine. (Tr. 337:9–13.) This would 

place both the changing room and road incidents no later than October 2015 (Resp’t Mot. Summ. 

Decision, Ex. B), at least seven to eight months, if not more, before the events at issue in this 

decision. 

42 FMSHRC Page 62
allowed an unobstructed view, unlike the #874 scoop which had a manufacturer-installed safety 

cage that Justice said obstructed his view. (Ex. C–1 at 139–140; Tr. 42:12–45:1.) Gillispie 

disagreed, so Justice then spoke to superintendent Osborne, who explained that the contractor’s 

use of the #873 scoop was temporary due to a specific job of clearing the intake and lifeline 

entries of material, which took the contractor about two or three shifts to complete; so Justice 

used #874. (Tr. 45:2–15, 189:24–191:5, 193:6–10.) Justice believed his assignment to the caged 

scoop would last a short time so that uncaged scoop #873 would be returned “right back to me.” 

(Tr. 45:2–15.) Indeed, the next day, June 22, Justice operated the #873 uncaged scoop, as well as 

on June 23 and 24. (Ex. C–1 at 140–42; Tr. 48:9–49:12.) On Monday, June 27, Justice operated 

the #874 caged scoop but returned to using the #873 uncaged scoop the following day on June 

28. (Ex. C–1 at 143–44; Tr. 49:13–51:6.) Then, on June 29, 2016, Rockwell assigned Justice to 

operate the #874 caged scoop, whereby Justice learned that the #873 uncaged scoop was taken 

“out of service.” (Ex. C–1 at 144; Tr. 64:11–65:21.) 

On June 29, 2016, the date Justice learned that Rockwell was taking his preferred 

uncaged scoop out of commission (Tr. 64:15–65:4; Ex. C–1 at 144), Osborne poked Justice in 

the ribs and observed Justice loading supplies. (Tr. 66:2–9, 66:25–67:5.) In his journal, Justice 

characterized the poke in the ribs as a “Friendly Gest” (meaning friendly gesture). (Ex. C–1 at 

145.) However, Justice also interpreted this interaction as a message that management could do 

whatever they liked, and Justice could not stop them. (Tr. 67:6–12.) On the following day, 

June 30, 2016, Gillispie told Justice that he did not like him—a statement Justice believed to be 

in reference to his complaint about being assigned to operate the caged scoops. (Tr. 71:9–72:4; 

Ex. C–1 at 145.) Following an unrelated safety complaint about air reversal on July 1, Justice 

had a conversation with Javins during which Justice felt Javins was telling him not to make 

safety complaints. (Tr. 74:14–77:2, 264:7–265:12; Ex. C–1 at 146.) Justice then went on 

vacation and returned on July 11, 2016. (Ex. C–1 at 146.) 

Rockwell obtained the “new” #882 caged diesel scoop when Justice returned to work on 

July 11, 2016, and put it into service the next day on July 12. (Ex. C–1 at 148; Tr. 87:20–88:7.) 

Rather than repairing uncaged scoop #873, Rockwell retired #873 on July 13 by moving it into a 

weed patch to cannibalize it for parts, citing financial considerations. (Ex. C–1 at 149, C–5 at 3, 

C–8 at 3; Tr. 193:12–194:15.) When Justice realized the uncaged #873 scoop was being swapped 

out for the #882 caged scoop whereby he would have to operate a caged scoop at all times, 

Justice told management he would agree to operate the caged scoops over long distances only “at 

a protest,” meaning under protest, which Justice contended was “the same as a refusal.” (Tr. 

148:16–149:10; Ex. C–1 at 153.) On July 18 and into August, the #874 scoop began to have 

problems, so Rockwell paid for repairs to the caged scoops. (Tr. 85:19–86:7, 117:8–118:12, 

228:25–231:19; Ex. C–1 at 155.) Sometime after August 8, Rockwell took the white #874 scoop 

off the property for repairs and returned it to service on August 17. (Ex. C–1 at 179–90.) 

Justice sent a complaint to MSHA, which investigated and declined to issue a citation 

about the scoop’s cage. (Tr. 148:16–149:20.) Neither MSHA nor the West Virginia Office of 

Miners’ Health, Safety, and Training ever cited the caged scoops for safety violations. (Tr. 

287:24–288:8.) No miner other than Justice presented a safety complaint about the caged scoops. 

(Tr. 288:9–11.) Prior to June 21, 2016, Justice worked on more than a dozen occasions with the 

42 FMSHRC Page 63
#874 caged scoop over long distances, and on none of these occasions did Justice actually refuse 

to operate the scoop. (Tr. 130:19–131:11, 133:3–142:25; Exs. C–1, R–1.) 

B. Justice Not Selected to Work During the “Miners’ Vacation” 

 During the first full week of July 2016, known as the “miners’ vacation,” all miners at 

Gateway Eagle Mine took paid leave, except certain miners who would work and take their 

vacation at another time. This was an annual occurrence. (Tr. 336:4–337:5.) Given the kind of 

work the mine needed that week (Tr. 199:10–20), General Manager Joe Evans decided how 

many miners to use. (Tr. 200:2–13.) The miners who wanted to work during that week wrote 

their names on a sign-up sheet. (Ex. C–3.) Under the CBA, Rockwell then ranked volunteers by 

seniority and specialty, e.g., electrician certification. (Tr. 52:1–12.) In 2016, more miners 

volunteered to work during vacation than the mine required. (Tr. 52:21–12.) Compared to other 

years, the mine needed a smaller crew to do maintenance as Rockwell did not intend to mine 

coal. (Ex. C–5 at 5; Tr. 199:2–20.) 

Justice, who lacks an electrician’s certification, volunteered, and Rockwell did not select 

him, filling all necessary non-salary slots either with miners more senior to Justice or with 

certified electricians. (Ex. C–5 at 4–5; Tr. 52:2–22.) Justice grieved his non-selection with the 

union, as he had canceled his vacation plans in anticipation of working during the “miners’ 

vacation” week. (Ex. R–2; Ex. C–1 at 144; Tr. 109:18–25, 333:6–12.) The UMWA eventually 

withdrew Justice’s grievance on August 5, 2016, after the union and management determined 

Rockwell had not violated the CBA in assigning vacation work. (Tr. 333:1–335:13; Ex. R–2.) 

Because Justice did not work during the “miners’ vacation,” he was on paid leave along with 

those miners not scheduled to work that week, resulting in him not having flexible vacation days 

to use at another time of his choosing later that year. (Tr. 153:17–155:9.) 

C. Justice’s Safety Complaint About a Damaged Tire 

 On July 18, 2016, Justice spoke with MSHA Inspector Shawn Tishanel and brought to his 

attention a damaged tire on a piece of mobile equipment. (Ex. C–1 at 153–54.) Justice explained 

that for several days a “big chunk” was loose on the tire and would sling mud and material into 

his face as it rotated, requiring him to wear safety glasses. (Tr. 86:12–22.) Inspector Tishanel 

examined the tire but did not issue a citation because the wear on the tire fell below the 

regulatory threshold. (Tr. 83:21–85:1; Ex. C–1 at 154.) After Justice told Tishanel about the tire 

damage, outby foreman and fireboss Gillispie approached Justice and told him to haul a load of 

supplies to the producing section. (Tr. 84:8–13, 346:12–13; Ex. C–1 at 154.) Gillispie, before 

ordering Justice to haul supplies, asked him whether he wished to travel with Tishanel on the rest 

of the “walkaround”; Justice declined. (Tr. 311:3–6.) Justice denies Gillispie invited him. (Tr. 

347:16–22.) 

 

42 FMSHRC Page 64
D. Justice Not Traveling with the MSHA Inspector on July 19, 2016 

 Miners’ representatives may travel with MSHA inspectors on their inspections or 

“walkarounds,” but, as a matter of law, the operator needs to compensate only one miners’ 

representative during the “walkaround.” The CBA between Rockwell and the UMWA designates 

the union-appointed miners’ representative to receive compensation while traveling with the 

MSHA inspector. (Tr. 165:16–166:20, 202:18–204:22.) Other miners’ representatives who 

choose to travel with the inspector do so without pay. Although Justice sought to be elected as a 

miners’ representative by the union, the UMWA membership did not elect him to the position. 

(Tr. 165:16–166:14.) Yet two or more miners appointed Justice as a non-union miners’ 

representative, and he accordingly could choose to travel with the inspector.5

 (Tr. 165:16–

166:20.) 

 On July 19, 2016, Justice entered his supervisor’s office to report his completion of a 

work task but also intending to indicate his availability to travel with MSHA Inspector Tishanel, 

who Justice observed in the mine office. (Ex. C–1 at 156–58.) While Justice sat in the office, 

management asked the union-appointed miners’ representative, Moses Meade, to come to the 

surface and travel with Tishanel. (Tr. 91:8–92:19; Ex. C–1 at 157–58.) Rockwell customarily 

summoned the union-appointed miners’ representative to travel with compensation. (Tr. 273:1–

16; Exs. C–5 at 2–3, C–6 at 2–3.) Justice did not voice his request to travel with Tishanel. (Tr. 

92:11–14.) Instead, he looked at superintendent Osborne hoping to communicate his wish to 

travel. (Tr. 92:15–17; Ex. C–1 at 157–58.) Outby foreman and fireboss Gillispie was in the office 

and ordered Justice to haul oil, and Justice complied. (Tr. 92:11–14; Ex. C–1 at 157.) 

E. Justice Files a Section 105(c) Complaint with MSHA 

 The day after Justice visited his supervisor’s office hoping to travel, on July 20, 2016, 

Justice filed a discrimination complaint with MSHA against Rockwell. (Compl., Ex. A.) On or 

around August 18, 2016,6 Justice attended a post-inspection conference with Inspector Tishanel 

and Eugene Cook, a third-shift foreman. (Tr. 315:14–21; Ex. C–1 at 193–96.) Cook told Justice 

he was not welcome in the meeting, but Gillispie took Cook aside and told him that Justice, as a 

duly appointed miners’ representative, had a right to attend. (Tr. 315:25–316:5; Ex. C–1 at 194–

95.) Justice sat through the rest of the meeting without incident. (Ex. C–1 at 195.) 

Upon receiving Justice’s discrimination complaint, MSHA thereafter conducted an 

investigation with interviews of Rockwell employees, including maintenance foreman William 

Luke Stepp, superintendent Rex Osborne, and evening shift foreman Frank Javins. (Exs. C–5, C–

6, C–7, C–8.) MSHA later determined it would prosecute Justice’s complaint of not receiving 

ventilation maps from Rockwell as required, given his designation as a miner’s representative. 

5 Almost a year earlier on August 20, 2015, MSHA cited Rockwell for failing to list 

Justice as a miners’ representative on its bulletin board (Ex. C–2; Tr. 205:15–21), even though 

Rockwell had listed him on previous occasions. (Tr. 205:22–206:14.) Following the citation, 

Rockwell reposted Justice’s information on the mine bulletin board. (Ex. C–2.) 

6 Gillispie testified about this incident based on an entry from Justice’s journal dated 

August 18, 2016. (Tr. 315:9–13.) 

42 FMSHRC Page 65
However, MSHA declined to take up Justice’s other discrimination and interference claims 

involving operation of the caged scoop, his non-selection for work during the “miner’s vacation” 

week, his damaged tire complaint to an MSHA inspector, or the events surrounding the MSHA 

inspection on July 19, 2016. MSHA completed its investigation and finally issued its 

determination letter on September 14, 2017. 

IV. PRINCIPLES OF LAW 

A. Initiating Section 105(c) Complaints 

 The Mine Act provides that, upon receipt of a complaint for discrimination or 

interference, the Secretary “shall cause such investigation to be made as he deems appropriate,” 

and that “[i]f upon such investigation, the Secretary determines that the provisions of this 

subsection have been violated, he shall immediately file a complaint with the Commission . . . .” 

30 U.S.C. § 815(c)(2). Under section 105(c)(2), “[t]he complaining miner, applicant, or 

representative of miners may present additional evidence on his own behalf during any hearing 

. . . .” Id. 

Section 105(c)(3) of the Mine Act provides that if the Secretary determines no 

discriminatory violation occurred, “the complainant shall have the right, within 30 days of notice 

of the Secretary’s determination, to file an action in his own behalf before the Commission, 

charging discrimination or interference in violation of [section 105(c)(1)].” 30 U.S.C. 

§ 815(c)(3). The written discrimination complaint filed with MSHA must contain specific 

allegations that MSHA has investigated and that the Secretary’s has considered in a 

determination. See Hatfield v. Colquest Energy, Inc., 13 FMSHRC 544, 546 (Apr. 1991). The 

scope of the Secretary’s investigation, rather than the initiating complaint, governs the 

permissible ambit of the complaint filed later with the Commission. See Sec’y of Labor on behalf 

of Dixon v. Pontiki Coal Corp., 19 FMSHRC 1009, 1017 (June 1997).

B. Establishing a Prima Facie Discrimination Case 

 Under section 105(c), mine operators cannot discriminate against miners for engaging in 

activity protected by the Mine Act. 30 U.S.C. § 815(c)(1). Under Commission precedent, 

complainants must establish a prima facie case for discrimination by demonstrating that the 

miner was: “(1) engaging in protected activity, and (2) subject to an adverse employment action 

that was at least partially motivated by his protected activity.” Cumberland River Coal Co. v. 

FMSHRC, 712 F.3d 311, 318 (6th Cir. 2013) (citing Pendley v. FMSHRC, 601 F.3d 417, 423 

(6th Cir. 2010)). 

 Section 105(c)(1) of the Mine Act states, in relevant part, that “[n]o person shall 

discharge or in any manner discriminate against . . . or otherwise interfere with the statutory 

rights of any miner . . . because of the exercise by such miner . . . on behalf of himself or others 

of any statutory right afforded by [the Mine Act].” 30 U.S.C. § 815(c)(1). 

 

 Under the traditional Pasula-Robinette framework, a complainant establishes a prima 

facie case of section 105(c) discrimination if the preponderance of the evidence proves that (1) 

42 FMSHRC Page 66
the complainant engaged in a protected activity, (2) there was adverse action, and (3) the adverse 

action was motivated in any part by the protected activity. Driessen v. Nevada Goldfields, Inc., 

20 FMSHRC 324, 328 (Apr. 1998); Pasula, 2 FMSHRC at 2799. The mine operator may rebut 

the prima facie case by showing either that no protected activity occurred or that protected 

activity motived the adverse action in no part. Sec’y of Labor on behalf of Robinette v. United 

Castle Coal Co., 3 FMSHRC 803, 818 n. 20 (Apr. 1981). If the mine operator cannot rebut the 

prima facie case, it nevertheless may defend affirmatively by proving that the miner’s 

unprotected activities also motivated the operator and it would have taken the adverse action in 

any event based on unprotected activities alone. Driessen, 20 FMSHRC at 328–29; Pasula, 2 

FMSHRC at 2799–800. 

 Under a discrimination claim, a miner has the right under section 105(c) of the Mine Act 

to refuse work if the miner has a good faith, reasonable belief in a hazardous condition. Dolan v. 

F&E Erection Co., 22 FMSHRC 171, 177 (Feb. 2000). Furthermore, under a discrimination 

claim, the adverse action may be a constructive discharge, in which the operator has no 

conscious retaliatory motive but instead fails to reasonably remedy intolerable conditions, 

leading to the resignation of the miner who reported the conditions. See id. at 176 (citing 

Simpson v. FMSHRC, 842 F.2d 453, 461–63 (D.C. Cir. 1988)).

C. Establishing a Prima Facie Interference Case: Franks Test and Pepin Test 

 The Commission has not settled on the legal test for assessing claims of interference but 

has articulated two tests commonly referred to as the Franks test and Pepin test. See Sec’y of 

Labor on behalf of Greathouse v. Monongalia Cty. Coal Co., 40 FMSHRC 679, 680–81 (June 

2018). Several Commission Judges have applied the Secretary’s two-prong (Franks) test, which 

establishes an interference claim when: 

(1) a person’s action can be reasonably viewed, from the perspective of 

members of the protected class and under the totality of the circumstances, 

as tending to interfere with the exercise of protected rights, and (2) the 

person fails to justify the action with a legitimate and substantial reason 

whose importance outweighs the harm caused to the exercise of protected 

rights. 

Id. at 686 (Comm’rs Cohen & Jordan, separate op.) (quoting UMWA on behalf of Franks and 

Hoy v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2108 (Aug. 2014) (Chairman Jordan & 

Comm’r Nakamura, separate op.)). Commissioners Althen and Young would additionally require 

proof (Pepin test) that the person’s action was motivated at least in part by the miner’s protected 

activity. Id. at 711 (Acting Chairman Althen & Comm’r Young, separate op.) Some Commission 

Judges have come to refer to these tests as Franks (the Secretary’s two-part test) and Pepin

(requiring proof of operator motivation also). See Sec’y of Labor on behalf of Pepin v. Empire 

Iron Mining P’ship, 38 FMSHRC 1435, 1453–54 (June 2016) (ALJ) (articulating a test in which 

the Complainant has the burden to establish that the Respondent’s actions were motivated by 

animus to the exercise of protected rights). 

42 FMSHRC Page 67
The Commission’s line of section 105(c) interference cases demonstrates that successful 

claims concern tangible actions and clear communications by the operator and not vague 

implications requiring subtle inferences. See Moses v. Whitley Dev. Corp., 4 FMSHRC 1475, 

1478–79 (Aug. 1982) (determining that the operator’s coercive interrogation of a miner over the 

exercise of protected rights was interference because it could chill the exercise of rights); Sec’y 

of Labor on behalf of Gray v. North Star Mining, Inc., 27 FMSHRC 1, 10–12 (Jan. 2005) 

(determining that threats to a miner are more likely to be interference if they are coercive, 

isolating, and pertaining to a criminal investigation). 

V. ADDITIONAL FINDINGS OF FACT, ANALYSIS, AND 

CONCLUSIONS OF LAW 

I now turn to the Complainant’s individual claims. First, I will analyze the discrimination 

claim about Justice not working during the “miners’ vacation” week. Second, I will examine the 

three interference claims. Of these, I will first analyze the interference claim about the caged 

scoop, then the interference claim about the damaged tire, and finally the interference claim 

about Justice not traveling with the inspector. 

A. Whether Rockwell Engaged in Discrimination Under Section 105(c) 

1. Protected Activity 

 Justice alleges that he engaged in protected activity through his safety complaints to 

MSHA inspectors as well as his “operation under protest” of caged scoops for long-distance 

haulage. (Compl’t Br. 9.) Justice reported the alleged hazard of the cage on the scoop to MSHA, 

which investigated the use of the caged scoop for long-distance haulage and declined to issue a 

citation: the MSHA Inspector “didn’t see no problem with it,” Justice said. (Tr. 170:24–171:23.) 

Justice continued to inform Rockwell that he felt the caged scoop was dangerous because it 

obstructed his view, and that he operated the scoop only under protest. (Tr. 148:16–149:20.) 

Despite these actions by Justice, Rockwell counters that Justice did not engage in protected 

activity because Justice lacked a good-faith belief that the caged scoop was hazardous; Rockwell 

argues that Justice alleged a hazard as reprisal for Rockwell taking him off of uncaged diesel 

scoop #873, the scoop he preferred. (Resp’t Br. 13–18.) 

 Under the Mine Act, a complaint about mine safety, made by the miner to the operator, is 

protected activity. 30 U.S.C. § 815(c)(1) (“[A] complaint under or related to this [Mine Act],” 

filed by a miner, his representative, or a job applicant is expressly protected under Section 

105(c)); see also, e.g., Sec’y of Labor on behalf of Knotts v. Tanglewood Energy, Inc., 19 

FMSHRC 833, 837 (May 1997) (holding that complainant’s conversation with the mine 

landowner’s representative, who was investigating conditions at the mine, was “protected, as it 

included complaints about unsafe equipment at the mine”). 

 Justice unquestionably made safety complaints about the caged scoops. Indeed, both 

Rondal Gillispie and Rex Osborne listened to Justice’s complaints about lack of visibility in the 

caged scoops and offered the advice of turning off his headlamp, which would reduce the glare, 

demonstrating Rockwell was aware of Justice’s safety complaint at the time. (Tr. 217:13–19.) 

42 FMSHRC Page 68
Justice also expressed concerns that stacked supplies on the caged scoop impaired his vision, so 

Gillispie “had the supplies reloaded in such a manner as to not obstruct Justice’s visibility.” 

(Resp’t Br. 19–20.) Though Justice told management that he considered the caged scoops unsafe, 

Justice never actually refused to operate those scoops. (Tr. 148:16–149:20.) The lack of refusal 

is, however, immaterial to this element. Justice raised safety issues with his employer and with 

MSHA. Consequently, I conclude that Justice has shown he engaged in protected activity. I turn 

now to the adverse action element. 

2. Adverse Action 

 Justice argues that Rockwell took an adverse action against him by “prohibiting him from 

working through vacation and thus from earning additional bonus wages that he would have 

received for working during that period.” (Compl’t Br. 9.) Justice was frustrated that Rockwell 

“allowed others to work through vacation who had [fewer] qualifications than [him].” (Id.) 

Further, Justice pointed to the fact that miners who had never even signed the sheet were invited 

to work during vacation. (Tr. 58:4–7.) Finally, Justice considered it unfair that Rockwell waited 

until the “very last minute” to announce who would work during vacation. (Tr. 52:18–22.) 

Rockwell, however, noted that “[a]lthough nobody had ever guaranteed him or anyone else that 

signing the sheet would result in being selected to work over vacation, Justice . . . canceled his 

vacation plans.” (Resp’t Br. 22.) 

 Common forms of adverse action include discharge, suspension, and demotion. See 

Pendley, 34 FMSHRC at 1930. But the Mine Act protects miners against a broad range of 

adverse actions. See id. (noting that “section 105(c)(1) was intended to encourage miner 

participation in enforcement of the Mine Act by protecting them against ‘not only the common 

forms of discrimination, such as discharge, suspension, demotion . . . but also against the more 

subtle forms of interference . . . . ’”) (quoting Moses, 4 FMSHRC at 1478 (quoting S. Rep. 95-19 

at 36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Resources, Legislative 

History of the Federal Mine Safety and Health Act of 1977, at 624 (1978))). Furthermore, an 

adverse action may be an omission on the part of the operator. Sec’y of Labor on behalf of 

Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847–48 (Aug. 1984) (determining that an 

adverse action is any “act of commission or omission by the operator subjecting the affected 

miner to discipline or a detriment in his employment relationship.”) 

 To determine whether adverse action occurred, the Commission has adopted the test 

articulated by the United States Supreme Court in Burlington N. & Santa Fe Ry. Co. v. White, 

548 U.S. 53, 57 (2006). See Pendley, 34 FMSHRC at 1931–32. In that Title VII retaliation case, 

the United States Supreme Court held that the term “discriminate against” included employer 

actions against an employee that would be “materially adverse to a reasonable employee.” 

Burlington, 548 U.S. at 57. “[T]he employer’s actions must be harmful to the point that they 

could well dissuade a reasonable worker from making or supporting a charge of discrimination.” 

Id. Furthermore, the Court stated that analysis should look at actions from the perspective of a 

reasonable employee and that analysis should look at the particular circumstances of the case. Id. 

at 68–69. “[A]n act that would be immaterial in some situations is material in others.” Id. at 69 

(citations omitted). In adopting this test, the Commission recognized that “retaliatory action does 

not only affect the targeted miner, but other miners on whom it could have a chilling effect 

42 FMSHRC Page 69
regarding the reporting of safety hazards.” Pendley, 34 FMSHRC at 1932. Nevertheless, an 

adverse action under Burlington cannot be simply “those petty slights or minor annoyances that 

often take place at work and that all employees experience.” Burlington, 548 U.S. at 68. 

The standard for determining adverse action is objective but also depends on the 

particular circumstances of the case. Another miner, in a different situation, might have taken his 

non-selection on the chin and not have been reasonably dissuaded from filing a charge of 

discrimination. Yet it remains that the effect of Justice’s non-selection was that he had to take his 

vacation during the “miners’ vacation” week and could not use those vacation days at a time of 

his choosing later in the year. Indeed, Justice had canceled his vacation plans with his daughter, 

so he could work that week in July and plan a vacation with her later in the year. (Tr. 109:18–25, 

153:24–154:4.) Because senior miners were granted priority during the decision-making process 

(Tr. 200:2–21), I determine that miners considered their selection for work during vacation to be 

desirable. When I consider a reasonable miner who made safety complaints to the operator 

shortly before learning of his non-selection for a desirable assignment (e.g., that would have 

allowed him more flexible vacation-day options later in the year), I determine that this miner 

could reasonably be dissuaded from raising safety complaints in the future. The non-selection of 

Justice for work during the “miners’ vacation” week was therefore materially adverse and could 

chill a reasonable miner from making safety complaints, even though this non-selection is much 

less severe than discipline, lost wages, or termination. Weighing the evidence and circumstances, 

I conclude that Justice’s non-selection for work during the “miners’ vacation” week was an 

adverse action. 

3. Motivation/Causal Connection 

 I now turn to the most crucial element in a prima facie discrimination case, the 

motivational nexus between the protected activity and adverse action. The Commission looks to 

four factors to determine whether a causal connection links the protected activity to the adverse 

action: “(1) the mine operator’s knowledge of the protected activity; (2) the mine operator’s 

hostility or ‘animus’ toward the protected activity; (3) the timing of the adverse action in relation 

to the protected activity; and (4) the mine operator’s disparate treatment of the miner.” 

Cumberland River Coal Co., 712 F.3d at 318; see also Sec’y of Labor on behalf of Chacon v. 

Phelps Dodge Corp., 3 FMSHRC 2508, 2510–12 (Nov. 1981), rev’d on other grounds, 709 F.2d 

86 (D.C. Cir. 1983). I will examine these factors one by one. 

 a. Knowledge of Protected Activity 

 In its post-hearing briefs, Rockwell does not specifically deny knowledge of Justice’s 

complaints about the safety of using a caged scoop for long-distance haulage. On June 21, 2016, 

the date Rockwell assigned uncaged diesel scoop #873 to the contractor, Justice initiated a stepone grievance under the CBA: “I step oned [Gillispie] over this,” Justice wrote in his journal. 

(Ex. C–1 at 139; Tr. 42:8–43:18.) Gillispie was aware of Justice’s complaint about using the 

caged scoop because Gillispie responded to Justice’s concerns about the safety of the scoop by 

advising him to extinguish his cap light to reduce glare. (Tr. 44:16–45:1, 309:22–310:7.) 

Moreover, Justice then complained to Osborne about the #874 caged diesel scoop, and Osborne 

also gave Justice the same guidance as Gillispie regarding the cap light. (Tr. 188:22–189:17, 

42 FMSHRC Page 70
189:24–190:7, 190:21–191:8, 198:9–21; Ex. C–5 at 3–4.) Justice did not testify specifically that 

Rockwell was aware of the complaint he made to MSHA about the cage, but the inspector 

investigated the situation at the mine and declined to issue a citation. (Tr. 170:24–171:23.) 

 I therefore determine that Rockwell had knowledge of Justice’s protected activities, given 

Gillispie and Osborne’s discussions with Justice regarding his safety complaints about obstructed 

visibility in operating the #874 caged diesel scoop. 

 b. Animus Toward the Protected Activity 

 Operator animus ranges from minor actions, such as less desirable work schedules, all the 

way to the severe or criminal (physical assault). “The more such animus is specifically directed 

towards the alleged discriminatee’s protected activity, the more probative weight it carries.” 

Chacon, supra, 3 FMSHRC at 2511. For this element, I will examine several incidents and 

remarks related by Justice at hearing. 

The court heard much testimony at hearing about incidents outside of the June and July 

2016 events at issue in this case. Among them were incidents that, depending on whom I credit, 

were either workplace bullying of Justice or just goofing off, part of workplace camaraderie. As 

observed at the hearing and stated in testimony, Javins is animated and known for clowning 

around with his colleagues. According to Javins, “[i]t’s the camaraderie between the men and the 

playing and the things that you do. You build a bond and stuff with people.” (Tr. 248:16–21.) In 

contrast, Justice was comparatively reserved and known for carrying around a diary where he 

would record incidents at the mine, interspersed with religious reflections. (Exs. C–1, R–1.) I 

observed Justice at hearing to be quiet, deliberate, and soft-spoken. 

The first alleged incident happened to Justice once in his car. (Tr. 168:17.) According to 

Justice, Javins tailgated him and then drew alongside his vehicle and then he would let off and 

get back behind. (Tr. 114:1–7.) Javins drove up behind to “stomp gas” making it look like he 

would ram Justice’s car and then lunge sideways. (Tr. 168:2–24.) From his car, Justice observed 

Javins “laughing and just acting crazy.” (Tr. 168:20–21.) According to Javins, the general 

manager and HR manager interviewed him about “a shopping list of things” including an 

allegation he had attempted to “run [Justice] over . . .” (Tr. 249: 11–19.) At hearing, Javins 

acknowledged the incident, pointing out he drove a small Cutlass while Justice drove a “good 

size” Cadillac. (Tr. 249:20–25.) But Javins denied the allegation he tried to run over Justice: “I 

certainly got enough sense about me [that] I’m not going to try to run over somebody on a 

highway.” (Tr. 249:25–250:2.) 

On another occasion, Javins came through the changing room back door where he 

encountered a group of miners, including Justice. Javins admitted that he hit Justice with two 

fingers in the Adam’s apple: “[N]othing ill at all was intended by that, you know,” Javins 

testified, “It certainly wasn’t anything that would have been hurtful.” (Tr. 248:19–21.) Justice 

observed the scene as the miners being lined up on both sides; Javins walked through “like a big 

bull and looked everybody over.” (Tr. 169:6–10.) According to Justice, Javins mock-lunged at 

him “like he’s wanting to scare me plum out of my skin,” but “that day I didn’t jump because I 

was used to him doing that.” (Tr. 169:11–14.) And then Javins made contact with Justice’s throat 

42 FMSHRC Page 71
with his two fingers. (Tr. 168:25–169:21.) Following this “karate chop” incident, Justice filed an 

internal complaint with the company. (Tr. 169:19–21.) Regional human resource and labor 

relations manager Milam investigated the incident for then-operator Patriot Coal and concluded 

that the encounter had not been malicious and that Javins was “just playing” with Justice. (Tr. 

337:9–338:24.) After a superior informed Justice that Javins could lose his job, Justice rescinded 

his complaint, “[pleading] mercy for him.” (Tr. 169:22–170:15.) Rockwell counseled Javins that 

placing one’s hands on another employee was “under no circumstances appropriate,” and Javins 

agreed it would not happen again. (Tr. 338:17–24.) 

The automobile and karate-chop incidents took place months before the events 

underlying these claims when Patriot operated the mine, which was from January 2014 through 

October 2015. (Tr. 249:8–10, 250:22–251:8; Resp’t Mot. Summ. Decision, Ex. B.) Importantly, 

these incidents are not contemporaneous with the June and July 2016 events at issue in this case. 

Still more importantly, none of these incidents, even if I were to credit fully Justice’s version of 

them, are probative to the claim that Rockwell’s decision not to select Justice was motivated by 

animus toward Justice’s complaints about the diesel caged scoops. Justice did not even assert 

that his exercise of protected rights prompted these two incidents. Based on the evidence and my 

observations at hearing, I find it more plausible that these incidents were akin to a personality 

conflict. Accordingly, they do not help establish that Rockwell’s actions, at issue in this case, 

were motivated by animus toward protected activity. 

To contextualize the incidents above, I also note a significant entry in Justice’s journal. 

On August 5, 2016, Justice recorded that, when management offered complimentary cake and 

coffee shortly before testing him for drugs, Justice believed that the company might have laced 

the food with drugs so he would fail his drug test. (Ex. C–1 at 177; Tr. 155:12–158:9.) Milam 

was present at the meeting where coffee and cake had been provided, and he denied at hearing 

that Rockwell attempted to drug Justice. (Tr. 335:9–336:3.) This indicates to me that Justice was 

highly suspicious of any action taken by Rockwell, and accordingly I find Justice’s 

uncorroborated testimony about Rockwell’s actions less credible than I otherwise would. 

 I will also consider several contemporaneous events described at hearing. On June 29, 

2016, the date that Justice learned that his preferred #873 uncaged scoop would be taken out of 

commission (Tr. 64:15–65:5), Osborne poked Justice in the ribs in a friendly way while he 

observed Justice loading supplies onto #874 scoop. Justice interpreted this interaction as a 

message that management could do whatever it liked, and Justice could not stop them. (Tr. 

66:10–18, 66:25–67:18.) Next, Justice recorded in his journal that on June 30, 2016, Gillispie 

told Justice at the start of the shift that “he did not like [him.]” (Tr. 71:9–72:4.) I have only 

Justice’s word that Gillispie made this remark. More importantly for this analysis, Justice 

presents no reliable evidence, only his personal interpretation, that this remark meant that 

Gillispie did not like him because of his protected activity. The other conflicts detailed above 

suggest that “I don’t like you” could have referred to several other issues. Justice simply did not 

introduce sufficient evidence to convince me that this exchange referred to the exercise of 

protected rights. 

On July 1, 2016, Justice used a walkie-talkie that could be heard throughout the mine to 

report that the flow of air in the section he was working had reversed; when he received no 

42 FMSHRC Page 72
response, Justice listed several things aloud that could be wrong on the section that might cause 

the air to temporarily reverse. (Ex. C–1 at 146; Tr. 74:14–76:17.) Due to his observance of the 

Sabbath on Friday at sundown, Justice had to leave early. (Tr. 74:14–23.) As he left the mine, 

Justice informed Frank Javins of the air reversal issue. (Tr. 76:18–23.) According to Justice, 

Javins told him, “[I]f you’ll just leave us alone, we’ll leave you alone.” (Justice’s words). (Tr. 

76:21–23.) Justice took this to mean that he should not make safety complaints. (Tr. 76:21–77:2.) 

Javins, however, remembers neither receiving this complaint nor giving this response. (Tr. 

264:7–265:12.) Given the particular circumstances, “leave us alone” is another ambiguous 

phrase. Justice was leaving for a religious observance and shortly before had broadcast to the 

entire mine his theories about the air reversal. It remains unclear whether Javins’s annoyance 

flowed from Justice’s safety complaints, or perhaps from his early departure from the mine, or 

perhaps from how Justice used his walkie-talkie. I determine that Justice has not introduced 

sufficient evidence about this incident to establish that Javins was telling Justice not to make 

safety complaints. 

Next, Justice recorded in his journal that on July 11, 2016, management held a meeting 

with the crew, at which Osborne and MSHA Inspector Mark Muncy spoke. (Ex. C–1 at 146–47; 

Tr. 77:3–78:16, 79:8–18.) Muncy warned the miners about safety hazards related to air flow and 

dust accumulation. (Tr. 78:8–12.) Justice relates that Osborne said unless miners remained 

cognizant of safety hazards, they could become unemployed. (Tr. 78:18–79:7.) I do not find this 

incident probative to questions of animus, given that, according to Justice’s own account, both 

Osborne and MSHA Inspector Muncy were exhorting the miners to pay more attention to safety. 

Justice nevertheless testified that the safety talk was “directed to me.” (Tr. 77:13–19.) 

Next, in the July 29, 2019, entry in his journal, Justice says that Javins “blew up” at him 

about the issue of using the scoop for hauling supplies and accused Justice of “just trying to 

cause trouble . . . .” (Ex. C–1 at 168–69; Tr. 271:13–272:8.) But Javins testified that he did not 

remember the incident and “I certainly don’t remember blowing up on anyone.” (Tr. 272:10–18.) 

Once again, I have only Justice’s word, this time contradicted by the person who is supposed to 

have made this remark. The quotation imputed to Javins is, like the one above imputed to 

Gillispie, too brief and lacking in context to serve as evidence that Justice’s supervisors were 

motivated by animus specifically toward his safety complaints about the diesel scoop’s cage. 

These incidents as related do not help Justice meet his burden. 

 More apposite to this element is MSHA’s investigation on August 30, 2016, during 

which an MSHA employee interviewed William Luke Stepp about possible interference with 

Justice’s right to travel as a miners’ representative. (Tr. 295:5–19.) This MSHA employee 

drafted a memorandum, written in Stepp’s own voice, and included a passage stating that neither 

Rockwell nor the union liked Justice to travel with an inspector because he habitually drew the 

inspector’s attention to violations that Justice had not previously reported to Rockwell, which 

hurt Rockwell’s reputation. (Id.; Ex. C–8.) Before signing, however, Stepp crossed out these 

sentences and initialed next to them to indicate that he wished them stricken from his statement. 

(Tr. 295:19–21.) On the one hand, an investigator reducing an interview to a written statement 

could easily misconstrue words or make an error, and this statement was quickly disavowed by 

Stepp. On the other hand, Stepp’s revised statement notes his belief that when “Justice travels 

with inspectors, he points out potential hazards that he has previously observed but which he did 

42 FMSHRC Page 73
not inform anyone of,” and that the union is “frustrated” with Justice observing potential hazards 

and not reporting them because it gives the appearance of not doing their job.” (Ex. C–8 at 3.) At 

hearing, Stepp tried to distance himself from the statement (Tr. 297:16–298:13), but agreed that 

the company and union did not like it if unreported hazards were cited by MSHA. (Tr. 299:14–

300:2.) 

 Bearing in mind especially Justice’s belief that management intended to poison him with 

coffee and cake, I find generally that Justice’s interpretations of his interactions with 

management skew toward the negative, and I therefore accord his uncorroborated testimony less 

weight than I otherwise would. But Stepp’s statement is specific and in my opinion unlikely to 

be groundless and, accordingly, serves to corroborate the impression that Justice attempts to 

make in detailing his interactions with Rockwell. I believe that Rockwell had a negative attitude 

about Justice’s various safety-related efforts near the time when they did not select him to work 

during vacation. Considering all the evidence produced at hearing as a whole, I determine that 

Rockwell’s management exhibited some level of hostility or animus toward Justice due to his 

protected activities. 

 c. Timing 

 The Commission does not apply “hard and fast criteria in determining coincidence in 

time between protected activity and subsequent adverse action when assessing an illegal motive. 

Surrounding factors and circumstances may influence the effect to be given to such coincidence 

in time.” Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531 (Apr. 1991). Nevertheless, 

coincidence in time between the protected activity and the adverse action may alone be sufficient 

to establish discriminatory intent. See Pendley, 601 F.3d at 427 (citing Garcia v, Inc., 24 

FMSHRC at 354. Here, Rockwell assigned the contractor to uncaged scoop #873, the one Justice 

preferred, on June 21, 2016. (Tr. 42:8–21, 44:8–45:15.) Justice initiated with Gillispie his stepone grievance under the CBA on that same date, and also discussed it with Osborne. (Ex. C–1 at 

139; Tr. 45:2–15, 189:24–191:5.) On June 28, 2016, Justice recorded in his journal that he “step 

oned [Osborne] on not allowing me to work vacation.” (Ex. C–1 at 144.) I infer, then, that Justice 

learned of his non-selection no later than June 28, 2016. The “miners’ vacation” at issue took 

place during the first week of July 2016. (Tr. 336:4–337:5.) The safety complaints and grievance 

were contemporary with Rockwell not selecting Justice to work during vacation. Consequently, I 

determine that a coincidence in time existed between Justice’s protected activity and the adverse 

action taken against him. 

 d. Disparate Treatment of the Miner 

For the disparate treatment factor, “it is incumbent on the complainant to introduce 

evidence showing that another employee guilty of the same or more serious offenses escaped the 

disciplinary fate suffered by the complainant.” Driessen, 20 FMSHRC at 331 n.14 (citing 

Chacon, 3 FMSHRC at 2512). Justice admitted that those miners who worked during vacation 

were either senior to him or had an electrician’s certification, which Justice lacked. (Tr. 58:8–

15.) From Justice’s perspective, however, Rockwell’s alteration of its customary “miners’ 

vacation” work-selection procedure amounted to disparate treatment. (Tr. 51:14–53:12.) 

Specifically, Justice testified that Rockwell “customarily posted a specific number of employees 

who could sign up through vacation.” (Compl’t Br. 9.) Deviations from the norm such as these 

42 FMSHRC Page 74
led Justice to suspect that Rockwell was retaliating against him: “. . . I know in my heart that 

they stopped me from working all because of my protest over this scoop situation . . .” (Tr. 53:8–

10.) Yet Justice had never before worked during a “miners’ vacation” week. (Tr. 52:13–14.) 

 Justice argues that “just a few days following [his] complaints to management about the 

caged scoop, management decided not to post a specific number of positions and rather elected 

to cut off vacation workslots at the point on the sign-up list that would cause [him] to be 

excluded. . . . ” (Compl’t Br. 9–10.) Rockwell, however, explains that it declined to post the 

number of miners needed during the miners’ vacation because they felt that this would have the 

“effect of discouraging enough people from signing up if they thought that they might not get 

picked.” (Resp’t Br. 22.) Rockwell further notes the mine was not “running coal over the 2016 

miner’s vacation, so it needed fewer people.” (Id.) 

 Rockwell treated Justice differently than other miners who signed up to work over the 

miners’ vacation. But Justice fails to meet his burden by introducing evidence that another miner 

similarly situated—who had made safety complaints, lacked seniority, or lacked an electrician’s 

certification—was granted permission to work during the miners’ vacation. Therefore, I 

determine that the evidence presented does not establish that Justice suffered disparate treatment. 

 e. Weighing the Motivation Factors

Considering the above four factors on causal connection, I determine that Justice has 

proved by a preponderance of the evidence that Rockwell’s adverse action against him was 

motivated in part by his protected activity. Rockwell knew about his safety complaints regarding 

the caged scoop when they began on June 21, 2016 (Tr. 128:23–129:20, 309:22–310:7), and did 

not select Justice to work during the vacation, which was the first week of July 2016. (Tr. 336:4–

337:5.) When I examine this close sequence of events alongside Stepp’s signed statement and 

testimony (Ex. C–8; Tr. 295:5–19), I determine that Justice has met the timing, animus, and 

knowledge factors, and I thereby conclude that Justice has established a causal connection 

between his safety complaints and Rockwell’s non-selection of him to work during vacation. 

4. Evaluating the Prima Facie Case 

 Justice alleges that management’s decision not to post the specific number of positions 

was motivated by his safety complaints about the caged diesel scoop and was intended to allow 

management to “cut off the vacation workslots at the point on the sign-up list that would cause 

[him] to be excluded.” (Compl’t Br. 10.) Further, Justice alleges “[t]he discriminatory motive is 

apparent from [] Osborne’s open animus toward [] Justice’s good-faith concerns regarding the 

caged scoop, and by the proximity in time of the protected activity . . .” (Id.) 

 In contrast, Rockwell argues that it chose those miners to work during the miners’ 

vacation week because of business necessity and CBA requirements. Specifically, “pursuant to 

the CBA, selection of who was to work was a matter of simply sorting the volunteers by 

specialty . . . and seniority.” (Compl’t Br. 23.) Simply put, Justice lacked an electrician’s license, 

a specialty needed that week, plus he lacked the level of seniority that would have required his 

selection over other miners willing to work during the miners’ vacation. 

42 FMSHRC Page 75
 Justice engaged in protected activity by making safety complaints to MSHA and 

management about the obstructed view of the #874 caged scoop. He also suffered an adverse 

action in his non-selection for work during the “miners’ vacation” week. Finally, Rockwell’s 

knowledge of Justice’s safety complaints, the very close timing, and the animus, especially when 

corroborated by Stepp’s statement and testimony, allow Justice to establish the motivational 

nexus element and, therefore, to establish a prima facie case for discrimination. Thus, I 

determine that Justice’s protected activity motivated Rockwell, in part, to take an adverse action 

against him. However, before turning to Rockwell’s affirmative defense, I address the special 

difficulties presented by the issue of damages in this case. 

5. Recoverable Damages 

 Justice requests, as relief under the discrimination claim, that Rockwell “pay [him] five 

days of pay to compensate him for the extra wages that he was unable to earn when Respondent 

declined to allow [Justice] to work through vacation.”7

 (Compl’t Br. 10.) If Justice establishes 

discrimination under section 105(c), the Commission may “[grant] such relief as it deems 

appropriate, including, but not limited to, an order requiring the rehiring or reinstatement of the 

miner to his former position with back pay and interest or such remedy as may be appropriate.” 

30 U.S.C. § 815(c)(3). 

 The Commission has recognized that discrimination encompasses intangible as well as 

tangible employment actions. See McNary v. Alcoa World Alumina, LLC, 39 FMSHRC 433, 439 

(Mar. 2017). Furthermore, Commission Judges can fashion discrimination remedies suitable to 

the facts of each case. Sec’y of Labor on behalf of Rieke v. Akzo Nobel Salt Inc., 19 FMSHRC 

1254, 1257 (July 1997) (“The Commission enjoys broad remedial power in fashioning relief for 

victims of discrimination.”); see also Sec’y of Labor on behalf of Hannah v. Consolidation Coal 

Co., 20 FMSHRC 1293, 1306–07 (Dec. 1998) (determining that Commission Judges may 

remedy section 105(c) violations by ordering the posting of notices and expunging references to 

discipline from employee records). Nevertheless, in fashioning a remedy, the aim of the 

Commission Judge centers on “[restoring] discriminatees, as nearly as we can, to the enjoyment 

of the wages and benefits they lost as a result of their illegal terminations.” Sec’y of Labor on 

behalf of Dunmire v. Northern Coal Co., 4 FMSHRC 126, 143 (Feb. 1982). 

 At Gateway Eagle Mine, miners who did not work during the miners’ vacation would 

have to take paid vacation during that week. In not selecting Justice to work that week, Rockwell 

prevented him from taking his vacation days at another time of his choosing. (Tr. 154:5–155:7.) 

Given that Justice no longer works for Rockwell and does not seek reinstatement, making Justice 

whole in this respect would be difficult and the proposed five days of pay might be a reasonable 

fashioning of a remedy. (See Ex. C–4.) But given Rockwell’s successful affirmative defense (see

discussion infra Section V.A.6), the issue of appropriate relief is moot. 

 

7 Justice submitted pay stubs dated July 8, 2016 and July 22, 2016, which I have 

considered. (Ex. C–4.) 

42 FMSHRC Page 76
6. Affirmative Defense 

A mine operator “can establish an affirmative defense under the Pasula-Robinette

framework by showing that ‘while it took adverse action against the miner because of the 

miner’s protected activity, it would have taken the action even if the miner had not engaged in 

protected activity.’” Cumberland River Coal Co., 712 F.3d at 319 (quoting Pendley, 601 F.3d at 

423–24). “[T]he inquiry is limited to whether the reasons are plausible, whether they actually 

motivated the operator’s actions, and whether they would have led the operator to act even if the 

miner had not engaged in protected activity.” Pendley, 601 F.3d at 425 (citing Chacon, 3 

FMSHRC at 2516). Nevertheless, the Commission Judge should not accept a defense that rests 

on mere pretext: a justification may be “so weak, so implausible, and so out of line with normal 

practice” that it should be found to be “mere pretext.” Chacon, 3 FMSRHC at 2516. The inquiry 

is not whether the Commission Judge believes that the justification supported the adverse action 

but is based on what the evidence shows that “the operator actually believed at the time.” 

Pendley, 601 F.3d at 426. The Commission Judge should not “impose [his or her] own business 

judgement as to an operator’s actions.” See id. at 425. 

At hearing, Rockwell laid out its defense by describing the procedure by which it decided 

which miners would work during vacation, not including Justice. Given the kind of work the 

mine needed that week, Osborne proposed the number of miners needed and General Manager 

Joe Evans decided how many miners to take, trying “to be as lean as he possibly could.” (Tr. 

199:2–200:13.) Under the CBA, Rockwell then ranked volunteers by seniority and specialty, 

e.g., electrician certification. (Tr. 52:4–53:8.) Justice, who lacks an electrician’s certification, 

volunteered to work that week, and Rockwell did not select him, filling all necessary slots either 

with miners more senior to Justice or with certified electricians, who were needed to conduct 

MSHA-mandated weekly permissibility checks on equipment. (Ex. C–5 at 4–5; Tr. 211:15–

214:17.) 

In 2016, more miners volunteered to work during vacation than the mine required. (Tr. 

211:15–214:17.) Compared to other years, the mine needed a smaller crew because it was not 

running coal. (Tr. 199:13–20.) Indeed, from December 2015 to February 2016, the mine had 

been idle because of a slow coal market. (Tr. 147:18–21, 195:15–19.) According to 

Superintendent Osborne, during the June and July 2016 period at issue in this case, “money was 

hard to come by” and the mine was “pinching pennies just to survive . . . . [i]t was tough in that 

day.” (Tr. 195:10–14.) Moreover, Osborne characterized the proposed cost of repairing the 

uncaged scoop—$50,000—as “devastating to us” and that carrying out the repair would have 

required significant cost-cutting in another part of the mine. (Tr. 195:24–196:6.) At hearing, 

Justice did not rebut this testimony demonstrating that the mine was in tight financial straits. I 

therefore determine that trimming costs was a significant motive for Rockwell, not only with 

respect to the “miners’ vacation,” but in every area of the mining operation at that time. 

Justice grieved his non-selection with the union, having already canceled his vacation 

plans in anticipation of working during the “miners’ vacation” week. (Ex. R–2; Tr. 109:18–25, 

333:6–12.) But the UMWA eventually withdrew Justice’s grievance on August 5, 2016, after the 

union and management determined Rockwell had not violated the CBA in assigning vacation 

work. (Ex. R–2; Tr. 333:1–335:13.) At hearing, Justice spoke of possible arbitration but did not 

42 FMSHRC Page 77
rebut this testimony establishing that Rockwell properly followed the CBA in selecting miners to 

work during vacation. (Tr. 152:8–22, 344:6–349:16.) Based on this unrebutted testimony as well 

as the evidence as a whole, I determine that Rockwell properly followed the procedures under 

the CBA when choosing miners to work during the vacation. 

 From these determinations, I conclude that Rockwell’s procedures could not have been 

mere pretext. To deprive itself of an additional miner, like Justice, whom Rockwell needed that 

week, would have been shooting itself in the foot. Neither seniority nor electrician certification 

are subjective categories of the kind that allow plausibly deniable retaliation. At hearing, Justice 

did not rebut his lack of seniority or lack of an electrician’s credential. He did not disprove or 

cast doubt on whether Osborne or General Manager Evans properly determined that the tasks 

that week required a certain number of miners to work during vacation. He did not rebut the 

assertion that Gateway Eagle Mine had to cut costs due to a poor coal market. He did not rebut 

Rockwell’s testimony that the CBA procedures were properly applied, especially in light of the 

UMWA’s withdrawal of the step-three grievance. Upon weighing this evidence together, I 

determine that Rockwell’s procedure for selecting which miners would work justified its nonselection of Justice for work during the “miners’ vacation” week. 

I therefore conclude that Rockwell has established by a preponderance of the evidence 

that it would not have selected Justice to work during the “miners’ vacation” week for an 

unprotected activity alone. Consequently, I dismiss Complainant’s discrimination claim. 

B. Whether Rockwell Interfered with Protected Rights Under Section 105(c) 

1. Assigning Justice to Use the Caged Scoop for Long-Distance Haulage 

Justice’s interference claim alleges that the caged scoop was unsafe yet Rockwell 

continued to task him with using it to haul supplies over long distances, despite his complaints. 

(Compl’t Br. 7.) Justice argues that Osborne “continued to express derision for the concern at 

hearing” about the allegedly hazardous cage and that this attitude helps establish interference. 

(Compl’t Reply 2.) At hearing, although not in the post-hearing briefs, Justice emphasized that 

Rockwell’s decision to retire and not repair his preferred, uncaged #873 scoop amounted to a 

message that he should not make safety complaints. (Tr. 72:22–73:24.) Justice also emphasized 

that he operated the caged scoop only “under protest,” because he feared retaliation should he 

disobey his supervisors. (Compl’t Reply 1–2.) 

Rockwell argues that Justice made his safety complaint in bad faith because he had 

operated the caged scoop many times over several months. (Resp’t Br. 13–15.) Rockwell then 

makes several additional points. No governmental agency, including MSHA, had cited the 

factory-installed cage for safety violations, and neither any miner besides Justice nor the union 

had complained about the cage. (Id. at 16–18.) Furthermore, Justice never refused to operate the 

caged scoop. (Id. at 16.) He was not “chilled” because he continued to make safety complaints. 

(Id. at 21.) Justice has no right to say which scoop Rockwell assigns him to use. (Id. at 20.) 

Finally, the decision to retire the uncaged scoop was a purely financial one. (Resp’t Reply 4.) 

 

42 FMSHRC Page 78
a. Tendency to Interfere with Protected Rights 

 An interference claim first requires the Complainant to establish that the operator’s action 

tended to interfere with the exercise of protected rights. (See discussion supra Section IV.C.) 

Considering the evidence presented, I find it difficult to discern which right Rockwell allegedly 

chilled. First, Justice complained to management on June 21, 2016, about being assigned the 

caged scoop for long-distance haulage because he thought it unsafe due to the obstructed view. 

(Tr. 128:23–129:20.) But at hearing Justice acknowledged that, according to his own journal, he 

had used the caged scoop to haul items to mine sections several times before June 21, 2016, 

without incident or complaint. (Tr. 130:19–131:11, 133:3–142:25; Ex. R–1.) Rockwell listened 

to Justice’s complaint and acknowledged the caged scoop’s limited visibility but disagreed with 

Justice’s assessment of the safety cage’s dangers, as Justice did not work in close proximity to 

other miners. (Ex. C–5, at 4.) Rockwell continued to assign him to use it for long-distance 

haulage. (Tr. 309:22–310:7.) Second, Justice reported the alleged hazard of limited visibility to 

MSHA, which investigated the use of the caged scoop for long-distance haulage and declined to 

issue a citation—the MSHA Inspector “didn’t see no problem with it,” Justice said. (Tr. 170:24–

171:23.) Yet on July 18, 2019, Justice continued to inform Rockwell that he felt the scoop was 

dangerous and that he operated the scoop only under protest. (Tr. 148:16–149:20; Ex. C–1 at 

153.) 

If Justice’s argument is that Rockwell chilled his right to say which scoop Rockwell 

should assign to him, then the argument fails because there is no such right. Rather, a miner has a 

protected right to make safety complaints to the mine operator or to MSHA. Here, Rockwell did 

not chill Justice from making safety complaints about the caged scoop because he continued to 

make them by notifying management that he was operating the caged scoop “under protest.” (Tr. 

148:16–149:10.) But neither would Rockwell have chilled a reasonable miner by assigning him 

to the caged scoop or disagreeing with his complaints. Threats, coercion, and isolated 

interrogation are hallmarks of section 105(c) interference, but none are present here. See, e.g., 

Gray, 27 FMSHRC at 10–12 (determining that threats to a miner are more likely to be 

interference if they are coercive, isolating, and pertaining to a criminal investigation). Rockwell 

was simply assigning Justice work tasks and disagreeing with some of his safety complaints, 

regarding the caged scoop. Rockwell did not disagree with all of his complaints. Justice was 

concerned an obstructed view would force him to back up the caged scoop exposing him to 

diesel dust and the higher rates of cancer for those exposed to it. (Tr. 159:1–22.) Justice 

acknowledged that Gillispie had heard his complaint and taken measures to fix the conditions. 

(Tr. 160:2–11; Ex. C–1 at 189.) For example, Justice described the August 16, 2016, incident in 

which supplies were stacked so high on the scoop that his vision was impaired. Gillispie 

corrected it, which convinces me that Rockwell was not averse to addressing safety complaints 

as such. (Tr. 158:10–160:11.) Likewise, Javins’s statement to MSHA recalls that Justice had a 

conversation with Gillispie about ventilation problems, whereby Javins instructed Gillispie to 

check into it and he found an open mandoor that he closed, which fixed the problem. (Ex. C–5, at 

4.) 

Justice seeks to convince me that Rockwell, by disagreeing with his safety complaints 

about the caged scoop, would chill safety complaints. But because Rockwell addressed other 

safety complaints unrelated to the cage, I conclude that Rockwell’s continued and reasonable 

42 FMSHRC Page 79
disagreement with Justice on one issue could not have chilled the right to make safety complaints 

in general. My determinations that MSHA investigated and found no hazard with the cage (Tr. 

170:24–171:23), and the fact that Justice continued to make safety complaints, including some 

where Rockwell agreed with him, are also significant to my conclusion. 

 Next, a miner has a right to refuse work if he expresses a good faith, reasonable concern 

about safety that is not adequately quelled by the operator.8

 But Justice admits that he never 

refused to operate the caged scoop. He continued to inform his supervisors that he considered the 

caged scoop unsafe. It appears Justice would like me to believe that Rockwell continuing to 

assign him to the caged scoop would be chilling a reasonable miner from refusing to operate the 

caged scoop. I determine that it is more plausible that Rockwell needed Justice to operate the 

scoop as part of its mining operation. At any mine, operators repeatedly assign the same miner to 

the same task; it is entirely implausible that a mining operator thereby “chills” all work refusal 

rights with respect to that task. No reasonable miner would infer such a conclusion. I am not 

convinced that assigning a task to a miner chills that miner from refusing to perform that task if 

or when he reasonably deems it dangerous. I conclude that repeated assignments to the caged 

scoop did not tend to interfere with the right to refuse dangerous tasks. 

 Justice, in his post-hearing briefs, does not center this interference claim on the fact that 

Rockwell assigned his preferred scoop to a contractor and then later retired it, cannibalizing it for 

parts. But I infer from Justice’s testimony at hearing that he considers these incidents important 

to his claim about the scoop, and so I examine the incidents briefly. Justice stated that he 

understood that Osborne had promised him that he would get “my scoop back” after the 

contractor had finished using it temporarily. (Tr. 179:8–10, 179:24–25.) Yet Justice 

acknowledges that Rockwell assigned the uncaged scoop to the contractor to assuage safety 

concerns in the area where the contractor was working. (Tr. 179:8–24.) Justice then testified that 

Rockwell removed the #873 uncaged scoop from service but that Gillispie had not given him a 

reason for its removal, as though one was required. (Tr. 72:15–21.) Justice considered it insulting 

when Rockwell decided to have him be the miner who would put his favorite scoop into the 

weed patch, retiring it. (Tr. 72:22–73:24.) While Rockwell repaired the caged scoop #874, it did 

not expend the money and effort to repair the uncaged scoop that Justice preferred and which he 

deemed safe. (Tr. 117:8–118:12.) Justice is thus asking me to be convinced that Rockwell would 

deprive itself of a useful machine for the sole reason of discouraging Justice from complaining 

about the caged scoop. Rockwell has provided evidence that it would have cost roughly $50,000 

to repair the uncaged scoop. (Tr. 194:2–7.) In the earlier statement, Osborne estimated $40,000. 

(Tr. 219:15–220:7.) Either figure is considerable. I find it implausible that Rockwell would 

engage in a subtle and potentially very expensive conspiracy to punish a single miner for his 

8

 Throughout this case, Justice has discussed “work refusal” as part of an interference 

claim. However, as articulated in Dolan v. F&E Erection Co., the Commission analyzes a work 

refusal claim under a discrimination theory and requires a showing that the miner expressed a 

good faith, reasonable concern about safety, and that the operator did not quell these reasonable 

fears before the miner refused to perform the assigned task. 22 FMSHRC at 177. If the operator 

takes an adverse action against a miner who reasonably refuses work, a court can grant 

appropriate relief. Here, it is undisputed that Justice never refused to operate the caged scoop. 

Thus, Complainant and his counsel failed to articulate a “work refusal” claim under Dolan. 

42 FMSHRC Page 80
disagreements with his supervisors. Osborne testified that during June and July 2016, the mine 

was “pinching pennies,” and he characterized the potential spending of $50,000 dollars as 

“devastating.” (Tr. 195:10–14, 195:24–196:6.) Justice did not rebut these financial arguments at 

hearing. 

 Despite Justice’s belief that Rockwell conspired not to repair the #873 scoop, he 

acknowledged that equipment “in the mining industry . . . [had] breakdowns weekly in a drilling 

operation and you replace parts.” (Tr. 118:9–11.) Thus, removing the #874 scoop for repairs in 

mid-August would not be an unusual occurrence. (Ex. C–1 at 179–90.) Justice did not introduce 

convincing evidence to rebut Rockwell’s business decision to repair the #874 scoop and not the 

#873 scoop. Instead, he second-guesses Rockwell’s decision nearly a month after the fact. 

 I determine that Rockwell made a business decision not to repair the #873 uncaged 

scoop, given the cost. Because I determine that retiring the #873 scoop was a business decision, I 

conclude that Justice has failed to establish that retiring the scoop would tend to interfere with 

the exercise of protected rights. 

b. “Legitimate and Substantial” Reason Element Under Franks

 On this element, Justice can prevail only if Rockwell fails to justify the action with a 

legitimate and substantial reason outweighing the harm to protected rights. (See discussion supra

Section IV.C.) Rockwell offered sufficient evidence to establish a legitimate and substantial 

reason for retiring the uncaged scoop and retaining the caged one: namely, the cost to fix it and 

the fact that it had no reason to believe that the caged scoop presented a danger to its operator. 

Osborne testified that the uncaged scoop had trouble passing emissions tests and that the front 

and rear brakes had problems. (Tr. 193:12–194:1.) The cost, Osborne estimated, was roughly 

$40,000 or $50,000 dollars. (Tr. 194:2–7, 219:15–220:7.) The retiring of the uncaged scoop and 

the diversion of funds to repair the caged one was an action narrowly tailored to the business 

goals of Rockwell. On the other side of the scale, the harm to protected rights is very slight, for 

the reasons articulated above: Justice continued to make safety complaints and no reasonable 

miner would have been discouraged from doing so. I determine that Rockwell’s business 

decision, made in hard economic times, outweighs the “chill” imposed on Justice’s right to make 

safety complaints. Accordingly, I conclude that Rockwell has met its burden on the “legitimate 

and substantial” element by justifying its action based on a logical business decision. 

c. Motivation Element Under Pepin

 Commissioners Althen and Young would require the Complainant to establish as well 

that protected activity motivated the operator’s action. (See discussion supra Section IV.C.) But 

Justice has not provided enough credible evidence to meet this burden. While the evidence below 

suggests mistrust and personal dislike between Justice and some supervisors, it does not establish 

that Rockwell made its decisions about the scoops because of animus toward a miner’s protected 

right to make safety complaints. 

In fact, as discussed above, Rockwell corrected complaints unrelated to the safety cage. 

(Tr. 159:1–22, 160:2–11, Tr. 158–59.) Only the most circumstantial evidence could indicate that 

42 FMSHRC Page 81
Rockwell meant to discourage Justice from making safety complaints by its decision to take the 

uncaged scoop out of service and assign Justice to caged scoops for long-distance haulage. The 

same evidence could reasonably be interpreted, as I do, that whatever animus Rockwell might 

have displayed was irritation at Justice for requesting that the company make various 

modifications to the caged scoop that MSHA and management deemed unnecessary. Given the 

evidence presented as a whole, I determine that the most plausible motive to impute to Rockwell 

for repeatedly assigning Justice to the caged scoop and retiring the #873 uncaged scoop is 

business necessity. (See discussion supra Section V.B.1.a.) 

As detailed in the discussion of animus in the discrimination claim supra, there were 

several incidents not directly related to the scoop, which I will consider. Although they took 

place months before Justice’s complaints about the caged scoop (Tr. 250:22–251:8), I examine 

operator motivation in light of the incident on the road (Tr. 113:8–114:7) and the “karate-chop” 

incident (Tr. 168:25–169:21). I consider as well contemporaneous incidents such as Osborne’s 

poking Justice in the ribs in a “friendly way” on June 29, 2016 (Tr. 66:10–13, 66:25–67:18), and 

Gillispie telling Justice that he did not like him on June 30, 2016. (Tr. 71:9–72:4.) I also consider 

an incident that Justice related at hearing, involving Justice and Javins, of which Javins has no 

recollection: on July 1, 2016, Justice made a safety complaint (about air reversal, unrelated to 

either the scoop or the tire) to Javins, and Javins told Justice (in Justice’s words at hearing) “if 

you’ll just leave us alone, we’ll leave you alone.” (Tr. 74:14–77:2, 264:7–265:12.) On August 5, 

2016, Justice recorded that, when management offered complimentary cake and coffee shortly 

before testing him for drugs, Justice believed that the company might have laced them with drugs 

so he would fail his drug test. (Tr. 155:12–158:3.) The fact that Justice believed Rockwell 

intended to poison him leads me to give less credit to his interpretations of these other events. 

Because Justice himself was the sole witness for the Complainant, I only have his word, and 

furthermore the contemporaneous incidents concern mostly attitudes and tone of voice rather 

than tangible, material actions. “I don’t like you” and “leave us alone” may or may not have 

referred to safety complaints. These are short, ambiguous phrases lacking corroboration, and 

inferring that they refer to safety complaints requires me to credit Justice’s interpretation of 

them. Given his suspicions of being poisoned, I cannot do this. Justice does not offer sufficient 

convincing evidence to establish that Rockwell’s actions in this claim— decommissioning the 

uncaged scoop and assigning him to the caged scoop—were motivated by its hostility to the 

exercise of protected rights. In the discrimination analysis above, I found the Stepp statement 

(about Rockwell and the union not liking Justice to travel with the inspector (Tr. 295:5–21)) 

probative to the animus element in the prima facie case. In this interference claim, however, 

Rockwell has presented sufficient evidence that its decommissioning of the uncaged scoop and 

its assignment of Justice to the caged scoop were not motivated by animus toward his complaints 

about the scoop. I determine that neither Rockwell’s declining to carry out an expensive repair to 

an uncaged scoop nor Rockwell’s repeated assignment of Justice to operate a caged diesel scoop, 

deemed safe by MSHA and other miners, indicate a motivation to curb protected rights. 

In post-hearing briefs, instead of emphasizing the remarks at Gateway Eagle Mine, 

Justice appears to hang his hat on an exchange during hearing in which Osborne compared the 

removal of a factory-installed safety cage from a scoop to the removal of an air conditioning 

system from a car. (Compl’t Br. 6–8; Tr. 219:1–14.) From this, Justice asks me to infer hostility 

to the protected right to make safety complaints. I find more plausible the idea that this exchange 

42 FMSHRC Page 82
shows Rockwell considered Justice’s proposed modification to be impractical and unsafe. My 

determination is buttressed by the fact MSHA approved the manufacturer’s installation of the 

safety cage on the scoop and it had never been cited for a safety violation. Here, the operator’s 

reasonable disagreement with a miner’s safety complaint does not establish the motivation 

element under Pepin. I conclude that Justice does not establish the motivation element. 

d. Conclusion 

 I conclude that, under both the Franks and Pepin tests, Justice did not establish a prima 

facie case in his claim of interference involving the caged diesel scoops. 

2. Interrupting Justice While He Discussed an Allegedly Damaged Tire with an 

MSHA Inspector 

 Justice argues that Rockwell interfered with protected rights when Gillispie interrupted 

him as he attempted to make a safety complaint about a tire to MSHA Inspector Tishanel. 

(Compl’t Br. 8.) In ordering him back to work, Justice argues, that Gillispie prevented him from 

making his complaint and also from exercising his “walkaround” rights as a miners’ 

representative. (Id.) 

 Rockwell argues that Gillispie giving Justice a work order did not prevent Justice from 

making his complaint to Inspector Tishanel and such an action would not “chill” a reasonable 

miner and did not chill Justice, who successfully made the complaint. (Resp. Br. 4–5.) 

Furthermore, Gillispie’s action was legitimate because assigning tasks to employees is a 

necessary part of any organization. (Id. at 5.) Finally, Rockwell states that Justice cannot show 

Gillispie was motivated by animus toward Justice’s right to make safety complaints or to 

accompany the inspector if he so chose. (Id.) 

a. Tendency to Interfere with Protected Rights 

 An interference claim first requires the Complainant to establish that the operator’s action 

tended to interfere with the exercise of protected rights. (See discussion supra Section IV.C.) 

Justice testified that Gillispie interrupted Justice’s conversation with Inspector Tishanel about the 

tire complaint by telling him to hurry up and haul a load to the section. (Tr. 83:21–84:11.) Justice 

testified that he told Gillispie that as a miner’s representative he had a right to have Tishanel 

examine Justice’s safety concern about the tire. (Tr. 84:14–18.) Gillispie, for his part, did not 

recall Justice invoking his rights as a miners’ representative at that time. (Tr. 322:19–25.) 

Gillispie testified that he understood that the conversation with Tishanel was over when he 

tasked Justice with hauling a load and that he probably would not have issued this work order if, 

say, Tishanel had beckoned him over to discuss the issue. (Tr. 325:17–22.) In contrast, Justice 

recollects that Inspector Tishanel had to interrupt Gillispie when he gave Justice the order, and 

that Tishanel had told Gillispie that he needed to wait while he examined the tire. (Tr. 346:11–

19.) But during the same line of questioning, Justice does not dispute he had already alerted 

Tishanel to the tire damage before Gillispie told Justice to go haul a load. (Tr. 346:12–13.) 

Furthermore, Gillispie’s testimony is that before giving his work order to Justice, he asked 

whether Justice wished to travel with Inspector Tishanel on his walkaround, and Justice declined. 

42 FMSHRC Page 83
(Tr. 311:3–6.) Although Justice denies this (Tr. 347:16–22), I credit Gillispie’s testimony and 

find that, after voicing his safety concern to Inspector Tishanel, Justice chose not to accompany 

him on the rest of the “walkaround” because it comports with Justice’s other testimony that he 

would decline to travel with the inspector unless he received compensation. (Tr. 103:16–17.) See

discussion inra Section V.B.3.a. 

 The test for this element requires analyzing the totality of the circumstances. Most 

importantly, Justice made his safety complaint to the inspector. Even if Gillispie interrupted the 

conversation, the character of the interruption is key to the analysis: it was abrupt, brief, and it 

did not prevent Justice from reporting the alleged hazard, which did not result in a violation. This 

is in contrast to a deliberate, explicit statement to stop talking to an inspector. My determination 

that Gillispie suggested Justice could travel with Tishanel also removes the impression from a 

reasonable miner that Rockwell discouraged the reporting of safety violations. I determine from 

the totality of the circumstances that no “chilling” of protected rights took place during this 

encounter. I therefore conclude that Justice failed to establish the first element. 

b. Legitimate and Substantial Reason Element Under Franks

On this element, Justice can prevail only if Rockwell fails to justify the action with a 

legitimate and substantial reason outweighing the harm to protected rights. (See discussion supra

Section IV.C.) That Gillispie interrupted Justice or that, alternatively, he told Justice to perform a 

task after ascertaining that he was finished speaking with the inspector, is an action that has a 

legitimate and substantial justification: namely, that supervisors must assign tasks to their 

subordinates. Even if this interruption tended to interfere with the right to speak to an MSHA 

inspector—and I conclude that it did not—the action in question, a single command to go 

perform a task, is narrowly tailored to a legitimate and substantial reason. On the other side of 

the scale, the harm to the right to communicate safety complaints to MSHA inspectors is 

negligible because Justice successfully conveyed his concern to Tishanel. Rockwell has met its 

burden in this element, and Justice’s claim accordingly fails under Franks. 

c. Motivation Element Under Pepin

 Commissioners Althen and Young would require the Complainant to establish as well 

that protected activity motivated the operator’s action. (See discussion supra Section IV.C.) 

Justice does not establish this element. Even if I credit Justice’s testimony that Inspector 

Tishanel had to tell Gillispie to pause in his orders while Tishanel examined the tire (Tr. 346:11–

19), this does not meet Justice’s burden. Such behavior could suggest one of two things: hostility 

toward protected rights or else Gillispie’s sense of the urgency of the task he was assigning. 

When I combine this ambiguity with the fact that Gillispie said nothing else to indicate his 

hostility to safety complaints and furthermore suggested to Justice that he could travel with 

Inspector Tishanel, I determine that the balance tips in favor of Rockwell, and I conclude that 

Justice does not establish this element. (Tr. 311:3–6.) 

 

42 FMSHRC Page 84
d. Conclusion 

 I conclude that, under both the Franks and Pepin tests, Justice did not establish a prima 

facie case in his claim of interference involving his complaint to an inspector about the tire. 

3. Justice Not Traveling with MSHA Inspector Tishanel on July 19, 2016 

Justice argues that, on July 19, 2019, Rockwell interfered with protected rights because 

management did not allow him to travel with MSHA Inspector Tishanel on the “walkaround.” 

(Compl’t Br. 8.) Although Justice was in the office with the inspector, management summoned 

another miner, Moses Meade, who was underground, and Justice did not accompany the 

inspector. (Id. at 8–9.) 

Rockwell argues that no one ever told Justice he could not accompany Tishanel, and that 

Justice never asked to accompany Tishanel. (Resp’t Br. 6–7.) Furthermore, Rockwell argues that 

Justice was not interested so much in traveling with the inspector as he was in being the miners’ 

representative who received payment for traveling with Tishanel. (Id. at 7.) Rockwell argues, not 

only does the Mine Act not require the operator to compensate more than one miners’ 

representative during the “walkaround,” but the CBA requires that the union-designated 

representative (Meade) be the one to receive payment. (Id.) 

a. Tendency to Interfere with Protected Rights 

 An interference claim first requires the Complainant to establish that the operator’s action 

tended to interfere with the exercise of protected rights. (See discussion supra Section IV.C.) 

Justice stated at hearing that he was unable to voice his desire to travel with Inspector Tishanel 

on his walkaround on July 19, 2016, because Gillispie told him to go haul oil before he could ask 

whether he could accompany Tishanel. (Tr. 90:2–11.) Justice entered the office to inform his 

supervisor that he had removed trash from the trailer and it was ready to be loaded. (Tr. 90:2–6.) 

Justice also knew that Inspector Tishanel was on the premises, and he “was hoping to get to 

travel.” (Tr. 90:6–7.) Management asked for the miners’ representative appointed by the union, 

Moses Meade, to come to the surface to accompany Tishanel. (Tr. 91:8–13.) Justice states that 

supervisors had told him before that, if he traveled with the inspector, he would not be 

compensated for his time. (Tr. 91:17–20; Ex. C–6 at 2–3.) Justice stated that he felt he had a deal 

with management in which they would allow the paid representative to be the union-appointed 

miners’ representative Moses Meade, and that Justice, the non-union miners’ representative, 

would take turns with Meade when it came time for a miners’ representative to travel with the 

inspector. Justice stated that Rockwell did not conform to this arrangement. (Tr. 91:25–92:5.) On 

July 19, 2019, Justice testified that the union representative Meade was “miles away on a 

working section, and I was right there front and center.” (Tr. 92:5–9.) Justice intended to offer 

his services as the “walkaround” miners’ representative, but, as soon as he walked into the office, 

“Rondal [Gillispie] was already in the frame of mind that he was going to . . . slap a bunch of 

orders on me before I could even hardly say a word.” (Tr. 92:11–14.) Justice testified that he 

then “looked at Rex [Osborne] to kind of let him and the inspector know, you know, I’m kind of 

wanting to travel here.” (Tr. 92:15–17.) 

42 FMSHRC Page 85
 Javins testified that supervisors had always instructed him to send the miners’ 

representative appointed by the union to travel with the MSHA inspector, and he was not aware 

of ever having told Justice that he could not travel with the inspectors. (Tr. 273:1–16.) 

Furthermore, he does not recall Justice asking him whether he could travel with Inspector 

Tishanel, although Javins testified that he would have no problem if he did. (Tr. 247:10–12, 19–

21.) But Javins’s understanding was that Justice did not want to travel unless he could be the 

miners’ representative who was compensated. (Tr. 246:22–247:4.) 

 The union did not elect Justice as its miners’ representative. But Justice continually 

requested that management “try to make it fair” by “rotating us out or whatever,” meaning that 

Justice and the union representative would alternate “walkaround” duties. (Tr. 103:13–17.) The 

sticking point for Justice, however, was not the “walkaround” itself but the payment given to the 

miners’ representative: “I was expressing to [Osborne] I’d like to be able to travel and travel with 

pay.” (Tr. 103:16–17.) 

Putting aside the fact that only one miners’ representative has a right to be compensated 

for his time during “walkarounds,” see 30 U.S.C. § 813(f) (“[O]nly one such representative of 

miners who is an employee of the operator shall be entitled to suffer no loss of pay during the 

period of such participation under the provisions of this subsection”), the more salient fact, by 

Justice’s own admission, is that he did not actually ask anyone if he could accompany the 

inspector. The fact that none of Rockwell’s agents invited him to travel after he cast a significant 

glance toward Osborne and Tishanel is not the kind of overt coercion, threat, isolated 

interrogation, or heated argument that can give rise to an interference claim. In short, with 

respect to the first element of the interference test, I conclude that Rockwell violated no right 

because Rockwell is not obliged to make Justice’s request to travel for him. That Justice did not 

actually ask to accompany the inspector is clear. (Tr. 92:1–19.) Furthermore, the Mine Act does 

not guarantee “walkaround” payment to every miners’ representative, only to one. Justice may 

have understood, rightly or wrongly, that he had an arrangement with Rockwell that would allow 

him to be paid sometimes during a “walkaround,” but the evidence of record as a whole does not 

establish such an arrangement and does not serve as the basis for an interference claim. 

b. Legitimate and Substantial Reason Element Under Franks

On this element, Justice can prevail only if Rockwell fails to justify the action with a 

legitimate and substantial reason outweighing the harm to protected rights. (See discussion supra

Section IV.C.) Gillispie had a legitimate and substantial reason for ordering Justice to go haul 

oil: transporting supplies was Justice’s job. On the other side of the scale, the harm to protected 

rights is negligible. Indeed, Justice did not even ask to travel with the MSHA inspector. I 

determine that, without Justice speaking up, Rockwell had no way of knowing that Justice 

wanted to accompany the MSHA inspector. I therefore conclude that Rockwell’s not asking 

Justice to travel was justified by a legitimate and substantial reason. 

c. Motivation Element Under Pepin

 I have determined that Rockwell did not engage in activity tending to interfere with 

protected rights when it called the union-designated miners’ representative to accompany the 

42 FMSHRC Page 86
inspector and did not ask Justice. Justice has therefore not established a prima facie case for 

interference. Nevertheless, I will examine the motivation element in the Pepin test. 

Commissioners Althen and Young would require the Complainant to establish additionally that 

protected activity motivated the operator’s action. (See discussion supra Section IV.C.) 

 Luke Stepp had made statements to MSHA on August 30, 2016, and the initial draft by 

the MSHA employee, memorializing the conversation, included a passage to the effect that 

Rockwell and the union did not like Justice to accompany the inspector because Justice would 

point out violations to the inspector that had not been previously reported to the mine, hurting 

Rockwell’s reputation. (Tr. 295:5–19.) However, Stepp then crossed out these sentences on his 

statement and initialed them to indicate he wanted them stricken. (Tr. 295:19–23.) Stepp stated 

that he had not written the initial statement and did not believe it accurately reflected his views. 

(Tr. 296:1–22.) Stepp testified at hearing that he did not think the statement was accurate and 

that it was a misunderstanding on the part of MSHA, which he corrected in writing. (Tr. 295:10–

296:4, 297:12–298:13.) 

 In another incident, a third-shift foreman named Eugene Cook was in a post-inspection 

conference with Inspector Tishanel, and Justice attended the meeting as well. (Tr. 315:16–21.) 

Gillispie recalls that Cook told Justice that he did not want him in the meeting, but Gillispie took 

Cook aside and told him that Justice had a right to attend. (Tr. 315:1–316:5.) 

 Rockwell had been cited previously in 2015 for failing to list Justice as a miners’ 

representative on the mine’s bulletin board. (Tr. 205:15–21.) Osborne testified that he did not 

know why the name was not displayed and that it could have fallen or been pulled down, given 

that it had been displayed before. (Tr. 205:22–206:14.) 

 Taken together, these incidents convince me that Rockwell at least harbored reservations 

about Justice as a miners’ representative. But this element of the Pepin test does not require 

proof of a general animus, but rather demonstration that Rockwell took the action in question 

because of protected activity. Here, Rockwell simply refrained from inviting Justice to travel 

(without pay) with the inspector. It was not obligated to invite him. (Ex. C–6 at 2–3.) Justice did 

not ask to travel on that date. Rockwell’s sole positive action was when Gillispie told Justice to 

go haul oil. Given that Justice had entered the office to inform his supervisor that he had 

completed a task (Tr. 90:2–6), giving Justice another order does not seem to be an extraordinary 

action indicating a particular state of mind. If Justice had responded to Gillispie’s order by 

asking to travel with the inspector instead, Gillispie’s reaction could perhaps have shed light on 

Rockwell’s motivations. But because Justice never made such a request or raised the issue, I 

determine the evidence is lacking that the motive underlying Gillispie’s order was hostility to 

protected rights. I conclude that Justice did not establish this element by a preponderance of the 

evidence. 

 

42 FMSHRC Page 87
d. Conclusion 

I conclude that, under both the Franks and Pepin tests, Justice did not establish a prima 

facie case in this claim for interference involving his walkaround rights as a miners’ 

representative. 

VI. ORDER 

 The evidence presented in this case does not establish that Rockwell Mining either 

discriminated against Complainant Marshall Justice or interfered with his rights under section 

105(c) of the Mine Act. Accordingly, Justice’s complaint is hereby DISMISSED. 

 

 /s/ Alan G. Paez 

 Alan G. Paez 

 Administrative Law Judge 

Distribution: (Via Electronic Mail & U.S. Mail) 

Samuel B. Petsonk, Esq., Petsonk PLLC, P.O. Box 1045, Beckley, WV 25802-1045 

(sam@petsonk.com) 

Aubrey Sparks, Esq., Mountain State Justice, Inc., 1217 Quarrier Street, Charleston, WV 25301-

1809 

(aubrey@msjlaw.org) 

Jonathan R. Ellis, Esq., and Joseph U. Leonoro, Esq., Steptoe & Johnson PLLC, P.O. Box 1588, 

Charleston, WV 25326-1588 

(jonathan.ellis@steptoe-johnson.com) 

(joseph.leonoro@steptoe-johnson.com) 

/nsd 

42 FMSHRC Page 88
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9900 / FAX: 202-434-9949 

January 21, 2020 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

WARRIOR MET COAL MINING, LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDINGS 

Docket No. SE 2019-0116 

A.C. No. 01-01401-485027 

Docket No. SE 2019-0143 

A.C. No. 01-01401-487207 

Docket No. SE 2019-0169 

A.C. No. 01-01401-491187 

Mine: No. 7 Mine 

 

ORDER ACCEPTING APPEARANCE 

DECISION APPROVING SETTLEMENT 

ORDER TO MODIFY 

ORDER TO PAY

Before: Judge McCarthy 

 This case is before the undersigned upon Petitions for the Assessment of Civil Penalty 

under § 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). 

 The Secretary of Labor’s Conference and Litigation Representative (“CLR”) filed a 

notice of limited appearance with the penalty petition. It is ORDERED that the CLR be accepted 

to represent the Secretary. Cyprus Emerald Res. Corp., 16 FMSHRC 2359 (Nov. 1994). 

 The CLR and the Solicitors have filed motions to approve settlement proposing a 

reduction in the penalties from $41,657.00 to $25,535.00. The CLR and the Solicitor in Docket 

No. SE 2019-0143 state that Citation Nos. 9132879, 8314141, and 9133552 have been vacated. 

The Secretary’s discretion to vacate a citation or order is not subject to review. E.g., RBK Constr. 

Inc., 15 FMSHRC 2099 (Oct. 1993). Citation Nos. 8535986, 9132861, 9133539, 8535988, 

8535989, 8535991, 9133540, 9133541, 9133543, 9133544, 9133545, 9133546, 8314484, 

42 FMSHRC Page 89
8314485, 8314483, 9133270, 9133271, 9133272, 8314489, 8536072, 9133550, 9133701, 

9133703, and 8369985 remain unchanged, but the settlement motions indicate that, given the 

number of citations involved in this settlement and the non-monetary aspects of the settlement, 

the parties have agreed to an across-the-board reduction of 20% for these Citations. The CLR 

and Solicitors also request that 

Citation Nos. 9133536, 9133538, and 8536070 be modified to reduce the levels of 

negligence from moderate to low; 

Citation Nos. 9136933, 9133548, 8531885, and 9133702 be modified to reduce the levels 

of negligence from high to moderate; 

Citation Nos. 8531887, 8538990, 9133547, 8536000, 8536075, and 8536078 be modified 

to reduce the likelihoods of injury or illness from reasonably likely to unlikely and to 

remove the designations of significant and substantial; 

Citation No. 9133555 be modified to reduce the number of persons affected from three to 

two; and 

Citation No. 9133708 be modified to reduce the number of persons affected from two to 

one. 

The Solicitors contend that the Secretary has the “unreviewable discretion to withdraw” a 

designation of significant and substantial. Settlement Mot. at 4 (citing Mechanicsville Concrete, 

Inc., 18 FMSHRC 877, 879 (June 1996)). However, the Solicitors present an overbroad reading 

of Mechanicsville. In Mechanicsville, the Commission addressed whether a Commission 

administrative law judge could sua sponte designate a violation as significant and substantial 

when the Secretary had not designated a violation as significant and substantial. The 

Commission ruled that there is “no material difference between the Secretary’s discretion . . . on 

the one hand to vacate a citation and his discretion on the other hand not to issue a citation in the 

first instance or not to designate a citation as [significant and substantial].” Mechanicsville, 

18 FMSHRC at 879. The Commission iterated that the designation of a violation as significant 

and substantial “in the first instance” is a prosecutorial decision akin to the decision to vacate a 

citation. Id. at 880. 

However, Mechanicsville does not address situations—such as here—where the Secretary 

has already exercised his discretion to designate a violation as significant and substantial and 

now the parties come before a Commission judge to approve a settlement. This situation fits 

squarely within the plain language of section 110(k) of the Mine Act. Section 110(k) states that 

“[n]o proposed penalty which has been contested before the Commission under section 105(a) 

shall be compromised, mitigated, or settled except with the approval of the Commission.” The 

matter before the undersigned involves the parties’ request for “the approval of the Commission” 

to “compromise[], mitigate[], or settle[]” a violation already designated as significant and 

substantial. That’s a far cry from supplanting the Secretary’s discretion through an authorized 

representative to designate a violation as significant and substantial in the first instance. 

Accordingly, the undersigned rejects the Solicitors’ contention that the Secretary has the 

unreviewable discretion after contest to remove a designation of significant and substantial. 

42 FMSHRC Page 90
The Solicitors also argue that “[t]he Secretary’s use of [the 30 C.F.R. § 100.3] regular 

assessment tables in settlement is a prima facie indication that the penalty reduction is fair, 

reasonable, and adequate under the facts, and protects the public interest” and that “[i]t is 

appropriate to defer to the judgment of the parties’ in arriving at a modified penalty based on the 

§ 100.3 tables.” Settlement Mot. at 6. However, the Commission is not bound by 30 C.F.R. 

§ 100.3, and it is the purview of the Commission—not the Secretary or regulations issued by the 

Secretary—to determine whether a settlement is appropriate under the criteria set forth in section 

110(i) of the Act. Sellersburg Stone Co., v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) 

(“[N]either the ALJ nor the Commission is bound by the Secretary’s proposed penalties. . . . 

[W]e find no basis upon which to conclude that these MSHA [penalty] regulations also govern 

the Commission.”); Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3101 (Dec. 2014) (“The 

Secretary’s regulations at 30 C.F.R. Part 100 apply only to the Secretary’s penalty proposals, 

while the Commission exercises independent ‘authority to assess all civil penalties provided 

[under the Act]’ by applying the six criteria set forth in section 110(i).” (quoting 30 U.S.C. 

§ 820(i))). 

In order to overcome its burden the Secretary must present evidence to a judge—

exercising his or her independent authority—to satisfy the six criteria set forth in section 110(i). 

Simply pointing to its own regulations does not overcome this burden. Therefore, the 

undersigned rejects the Solicitor’s contention that the application of § 100.3 establishes a prima 

facie case for a reasonable settlement or that the undersigned should defer to the parties on this 

matter. 

Consequently, the undersigned evaluated the settlement agreement absent the arguments 

rejected above. 

42 FMSHRC Page 91
 The undersigned considered the representations and documentation submitted in this 

case, and the undersigned concludes that the proffered settlement is fair, reasonable, appropriate 

under the facts, and protects the public interest under The American Coal Co., 38 FMSHRC 

1972, 1976 (Aug. 2016), and is appropriate under the criteria set forth in § 110(i) of the Act. The 

settlement amounts are as follows: 

Docket No. SE 2019-0143 

Citation No. Assessment Settlement

9133272 $142.00 $114.00

8314141 $1,242.00 $0.00

8314489 $142.00 $114.00

8536070 $708.00 $320.00

8536072 $344.00 $275.00

8536000 $832.00 $168.00

9133550 $708.00 $566.00

8531885 $1,577.00 $474.00

8536075 $319.00 $122.00

9133701 $142.00 $114.00

9133702 $4,836.00 $2,173.00

8536078 $344.00 $122.00

9133703 $832.00 $666.00

9133552 $270.00 $0.00

8369985 $230.00 $184.00

$12,668.00 $5,412.00

42 FMSHRC Page 92
Docket No. SE 2019-0116 

Citation No. Assessment Settlement

8535986 $168.00 $134.00

9132861 $214.00 $171.00

9133536 $768.00 $383.00

9133538 $902.00 $450.00

9133539 $293.00 $234.00

8535988 $768.00 $614.00

8535989 $768.00 $614.00

8535990 $768.00 $383.00

8535991 $768.00 $614.00

9133540 $1,146.00 $917.00

9133541 $1,146.00 $917.00

9133543 $2,993.00 $2,322.00

9133544 $2,353.00 $1,882.00

8133545 $2,353.00 $1,882.00

9133546 $2,353.00 $1,882.00

9133548 $2,353.00 $787.00

9133547 $708.00 $135.00

8314484 $142.00 $114.00

8314485 $142.00 $114.00

8314483 $142.00 $114.00

9133270 $142.00 $114.00

9133271 $270.00 $216.00

$21,660.00 $14,993.00

Docket No. SE 2019-0169 

Citation No. Assessment Settlement

9132879 $121.00 $0.00

8531887 $1,057.00 $214.00

9133555 $977.00 $832.00

9136295 $708.00 $708.00

9136933 $2,353.00 $1,323.00

9136081 $1,345.00 $1,345.00

9133708 $768.00 $708.00

$7,329.00 $5,130.00

WHEREFORE, the motion for approval of settlement is GRANTED. 

 It is ORDERED that Citation Nos. 9133536, 9133538, and 8536070 be MODIFIED to 

reduce the levels of negligence from moderate to low. 

42 FMSHRC Page 93
It is ORDERED that Citation Nos. 9136933, 9133548, 8531885, and 9133702 be 

MODIFIED to reduce the levels of negligence from high to moderate. 

It is ORDERED that Citation Nos. 8531887, 8538990, 9133547, 8536000, 8536075, and 

8536078 be MODIFIED to reduce the likelihoods of injury or illness from reasonably likely to 

unlikely and to remove the designations of significant and substantial. 

It is ORDERED that Citation No. 9133555 be MODIFIED to reduce the number of 

persons affected from three to two. 

It is ORDERED that Citation No. 9133708 be MODIFIED to reduce the number of 

persons affected from two to one. 

It is further ORDERED that the operator pay a total penalty of $25,535.00 within thirty 

days of this order.1

 

 /s/ Thomas P. McCarthy 

 Thomas P. McCarthy 

 Administrative Law Judge 

 

1

 Payment should be sent to: Mine Safety & Health Administration, U.S. Department of 

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

42 FMSHRC Page 94
Distribution: 

Brandon E. Russell 

U.S. Department of Labor 

MSHA 

1030 London Dr. 

Suite 400 

Birmingham, AL 35211 

Winfield W. Murray 

U.S. Department of Labor 

Office of the Solicitor 

61 Forsyth Street S.W. 

Room 7T10 

Atlanta, GA 30303 

Charna C. Hollingsworth-Malone 

U.S. Department of Labor 

Office of the Solicitor 

61 Forsyth Street S.W. 

Room 7T10 

Atlanta, GA 30303 

Guy W. Hensley 

Warrior Met Coal Mining, LLC 

16243 Hwy 216 

Brookwood, AL 35444 

/ztb 

42 FMSHRC Page 95
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

January 23, 2020 

DECISION AND ORDER

Appearances: Lindsay A. Wofford and Phillip Marquez, U.S. Department of Labor, 

Office of the Solicitor, Dallas, Texas, for Petitioner; 

Joseph A. Fisher, III and Benjamin Rhem, Jackson Walker LLP, Houston, 

Texas and Austin, Texas, for Respondent. 

Before: Judge Miller 

These cases are before me upon petitions for assessment of a civil penalty filed by the 

Secretary of Labor pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 815(d) (“the Act”). These cases involve one citation and two orders issued 

pursuant to Section 104(d)(1), with a total proposed penalty of $49,195.00. The parties presented 

testimony and evidence regarding the citations at a hearing held in San Antonio, TX 

commencing on November 6, 2019. 

The Superior Silica Sands San Antonio Plant is an open pit, surface sand mine located in 

Bexar County, Texas. The parties have stipulated that Superior Silica is an “operator” as defined 

in Section 3(d) of the Mine Act, 30 U.S.C. § 803(d), and that the mine is subject to the provisions 

of the Mine Act and the jurisdiction of the Commission. Tr. 6–7; Sec’y Amend. Prehearing 

Submissions at para. 4.a–g. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

v. 

SUPERIOR SILICA SANDS LLC, 

 Respondent. 

 CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 2019-0133 

A.C. No. 41-01126-482167

Docket No. CENT 2019-0171 

A.C. No. 41-01126-484042

Mine: Superior Silica Sands San Antonio 

 Plant 

42 FMSHRC Page 96
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

The citation and two orders at issue in this proceeding involve railcars on the south 

section of the company owned rail spur at the Superior Silica Sands San Antonio Plant. On June 

23, 2018, a fatal accident occurred at the mine when Rodney Fernandez, a 46-year-old 

electrician, was struck by two uncoupled railcars after attempting to set the manual handbrake. 

Fernandez had no previous mining experience and had been employed at Superior for about ten 

weeks. The accident occurred when Fernandez climbed on a set of moving railcars after they 

began to roll down the track while he was helping Plant Manager Chad Thomsen uncouple and 

move railcars from the south spur to the north spur. The parties agree that most of the facts in 

this case are not in dispute. There is, however, a dispute regarding the time on the day of the 

accident and what occurred between Thomsen and Fernandez leading up to the accident. At 

hearing, the parties agreed that the diagram taken from the MSHA accident investigation report 

and labeled as Joint Exhibit 1, would be used to facilitate testimony regarding the railcars and the 

rail spurs. The diagram labels the cars from one to six on the south spur, with a track mobile, also 

referred to as a Rail King, at the front of Railcar #1. The north spur shows a car labeled “spare”. 

The cars are shown in the photographs in Secretary’s Exhibit 2. 

The problem with the railcars began on March 2, 2018, when railcar TILX 338713 

(Railcar #4 on Joint Exhibit 1), was involved in an accident in the area of the south spur of the 

Superior rail line. The car derailed, and as a result, the brakes and underside of the car suffered 

significant damage. The mine hired a contractor to set the car back on the rail, and subsequently 

moved it into place on the south spur between Railcars #3 and #5, both of which had functioning 

brakes. The three cars were coupled together and signs were placed on Railcar #4 that read “DO 

NOT FILL.” Sec’y Ex. 2, 9. The railcars are leased and at the time of the accident in June, no 

repairs had been made to Railcar #4. 

 Superior operated an old plant and a new plant. The mined product was moved by railcar 

at times from the old plant and onto a portable conveyor, which in turn was used to load material 

onto trucks. At times, material is loaded first onto the rail cars. The railcars operate on the rail 

spur, as seen on the second page of Secretary’s Exhibit 2, to a load out area to be filled with sand 

and are then returned to the south spur until the sand is needed. When sand is needed, the 

portable conveyor is moved to the railcar to empty it by opening the bottom of the car, and 

loading material onto a conveyor that moves the sand from the railcar to a truck for transport out 

of the mine. There is conflicting evidence about the use of Railcar #4 from the time the brakes 

were damaged in March until the accident in June. The car was not filled and the mine asserts 

that the car had not been moved at all, but several witnesses indicated that the string of cars was 

moved on a weekly basis in order to take on sand for storage. Nonetheless, Railcar #4 remained 

in the string of cars and coupled to Railcars #3 and #5 on the rail spur from March until the 

accident in June. 

Emilio Gonzales works as a team leader, primarily in the dryer, and sometimes loaded the 

railcars by opening a valve at the end of the silo’s load out arm shown in Exhibit 2. Once loaded 

with sand, the railcars were moved back to the spur to wait unloading onto the trucks for 

transport out of the mine. Gonzales did not move the railcars and, in his view, that was done 

only by the veteran employees who knew the procedure and had moved them in the past. 

42 FMSHRC Page 97
After the derailment of Railcar #4 in March, but before the accident in June 2018, the 

mine provided railcar training to some of the miners at the old plant. Adian Amador-Doss 

attended the training for the full twenty hours over several days. Amador worked as a field 

mechanic and plant operator at Superior. Amador had been asked at one time to help move the 

railcars, but he refused, not only because he did not know how, but also because he believed it 

was not a good idea without the proper training. In May 2018, railcar training was given to 

Amador and five others, and included class time with videos and a number of handouts. Sec’y 

Ex. 21. The videos explained how the railcars operated and the hazards associated with working 

around them. After time in the classroom, the miners spent time around the railcars with 

demonstrations and hands-on training. Amador explained that at least three miners must be 

present when a train moves, each with a radio for communication. The training emphasized that 

trains can fail, and, in the case of a runaway train, miners were told “to let it go.” Fernandez did 

not attend the railcar training. 

On Saturday, June 23, 2018, Fernandez reported to work just before seven a.m. He spoke 

with Amador and Gonzales, and spent time with his immediate supervisor, Taft. Fernandez was 

the main electrician on site, but also performed general repairs. After discussing the tasks for the 

day, Taft and Fernandez went to the control room to inspect items that needed repair. Around 

8:30 or 9:00 a.m., Taft was called away to look at a conveyor at the old plant, and he told 

Fernandez to stay at the control room to see if he could find the problem there. 

Gonzales, who was working at the dryer that Saturday, greeted Fernandez when he 

arrived and then went back to work. Just before 9:00 a.m., Gonzales left the control room to 

change filters and saw Fernandez standing by the railcars. He did not see Thomsen. Gonzales 

changed the filters, collected a sample of sand, and walked back towards the new plant. As he 

was on the control room stairs, he looked out and saw Fernandez on the back of moving Railcar 

#6. At hearing, Gonzales said that one moment he said hello to Fernandez and the next thing he 

knew, Fernandez was on the moving rail cars. He explained that “Rodney was on the moving 

train, cranking on the manual brake as it was moving.” He also described that Railcars #5 and #6, 

which were coupled to each other, began “rolling pretty good,” and Gonzales could not believe 

that Fernandez would try to stop them. Fernandez was cranking on the wheel to set the brake as 

the train was headed for the spur where it would derail. Gonzales saw Fernandez attempt to jump 

off, and ran toward the cars while calling on the radio for help. Taft heard the radio call, called 

911, and shut down the plant. A call went into the paramedics at 9:26 a.m. Sec’y Ex. 15. 

According to the evidence gathered by the MSHA inspectors, Fernandez had been in the 

control room until close to 9:00 a.m. He then left, walked out to the railcar area, and spoke with 

Thomsen, the plant manager. Thomsen’s plan was to first move a spare car coupled to the Rail 

King from the south spur to the north spur. Next, he planned to move the damaged Railcar #4, 

from its position with the five other cars on the south spur to the north spur, where it would be 

coupled with the spare car. Thomsen next planned to move the remaining five cars and offload 

the sand from Railcars #1 and #2 onto the conveyor. Tr.269. Although Thomsen was working 

earlier with a partner, he was alone at the railcars when he agreed that Fernandez could help. A 

few witnesses explained that Fernandez may have left the control room and arrived at the railcars 

as early as 8:40 a.m. to start the tasks with Thomsen, but the inspector concluded that he left 

around 9:00. Although not all witnesses agreed, there is evidence to show that Fernandez may 

42 FMSHRC Page 98
have been with Thomsen for up to 45 minutes, or as little as 25 minutes prior to the fatal 

accident. 

Fernandez had no prior mining experience and had worked as an electrician at the mine 

for ten weeks. He had never worked with or around railcars, so he had to be task trained prior to 

completing the work with Thomsen. Thomsen explained that Fernandez was intelligent and 

caught on quickly. Shortly after Fernandez arrived, Thomsen started up the Rail King, the engine 

that would pull the cars from the south spur to the north spur. The Rail King had the spare car 

connected and Thomsen described the process to Fernandez, and then moved the Rail King with 

the spare car coupled down the south track. Fernandez was responsible for throwing the switch to 

change the tracks once the cars were in position. Thomsen backed the Rail King onto the north 

spur and the spare car was uncoupled. Then, the process was reversed, with Fernandez on the 

ground, changing the tracks as necessary. Next, the Rail King was backed onto the south spur 

and coupled with Railcar #1 to begin the process of moving Railcar #4 out of the line of cars. 

The plan was to uncouple Railcar #4 from Railcar #5, and move Railcars #1–4 down the south 

spur. Then, switch tracks and deliver Railcar #4 to the north spur to couple it with the spare car, 

and return with Railcars #1–3 to the south spur to couple with Railcar #5. Fernandez was tasked 

with uncoupling Railcar #4 from #5 to initiate the process. 

The mine’s maintenance supervisor, Taft, explained the process for moving the railcars as 

contemplated by Thomsen. Tr. 99–109. The process typically involves two people: an engineer 

and a ground person. The two miners communicate either by radio or by hand signals. The 

miners first complete a walk around or a visual check of each of the cars, set the air brakes from 

inside the Rail King, set the manual or mechanical brake on each car if not already set, and then 

ascertain that all cars are coupled or uncoupled, based upon what must be moved. It is the duty of 

the engineer to set the air brakes from inside the Rail King, and the ground person is tasked with 

setting the manual or park brake on each car by climbing onto an affixed ladder and turning the 

wheel until it can no longer move. See Sec’y Ex. 2, 22. 

The process contemplated by Thomsen should have followed the scheme described by 

Taft, and, after completing a walk around inspection of the cars, setting each mechanical brake, 

starting at the back of Railcar #6, moving forward, before any cars were uncoupled or moved. 

The air brakes should have also been set and then Railcar #4 could have been uncoupled from 

Railcar #5 so that only Railcars #1–4 were moved with the Rail King. According to the 

testimony, coupling and uncoupling of cars does not take much time. Setting the manual brake is 

a longer task, as the miner on the ground must climb a ladder onto the back of each car and turn 

the wheel until it stops. 

42 FMSHRC Page 99
Following the move of the spare car, Fernandez and Thomsen began the process of 

moving the damaged Railcar #4 to the north spur.1

 In addition to learning the operation of the 

switch, Fernandez had to learn how to complete a walk around inspection of the cars, couple and 

uncouple the cars, set the mechanical brake, and communicate with Thomsen. Thomsen, who 

had task trained miners in the past, explained that he had confidence in Fernandez after working 

with him for several weeks because Fernandez was intelligent and caught on quickly. At the time 

the two were coupling the Rail King to Railcar #1, Thomsen explained the tasks and 

demonstrated how to climb on the back of the car to set the brake. There is some dispute in the 

testimony at this point. Thomsen agrees that he did not observe Fernandez set a brake after he 

demonstrated the action, but he remembers that he did tell Fernandez to set the brakes. Inspector 

Barrick recalls his conversation with Thomsen differently; twice he was told that Thomsen did 

not tell Fernandez to set the brakes, but instead assumed Fernandez knew it should be done. 

Thomsen believed that the brakes on Railcars #5 and #6 were set, but could not explain why the 

cars began to roll away once uncoupled from Railcar #4. There is no disagreement that the 

manual brakes on both railcars #5 and #6 were not set when Thomsen began to move the first 

four cars forward. 

Thomsen had a conversation with Fernandez about the process of moving the cars, then 

walked up the spur to the Rail King and climbed in, leaving Fernandez to uncouple Railcar #5 

from Railcar #4. The Rail King was approximately 250 feet away from where Fernandez was 

uncoupling Railcar #5. Once Fernandez had uncoupled Railcar #5 from Railcar #4, he signaled 

to Thomsen to begin pulling the four railcars. As Thomsen began to pull the railcars, he looked 

out of the side window and saw Railcars #5 and #6, which were coupled to each other, rolling 

down the spur. Thomsen could not see Fernandez, so he stopped the train, ran down the track, 

and found Railcar #6 derailed and Fernandez lying between the tracks. 

As a result of the accident, one citation and two orders were issued to Superior Silica on 

December 6, 2018. Citation No. 8660296 was issued for failure to properly task train a miner. 

Order Nos. 8660297 and 8660298 were issued for failure to effectively secure parked Railcars #5 

and #6 by blocks or brakes, and for failure to maintain the braking system on Railcar #4 in 

functional condition, respectively. 

A. CENT 2019-0171

Citation No. 8860296

Ten minutes after the accident occurred, MSHA was notified and Inspectors Lance Miller 

and David Tijerina, along with Lead Investigator Brett Barrick, were dispatched to the mine. As 

1

 At hearing, Thomsen explained that he and Fernandez moved the spare car to the north 

spur that same day prior to the accident. Thomsen indicated that during this process, Fernandez 

operated the rail switch. Barrick explained that he was not told during the investigation that 

Thomsen and Fernandez had successfully moved the spare car prior to the accident nor was that 

fact included in the statement Thomsen gave to the 110(c) investigator several months after the 

accident. See Resp’t Ex. G. 

42 FMSHRC Page 100
a result of the investigation into the accident, Inspector Barrick issued Citation No. 8860296 to 

the mine. 

The citation states that: 

An accident occurred on this mine site on 6/23/18, at approximately 9:20 

am, when a miner was fatally injured while assisting in relocating a rail 

car. The miner uncoupled the last two rail cars and they began to roll 

away. The miner then ran to the moving cars and attempted to set the 

manual handbrake. The miner fell from the moving cars and was run over. 

The miner had not received adequate task training nor did he have any 

prior experience in this task. The Federal Mine Safety and Health Act of 

1977 states that an untrained miner is a hazard to himself and to others. 

Management engaged in aggravated conduct constituting more than 

ordinary negligence in that it failed to instruct or ensure that the miner set 

the manual handbrakes or block the two cars from movement. This is an 

unwarrantable failure to comply with a mandatory standard. 

 The citation was designated as S&S and an unwarrantable failure, and the Secretary 

proposed a penalty of $18,846.00 for this violation. The Secretary alleges that the operator 

violated 30 C.F.R. § 46.7(a), new task training, which requires that: 

You must provide any miner who is reassigned to a new task in which he 

or she has no previous work experience with training in the health and 

safety aspects of the task to be assigned, including the safe work 

procedures of such task ...This training must be provided before the miner 

performs the new task. 

30 C.F.R. § 46.7(a). The Secretary argues that Fernandez, who had never worked around 

railcars and had been at the mine only 10 weeks, needed further and more extensive task 

training; more than the 25-40 minutes provided by the plant manager, Chad Thomsen. 

To prevail on a penalty petition, the Secretary bears the burden of proving an alleged 

violation by a preponderance of evidence. RAG Cumberland Res. Corp., 22 FMSHRC 1066, 

1070 (Sept. 2000), aff’d, 272 F.3d 590 (D.C. Cir. 2001); Jim Walter Res., Inc., 9 FMSHRC 903, 

907 (May 1987). The Secretary may establish a violation by inference in certain situations, but 

only if the inference is “inherently reasonable” and there is “a rational connection between the 

evidentiary facts and the ultimate fact inferred.” Garden Creek Pocahontas Co., 11 FMSHRC 

2148, 2152-53 (Nov. 1989). 

Based upon information learned during the course of the investigation, MSHA Inspector 

Barrick determined that Fernandez had not received adequate task training. Prior to doing any 

work or moving any of the cars, Thomsen was required to task train Fernandez in all aspects of 

the job at hand that day. He was also required to—but did not— discuss safety hazards with 

Fernandez and specifically did not instruct him on the procedure in the event of a runaway 

railcar. 

42 FMSHRC Page 101
Barrick credibly testified that the mine had experienced a derailment several months prior 

to this accident and then held a training session in May, which lasted several days. Unfortunately 

Fernandez did not attend that training. See Sec’y Ex. 21 at 2. Thus, Fernandez’s only exposure to 

railcars was the training received just prior to the accident, from Thomsen. Thomsen explained to 

Barrick that he only demonstrated to Fernandez how to set the manual brake and to couple and 

uncouple the cars. In Barrick’s opinion, that limited training does not meet MSHA requirements. 

The training did not include any documents, manuals, or other handouts, supervised 

demonstration of skills, or, crucially, an explanation of hazards associated with the task. Even if 

Fernandez had the ability to learn quickly, Barrick found it unreasonable to believe that the short 

amount of time was enough to adequately train Fernandez. 

 MSHA provides information to mine operators regarding its standards, including task 

training, which is published and mailed to each mine. MSHA’s guidelines suggest that task 

training is an extensive process that should include providing handouts to miners, maintaining a 

task list in a training plan, using operator’s manuals to determine specific hazards related to the 

equipment used in the task, and reviewing safety procedures. Sec’y Ex. 28. The guidelines 

further provide that task training should be completed in a non-production setting, which allows 

a competent trainer the time to discuss a skill, demonstrate it, and then observe the miner safely 

complete the task. Sec’y Ex. 28. Inspector Barrick explained that the training for a ground man, 

working around rail cars, must involve more than uncoupling the cars. The task training should 

include how to communicate or use hand signals, how to check and set the brakes, the hazards 

associated with moving rail cars, the red zone area between the cars, the ability to warn persons 

about moving cars, and how to safely mount cars. Miners must also be trained in safe practices 

and instructed not to mount a car when it is moving, and never attempt to stop or jump on a 

runaway rail car. 

Superior Silica argues that a competent person, Plant Manager Chad Thomsen, trained 

Fernandez how to set the manual handbrake and how to uncouple railcars. The mine also argues 

that given Fernandez’s intelligence and prior work performance, the short duration of task 

training by Thomsen was all that was needed. The mine argues that Thomsen observed 

Fernandez successfully assist in moving one railcar prior to the accident by operating the switch 

as Thomsen moved the spare car with the Rail King. Thomsen believed that because Fernandez 

observed and asked questions prior to moving the spare car, he understood the process. Thomsen 

agrees that as they began the process, they did not conduct a walkaround inspection of the cars, 

and did not connect the air brake to Railcar #4, stating, “I had noticed that the steps were bent in. 

I mean, the braking mechanisms were bent...it was a bad car.” Tr. 278. Thomsen did not set the 

hand brakes on any of the cars prior to uncoupling the cars, nor is it certain that he told 

Fernandez to set the hand brakes. Resp’t Ex. G. Thomsen testified that he did not recall setting or 

checking the brakes himself, and he did not recall instructing, supervising, or verifying that 

Fernandez set the brakes, stating, “I guess I assumed he did” because “he looked like he was – I 

mean, he was more than capable of doing it.” Tr. 279; Tr. 283. Thomsen also testified that he did 

not instruct Fernandez about the hazards of moving a railcar and specifically how to react to 

runaway cars. Thomsen was approximately 200 feet away from Fernandez with the Rail King’s 

engine running while Fernandez performed many of these tasks for the first time. Thomsen did 

not observe Fernandez do the tasks he was assigned, and he could not adequately supervise him 

from such a distance. 

42 FMSHRC Page 102
Superior Silica called Carl Bradley, as an expert in rail operations, to testify about the 

training required to demonstrate proper techniques for setting hand brakes and decoupling 

railcars. While somewhat familiar with MSHA regulations based on his review for this case, 

Bradley is most familiar with the Federal Railroad Administration regulations. See 49 C.F.R. Ch. 

II. Bradley’s expert opinion, based upon visits to the mine location, examination of the railcars,

and review of statements made by employees, is that the mine was not negligent in providing

task training to Fernandez on the day of the accident. Resp’t Ex. B. After listening to testimony

at hearing, Bradley believed that Thomsen instructed Fernandez to set the hand brakes, but

Bradley could not say why that was not done by either Thomsen or Fernandez. Bradley described

the brake wheel in Exhibit L-21, located on the B end of Railcar #5 and agreed that the brake

was not set as evidenced by the slack chain. See Resp Ex. L-1, L-2.

Bradley believed Thomsen was a qualified trainer and that adequate training could have 

been completed in 30 minutes. Bradley compared task training to railroad training, and he opined 

that Fernandez received basic brakeman training. Bradley insists that task training in this 

instance was straightforward because he saw the task as limited to “uncoupling and setting the 

brakes on a car,” which he considered to be “a very simple task to grasp and understand.” Tr. 

319. Bradley assumes as part of his opinion that Fernandez and Thomsen communicated

effectively, that Thomsen was not required to impart adequate information, and that Fernandez’s

intelligence was sufficient to compensate for any lack of instruction provided. Bradley did not

believe that training on moving equipment was required. The only hazard Bradley considered

was slipping on the ladder as Fernandez climbed up to set the brake, but he believed Fernandez,

as an experienced electrician, likely had experience climbing ladders. Bradley’s observations and

opinions do not change my view that Fernandez was not adequately task trained. Bradley’s

testimony regarding the rail industry is inconsistent with MSHA’s requirements and practices for

task training. Bradley acknowledged when new rail workers were shown how to set a brake, he

took the time to have each of them demonstrate that they could competently complete the task.

Finally, Bradley did not address an important part of working with railcars, a part not explained

to Fernandez: never attempt to catch or stop a runaway train but instead “let it go.” Tr. 42-43;

114; 152-153.

Fernandez had never worked on a railcar, and he had only been at the mine for a short 

time. These factors indicate that the task training needed to be much longer and in greater detail 

than for an experienced miner who had worked around railcars. Superior asserts that there is no 

requirement in the regulations that a certain amount of time be spent on task training and that the 

trainer can take into account the skills of the miner. Inspector Barrick agreed that the MSHA 

regulations do not specify an amount of time for task training, and the training can be done 

through supervised practice under a competent trainer. The complexity of the task may be 

considered along with the experience and ability of the miner being trained. Nonetheless, these 

are just a few of the many considerations that go into complete task training. Notably missing 

from the training and from Bradley’s testimony are the important requirements of task training 

that relate to safety considerations when working around railcars, including safety considerations 

when setting a brake, coupling and uncoupling cars, throwing switches, using hand signals, and 

understanding correct safety procedures in an emergency. When asked, Bradley responded that 

railroad companies no longer train miners how to board moving equipment “because there was 

[sic] so many injuries.” Tr. 359. Although Thomsen and Barrick differ on whether Thomsen told 

42 FMSHRC Page 103
Fernandez to set the brakes on Railcars #5 and #6 prior to moving the cars, it is not disputed that 

Fernandez failed to do so. The fact that Fernandez did not set the brake, and Thomsen also failed 

to do so, indicates that the task training was inadequate. In this instance, either Thomsen did not 

remind Fernandez to set the two brakes, or Fernandez who is described as an intelligent and 

thoughtful worker, disregarded Thomsen’s direction. It was the responsibility of Thomsen, to 

observe Fernandez and ascertain that he not only knew how to do a task, but when and where to 

do it. 

The Secretary’s regulations require that a miner who is assigned to a new task for which 

he has no previous work experience be provided with training in the health and safety aspects of 

the task to be assigned, including the safe work procedures of such task. 30 C.F.R. § 46.7(a). 

Moreover, this training must be provided before the miner performs the new task. Dacotah 

Cement, 26 FMSHRC 461, 466 (Jun. 2004) (“Subsection (d) clearly requires that a miner be 

trained in recognizing hazards specific to the assigned task before performing the task.”) 

(emphasis original); see 30 C.F.R. § 46.7(d). Although the Commission has indicated that a short 

period of time may suffice for task training, it must include health and safety information in 

addition to supervised practice or operation. See White Oak Mining & Construct. Co., 20 

FMSHRC 1130 (Oct. 1998). Even if I find that everything Superior Silica suggests is true, there 

is no dispute that supervised practice or operation was not provided and that Fernandez was 

given no training in the safe work procedures of that task. I find therefore that the mine did not 

task train Fernandez as required and uphold the violation as issued. 

i. Significant and Substantial

The Secretary further alleges that the violation was significant and substantial. A 

“significant and substantial” (“S&S”) violation is described in Section 104(d)(1) of the Mine Act 

as a violation “of such nature as could significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(l). A violation is 

properly designated S&S “if based upon the particular facts surrounding that violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

In Mathies Coal Co., the Commission established the standard for determining whether a 

violation is S&S: 

In order to establish that a violation of a mandatory safety standard is 

significant and substantial under National Gypsum, the Secretary of Labor 

must prove: (1) the underlying violation of a mandatory safety standard; 

(2) a discrete safety hazard—that is, a measure of danger to safety—

contributed to by the violation; (3) a reasonable likelihood that the hazard

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

the injury in question will be of a reasonably serious nature.

6 FMSHRC 1, 3-4 (Jan. 1984). 

42 FMSHRC Page 104
The second element of the Mathies test addresses the likelihood of the occurrence of the 

hazard the cited standard is designed to prevent. Newtown Energy, Inc., 38 FMSHRC 2033, 

2037-38 (Aug. 2016). The Commission has explained that “hazard” refers to the prospective 

danger the cited safety standard is intended to prevent. Id. at 2038. For example, Newtown 

involved a violation of a standard requiring that equipment be locked out and tagged out while 

electrical work is being performed. Id. The Commission determined that the hazard was a miner 

working on energized equipment. Id. The likelihood of the hazard occurring must be evaluated 

with respect to “the particular facts surrounding the violation.” Id.; see also McCoy Elkhorn Coal 

Corp., 36 FMSHRC 1987, 1991-92 (Aug. 2014); Mathies, 6 FMSHRC at 4. At the third step, the 

judge must assess whether the hazard, if it occurred, would be reasonably likely to result in 

injury. Newtown, 38 FMSHRC at 2037. The existence of the hazard is assumed at this step. Id.; 

Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 161-62 (4th Cir. 2016). As with the 

likelihood of occurrence of the hazard, the likelihood of injury should be evaluated with respect 

to specific conditions in the mine. Newtown, 38 FMSHRC at 2038. Finally, the Commission has 

found that the S&S determination should be made assuming “continued normal mining 

operations.” McCoy, 36 FMSHRC at 1990-91. 

I have found a violation as discussed above, and I find that the hazard that this standard is 

meant to prevent is that of an untrained person engaging in a task without understanding the 

proper procedure and safety hazards associated with the task. As Congress noted in the Mine 

Act, an untrained miner is a hazard to himself and others. 30 U.S.C § 814(g). Here, given the 

circumstances and conditions at the time, the hazard was likely to occur, in that a miner who had 

not been adequately trained, was forced to deal with an unsafe condition and did not know how 

to do that. The failure to adequately train was likely to lead to an accident that would in turn 

result in serious injuries or a fatality. Clearly, the violation here led to a fatal injury. 

The Commission has previously agreed with an ALJ regarding the significant and 

substantial nature of failing to task train a miner. In Twentymile Coal Co., a miner fell from a 

ladder while attempting to unclog a vertical rock chute. 26 FMSHRC 666 (Aug. 2004), aff’d in 

part and remanded in part by Sec’y of Labor v. Twentymile Coal Co., 411 F.3d 256 (D.C. Cir. 

2005). The Commission unanimously agreed that the operator failed to provide task training and 

that the violation was S&S, finding that the operator had assigned a group of miners to a job 

without any training “to guard against hazards inherent to the task,” such as slipping and falling 

around the ladder and platforms and spillage of rocks outside of the chute. The Commission also 

rejected the mine’s argument that the background and experience of miners must be reviewed in 

order to make an S&S determination once a violation has been established. 26 FMSHRC at 681.

 In this case, Fernandez was inexperienced and received very little training in the new

task he was performing. As a result, the hand brakes were not set on Railcars #5 and #6, and as 

they were uncoupled from Railcar #4, they began to roll down the track. In addition to not 

understanding he must set the brakes on those two cars, Fernandez was not told that he should 

not jump onto a moving railcar in an attempt to set the brakes after it was in motion. Applying 

the S&S criteria to the circumstances here, I find that the violation is significant and substantial. 

42 FMSHRC Page 105
ii. Negligence

The Secretary alleges that the violation was the result of high negligence. The Mine Act 

places primary responsibility for maintaining safe and healthful working conditions in mines on 

operators, and they are thus expected to set an example for miners working under their direction. 

Newtown, 38 FMSHRC at 2047; Wilmot Mining Co., 9 FMSHRC 684, 688 (Apr. 1987) (“Such 

responsibility not only affirms management’s commitment to safety but also, because of the 

authority of the manager, discourages other personnel from exercising less than reasonable 

care.”); see also 30 U.S.C. § 801(e). The Commission has recognized that “[e]ach mandatory 

standard ... carries with it an accompanying duty of care to avoid violations of the standard, and 

an operator’s failure to meet the appropriate duty can lead to a finding of negligence if a 

violation of the standard occurs.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In 

determining whether an operator met its duty of care, the judge must consider “what actions 

would have been taken under the same circumstances by a reasonably prudent person familiar 

with the mining industry, the relevant facts, and the protective purpose of the regulation.” 

Newtown, 38 FMSHRC at 2047; Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015); 

U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984). While the Secretary’s Part 100 

regulations evaluate negligence based on the presence of mitigating factors, Commission judges 

are not limited to that analysis. Brody, 37 FMSHRC at 1702-03. Rather, Commission judges 

consider “the totality of the circumstances holistically” and may find high negligence in spite of 

mitigating circumstances. Id. at 1702. 

Superior Silica argues that a competent person, Chad Thomsen, observed Fernandez 

successfully move one railcar prior to attempting to move Railcar#4 to the other track. Therefore, 

the mine argues some training was provided and so the negligence was not high. The Secretary 

alleges that because Thomsen did not take the time required to adequately train Fernandez, and 

made assumptions about his abilities, the violation was the result of high negligence. I agree. 

Thomsen knew that Fernandez had no experience or prior training on rail work and as Inspector 

Barrick explained Thomsen should have either refused the help offered by Fernandez or taken 

the time necessary to include all aspects of the training needed by Fernandez to do the job safely. 

Thomsen was a manager with experience who should understand the risks of failing to 

adequately train miners. In particular, Thomsen should have understood the risks of an untrained 

miner uncoupling and moving large and heavy railcars on a grade. 

In Ky. Fuel Corp., the Commission approved a judge’s decision that similarly concluded 

that high negligence was appropriate due largely to the operator’s failure to provide adequate 

training and materials that resulted in an improper wheel blocking violation. 40 FMSHRC 28 

(Feb. 2018). In this case, the supervisor made little to no effort to task train the miner. The 

Secretary believes the task training was inadequate for three reasons: (1) the mine failed to 

ensure that Fernandez set the manual handbrakes or blocked the two cars prior to Thomsen 

attempting to decouple the cars; (2) Thomsen should have either set the manual handbrakes on or 

blocked the two railcars himself, or directly observed Fernandez set the manual handbrakes on or 

block Railcars #5 and #6; and (3) the mine should have instructed the miner that in the event of a 

runaway train, the miner should allow the railcars to proceed to derailment. In failing to do any 

of these three items, Thomsen was highly negligent. 

42 FMSHRC Page 106
iii. Unwarrantable failure 

Citation No. 8860296 was designated as an unwarrantable failure to comply with a 

mandatory standard. The unwarrantable failure terminology is taken from Section 104(d) of the 

Act, 30 U.S.C. § 814(d). The Commission has explained that unwarrantable failure is 

“aggravated conduct constituting more than ordinary negligence. [It] is characterized by conduct 

described as ‘reckless disregard,’ ‘intentional misconduct,’ ‘indifference,’ or a ‘serious lack of 

reasonable care.’” Consol. Coal Co., 22 FMSHRC 340, 353 (Mar. 2007) (citing Emery Mining 

Corp., 9 FMSHRC 1997, 2001-04 (Dec. 1987)) (citations omitted). In determining whether a 

violation is an unwarrantable failure, the Commission has instructed its judges to consider all of 

the relevant facts and circumstances in the case and determine whether there are any aggravating 

or mitigating factors. Id. Aggravating factors to be considered include: 

the length of time that the violation has existed, the extent of the 

violative condition, whether the operator has been placed on notice 

that greater efforts were necessary for compliance, the operator’s 

efforts in abating the violative condition, whether the violation was 

obvious or posed a high degree of danger, and the operator’s 

knowledge of the existence of the violation. 

IO Coal Co., 31 FMSHRC 1346, 1352 (Dec. 2009); see also Consol., 22 FMSHRC at 353. 

A number of the factors outlined in IO Coal, are a basis for the unwarrantable finding in 

this case, particularly that the violation was obvious, posed a high degree of danger and the 

operator knew of the violation. First, there is no testimony regarding how long the mine has 

failed to adequately task train its miners, and there is also nothing to demonstrate that the mine 

had been placed on notice that greater training efforts were necessary. However, the record 

reflects that the violation was extensive in terms of the total failure to task train prior to 

attempting to move the railcars. The extent factor is intended to “account for the magnitude or 

scope of the violation” in the unwarrantable failure analysis. Dawes Rigging & Crane Rental, 36 

FMSHRC 3075, 3079 (Dec. 2014) (emphasis added). To safely work in this sort of situation, a 

miner must have a breadth of understanding about the very large equipment and the safety 

hazards associated with it. Yet, the mine failed to train Fernandez on the important safety factors 

related to the task, and therefore the violation was extensive in those terms. 

 

 Thomsen and Fernandez were working on enormous pieces of machinery. The railcars at 

issue are nearly 50 feet long and 15 feet high. The railcars weigh approximately 53,000 pounds 

when empty and are estimated to contain 200,000 pounds of sand when full, on a track that has a 

grade of 2-3%. Resp Ex. F at 4, Tr. 173-177 217, 281. Work on this equipment posed a 

considerable risk to miners, regardless of their level of training or experience. The degree of 

danger was exacerbated by the fact that Thomsen left Fernandez alone to perform a task that he 

clearly did not have enough experience or training to do. Moreover, the fact that Thomsen did 

not include any explanation regarding the safety hazards associated with the tasks, including 

what to do in the event of a runaway train, made this already dangerous activity all the more 

hazardous. Fernandez’s death resulted from a reckless disregard for his safety when working 

under conditions that posed an extremely high degree of danger. I find these to be aggravating 

42 FMSHRC Page 107
circumstances that support a finding of unwarrantable failure to comply with a mandatory 

standard. 

Knowledge is also a factor in determining that the violation is an unwarrantable failure. 

Thomsen was the plant manager, a supervisor with experience who had conducted task training 

in the past. Thomsen knew, or at best, should have known, that given the lack of experience in 

both mining and in the use of railcars, the training he gave Fernandez was inadequate. Despite 

the fact that Fernandez had performed well during his short time at the mine, Thomsen should 

not have assumed that Fernandez knew what to do safely. The need for explicit and careful 

training was obvious, and the operator was aware of that fact. 

Abatement efforts relevant to the unwarrantable failure analysis are those made prior to 

the issuance of the citation or order. Consol, 35 FMSHRC at 2342; IO Coal, 31 FMSHRC at 

1356. In this case, Thomsen provided inadequate instruction before leaving Fernandez to work 

on his own and no abatement efforts were made. Given that the task was inherently dangerous, 

that the lack of task training was obvious, and that Thomsen should have known that more 

training was needed, yet failed to do so, I find the Secretary has demonstrated that the violation 

occurred as the result of the operator’s unwarrantable failure to comply with a mandatory health 

or safety standard. 

Order No. 8860297 

On December 6, 2018, Inspector Barrick issued a second citation as a result of the 

accident. The citation states: 

An accident occurred on this mine site on 6/23/18, at approximately 9:20 

am, when a miner was fatally injured while assisting in relocating rail cars. 

The miner uncoupled the last two rail cars and they began to roll away. 

The miner ran to the moving cars and attempted to set the manual 

handbrake. The miner fell from the moving cars and was run over. The 

two loaded cars at the end of the train were not effectively secured by 

either of the raking systems. Management engaged in aggravated conduct 

constituting more than ordinary negligence in that it did not ensure or 

instruct the miner to set the manual handbrakes or block the two cars from 

movement prior to uncoupling. This is an unwarrantable failure to comply 

with a mandatory standard. 

The inspector designated the order as S&S and as an unwarrantable failure, and the 

Secretary proposed a penalty of $20,940.00. The Mine Act and its standards “are to be 

interpreted to ensure, insofar as possible, safe and healthful working conditions for miners.” 

Pittsburg & Midway Coal Mining Co., 8 FMSHRC 4, 6 (1986). The mandatory standard at issue 

here, 30 C.F.R. § 56.14217, securing parked rail cars, is part of the safety standards for 

equipment and is intended to ensure miner’s safety when working around equipment such as 

railcars. The standard requires that “[p]arked railcars shall be blocked securely unless held 

effectively by brakes,” which is meant to “provide [p]rotection for miners against unintended 

movement of railcars.” 30 C.F.R. § 56.14217; 53 Fed. Reg. 32,496 (Aug. 25, 1988). 

42 FMSHRC Page 108
The Section 104(d)(1) order alleges that the two cars at the end of the train were not 

effectively secured by either of the braking systems. The Secretary argues that the mine failed to 

set the manual handbrakes or block the two cars prior to attempting to decouple and then move 

the cars. Since the miner had never performed this task, the supervisor should have either set the 

handbrakes or directly observed the miner set the handbrakes. And if there was any indication 

that the brakes would not hold, the Supervisor should have blocked the cars from movement. 

When the miner uncoupled Railcar #5 from #4, and Thomsen pulled Railcars #1-4 away, 

Railcars #5 and #6 began rolling down the track in the opposite direction and therefore were not 

secured against movement. 

This citation was issued because Railcars #5 and #6 did not have the mechanical brakes 

set or blocked prior to uncoupling and moving the front cars. See Jt. Ex. 1. There is no dispute 

that the brakes were not set, as Fernandez tried to jump on Car #6 as it was moving and was 

observed turning the wheel to set the brakes. When the cars came to a stop, and Railcar #6 

derailed, the brake was set on that car, but was not set on Railcar #5. Inspector Barrick testified 

that if the brakes had been set and were functioning, that might have stopped the train. The 

mechanical brakes on both cars were required to be set, and if they were not, or did not hold, 

they were required to be blocked from movement. 

Superior Silica argues that the two railcars were effectively secured because they had 

remained in the same position since March 2018 and until June 23, 2018, the date of the 

accident. I disagree, the mandatory standard requires that the mechanical brakes be set and 

therefore, relying on the brakes of attached equipment does not satisfy the requirements of the 

standard. Thomsen and Fernandez failed to set the brakes on Railcars #5 and #6 or block the 

cars from movement. As neither action was taken, I find that there is a violation of the 

mandatory standard. 

i. Significant and Substantial

The Secretary alleges that the violation occurred and was fatal and marked the citation as 

significant and substantial. The standard is designed to protect against unintended movement of 

the rail cars. In the circumstances found here, uncoupling the cars resulted in an unintended 

movement, which in turn resulted in the hazard the standard is designed to avoid. The unintended 

movement of these two railcars resulted in two, very heavy, 50 foot long cars moving down the 

track without warning, and resulted in an injury to a miner. The additional hazard that the 

standard is intended to prevent is that of a miner trying to set the brake once the cars started to 

move, in order to avoid a derailment. Both conditions and hazards would result in an injury to a 

miner and the injury would be serious or fatal. 

Superior argues that the railcars had been in the same location for months, and therefore 

it was unlikely that they would move. However, the cars had been coupled to others while on the 

tracks and it was the uncoupling that most likely caused the unintended movement. The 

Secretary argues that even if coupled, the brakes are required to be set, if the cars are not blocked 

from movement and the failure to do so creates a hazard that likely will lead to a serious injury. I 

agree and find that the violation was significant and substantial. 

42 FMSHRC Page 109
ii. Negligence

The Secretary alleges that the violation was the result of high negligence. Superior Silica

argues that the railcars were effectively secured because they had remained in the same position 

from March 2018 up until the accident on June 23, 2018. The mine also argues that the miner 

was specifically instructed to set the manual handbrakes on the two cars to prevent movement 

prior to uncoupling. 

The Secretary argues that the mine failed to ensure that Fernandez had set the manual 

handbrakes or block the two railcars before either of the men attempted to decouple the cars and 

before Thomsen began to move the four front cars forward. Thomsen, as the supervisor and 

trainer, knew that the brakes should be set prior to any movement, or even while just idle on the 

tracks. He should have ascertained that all of the brakes were set and would hold the two end rail 

cars before attempting to move the front cars. Given Thomsen’s position, the Secretary contends 

that Thomsen should have set the manual handbrakes or blocked the railcars himself, or that he 

should have directly observed Fernandez perform the task. Thomsen did neither. Thomsen was 

the plant manager and the supervisor; he should have ascertained that the brakes were set or 

blocked and therefore his actions constituted more than ordinary negligence, and I find that high 

negligence is appropriate. 

iii. Unwarrantable failure

The inspector issued the violation as an unwarrantable failure to comply with a

mandatory standard. The Secretary argues that management engaged in aggravated conduct 

constituting more than ordinary negligence because working in and around railcars poses a high 

degree of danger, the supervisor made no effort to see that the brakes were set or that the cars 

blocked from movement prior to uncoupling, and the supervisor was aware of the dangers posed 

by railcars that were not held in place. 

Superior Silica argues that there was no willful intent to avoid setting the brakes and that 

Thomsen specifically instructed Fernandez to set the manual handbrakes prior to uncoupling 

Railcars #5 and #6. The testimony is disputed in this regard. Barrick asserts that Thomsen did not 

instruct Fernandez to set the brake, nor did Thomsen in his statement to Barrick believe that the 

brakes had already been set. Thomsen, on the other hand, asserts that he believed the brakes had 

been previously set, but later asserts that he told Fernandez to set the brakes. 

Nevertheless, as the plant manager and supervisor, it was Thomsen’s responsibility to 

ensure the brakes were set prior to moving the cars. This was crucial. The brakes were not set at 

the time the cars were uncoupled, resulting in a critically high degree of danger and resulting in 

the death of Fernandez. Moreover, as long as the cars were parked, the mechanical brake should 

have been set, and the violation therefore was obvious and known to the mine, yet nothing was 

done to abate the condition prior to the date of the accident. Since the railcars were not used 

frequently, the brakes likely had not been set for some time. Therefore, the length of time the 

condition existed contributes to the finding of unwarrantability. Although the Secretary argues 

that the mine was put on notice by the derailment some months earlier, I cannot agree that the 

earlier derailment would alert the mine to the type of violation cited here. I also do not rely on 

how extensive the violation was in making a determination about unwarrantable failure. 

42 FMSHRC Page 110
However, I find the other factors compelling and as a result find the violation was the result of an 

unwarrantable failure to comply with a mandatory health or safety standard. 

B. CENT 2019-0133

Order No. 8860298 

The final order issued by Inspector Barrick on December 6, 2018 cited a railcar, 

designated as Railcar #4 on Joint Exhibit 1, for not having functional brakes. The citation 

alleges: 

The mine operator failed to maintain the braking system on rail car TILX 

338713. The rail car was located on the South section of the mines rail 

spur coupled to 6 other cars situated in the 4 position. The rail cars brake 

linkage had been sheared off on March 2, 2018 when it was released down 

the spur and derailing it onto its side. The car was recovered and placed 

back onto the spur without repairing the braking system. Chad Thomsen, 

Plant Manager engaged in aggravated conduct constituting more than 

ordinary negligence in that he failed to ensure that the braking system on 

the TILX 338713 was maintained. This is an unwarrantable failure to 

comply with a mandatory standard. 

The citation is designated as S&S and unwarrantable and the Secretary has proposed a 

penalty of $9,409.00.2

 The standard cited at 30 C.F.R. § 56.14102, titled, “Brakes for rail 

equipment,” states that “[b]raking systems on railroad cars and locomotives shall be maintained 

in functional condition.” The standard is analogous in language to a standard dealing with back 

up alarms, which are also required to be maintained in functional condition. In Wake Stone 

Corp., 36 FMSHRC 825, 827 (Apr. 2014), the Commission reviewed the standard for back up 

alarms and decided that the plain meaning of § 56.14132(a) requires that back up alarms and 

horns always be maintained in functional condition. Evidence showed that the service horns were 

defective at the time of inspection and the equipment had not been removed from service. Id.

Therefore, the horns were not being “maintained in functional condition” as required by the 

regulation. Id. Applying a similar interpretation to the regulation at issue here, the plain language 

of 30 C.F.R. § 56.14102 requires that braking systems on railroad cars must always be 

maintained in functional condition and, if not, the car must be removed from service. 

The Section 104(d)(1) order alleges that the mine operator failed to maintain the braking 

system on Railcar #4. The Secretary argues that the car’s brakes were severely damaged in the 

March 2018 derailment, that the mine was aware the brakes were damaged, and the mine did 

nothing to repair them. See Sec’y Ex. 2, 25; see also Sec’y Ex. 16, 8–15. Instead of repairing the 

brakes, the mine put Railcar #4 in a string of railcars that the mine used in normal operations. 

The Secretary argues that while the mine placed a “DO NOT FILL” sign on Railcar #4, that 

action is not sufficient to comply with the clear terms of the standard. As Barrick explained, if 

2

 Order No. 8860298 was originally issued as a Section 104(d)(2) order. At hearing, the 

Secretary represented that the order had been modified to a Section 104(d)(1) order. 

42 FMSHRC Page 111
the mine was not going to repair the brakes, the car should have been completely removed from 

service. The “DO NOT FILL” sign did not effectively remove the car from service. Tr. 226. 

Even though Rail Car #4 was coupled to Railcars #5 and #3, it could not hold in place on its own 

and remained defective. 

Superior Silica takes the position that the mine should not have been cited for the 

damaged brakes. Instead, the facts and circumstances surrounding the violation should be 

considered, including that the mine contacted the owner of Railcar #4 to discuss repairs, coupled 

the car to other cars to prevent use, did not load it with sand, and did not move the car for nearly 

three months. The law, however, does not support the mine’s position. Once the brakes were 

discovered to be non-functional and inoperative, and the car remained in a location where it 

could be used, the mine was in violation of the standard. Railcar #4 was coupled to a line of 

other cars, which were on the south spur and available for use at the mine. See Wake Stone, 36 

FMSHRC at 828 (citing Ideal Basic Indus., Cement Div., 3 FMSHRC 843, 845 (Apr. 1981) (if 

defective equipment affecting safety is located in a normal work area and is fully capable of 

being operated, that constitutes use)). Following its March 2018 derailment, Railcar #4 should 

not have been placed in the string of cars but instead isolated in a separate area where it could 

not be used, as Thomsen was attempting on the day of the accident. Thus, Railcar #4 was not out 

of service as the mine alleges and I find that the Secretary has proven the violation. 

The mine has also suggested that MSHA failed to cite the correct mandatory standard in 

Order No. 8860298. Superior Silica asserts that the mine should have been cited for a violation 

of 30 C.F.R. § 56.14100, which requires in part, that self-propelled mobile equipment with 

hazardous defects be tagged and removed from service. The mine’s argument fails to consider 

the Commission’s case law that requires the standard that is the most specific to be cited over a 

more general standard. As the Commission has consistently explained, when two regulations 

apply to the same condition, the more specific regulation is the appropriate standard to cite. 

Western Fuels-Utah, Inc., 19 FMSHRC 994 (June 1997). Here, the standard cited by the 

inspector, 30 C.F.R. § 56.14102, deals specifically with braking systems on railroad cars and is 

clearly titled “Brakes for rail equipment.” In a dispute over which standard should apply, it is 

clear that 30 C.F.R. § 56.14102 is more appropriate than the general regulation found at 30 

C.F.R. § 56.14100.

i. Significant and Substantial

The citation was marked S&S and the Secretary alleges the violation was highly likely to 

result in a permanently disabling injury. The Secretary asserts that although the defective brakes 

did not contribute to the June 23 accident, it was likely that the condition of the brakes would 

result in an accident. Superior Silica disagrees. The operator argues that the injury was not highly 

likely to occur because the mine did not use Railcar #4, and instead placed a sign on each side of 

the car instructing miners not to fill it. 

Barrick believed that the condition of Railcar #4 was bad enough that any movement 

would cause it to derail. He explained that any number of things could go wrong moving Railcar 

#4 given its severe damage. Tr. 228–29. The car had been sitting on the tracks for months and 

even though it was connected to Railcars #3 and #5, the brakes were not set on Railcar #5, 

42 FMSHRC Page 112
thereby rendering the connection less effective. The failure to isolate Railcar #4 from the 

functional railcars and remove it from the south spur resulted in a hazard. Railcar #4 was in a 

position and location where it was available for use and could be moved up and down the tracks, 

even if not filled. 

I have found a violation of the mandatory standard and I find further that the standard is 

designed to prohibit railcars from use when the brakes are not functioning. Using a railcar with 

bad brakes would likely result in an accident, including derailment or unexpected movement, 

which in turn would result in a serious injury. In this case, Railcar #4 was coupled within a line 

of cars and between two that had functioning brakes. However, the evidence shows that Railcar 

#5, at a minimum, did not have its air or mechanical brakes set at the time of the accident. It is 

not known if the mechanical brakes were set on Railcar #3, or if they were set at any time during 

the several months that Railcar #4 was on the south spur and coupled with it. 

Given that Railcar #4 had no functioning brakes, was coupled between cars in which at 

least one did not have the brakes set, and was available for use, a hazard existed. Miners using 

the car and anyone working or traveling in the area would be subject to the hazard of derailment 

or unintended movement of a very large, 50 foot long, railcar. If left on its own, Railcar #4 

would not be controlled and would likely derail. A railcar without functioning brakes, and most 

importantly the resulting runaway car, would result in injuries to anyone working in or around 

the car, and those injuries would be serious and likely fatal. Therefore the violation is S&S. 

ii. Negligence

The Secretary alleges that the violation was the result of high negligence. The Secretary 

argues that placing signs that say “DO NOT FILL” on a railcar with defective brakes is not 

sufficient to comply with the standard. The operator does not contest that the brakes were 

damaged, but argues that it took steps to make exposed miners aware of the hazard. The mine put 

signs on Railcar #4 to indicate that it should not be used, coupled the railcar to other cars with 

functioning brakes, and did not fill it with sand. 

As a reasonably prudent mine operator, Superior Silica should have known its failure to 

repair the brakes was a violation of a mandatory standard and that the violation posed a 

significant danger to the miners. The mine’s placement of signs on Railcar #4 warning miners 

not to fill the car was an ineffective effort to comply with the standard. In Newtown Energy, 38 

FMSHRC 2033 (Aug. 2016), the Commission overturned a judge’s finding that the use of a 

defective lock on a cathead should be considered as an element of mitigation for negligence 

purposes. “Negligence is not diminished by a miner’s clearly ineffective effort to comply with 

the safety standard.” Id. at 2048 n.21. Here, mine management was aware the brakes on the car 

were defective and, given its discussion with the railcar’s owner, knew it would be some time 

before repairs were made. Therefore, Railcar #4 should have been removed from service 

immediately by disconnecting it from other cars and disabling its ability to be moved. The car 

should have been moved to the north spur immediately following the March 2018 derailment and 

blocked against any movement. The mine’s failure to do so was the result of high negligence. 

42 FMSHRC Page 113
iii. Unwarrantable failure

The order was issued as an unwarrantable failure to comply with a mandatory standard. 

The Secretary argues a number of factors support a finding of unwarrantable failure, including 

that the operator knew the brakes were damaged on Railcar #4, yet coupled it to an active string 

of railcars and left it in its defective condition for several months. Since the car lacked functional 

brakes, the Secretary asserts that the violation was extensive, obvious, and involved a high 

degree of danger. The Secretary argues further that because the car derailed and was damaged, 

the mine was on notice that greater efforts were necessary to correct the condition. Coupling 

Railcar #4 with other cars available for use shows that the mine understood the seriousness of the 

condition. 

Superior Silica argues that the violation does not amount to unwarrantable failure because 

the mine did not ignore Railcar #4’s damaged brakes. The mine contends it could not repair the 

damaged brakes due to an ownership dispute. Instead, Superior Silica took reasonable steps to 

limit potential harm, including not filling the railcar, trying to isolate the railcar, and providing 

warning signs. The mine also states that the railcars were used infrequently. Although I agree 

that the violation was the result of high negligence, I cannot find sufficient evidence to support a 

finding of unwarrantable failure. 

IO Coal requires Commission Judges to consider a number of factors in addressing an 

unwarrantable failure designation. First, is length of time that the violation has existed. 

Following the March 2018 derailment, Railcar #4 was placed in the string of active railcars and 

remained between Railcars #3 and #5 until the June 23 accident. According to the mine, Railcar 

#4 was not used and the string of cars was moved infrequently during that time. As the 

Commission explained in Coal River Mining, LLC, 32 FMSHRC 82, 93 (Feb. 2010), even where 

the record does not permit the judge to make a conclusive finding as to the duration of the 

condition, “imperfect evidence of duration in the record should be taken into account.” Here, the 

inspector believed that Railcar #4 was in the string of active railcars for the several months 

following its derailment and the mine has not presented any evidence to refute that suggestion 

but instead suggests that the car was not moved during that time period. Thomsen explained that 

he was in the process of removing Railcar #4 so that he could empty material from the railcars, 

but there is no evidence to suggest when the other railcars had been filled. Therefore, the 

violation did exist for the several months Railcar #4 remained on the active track, but it may not 

have been used. So while the violation existed for several months, it cannot be said to be 

extensive. Railcar #4 was on the track with two cars coupled behind it and three in front, each 50 

feet in length. I credit Barrick’s testimony that the entire railcar and the attached railcars were 

affected by the damaged brakes but I cannot say that the condition was extensive, given that one 

car in the string was damaged and was coupled with other cars that were not damaged. 

Next, I must consider whether the operator has been placed on notice that greater efforts 

were necessary for compliance. In this case, the Secretary did not present evidence that the mine 

had been told to correct the condition of the brakes or that it had been previously cited for similar 

violations. Therefore, I do not agree that the mine was on notice that greater efforts were 

required for compliance. I also cannot rely on the lack of abatement efforts to support a finding 

of unwarrantable failure. A lack of abatement efforts may be excusable if the operator had a 

42 FMSHRC Page 114
reasonable, good faith belief that the condition did not exist. See IO Coal, 31 FMSHRC at 1356. 

Here, the mine did not believe the condition continued to exist because they had moved the car to 

a location that they believed would prohibit its use. 

The Secretary argues that the condition posed a high degree of danger because Railcar 

#4 lacked functional brakes to hold itself in place and could have derailed following any 

movement. Tr. 228. Thomsen explained that coupling Railcar #4 in the string of railcars on the 

south spur was a safe place to keep it since the car was between two cars with operative brakes 

and the railcars did not move for some length of time. However, the evidence shows that the 

brakes were not set on Railcar #5 and the string of railcars was available for use, increasing the 

degree of danger posed by Railcar #4. Although there was a high degree of danger associated 

with a railcar that had no functioning brakes, it is not sufficient, based upon the facts here, to 

alone support a finding of unwarrantable failure. 

In this case, the condition was obvious to the miners and mine management. Taft, the 

maintenance manager at the time, testified that he could see Railcar #4 was damaged because the 

springs were out, the brake shoes were off, the axle was not sitting down on the pin, and there 

was body damage to the car. Tr. 117–18. In addition, Secretary’s Exhibit 16 contains various 

photographs showing the brakes sheared off of Railcar #4. Sec’y Ex. 16, 9–10, 12, 15. While the 

condition of the car was obvious, the violation—that is, leaving the damaged car on the tracks 

without repair— was not as obvious to the mine, since they believed they had abated the 

violation by placing Railcar #4 in a location that would not require the brakes to be used. The 

same can be said for the knowledge of the violation. Here, both Taft and Thomsen, supervisors at 

the mine, explained that they were aware of the defective condition of the railcar. Tr. 116, 258. 

Thomsen testified that he knew the brakes were not functional because “[t]he levers were bent up 

on it . . . [the] brake mechanism was bent.” Tr. 260–61. While the mine should have known of 

the existence of the violation, the fact that they believed they had remedied the condition is a 

factor in determining the knowledge. 

Even though the mine was negligent in not repairing or removing the car from service as 

required by the standard, there is not sufficient evidence in the record to conclude that the 

violation was the result of an unwarrantable failure to comply. 

 

42 FMSHRC Page 115
II. PENALTY 

The principles governing the authority of Commission Administrative Law Judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties 

provided in [the] Act.” 30 U.S.C. § 820(i). Commission Judges are not bound by the Secretary’s 

penalty regulations. Am. Coal Co., 38 FMSHRC 1987, 1990 (Aug. 2016). Rather, the Act 

requires that in assessing civil monetary penalties, the judge must consider six statutory penalty 

criteria: the operator’s history of violations, its size, whether the operator was negligent, the 

effect on the operator’s ability to continue in business, the gravity of the violation, and whether 

the violation was abated in good faith. 30 U.S.C. § 820(i). 

The Secretary has proposed a penalty of $18,846.00 for the violation cited in Citation No. 

8860296, which alleges a failure to provide new task training to Fernandez. I have considered 

and applied the six penalty criteria found in Section 110(i) of the Act. The history of assessed 

violations has been admitted into evidence and shows 20 violations by this operator in the 15-

month period prior to the issuance of the citation, two of which involve a similar standard. Sec’y 

Ex. 24. I have addressed negligence and gravity in the discussion above and have found that the 

violation was S&S, and the result of high negligence and an unwarrantable failure to comply. 

The mine is medium-sized and the parties agree that the citation was abated in good faith. The 

mine has raised no defense of ability to pay, but the mine has filed for bankruptcy. Therefore, I 

find that the proposed penalty of $18,846.00 is appropriate. 

Next, the Secretary has proposed a penalty of $20,940.00 for the violation cited in Order 

No. 8860297, which alleges that Railcars #5 and #6 were not effectively secured by either of 

their braking systems. In assessing a penalty, I have considered and applied the statutory penalty 

criteria. According to the history of assessed violations, there are no similar violations for this 

standard in the preceding 15-month period. Sec’y Ex. 24. Negligence and gravity are addressed 

above, with findings of high negligence, unwarrantable failure, and S&S. I have considered the 

operator’s good faith abatement, size, and ability to pay, and I find that the penalty of $20,940.00 

is appropriate. 

Finally, the Secretary has proposed a penalty of $9,409.00 for the violation cited in Order 

No. 8860298, which alleges that Railcar #4 did not have functional brakes. In determining a 

penalty, I have considered and applied the six statutory penalty criteria. The history of assessed 

violations shows no similar violations for this standard in the preceding 15-month period. Sec’y 

Ex. 24. Negligence and gravity have been addressed in the discussion above, and I have found 

that the violation was S&S and the result of high negligence. The designation of unwarrantable 

failure has been removed. The mine’s history, size, ability to pay, and good faith abatement have 

been considered. Based on these findings, I assess a penalty of $5,000.00. 

 

42 FMSHRC Page 116
Citation No. Originally Proposed 

Penalty Penalty Assessed 

Docket No. CENT 2019-0171 

8860296 $18,846.00 $18,846.00 

8860297 $20,940.00 $20,940.00 

Docket No. CENT 2019-0133 

8860298 $9,409.00 $5,000.00 

TOTAL $49,195.00 $44,786.00 

III. ORDER 

Respondent is hereby ORDERED to pay the Secretary of Labor the sum of $44,786.00 

within 30 days of the date of this decision. 

 /s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

Distribution: (Certified U.S. First Class Mail) 

Lindsay A. Wofford, U.S. Department of Labor, Office of the Solicitor, 525 Griffin Street, Suite 

501, Dallas, TX 75202 

Joseph A. Fisher III, Jackson Walker LLP, 1401 McKinney, Suite 1900, Houston, TX 77010 

Benjamin Rhem, Jackson Walker LLP, 100 Congress Avenue, Suite 1100, Austin, TX 78701 

42 FMSHRC Page 117
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-928-8689 

January 30, 2020 

 

DECISION AND ORDER 

Appearances: Matthew R. Epstein, Esq., Office of the Solicitor, U.S. Department of 

Labor, Philadelphia, Pennsylvania, for the Secretary of Labor 

 James P. McHugh, Esq., Hardy Pence, Charleston, West Virginia, for the 

Respondent 

Before: Judge Lewis 

I. STATEMENT OF THE CASE 

 

This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (the “Act” or “Mine Act”). A hearing was held concerning Citation Nos. 9076658 and 

9079183 in Pittsburgh, Pennsylvania wherein the parties presented testimony and documentary 

evidence.1

FINDINGS OF FACT AND CONCLUSION OF LAW 

The findings of fact are based on the record as a whole and the undersigned’s careful 

observation of the witnesses during their testimony. In resolving any conflicts in the testimony, 

the undersigned has taken into consideration the interests of the witnesses, or lack thereof, and 

consistencies, or inconsistencies, in each witness’s testimony and between the testimonies of the 

witnesses. In evaluating the testimony of each witness, the undersigned has also relied on his 

1

 This Court issued a Partial Decision Approving Settlement on June 10, 2019, that 

disposed of Citation Nos. 9079153, 9079154, 9079155, 9079157, 9079159, 9079160, 9079163, 

9079166, 9079165, 9079171, 9079173, 9079177, 9079176, 9077366, 9079184, 9077226, and 

9078990. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

CONSOL PENNSYLVANIA COAL CO., 

LLC, 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

 Docket No. PENN 2018-244 

 A.C. No. 36-07416-467981 

 

 Mine: Enlow Fork Mine 

42 FMSHRC Page 118
demeanor. Any failure to provide detail as to each witness’s testimony is not to be deemed a 

failure on the undersigned’s part to have fully considered it. The fact that some evidence is not 

discussed does not indicate that it was not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th 

Cir. 2000) (administrative law judge is not required to discuss all evidence and failure to cite 

specific evidence does not mean it was not considered). 

II. JOINT STIPULATIONS 

The parties’ joint stipulations are as follows: 

1. Respondent is an operator as defined in Section 3(d) of the Mine Act at the 

mine where the citations were issued. 

2. Enlow Fork Mine is a mine as defined in Section 3(h) of the Mine Act. 

3. The operations of Respondent at Enlow Fork Mine are subject to the 

jurisdiction of the Mine Act. 

4. The proceeding is subject to the jurisdiction of the Federal Mine Safety and 

Health Review Commission and its designated Administrative Law Judge 

pursuant to Mine Act Sections 105 and 113. 

5. Enlow Fork Mine is owned by Respondent. 

6. Payment of the proposed penalties will not affect the Respondent’s ability to 

remain in business. 

7. The individual whose name appears in Block 22 of each citation in contest 

was acting in an official capacity and as an authorized representative of the 

Secretary of Labor when the citations were issued. 

8. The citations were properly issued and served by a duly authorized 

representative of the Secretary of Labor upon an agent of Respondent at the 

date, time and place stated in each citation, as required by the Act. 

9. Exhibit A to the above-captioned docket contains authentic copies of the 

citation sat issue. 

10. Respondent stipulates to the authenticity and admissibility of the R-17 

certified mine history form (GX-8). 

Tr. 102-103; SB 1-2.2

2

 References to the transcript of the hearing in this matter are designated “Tr.” followed 

by the page number. References to joint exhibits are designated as “J” followed by the number. 

References to the Secretary of Labor’s exhibits are designated as “GX.” References to 

Respondent’s exhibits are designated “RX.” References to the Secretary’s Post-Hearing Brief are 

designated “SB” followed by the number. References to the Secretary’s Reply Brief are 

designated “SRB” followed by the number. References to the Respondent’s Post-Hearing Brief 

are designated “RB” followed by the number. References to Respondent’s Reply Brief are 

designated “RRB” followed by the number. 

42 FMSHRC Page 119
III. SUMMARY OF TESTIMONY 

 On May 24, 2018, MSHA Inspector Bernard Caffrey was sent to the Enlow Fork Mine 

for a quarterly E01 inspection.3 Tr. 17-18. Inspector Caffrey was also instructed to find several 

gas wells and see if they had the pillar protection permit for the plan submitted. Tr. 17-18. The 

gas wells were plotted on 75.1200 mine maps that had been submitted to MSHA since 2015. Tr. 

113. Caffrey asked to see the pillar protection plan, but found that the mine did not have one. Tr. 

18. Therefore, he issued Citation No. 9076658 for violating 30 C.F.R. § 75.1700.4 Tr. 17-18. The 

Condition or Practice section of the citation stated: 

The operator failed to take reasonable measures to locate all oil and gas wells 

penetrating the coal bed or any underground portion of the mine in that the 

operator did not submit for a gas well pillar protection permit to establish 

adequate barriers around the total of 11 CNX Gas NV-34 Marchellus [sic] gas 

wells in accordance with State laws and regulations, except that such barriers 

shall not be less than 300 feet in diameter without prior approval from all 

agencies. The CNX Gas NV-34 wells have been drilled within 100 feet of the 

previously mined E-19 Longwall panel of the E Longwall district without an 

approved gas well pillar protection permit. 

In order to terminate this citation, the operator will submit for approval a gas well 

pillar protection permit for the CNX Gas NV-34 Marchellus [sic] wells for the 

now sealed E Longwall district to prove that the barrier is sufficient in size. 

GX-1. 

3

 At the time of hearing, Bernard Caffrey had been an MSHA inspector for six years. Tr. 

15. Prior to working for MSHA, Caffrey worked at several mines performing various types of 

work, including ventilation work, running a scoop, running a continuous miner, running a rib 

bolter, and others. Tr. 15-16. He had black cap papers as well as machine runner’s papers. Tr. 

16-17. 

4

 The regulation states: 

Each operator of a coal mine shall take reasonable measures to locate oil and gas 

wells penetrating coalbeds or any underground area of a coal mine. When located, 

such operator shall establish and maintain barriers around such oil and gas wells 

in accordance with State laws and regulations, except that such barriers shall not 

be less than 300 feet in diameter, unless the Secretary or his authorized 

representative permits a lesser barrier consistent with the applicable State laws 

and regulations where such lesser barrier will be adequate to protect against 

hazards from such wells to the miners in such mine, or unless the Secretary or his 

authorized representative requires a greater barrier where the depth of the mine, 

other geologic conditions, or other factors warrant such a greater barrier. 

30 C.F.R. § 75.1700. 

42 FMSHRC Page 120
After Caffrey was shown the number of wells to make sure that they matched his records, 

he discussed with Consol personnel the distances to determine whether they were within a 150-

foot radius required by law. Tr. 19. Caffrey asked for proof that the plan was submitted, but such 

proof could not be provided. Tr. 20. Caffrey wrote in his notes that the area was mined in 2009, 

it was sealed in 2014, and the well was drilled in 2013. Tr. 19. The area at issue was a bleeder 

district when the wells were drilled. Tr. 23. He testified that it was not an active area when the 

citation was issued, but it was traveled by a certified examiner. Tr. 23, 28. 

Caffrey discussed the matter with his supervisor, Tom Bochna, and then notified Steve 

Apperson at Consol that he was issuing a citation. Tr. 20. Caffrey explained that he had to 

discuss whether to issue a citation with his supervisor and district manager because the situation 

was not one he had dealt with before. Tr. 20. To his knowledge, MSHA had not previously 

issued a 75.1700 citation for Marcellus wells prior to the one that Caffrey issued.5

 Tr. 25-26. 

MSHA did not issue any 75.1700 citations for these NV-34 wells between January 2015 and 

May 2018.6 Tr. 34. Caffrey did not know the reasons why no citations were issued, but testified 

that it may have been overlooked. Tr. 34. Inspector Caffrey testified that even though the 

regulation requires conformity with state law, he did not consider state law before he issued the 

citation. Tr. 27. Caffrey explained, “Honestly, we don’t typically go into state laws, because it’s 

state law, and we are federal law. And I cited it as a federal law.” Tr. 27. 

Caffrey testified that he designated the citation as “no likelihood” because, at the time 

that the citation was issued, the area was sealed.7 Tr. 21. He designated it as “moderate” 

negligence because he believed that the company knew about these wells. Tr. 21-22. Caffrey 

based this belief on the fact that company representatives worked with the gas companies to plot 

the areas, and because Consol had the wells on their maps. Tr. 22. 

Caffrey gave Consol one week to terminate the violation. Tr. 22. The citation stated that 

in order to terminate, “the operator will submit for approval a gas well pillar protection permit 

for the CNX Gas NV-34 Marchellus [sic] wells for the now sealed E Longwall district to prove 

that the barrier is sufficient in size.”8 Tr. 41. The operator submitted a short letter with an 

 

5

 Caffrey was not able to determine if Enlow Fork had previous 75.1700 citations at the 

time he wrote the citation. Tr. 25. 

6

 The transcript improperly called the NV-34 well “NC134 wells.” Tr. 34. 

7

 The bleeder district adjacent to NV-34 wells was sealed on June 28, 2014. Tr. 139. 

8

 The operator had not previously submitted a gas well pillar protection permit 

application to establish adequate barriers around the total of the 11 CNX Gas NV-34 Marcellus 

gas wells. Tr. 31-32. Caffrey testified that 30 C.F.R. 75.1700 requires such that barriers shall be 

no less than 300 feet in diameter without prior approval. Tr. 31-32. In the letter attached to the 

initial drilling plan submitted to MSHA in 2013 for NV-34, it stated that the gas company would 

maintain a 50-foot barrier of coal between the hole and the mine rib. Tr. 134-135. 

42 FMSHRC Page 121
attached map/form in order to terminate the citation. Tr. 41-42; GX-5, p. 3-4. The letter stated in 

full: 

Enlow Fork Mine is respectfully submitting, for your approval, a safety barrier 

zone for the NV-34 wells. Mining in the respected area had been completed in 

2009 and these wells were drilled after mining in 2013. This submittal is in 

response to citation #9076658 issued by your department on May 24, 2018. Please 

find the attached drawing pertaining to this request. 

GX-5, p. 3. Attached to the letter was a drawing and form that the operator had submitted to the 

state of Pennsylvania. Tr. 59. The attached drawing shows the wells, along with a 40,000 square 

foot Support Area. Id. 

After the operator filed a plan with the district manager, MSHA Inspector Bryan Yates 

issued the termination for Citation No. 9076658.9

 Tr. 58; GX-1, p. 2. On July 17, 2018, MSHA 

sent Consol a short letter stating, “Your plan dated May 30, 2018, and additional information 

received on July 11, 2018, to protect the Enlow Fork Mine, I.D. 36 07416, from the hazards of 

the NV-34 Wells, located in the E19 sealed area of the mine, is approved.” GX-5, p. 1. 

There was general agreement among the witnesses that if the operator wants to get within 

150 feet of the wells in the future, it would still need to file paperwork with MSHA and the state 

of Pennsylvania. Tr. 43, 137. This is because the operator only needs to notify MSHA if, when it 

is mining, it comes within the 300-foot diameter surrounding the well. Tr. 51-52, 138. 

On May 30, 2018, Inspector Yates issued Citation No. 9079183 at the Enlow Fork Mine 

because the operator’s plan only listed six wells, but their 75.1200 map listed nine wells.10 Tr. 

60; GX-2. The Condition or Practice section in the citation stated: 

The operator failed to file a revised plan for the 3 additional wells that were 

drilled at the NV-60 well cite[sic] located between the E-23 tailgate and the E-23 

headgate. the plan that the operator filed for the NV-60 only requested to drill 6 

wells. The plan submitted indicated that the holes would measure 80 feet from the 

rib line. The addition of the 3 wells lessened this distance to 59 feet. The operator 

did not ensure that an adequate barrier would remain around these new wells. The 

operator failed to file for an approved gas well pillar protection permit with all 

agencies. 

9

 Bryan Yates was a MSHA inspector since May 2014. Tr. 55-57. Prior to that, Yates 

worked as a section foreman, a MET instructor, and a CPR instructor. Tr. 55-56. Yates received 

CMI training, as well as accident investigator training. Tr. 55. As an MSHA inspector, Yates 

performs quarterly inspections and reviews plans to ensure that the mines are following plans as 

required. Tr. 57. 

10 Yates had not been in the bleeder before the day that he issued the citation. Tr. 81. 

42 FMSHRC Page 122
Standard 75.1700 was cited 1 time in two years at mine 3607416 (1 to the 

operator, 0 to a contractor). 

GX-2. 

Yates testified that the plan approved on September 24, 2013, for the NV-60 Marcellus 

wells was only approved for six wells in the area.11 Tr. 61; GX-3, p. 3. These additional wells 

were drilled on the same surface pad as the six existing wells. Tr. 83. Casey Saunders, the 

manager for coal and gas coordination for Consol Energy, testified that Consol was not required 

to submit the drilling plan, but only did so for the NV-60 wells as a courtesy.12 Tr. 125. He 

explained that he met with Pennsylvania officials in 2013 to discuss the novel issue of gas wells 

being drilled behind mining. Tr. 121-122. Consol had gas wells drilled behind mining in West 

Virginia, but had not done so in Pennsylvania, so Saunders sought guidance from the state 

concerning the requirements. Tr. 122. The Pennsylvania Department of Environmental 

Protections officials told Saunders that if the gas wells were being drilled behind mining, and it 

met with the requirements of the 1957 study guidelines, then no drilling plan was required. Tr. 

123. He explained, “At the time, like I said before, this was pretty new. When I say this, drilling 

behind mining was a new concept at the time in Pennsylvania. And it’s better to be safe. And we 

decided to submit a drilling plan to get everybody on board.” Tr. 125. 

When the new wells were drilled, it reduced the barrier to approximately 59 feet. Tr. 63. 

The plan submitted for the six wells stated that the operator would keep an 80-foot barrier in 

order to ensure a minimum 50-foot barrier of coal between the hold and mine rib. Tr. 82-83; GX3. Yates indicated that the holes were measured 80 feet from the rib line, measured from the 

barrier block. Tr. 81-82; GX-2. When the engineer gave Yates the distance reading, it was 59 

feet from the wells to the rib line. Tr. 84. The approval letter from MSHA stated that the plan 

was approved and that “The MSHA field office shall be notified at least 48 hours prior to drilling 

within 30 feet of the coal seam. This approval is for drilling at the stated site only. Additional 

sites will require separate approvals.”13 GX-3. 

11 These unconventional wells involve horizontal drilling. Tr. 66. 

12 Casey Saunders worked as the manager of coal and gas coordination for Consol Energy 

since 2017. Tr. 106. Prior to that position, Saunders was a senior project engineer working with 

gas operators on coordinating surface activities. Tr. 107. Saunders graduated from Virginia Tech 

in 2009 with a BS in mining and mineral engineering. Tr. 107. Saunders has previously worked 

for Peabody Energy. Tr. 107. Saunders was responsible for coordinating gas wells since 2012. 

Tr. 108. Saunders has assistant underground foreman papers in West Virginia, as well as a 

Pennsylvania engineering license. Tr. 109. Saunders is a member of the PA DEP oil and gas 

management technical advisory board. Tr. 109. 

13 Based on this Court’s reading of the plan and approval in evidence at GX-3, the term 

“site” refers to the “solid barrier of coal left between the Enlow Fork’s E-23 Tailgate and the E22 Headgate sections,” which shared a common well pad on the surface. GX-3, p. 1-3. 

42 FMSHRC Page 123
After investigating, Yates concluded that there were no additional pillar permits for these 

three additional wells.14 Tr. 61. Yates did not find any other documents, revisions, or changes 

that showed approval to drill the three additional wells. Tr. 61-62. Yates did not cite the operator 

for failing to locate the wells, but rather for not filing the plan. Tr. 81. Yates testified that they 

received a directive from the District to raise awareness and pay more attention to the maps. Tr. 

77. He understood that to mean that they “should pay attention to mining around gas wells and 

make sure maps are correct.” Tr. 77. Yates testified that he does not know much about state 

mining laws. Tr. 90. 

Yates testified that he believed the areas were drilled in 2014 and had been used only for 

bleeder examinations in order to check the fans, water, and ventilation. Tr. 70. In the bleeder 

district, at the third entry which is closest to the wells, the operator was required to have 

supplemental support through the entire entry. Tr. 79. They would have to do this by either cans 

or cribs. Tr. 79. The operator must maintain the integrity of the bleeder entryway using cans until 

the bleeder district is sealed. Tr. 79. The cans keep the area from being crushed by the pressure. 

Tr. 79. Once the cans are installed, there is no way to get mining equipment into the area. Tr. 80, 

94-96. Electricity is not allowed in the bleeder section. Tr. 80. Yates testified that there would be 

no future mining in the third entry. Tr. 80. 

Yates marked the citation as “no likelihood” because the wells had already been drilled 

so he treated the matter as a paperwork violation for the plan not being revised for the three 

additional wells. Tr. 62. Yates marked the citation as “moderate” negligence because the 

operator showed that they knew about the wells by including them on the maps, but never 

revised their plan. Tr. 62-63. Yates did not consult with any state laws before writing the citation. 

Tr. 87. Yates testified that he has no expertise in geology, and indicated that that was why it was 

important to submit plans that experts could analyze and determine if adequate. Tr. 88. Yates 

terminated Citation No. 9076658 on May 30, 2018, after the operator submitted a plan. Tr. 67-

68. 

Casey Saunders testified that state law does not require an operator to apply for a pillar 

protection permit when wells are drilled behind the coal. Tr. 112. Saunders took issue with the 

citation’s assertion that the operator failed to take reasonable measures to locate the wells 

because, he explained, they were placed on the mine map in 2015. Tr. 113. Saunders testified 

that the operator submitted the ventilation maps to MSHA on an annual basis. Tr. 113. Saunders 

did not believe that the law applied to the instant situation. Tr. 114. He described the process of 

getting a Pennsylvania coal pillar permit, but explained that the state application was not relevant 

to the instant situation. Tr. 114-115. The relevant portions of Pennsylvania law are in regard to 

wells that are drilled out in an area that mining is approaching. Tr. 117. 

The Pennsylvania Department of Environmental Protection (DEP) uses the 1957 pillar 

study as the standard for determining if a gas well being approached has an active pillar. Tr. 118; 

14 The three additional wells were on the same pad as the six approved wells. Tr. 83. 

Yates testified that there were no survey points for the three additional wells, so he did not know 

if the holes were closer than 50 feet. Tr. 83. 

42 FMSHRC Page 124
RX-H. Saunders testified that according to the 1957 study, only a 100-foot pillar would be 

required for the wells at issue. Tr. 120-121. 

Saunders described how in 2013 he approached the state agency about developing a 

drilling plan for wells drilled behind mining. Tr. 122-123. It was not required under state law, but 

Saunders felt that it could help to coordinate the complex relationship between coal and gas.15

Tr. 122-123. The Pennsylvania authorities determined that if the pillar met the 1957 study 

guidelines, then no drilling plan was required. Tr. 123. 

Saunders testified that the state of Pennsylvania would not have required a drilling plan 

for the wells at issue in Citation Nos. 9076658 and 9079183. Tr. 124-125. Though a drilling plan 

was not required for wells NV-34 and NV-60, Saunders testified that he provided one for NV-60 

because, “it is better to be safe.” Tr. 125. At the time, Saunders also sent the information to 

MSHA and said that the Respondent did not receive a lot of comments back. Tr. 126. He 

described the process as akin to a “rubber stamp.” Tr. 126. Saunders testified that MSHA 

representatives were present for some of the meeting with the Pennsylvania DEP, but could not 

remember if they were present in the meetings where Pennsylvania representatives said that a 

drilling plan was not required. Tr. 125-126. 

Saunders testified that he believed that Section 75.1700 only applied when wells were 

drilled in areas in front of where mining was occurring. Tr. 129. He did not believe that wells 

NV-34 and NV-60 fell under the law. Tr. 129. Saunders was not aware of any Program Policy 

Manual or other information from MSHA that stated MSHA would apply Section 75.1700 to 

mine out areas. Tr. 129-130. According to the Program Policy Manual, a petition for 

modification is required to mine through a well.16 Tr. 37; GX-F. 

Saunders based his belief that Section 75.1700 only applies to future mining areas on the 

idea that a pillar would be constructed by remaining coal. Tr. 130. Saunders further testified that 

the cans would serve as a physical barrier that prevented them from accessing the area. Tr. 131. 

Robert Robinson was the director of engineering for three mines, and he testified on 

behalf of Respondent.17 Tr. 149. In this capacity, he was responsible for certifying Enlow’s 

maps, as well as the Harvey and Bailey mines if needed. Tr. 149. Robinson testified that in his 

experience, a pillar protection permit was only required when the mine was going to advance 

within 150 feet of a well. Tr. 151. He described the procedure as submitting a pillar plan based 

on the 1957 study to the state of Pennsylvania first. Tr. 151. Then, once the state approved it, the 

plan was sent to MSHA for approval. Tr. 151. 

15 Saunders described the submission of the 2013 plan as a “courtesy.” Tr. 137. 

16 The July 2010 PPM does not mention wells drilled behind mining operations. Tr. 89. 

17 Robinson has a BS in mining engineering from Penn State. Tr. 149. He has worked in 

the mining industry since 1976, and has been employed by Consol since 1998. Tr. 149-150. He is 

a licensed professional engineer and a licensed professional land surveyor, and has general mine 

foreman’s papers for Pennsylvania. Tr. 150. 

42 FMSHRC Page 125
Robinson understood Section 75.1700 as requiring only that the operator file a permit 

pillar application with the state if they want to get within the 150-foot radius of the well. Tr. 157. 

Then, after the state approved, the operator would have to submit the plan for MSHA approval. 

Tr. 157. He did not interpret this regulation to require pillar permits behind the mining. Tr. 158. 

A. CONTENTION OF THE PARTIES

 The Secretary argues that the Respondent clearly violated 30 C.F.R. § 75.1700 by not 

getting approval from the Secretary prior to the drilling of the NV-34 and NV-60 wells. The 

Secretary further argues that the wells were drilled in active workings and that whether the wells 

were in front or behind the mining is irrelevant. The Respondent did not maintain barriers as 

regularly defined, and the Secretary’s lack of previous citations does not estopp the Secretary 

from enforcing the law. Though the Secretary argues that the standard is clear, it uses Chevron

and Auer to argue that should the Court find it ambiguous its interpretation is a reasonable one 

entitled to deference. Accordingly, the Secretary argues that the citations should be upheld. 

 

 The Respondent argues that no plans or permits were required under state law or MSHA 

regulations for the NV-34 and NV-60 wells because the wells were drilled in inactive areas 

where mining had been completed. Furthermore, if barriers were required, the cans served as an 

effective barrier greater than the required 150 feet. The operator argues that the regulation is 

clear and unambiguous in not requiring a permit or plan in this sort of case, and if MSHA is 

starting to interpret the regulation to require such plans it must provide fair notice to operators. 

Accordingly, the Respondent argues that the citations should be vacated. 

B. BURDEN OF PROOF AND STANDARD OF PROOF

 The burden of persuasion is upon the Secretary to prove the gravamen of a violation by 

the preponderance of the evidence. Jim Walter Resources, Inc., 28 FMSHRC 983, 992 (Dec. 

2006). RAG Cumberland Resources, Corp., 22 FMSHRC 1066, 1070 (Sept. 2000). Jim Walter 

Res., Inc., 9 FMSHRC 903, 907 (May 1987). This includes every element of the citation. In re: 

Contests of Respirable Dust Sample Alteration Citations: Keystone Mining Corp., 17 FMSHRC 

872, 878 (Aug. 2008). 

 Commission precedents have held that “[t]he burden of showing something by a 

‘preponderance of the evidence’ the most common standard in the civil law, simply requires the 

trier of fact ‘to believe that the existence of a fact is more probably than its nonexistence.’” RAG 

Cumberland Resources Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), quoting Concrete Pipe & 

Products of California, Inc. v. Constr. Laborers Pension Trust for S. California, 508 U.S. 602, 

622 (1993). 

 The United States Supreme Court has held that “[b]efore any such burden can be satisfied 

in the first instance, the factfinder must evaluate the raw evidence, finding it to be sufficiently 

reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the 

requisite degree of certainty.” Concrete Pipe & Products of California, Inc. v. Constr. Laborers 

Pension Trust for S. California. 508 U.S. 602, 622 (1993). The assessment of evidence is a 

process of weighing, rather than mere counting: “[T]here is a distinction between civil and 

42 FMSHRC Page 126
criminal cases in respect to the degree or quantum of evidence necessary to justify the [trier of 

fact] in finding their verdict. In civil cases their duty is to weigh the evidence carefully, and to 

find for the party in whose favor it preponderates.” Lilienthal’s Tobacco v. United States, 97 U.S. 

237, 266 (1877). 

 While the Secretary must prove the elements of a citation by a preponderance of the 

evidence, this Court’s factual determinations must be supported by substantial evidence.18 

C. ANALYSIS

Both citations in this case center on the proper interpretation of 30 C.F.R. § 75.1700. The 

regulation, entitled “Oil and Gas Wells,” states: 

Each operator of a coal mine shall take reasonable measures to locate oil and gas 

wells penetrating coalbeds or any underground area of a coal mine. When located, 

such operator shall establish and maintain barriers around such oil and gas wells 

in accordance with State laws and regulations, except that such barriers shall not 

be less than 300 feet in diameter, unless the Secretary or his authorized 

representative permits a lesser barrier consistent with the applicable State laws 

and regulations where such lesser barrier will be adequate to protect against 

hazards from such wells to the miners in such mine, or unless the Secretary or his 

authorized representative requires a greater barrier where the depth of the mine, 

other geologic conditions, or other factors warrant such a greater barrier. 

30 C.F.R. § 75.1700. 

 Both the Secretary and Respondent argue that the regulation is clear and unambiguous, 

with divergent positions on what the regulation clearly says. SB at 13-15; SRB at 1-3; RB at 13-

16. Under longstanding precedent, when “‘the meaning of [a regulation] is in doubt,’ the 

agency’s interpretation “becomes of controlling weight unless it is plainly erroneous or 

inconsistent with the regulation.” Kisor v. Wilkie, 139 S. Ct. 2400, 2411 (2019) (citing Bowles v. 

Seminole Rock & Sand, 325 U.S. 410, 414 (1945)). “Because applying an agency's regulation to 

complex or changing circumstances calls upon the agency's unique expertise and policymaking 

prerogatives, we presume that the power authoritatively to interpret its own regulations is a 

18 When reviewing the finding of fact by a lower court, the Commission will decline to 

disturb the determination if is supported by substantial evidence. Wolf Run Mining Co., 32 

FMSHRC 1669, 1687 (Dec. 2010), U.S. Steel Mining Co., 8 FMSHRC 314, 319 (Mar. 1986). 

This test of factual sufficiency has been a part of Commission jurisprudence since its inception, 

required by the plain text of the Mine Act itself. 30 U.S.C. § 823(d)(s)(A)(ii)(I). Substantial 

evidence has been described by the Commission as “such relevant evidence as a reasonable mind 

might accept as adequate to support [the judge’s] conclusion.” Rochester & Pittsburgh Coal Co., 

11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 

229 (1938)). 

42 FMSHRC Page 127
component of the agency's delegated lawmaking powers.” Martin v. Occupational Safety and 

Health Rev. Commn., 499 U.S. 144, 149–51 (1991) (citations omitted). 

 However, the Supreme Court has recently warned that “Auer deference is not the answer 

to every question of interpreting an agency’s rules. Far from it.” Kisor, 139 S. Ct. at 2414. The 

Court warned that a regulation must be “genuinely ambiguous, even after a court has resorted to 

all the standard tools of interpretation.” Id. “Deference is appropriate where the relevant 

language, carefully considered, can yield more than one reasonable interpretation, not where 

discerning the only possible interpretation requires a taxing inquiry.” Pauley v. BethEnergy 

Mines, Inc., 501 U.S. 680, 706 (1991) (Scalia Dissenting). “To make that effort, a court must 

‘carefully consider[ ]’ the text, structure, history, and purpose of a regulation, in all the ways it 

would if it had no agency to fall back on. Ibid. Doing so will resolve many seeming ambiguities 

out of the box, without resort to Auer deference.” Kisor, 139 S. Ct. at 2415. 

 In the instant case, both parties are correct that the Section 75.1700 is clear and 

unambiguous, which means that there is no need to move to step two of the analysis and the 

Secretary is not entitled to deference. The regulation has two primary requirements: 

1) The operator must take reasonable measures to locate oil and gas wells penetrating 

coalbeds or any underground area of a coal mine. 

2) When located, the operator shall establish and maintain barriers around the wells in 

accordance with state laws and regulations. These barriers must be at least 300 feet in 

diameter (or 150 feet in radius), unless the Secretary authorizes a lesser barrier.19 

Each of these will be considered in turn for each citation. However, before addressing the 

requirements of the standard, this Court must first address a primary point of disagreement 

between the parties. 

The Respondent argues that Section 75.1700 does not apply to the wells identified in 

Citation Nos. 9076658 and 9079183 because the wells were drilled adjacent to inactive bleeder 

areas in the mine. RB at 6. It points to the text of the regulation, which “refers to locating wells 

that are ‘penetrating’ coalbeds and then establishing and maintaining a ‘barrier.’” RRB at 7. It 

argues that this interpretation is both in line with the legislative history of the Act, as well as its 

purposes. In Peabody Coal Co., the ALJ cited the Senate Report, which stated “numerous 

inundations of gas into coal mines have been caused by cutting into or approaching too near gas 

wells...All possible precautions should be exercised to safeguard against penetrating oil and gas 

wells.” 1 FMSHRC 473, 482 (1979) (ALJ). The Respondent argues that the legislative purpose 

here was to prevent mining from getting too close to gas wells, which would not be a problem if 

the gas wells are drilled behind the mining. RB at 6. Furthermore, requiring an operator to install 

a coal barrier in a mined-out area would lead to the absurd result “because an operator cannot reinstall coal.” RB at 6. 

19 The Secretary may also require a greater barrier where warranted due to geological 

conditions or other factors, however this is not at issue in this case. 

42 FMSHRC Page 128
By contrast, the Secretary argues that with regards to Section 75.1700, “the location of 

mining is not relevant.” SB at 10. The text of the regulation makes no mention of the location of 

the well, the Secretary asserts, and Part 75 defines “active workings” as “any place in a coal 

mine where miners are normally required to work or travel.” SB at 10. It argues that bleeders 

must be examined, and therefore they are “active workings.” SB at 11. Citing the 1979 ALJ 

decision in Peabody Coal Co., the Secretary states that “Peabody Coal made the same argument 

40 years ago and it was rejected then.” SB at 10. 

The Respondent’s reading of the regulation is too narrow and not supported by the clear 

language of the text. Contrary to what the Respondent asserts, 75.1700 does not only refer to “oil 

and gas wells penetrating coalbeds,” but rather continues, “or any underground area of a coal 

mine.” 30 C.F.R. § 75.1700. Though the Respondent makes a reasonable argument concerning 

the decreased level of danger when gas wells are drilled behind mining, the text of the regulation 

leaves little room to exclude such areas. Accordingly, I find that the NV-34 and NV-60 wells are 

covered by Section 75.1700. 

1) Did the operator take reasonable measures to locate gas wells? 

Citation No. 9076658 stated in relevant part that the “operator failed to take reasonable 

measures to locate all oil and gas wells penetrating the coal bed or any underground portion of 

the mine in that the operator did not submit for a gas well pillar protection permit to establish 

adequate barriers around the total of 11 CNX Gas NV-34 Marchellus [sic] gas wells...” GX-1. 

Evidence that the operator plotted gas wells on maps submitted to MSHA satisfies this 

element of the regulation. See e.g. Dominion Coal Corp. v. MSHA, 35 FMSHRC 3557, 3592 

(Dec. 6, 2013) (ALJ) (“In this case, Respondent had already located the well and had plotted it 

on its maps from 1994 to 2008. Therefore, it appears that Respondent complied with the first 

requirement of § 75.1700.”). Inspector Caffrey testified that on May 24, 2018, he was sent to the 

Enlow Fork Mine and instructed to find several gas wells that appeared on the maps that the 

operator submitted. Tr. 17-18. Caffrey further testified that he asked the operator’s agent to show 

him the wells on their digital map and “they had it on the map, that was fine.” Tr. 18. When 

presented with a map of the area at issue, Inspector Caffrey located the wells in the lower right 

corner off the E19 panel. Tr. 29-30; RX-L. He testified that the map showed 11 wells at NV-34. 

Tr. 30. When asked if the operator had located the wells, Caffrey responded, “They had. 

Correct.” Tr. 32. Based on this evidence, I find that the operator took reasonable measures to 

locate the NV-34 gas wells at issue in Citation No. 9076658. 

Inspector Yates testified that he issued Citation No. 9079183 on May 30, 2018, because 

there was a discrepancy concerning the number of gas wells at NV-60. Specifically Yates stated 

that the operator listed nine wells on its mine map, but only listed six wells on its drilling plan. 

Tr. 60. Yates testified, “When I first got to the mine, I found that the operator had listed all nine 

wells on their mine map, on the 75.1200 map. And the map for the escape way map that is 

located where the miners congregate.” Tr. 60. At hearing, Yates showed where on the operator’s 

map he found the nine NV-60 wells. Tr. 68-70; RX-M. Based on this evidence, I find that the 

operator took reasonable measures to locate the NV-60 gas wells at issue in Citation No. 

9079183. 

42 FMSHRC Page 129
2) Did the operator establish and maintain barriers in accordance with state laws and 

regulations that were either 300 feet in diameter or were authorized to be less by 

MSHA? 

With regards to this issue, the Respondent spent much of its time at hearing focusing on 

the first part concerning the requirement that the barriers be in accordance with state laws and 

regulations, while the Secretary primarily focused on the second part concerning the required 

distance. Casey Saunders testified about the process of applying for a pillar permit to the 

Pennsylvania Department of Environmental Protection. Tr. 115-125. According to Saunders, the 

state only requires a pillar permit application when an operator is mining in the direction of a gas 

well and gets within 500 feet of the well. Tr. 117; RX-I. The state then uses the 1957 study to 

determine if the pillars are appropriate.20 Tr. 117; RX-H. 

Both inspectors readily conceded that they were not familiar with state laws and 

regulations concerning gas wells. When questioned about state law, Inspector Caffrey replied, 

“Honestly, we don’t typically go into state laws, because it’s state law, and we are federal law. 

And I cited it as a federal law.” Tr. 27. He furthermore stated that with regards to the 1957 study, 

“I have no recollection of [it], because I never read it.” Tr. 27. Similarly, Inspector Yates 

testified, “I just know federal law. I don’t know state law.” Tr. 66. Neither the inspectors nor this 

Court is in a position to review state law and determine whether the operator acted in accordance 

with such. Because there was no evidence submitted to the contrary, this Court assumes that the 

operator did not violate state laws or regulations concerning gas wells. 

Section 75.1700 not only requires the operator to maintain barriers in accordance with 

state law, but also to establish those barriers at a specific distance, unless MSHA allows a lesser 

distance. The Secretary argues that the operator did not maintain a 150-foot barrier between the 

wells and the active workings. Quoting the Peabody Coal case, the Secretary states that a barrier 

“ordinarily would consist of a coal pillar or a rib of coal.” SB at 11. The purpose of the barrier is 

“to limit the risk from gasses that can move through cracks in coal and endanger miners due to 

the risks of explosion or displacement of oxygen.” SB at 11. The Secretary argues that the 

operator had no such barriers, and no permission for a lesser barrier. 

The Respondent argues that it would be impossible for it to construct a coal barrier in the 

areas at issue, because doing so would require it to physically extract coal around the well. RB at 

8. Instead, the Respondent argues that it had “an effective barrier” because the area around the 

NV-34 wells was sealed at the time of the citation, and the support cans and cribs in the area 

around the NV-60 wells made the area unreachable by mining equipment. RB at 11. 

Furthermore, both areas were adjacent to bleeders, and both federal and state law forbid mining 

in such areas. RB at 10-11; Tr. 131. 

The term “barrier” is not defined in the regulations or in the Program Policy Manual 

submitted into evidence in this case. While the parties agree that normally such barriers refer to a 

coal barrier, in cases such as the instant one where a mined-out area is at issue, it would be 

20 The Joint Coal and Gas Committee Gas Well Pillar Study was repeatedly referred to as 

“the 1957 study” throughout the hearing. It was admitted into evidence as RX-H. 

42 FMSHRC Page 130
absurd to require the operator to somehow reconstruct a coal barrier. In Peabody Coal Co., the 

ALJ examined this issue at length: 

Congress, in requiring the operator to establish and maintain “barriers” around 

located gas and oil wells, did not indicate the kind of barrier it intended and there 

is little to suggest the exact purpose of the barrier other than for the brief 

explanation quoted above. 

 

A “barrier,” as defined in Webster’s Third International Dictionary (1966), is “a 

material object or set of objects that separates, keeps apart, demarcates, or serves 

as a unit or barricade.” In the mining industry, the term appears to have a more 

specific meaning. A Dictionary of Mining, Mineral and Related Terms 

(Department of the Interior, 1968), defines the term as follows: 

barrier. a.) Blocks of coal left between the workings of different 

mine owners and within those of a particular mine for safety and 

the reduction of operational costs. It helps to prevent disasters of 

inundation by water, of explosions, or fire involving an adjacent 

mine or another part of a mine and to prevent water running from 

one mine to another or from one section to another of the same 

mine. Mason, v. 1, p. 312. See also barrier pillar. b.) A low ridge 

by wave of action near the shore. Fay. 

 

The same dictionary defines a related term thusly: 

barrier pillar. a.) A solid block or rib of coal, etc., left unworked 

between two collieries or mines for security against accidents 

arising from an influx of water. Zern. b.) Any large pillar entirely 

or relatively unbroken by roadways or airways that is left around a 

property to protect it against water and squeezes from adjacent 

property, or to protect the latter property in a similar manner. Zern. 

c.) Incorrectly used for a similar pillar left to protect a roadway or 

airway, or a group of roadways or airways, or a panel of rooms 

from a squeeze. Zern. 

 

Based on these definitions, a “barrier” ordinarily would consist of a coal pillar or 

a rib of coal and the purpose is not only to keep fluids and gases out of the mine, 

but also to prevent “squeezes,” that is, the squeezing down of the top, at least 

from adjacent property. As a historical matter, it appears that the use of the coal 

pillar was originally developed by the petroleum and natural gas industry to 

prevent subsidence due to mining from rupturing or dislocating a well bore. 

Quarto Mining Company, Docket No. M 77-48 (Initial Decision, Judge Michels) 

(December 5, 1977), p. 3. 

 

The term “barrier”, as used in the statute, would, I believe, generally define a coal 

pillar, and its principal purpose, as referred to in the legislative history quoted 

42 FMSHRC Page 131
above, would be to safeguard against penetrating oil and gas wells by operators. 

Nevertheless, there is nothing in the statute or the legislative history limiting the 

type of barrier to be used or its purpose so long as it relates to protection against 

hazards from wells. The Act and the regulation require simply that measures are 

to be taken to locate wells—there being no implication that such must be in 

existence when the coal is mined—and that appropriate barriers be established 

and maintained when a well is located... 

 

As indicated, ordinarily the barrier to be established and maintained would be the 

coal barrier, but when that no longer exists or only partially exists, other kinds of 

barriers made from other materials may have to be used. It is significant that the 

Act and the regulation, when referring to “barriers,” or to a “barrier,” in no place 

limits these to coal barriers; thus, they can be made of other substances. The use 

of barriers may be required to protect against subsidence if there is a risk that such 

a condition would rupture the wells and release gases or liquids. The regulation is 

clearly broad enough to protect the miners from hazards of such a rupture as well 

as ruptures from accidental cutting in the mining process. 

1 FMSHRC at 482-483. 

I find the ALJ’s reasoning persuasive and adopt it here. The purpose of the barrier 

requirement is to prevent mining into a gas well. See eg. Dominion Coal, 35 FMSHRC at 3597 

(“the event against which the standard, 30 C.F.R §75.1700, is directed is explosion or methane 

inundation as a result of the intersection of a gas well. The standard seeks to prevent operators 

from mining into gas wells by requiring that those wells be located and that barriers be 

established around them.”) If MSHA intended for a barrier to be limited to a coal barrier, it 

would have said so in the regulation. And though a coal barrier may be preferable, cases such as 

the instant one illustrate that coal barriers are not always possible. Indeed, when asked how an 

operator could install a coal barrier in an area where mining had already occurred, Inspector 

Yates responded, “I know of no process yet that can.” Tr. 78. 

I find the Respondent’s argument that the bleeders’ proximity to the wells served as a sort 

of legal barrier, because mining is prohibited near the bleeders, unavailing. Whereas the term 

“barriers” has a broader meaning than the Secretary suggests, it is clearly a reference to physical 

barriers. 

However, the Respondent also presented evidence and argument concerning barriers 

around these wells, which though not constructed of coal, served the purpose of excluding 

mining equipment that could penetrate the wells. With regards to the NV-34 wells, Inspector 

Caffrey testified that it was mined out and made so that there was no physical way to get mining 

equipment into the area. Tr. 45-46. Similarly, numerous witnesses testified that the area around 

the NV-60 wells had numerous floor and roof support cans and cribs that made it impossible to 

reach the area with mining equipment. Tr. 46, 79-80, 93,131. Inspector Yates’ was asked “Well, 

as far as you know, there is no technology that would allow you to go in and get a barrier pillar 

between two long wall--” Tr. 80. He answered, “Not yet. Correct.” Tr. 80. Insofar as the barriers 

42 FMSHRC Page 132
contemplated in the regulation are intended to limit the possibility of mining into a gas well, 

these barriers are effective barriers. 

The next issue that must be addressed is the distance of the barriers. Due to the unique 

circumstances of this case, where it was effectively impossible to install and maintain coal 

barriers, this Court must determine whether the bleeders acted as a barrier greater than 150 feet 

for both the NV-60 and NV-34 wells. Inspector Yates testified to this point exactly in the 

hearing: 

Q: Would you agree that the can line in a bleeder would be an active barrier to 

keep any mining from progressing up the No. 3 entry of the long wall panel next 

to the NV-60 mines? 

A: I agree that that protection is put in there to keep that airway open. 

Q: And that would act as a physical barrier to keep someone from mining that in 

the area or anywhere in that entry, the No. 3 entry adjacent to the NV-60 wells, 

correct? 

A: Yes. There would be no more mining in that area. 

Q: So there is no way to get within 300 feet -- or 150 feet of the NV-60 wells at 

the time those wells were drilled. Correct? 

A: I don't understand. 

Q: There is no way to get any mining equipment within 150 feet of the NV-60 

wells when those were drilled in 2014. Correct? 

A: Correct. 

Q: So that would mean those are a physical barrier, those can lines are a physical 

barrier to mining in that area. Correct? 

A: Correct. There would be no mining... 

Tr. 92-93. Inspector Yates testified similarly concerning the NV-34 wells. Tr. 94-98. 

While there may very well be requirements in other sections of Part 75 that required the 

mine operator to file a plan or permit application with MSHA, the inspectors cited the 

Respondent under 30 C.F.R. § 75.1700. According to both Inspector Caffrey and Inspector 

Yates, an operator would not have to notify MSHA or file for a permit for a well under Section 

75.1700, unless it planned to have a barrier with a radius of less than 150 feet. Tr. 51-52, 94. 

Though there could have been better communication between the operator and MSHA, and 

though it might have constituted a best practice to more clearly inform MSHA about the gas 

wells at issue here, the Secretary has not met his burden of proof that the operator violated 

42 FMSHRC Page 133
75.1700. All the evidence presented in this case indicated that the operator took reasonable 

measures to locate the gas wells at NV-34 and NV-60, and installed and maintained an effective 

barrier of at least 150 feet for all wells. 

ORDER 

The Respondent complied with the requirements of 30 C.F.R. § 75.1700. Accordingly, it 

is ORDERED that Citation Nos. 9076658 and 9079183 are VACATED. 

 /s/ John Kent Lewis 

John Kent Lewis 

Administrative Law Judge 

Distribution: 

Matthew R. Epstein, Esq., The Curtis Center, 170 S. Independence Mall West, Suite 630E, 

Philadelphia, PA 19106 

James P. McHugh, Esq., Hardy Pence, P.O. Box 2548, Charleston, WV 25329 

42 FMSHRC Page 134