NOVEMBER 1990 

Commission Decisions 

11-27-90 

11-28-90 

Ideal Cement Company 

Secretary of Labor on behalf of Price and 

Vacha, ·and UMWA v. Jim Walter Resources, Inc. 

(Petition for Reconsideration) 

ADMINISTRATIVE LAW JUDGE DECISIONS 

11-06-90 

11-08-90 

11-08-90 

11-09-90 

ll-'-09-90 

11-13-90 

11-16-90 

11-16-90 

11-16-90 

11-16-90 

11-20-90 

11-20-90 

11-23-90 

11-26-90 

11-26-90 

11-26-90 

11-26-90 

11-28-90 

11-28-90 

11-30-90 

Lawrence A. Broussard v. Akzo Salt Inc. 

Saturn Materials, Inc. 

Consolidation Coal Company 

W.J. Menefee Construction Co. 

Southern Ohio Coal Company 

Green River Coal Company 

Dan-Del Coals, Inc. 

UMWA on behalf of Filbert Royal v. 

Wyoming Fuel Company 

Sec. Labor on behalf of Alonzo Walker v. 

Dravo Basic Materials Co., Inc. 

Curtis R. Pickel v. B & LS Contracting, Inc. 

The Industrial Company of Wyoming (TIC) 

Beech Fork Processing, Inc. 

Arch of Kentucky, Inc. 

Richard R. Maynes v. Phelps Dodge Corporation 

Southern Ohio Coal Company 

Dennis Wagner v. Pittston Coal Group, etc. 

Larry E. Swift v. Consolidation Coal Co. 

Sec. Labor on behalf of Bob Wayne Hubenak v. 

Aluminum Company of America 

Hickory Coal Company 

Sec. Labor on behalf of William A. Marshall v. 

Quality Ready Mix, Inc. 

ADMINISTRATIVE LAW JUDGE ORDERS 

11-08-90 

11-15-90 

John Gilbert v. Sandy Fork Mining Co. 

Cyprus Bagdad Copper Corporation 

WEST 88-202-M 

SE 87-128-D 

CENT 90-118-DM 

KENT 90-161-M 

SE 90-66 

CENT 90-109-M 

WEVA 90~136 

KENT 90-95-R 

KENT 90-193 

WEST 90-118-D 

Pg. 2409 

Pg. 2418 

Pg. 2423 

Pg. 2424 

Pg. 2425 

Pg. 2427 

Pg. 2428 

Pg. 2433 

Pg. 2441 

Pg. 2443 

SE 90-86-DM Pg. 2461 

LAKE 90-114-D 

WEST 90-108 

KENT 90-87 

KENT 90-395-R 

CENT 89-132-DM 

WEVA 90-141 

VA 88-21-D 

PENN 90-233-D 

CENT 90-34-DM 

PENN 90-52 

LAKE 90-78-DM 

KENT 86-49-D 

WEST 90-289-M 

Pg. 2462 

Pg. 2463 

Pg. 2483 

Pg. 2485 

Pg. 2486 

Pg. 2503 

Pg. 2508 

Pg. 2509 

Pg. 2510 

Pg. 2519 

Pg. 2521 

Pg. 2523 

Pg. 2530 
NOVEMBER 1990 

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

Wyoming Fuel Company v. Secretary of Labor, MSHA, Docket No. WEST 90-112-R, 

etc. (Judge Morris, October 22, 1990) 

Secretary of Labor, MSHA v. Shamrock Coal Company, Inc., Docket No. 

KENT 90-60. (Judge Weisberger, October 17, 1990) 

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

Secretary of Labor, MSHA v. Puerto Rican Cement Co., Inc., Docket No. 

SE 90-26-M. (Judge Melick, October 11, 1990) 
COMMISSION DECISIONS 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

IDEAL CEMENT COMPANY 

~~ovember 27, 1990 

Docket No. WEST 88-202-M 

BEFORE: Backley, Acting Chairman; Doyle and Nelson, 

Commissioners 

DECISION 

BY: Backley, Acting Chairman; Doyle and Nelson, Commissioners 

This civil penalty proceeding arising under the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seq. 

(1988)("Mine Act" or "Act"), involves an issuance of a citation 

to Ideal Cement Company ("Ideal") pursuant to section 104(a.) of 

the Mine Act, 30 u.s.c. § 814(a), by an inspector of the 

Department of Labor's Mine Safety and Health Administration 

("MSHA"), as a result of an investigation conducted after an 

accident in which a miner was fatally injured. The citation 

alleges a violation of 30 C.F.R. § 56.9002 (1987), a former 

mandatory safety standard applicable to surf ace metal and 

nonmetal mines, which provided: "Equipment defects affectfng 

safety shall be corrected before the equipment is used." 

Following an evidentiary hearing, Commission Administration Law 

Judge John J. Morris-vacated the citation. 11 FMSHRC 1776 

(September 1989)(ALJ). For the reasons that follow, we reverse 

in part and remand this matter to the judge for further 

consideration. 

I. 

Ideal operates the Trident Plant and Quarry, a cement 

30 C.F.R. § 56.9002 (1987) was revised as of July 1, 

1988, and transferred along with 30 C.F.R. §§ 57.9002, 56/57.9001, 

and 56/57.9073 to 30 C.F.R. §§ 56.14100 and 57.14100. 53 Fed. Reg. 

32497, 32504 (August 1988). Sections 56.14100 and 57.14100 became 

effective on October 24, 1988. 53 Fed. Reg. 32496 (August 1988). 

Therefore, at the time of the inspection on October 20-21, 1987, 

former section 56.9002 was still in effect. 

2409 
manufacturing facility located in Trident, Montana. In its 

cement manufacturing process, Ideal uses a tubular kiln that is 

approximately 300 feet long, 12 feet wide, and lined with 4 by 8 

inch brick. Ideal.produces "clinker" in ;t:he .kiln by heating raw 

materials to approximately 3000 degrees. When the brick 

lining of the kiln wears out, the kiln is shut down .in order to 

remove the worn brick. 

For a time, Ideal removed the brick by hand and then began 

using a modified 1835 Case Uni-loader. A uni-loader (sometimes 

referred to in the transcript as a "bobcat") is a piece of 

equipment that is typically used to scoop up, transport, and dump 

loose materials. Ideal modified the uni-loader by removing the 

bucket attachment and substituting in its place a jackhammer 

attachment, removing the side screens of the operator's 

compartment, replacing the uni-loader's standard wheels-with 

high-pressure, narrow tires, lowering the Rollover Protective 

Structure ("ROPS"), and placing a screen and a plywood shield in 

the front of the operator's compartment. Ideal left it within 

the operator's discretion to remove or install the uni-loader's 

side screens, as the operator deemed appropriate. Tr. 88, 103. 

The modified uni-loader was operated by raising the 

jackhammer, which was attached to the sidearms, and using it to 

chip off the worn brick lining of the kiln ceiling. The 

jackhammer attachment was then replaced by a bucket attachment, 

which was used to scoop up the broken brick. Because the kiln 

was too narrow for an employee to turn the uni-loader around, the 

uni-loader was then backed out of the kiln and the kiln was 

rotated so that the section of the kiln that had been the ceiling 

became the floor. Finally, the uni-loader was driven into the 

kiln in order to repeat the chipping and cleaning process. 

On October 20, 1987, at approximately 2:30 a.m., Tom 

Bertagnolli, an Ideal employee, was involved in a fatal accident 

while operating the uni-loader, without side screens, inside the 

ki.ln. Although there were no eyewitnesses to the accident, two 

Ideal employees, Steve Livingood and Stanley Veltkamp, prepared 

written statements, shortly after the accident, setting forth 

their recollection of events that had occurred. In his 

statement, Mr. Veltkamp stated: 

When I first saw Tom he was leaning out the right 

side of the bobcat. He was over ... the arms and 

the cylinder. He then moved back into the seat, 

2 Clinker is the product that results when clay and 

limestone are fused together as the first stage in the manufacture 

of cement. Webster's Third New International Dictionary 

(Unabridged) 361 (1986). 

2410 
shut off the air to the jackhammer. Then he 

crawled out of the left side of the bobcat. The 

machine was idling. The arms were down. Tom 

started walking down the kiln. He staggered and 

fell to his right. When I saw him fall I ran to 

him and asked him if something was wrong. He said 

yes he had been crushed .... 

Exh. P-21 (emphasis added). 3 Bertagnolli was subsequently 

transferred to a stretcher and transported to the hospital, where. 

he was later pronounced dead. 

On October 20, 1987, Arlene Sherman, then acting as Ideal's 

Safety and Personnel Supervisor, completed an MSHA accident 

report form and a workers' compensation form regarding· the 

accident. She had spoken with employees who had been present at 

the time of the accident and had viewed the accident site. At 

the time that she completed the forms, however, her investigation 

had not yet been completed. On each form, Ms. Sherman stated 

that Bertagnolli was removing brick from the kiln when he leaned 

out of the right side of the uni-loader cab with the hydraulic 

arms raised. She stated that the right uni-loader arm had 

dropped and crushed him against the frame. Exhs. P-23, P-28. 

MSHA Inspector Darrel Woodbeck and a state of Montana 

inspector, Robert Stinson, investigated the accident. The 

inspectors concluded that Bertagnolli must have been standing up 

or leaning over the side arms, that he had been crushed between 

the lifting arms of the bucket and the ROPS, that the uni-loader 

must have been running for the arms to raise, and that 

Bertagno}li must not have been wearing his seat belt. Tr. 357, 

375-76. Stinson and Woodbeck also stated that, if the side 

3 Veltkamp's written statement differed from his testimony 

at trial and from the content of an affidavit that he gave on 

August 25, 1988, some ten months after the accident. In the 

written affidavit, Veltkamp stated that he did not see Mr. 

Bertagnolli lean out of the uni-loader. Exh. R...;1. At trial, 

Veltkamp testified that he could not remember if Bertagnolli leaned 

out of the uni-loader. Tr. 182-86. The judge credited the content 

of the written statement that Veltkamp prepared soon after the 

accident. 11 FMSHRC at 1779, n.4. 

4 The inspectors' investigation resulted in, among other 

things, the following findings and opinions: ( 1) the written 

specifications for a Case 1835-B Uni-Loader, published in 1984, 

depicted attachment of the side screens on the uni-loader (Tr. 324-

326; Exh. P-25); (2) the formal method of ingress-egress to and 

from the uni-loader had been blocked by the plywood and screen 

barrier placed in the front of the uni-loader, although the 

inspectors did not test the degree of effort required to remove the 

2411 
screens had ·been in place, it would not have been possible for 

Bertagnolli to have placed himself in a position to be so 

injured. Tr. 257, 357. 

On October 22, 1987, Inspector Woodbeck issued Ideal a 

citation, alleging a violation of section 56.9002: 

On October 20, 1987 at approximately 0230 the 

Case Uni-Loader model 1835, manufactured in 1982 

was involved in an accident that resulted in a 

fatality. The side shields (guards) that prevent 

the operator from leaning out over the bucket were 

removed. This allowed the operator to lean out 

over the top of the bucket lifting arms aQd get 

crushed between the top of the (ROPS) and the 

bucket lifting arms. This was also being used as 

the primary access to the operator's compartm~nt 

because the front access had been blocked off by a 

piece of plywood and a section of wire mesh 

screen. 

The inspector further found that the violation was of a 

significant and substantial nature, because he believed that the 

absence of the side screens substantially contributed to the 

likelihood of an accident and the severity of any such accident. 

Woodbeck also concluded that Ideal was negligent in allowing the 

condition to exist. Woodbeck told Bill Springman, the plant 

manager, to replace the side screens before the uni-loader was 

put back into operation. On October 22, when Woodbeck served the 

citation on Ideal, he observed that the side screens had been 

replaced and he abated the citation. 

In his decision, Judge Morris vacated the citation issued to 

Ideal because, in essence, he found that section 56.9002 did not 

give Ideal adequate notice that the absence of side screens would 

constitute an "equipment defect affecting safety." 11 FMSHRC at 

1788. citing Diamond Roofing v. Occupational Safety and Health 

Review Commission, 528 F.2d 645, 649-50 (5th Cir. 1976), the 

judge stated: 

The law is clear that a safety regulation that 

imposes civil penalties for its violation must 

give an employer fair warning of the conduct it 

prohibits or requires and must further provide a 

reasonably clear standard of culpability to 

circumscribe the discretion of the enforcing 

authority and its agents. 

barrier (Tr. 250, 371, 464-65); and (3) when the sidearms of the 

uni-loader were raised with the jackhammer in place, the backing 

plate to which the jackhammer was attached prevented the operator 

from seeing the drilling point of the jackhammer. (Tr. 254-55.) 

2412 
11 FMSHRC at 1783. The judge concluded that Ideal could not have 

anticipated in advance that MSHA required side screens on the 

equipment. He rejected the Secretary's reliance on such evidence 

as that "relating to the lowered ROPS, the make-shift plywood 

screen, the probability that Bertagnolli leaned out and was 

crushed by the arms, the improvised jackhammer, and, in general, 

the restricted work area" as putting Ideal on notice of such a 

requirement. 11 FMSHRC at 1786-87. The judge also dismissed as 

hindsight the inspectors' views that the absence of the side 

screens caused Bertagnolli's death. 11 FMSHRC at 1787. 

Citing Allied Chemical Corp., 6 FMSHRC 1854 (August 1984), 

the judge also determined that the missing side screens did not 

fall within the coverage of section 56.9002. Although 

acknowledging that equipment defects within the scope of the 

standard are not limited solely to those in components affixed to 

the equipment and may take the form of missing components, the 

judge maintained that Allied Chemical, supra, stood for the 

proposition that a defect affecting safety must adversely affect 

actual functioning or operation of the equipment. 11 FMSHRC at 

1785. The judge distinguished the present case from Allied 

Chemical on the grounds that there was no evidence in this case 

that the side screens themselves were defective or that "the lack 

of side screens adversely affected the operation of the uniloader, rendered it defective, inadequate, or presented 

functional problems in its operation as a loader." Id. 

II. 

On review, the Secretary contends that the judge erred in 

vacating the citation because, according to her interpretation of 

the standard, the absence of the side screens from the uni-loader 

constituted a defect affecting safety. The Secretary maintains 

that the judge misconstrued the standard when he held that it is 

violated only when a 11 saf ety component present on the machine 

[is] in a defective state," or when "a safety component related 

to the successful operation of the machine in its assigned 

purpose" is missing. S. Br. at 5. The Secretary contends that 

the standard is aimed "not only at safety defects which may also 

affect the operational ability of the equipment in question" but 

at "any defect which 'affects safety,' whether or not that defect 

also affects operational ability." Id. The Secretary asserts 

that her interpretation of the standard is consistent with the 

broad purpose of the standard and is reasonable and, therefore, 

is entitled to deference. s. Br. at 5-6. 

The Secretary further maintains that her interpretation of 

section 56.9002 and its application to the uni-loader do not 

deprive Ideal of adequate notice. s. Br. at 7. The Secretary 

urges application of the test of "what a reasonably prudent 

person, familiar with the mining industry and the protective 

purpose of the standard, would have provided in order to meet the 

2413 
protection of the standard," and argues that, in this case, it is 

clear that a reasonable person would have recognized that the 

removal of the side screens would adversely affect safety. s. 

Br. at 7. The Secretary relies upon evidence that the screens 

were provided by the manufacturer as a safety component, that 

Ideal's personnel understood that the side screens were designed 

to keep the uni-loader operator's body within the uni-loader, and 

that Ideal's safety manual provides that guards shall not be 

removed from equipment except when making repairs. S. Br. at 8. 

We first examine the question of whether the absence of the 

side· screens constituted an equipment defect. We agree with the 

Secretary that the judge erred in construing the standard to 

support a finding of a violation only when a component related to 

the operation of the equipment is defective or missing. In 

Allied Chemical, construing identical regulatory language in a 

parallel standard, the Commission stated that "in both ordinary 

and mining industry usage, a 'defect' is a fault, a deficiency, 

or a condition impairing the usefulness of an object or a part." 

Allied Chemical, 6 FMSHRC at 1857, citing, Webster's Third New 

International Dictionary (Unabridged) 591 (1971); Bureau of 

Mines, u.S.Department of Interior, A Dictionary of Mining, 

Mineral, and Related Terms 307 (1968). Allied Chemical held, in 

part, that missing bolts in longwall roof support units were 

"equipment defects" (6 FMSHRC at 1857), and made clear that, in 

appropriate contexts, a missing component, as well as a defective 

one, could constitute an "equipment defect" within the meaning of 

section 56.9002. Although Allied Chemical focused on a 

relatively common type of equipment defect -- one affecting the 

functioning of the equipment -- we have no difficulty in 

concluding that the term "equipment defect" can also extend to a 

defective or missing component that does not affect the operation 

of the equipment. 

Section 56.9002 must be construed in light of its underlying 

purpose -- the protection of miners operating the equipment or 

exposed to the equipment's use. That purpose was plainly set 

forth in the Secretary's statement of purpose and scope of the 

Part 56 standards, which provided: "The purpose of these 

standards is the protection of life, the promotion of health and 

safety, and the prevention of accidents." 30 u.s.c. § 56.1 

(1987). (Section 56.1 has been carried forward unchanged in the 

Secretary's present Part 56 regulations.) Any overly narrow or 

restrictive reading of the scope of section 56.9002 cannot be 

reconciled with that statement of purpose or with the fundamental 

protective ends of the Mine Act itself, as set forth in section 2 

of the Mine Act. See 30 u.s.c. § 801(a), (d), & (e). 

Thus, section 56.9002, which relates to the performance of 

equipment used in mines, must be interpreted and applied in a 

manner fostering the basic aim of protecting the health and 

safety of miners. The integrity of a machine is not defined 

2414 
solely by its proper functional performance but must also be 

related to the protection of miners' health and safety. If 

section 56.9002 were interpreted solely to emphasize the 

functional performance of equipment, it would, in effect, 

derogate from the importance of protecting the safety of miners 

and thereby disregard the fundamental mandate of the Mine Act. 

Such a construction would run counter to the underlying purposes 

of the Part 56 standards. In short, the proper focus of section 

56.9002 encompasses the safety of miners, not merely the proper 

performance of equipment. 

We find reasonable the Secretary's interpretation that "the 

gravamen of the provision [is] safety of persons," and that a 

missing equipment component may be as much a "defect" as a 

malfunctioning operational component because, in either case, the 

miners are deprived of the enhanced safety that the component is 

designed to provide. S. Br. at 5-6. In this regard, we--note 

that the United States Court of Appeals for the District of 

Columbia has accorded special weight to the Secretary's 

reasonable interpretations of her own regulations. ~, 

Secretary on behalf of Bushnell v. Cannelton Indus., Inc., 867 

F.2d 1432, 1435 (D.C. Cir. 1989). We therefore hold that, under 

section 56.9002, missing as well as defective components may 

constitute "equipment defects" and thereby satisfy the first 

element of the two-pronged analysis of whether a condition 

constitutes an "equipment defect" that "affect[s] safety." In 

the present case, it is undisputed that the side screens were 

absent from the uni-loader at the time of the accident and, 

hence, were missing equipment components. We thus conclude that 

the absence of the side screens amounted to an equipment defect 

within the meaning of section 56.9002 and we reverse the judge's 

conclusion to the contrary. 

We next address whether the absence of the side screens 

affected safety. We note preliminarily that the language 

"affecting safety" has a wide reach and that "the safety effect 

of an uncorrected equipment defect need not be major or immediate 

to come within that .reach." Allied Chemical, 6 FMSHRC at 1858. 

In addition, given the broad wording of this standard intended to 

be applied to myriad factual contexts, we agree with the 

Secretary that it is appropriate to evaluate the evidence in 

light of what a "reasonably prudent person, familiar with the 

mining industry and the protective purpose of the standard, would 

have provided in order to meet the protection intended by the 

standard." See, e.g., Canon Coal Co., 9 FMSHRC 667, 668 (April 

1987); Quinland Coal, Inc., 9 FMSHRC 1614, 1617-18 (September 

1987). Although the judge properly recognized that adequate 

notice of the conduct prohibited by section 56.9002 must be 

afforded an operator, he did not apply the "reasonable person 

test" set forth above, which is the analytical approach that the 

Commission has approved in order to evaluate the fairness of 

application of broad standards to particular factual settings. 

2415 
Apparently, the judge found that Ideal did not have adequate 

notice of the conduct prohibited by section 56.9002 because Ideal 

had not received explicit prior notice that the standard required 

attachment of the side screens to the uni-loader. Although the 

judge noted evidence bearing on the safety effects of the missing 

side screens, he summarily disposed of it, apparently because he 

believed that it fell short of demonstrating explicit notice to 

Ideal that side screens were required by MSHA for conformance 

with the standard. We fully appreciate that in order to afford 

adequate notice and pass constitutional muster, a mandatory 

safety standard cannot be "so incomplete, vague, indefinite or 

uncertain that [persons] of common intelligence must necessarily 

guess at its meaning and differ as to its application." Alabama 

By-Products Corp., 4 FMSHRC 2128, 2129 (December 1982)(citations 

omitted). However, in interpreting and applying broadl_y worded 

standards, the appropriate test is not whether the operator had 

explicit prior notice of a specific prohibition or requirement, 

but whether a reasonably prudent person familiar with the mining 

industry and the protective purposes of the standard would have 

recognized the specific prohibition or requirement of the 

standard. 

Because the judge did not make the requisite findings of 

fact with regard to the issue of whether the absence of the side 

screens affected safety, we therefore remand this matter to the 

judge. He shall consider whether a reasonably prudent person, 

familiar with the mining industry and the protective purpose of 

section 56.9002, would have recognized that the missing side 

screens on the uni-loader "affect[ed] safety" within the meaning 

of the regulation and, accordingly, would have remedied that 

defect prior to any further use of the equipment. 

The judge should examine the evidence in the context of the 

modified condition in which the uni-loader was being used at the 

time of the accident. The judge should examine and set forth 

findings and conclusions based on the evidence of record 

~ncluding, but not limited to: (1) the testimony of the Ideal 

employees and the inspectors regarding whether operating the uniloader in the kiln without side screens affected safety, taking 

into account the proximity of the side arms to the operator's 

cab; (2) any evidence regarding whether the presence of the side 

screens impeded the equipment operator's vision with respect to 

the work area; (3) any evidence regarding whether Ideal's safety 

policies prohibited removal of the screens; and (4) any evidence 

of industry or manufacturer's policy regarding the removal of the 

side screens and the circumstances, if any, under which the side 

screens could be removed without impairing safety. We express no 

views as to the findings to be made or the conclusions to be 

drawn by the judge. 

2416 
III. 

Accordingly, we vacate that portion of the judge's decision 

dealing with the issues of whether the missing side screens were 

an equipment defect that affected safety and remand this matter 

to the ~udge for further consideration of the issues raised 

above. 

~Richard V. Backley, Acting ehairman 

ic~if'co~ 

L. Clair Nelson, Commissioner 

5 Pursuant to section 113(c) of the Mine Act, 30 u.s.c. § 

823(c), we have designated ourselves a panel of three Commissioners 

to exercise the powers of the Commission in this matter. 

Commissioner Holen assumed off ice after this case had 

been considered at a Commission decisional meeting and took no part 

in the decision of the case. Under the circumstances, she elected 

not to participate in the disposition of this case. A new 

Commissioner possesses legal authority to participate in pending 

cases, but such participation is discretionary and is not required 

for the Commission to take official action. 

2417 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 28, 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of MICHAEL L. PRICE 

and JOE JOHN VACHA 

and 

UNITED MINE WORKERS OF AMERICA 

v. 

JIM WALTER RESOURCES, INC. 

, 

Docket No. SE 87-128-D 

BEFORE: Backley, Acting Chairman; Doyle, Holen, and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

This discrimination proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"). Jim 

Walter Resources, Inc. ("JWR") has filed a Motion for Reconsideration of the 

Commission's prior decision in this matter (12 FMSHRC 1521 (August 1990)), 

which, in relevant part, vacated the administrative law judge's conclusion 

that JWR had established a successful affirmative defense to the 

complainants' prima facie case of discriminatory discharge and remanded the 

issue to the judge for further proceedings. JWR asserts that it was 

effectively denied an opportunity to brief the affirmative defense issue 

during the prior review and requests the Commission to permit such an 

opportunity before reaching a final determination as to that issue. The 

Secretary of Labor and United Mine Workers of America ("UMWA") have filed 

responses opposing JWR's motion. Upon consideration of JWR's motion and the 

responses, and for the reasons explained below, we deny the motion. 

The relevant procedural history may be summarized briefly. After the 

complainants prevailed before Commission Administrative Law Judge James A. 

Broderick, the Commission granted JWR's Petition for Discretionary Review, 

which challenged Judge Broderick's conclusion (10 FMSHRC 896 (July 

1988)(ALJ)) that JWR's Substance Abuse Rehabilitation and Control Program 

("Drug Program") was, on its face, unlawfully discriminatory under the Mine 

Act. In Part III of its brief on review, the UMWA, which had not petitioned 

for review, also attacked the judge's other conclusion to the effect that the 

Drug Program had not been discriminatorily applied to the complainants. UMWA 

Br. 21-27. In that portion of its brief, the UMWA addressed the judge's 

determination that JWR had established a successful affirmative defense to 

2418 
the prima facie case of discriminatory discharge under the "as applied" 

theory. UMWA Br. 22, 23-27. 

JWR filed a motion to strike Part III of the UMWA's brief on the 

grounds that the "as applied" issue was not within the scope of the 

Commission's Direction for Review. In this motion, JWR did not request that, 

in the event the Commission were to deny the motion to strike, it be allowed 

to brief the merits of the issue raised by the UMWA. The UMWA and the 

Secretary filed oppositions to the motion to strike. 

The Commission reserved ruling on the motion to strike and scheduled 

oral argument in this case. Shortly before the argument took place, the 

Commission voted to deny JWR's motion to strike. Chairman Ford announced 

that determination at the outset of oral argument. 1 During the ensuing oral 

argument, counsel for JWR and for the UMWA argued a number of "as applied" 

issues relevant to the affirmative defense (~ Tr. Oral Arg. 21-27--(JWR 

argument); 53-56 (UMWA argument) and Commissioners asked questions pertaining 

to the affirmative defense. JWR's counsel did not, at that time, request 

leave to fil_e written argument on the merits of the "as applied" issues. 

Further, at no time during the period between notification on December 6, 

1989, that the motion to strike had been denied and the issuance of the 

Commission's decision on August 20, 1990, did JWR seek leave from the 

Commission to file a reply brief in response to the issues raised in Part III 

of the UMWA's brief. 

In its decision, the Commission concluded that JWR's Drug Program was 

not facially discriminatory in violation of section 105(c)(l) of the Mine 

Act, and reversed Judge Broderick's conclusion to the contrary. 12 FMSHRC at 

1531-33. As indicated at oral argument, the Commission also held that it 

could properly entertain the "as applied" affirmative defense issue raised by 

1 The Chairman stated: 

Before we begin the arguments, I would advise the 

parties at the outset that the Commission has carefully 

considered both JWR's motion to strike a portion of the 

UMWA's brief and the other parties' oppositions to that 

motion. The Commission has decided to deny JWR' s motion 

to strike. 

I'm informing you of this now so that in the 

limited time available for argument the parties may 

focus their attention on the other issues in this case, 

including the merits of Judge Broderick's conclusion 

that the JWR's drug program was not discriminatorily 

applied to complainants Price and Vacha. 

You may address that, if you wish, Counsel 

Spotswood [JWR's counsel]. 

Tr. Oral Arg. 4-5 (emphasis added). 

2419 
the UMWA, and denied JWR's motion to strike. 12 FMSHRC at 1528-29. As to 

the merits of the "as applied" issues, the Commission affirmed on substantial 

evidence grounds the judge's conclusion that the complainants had established 

a prima facie case of discriminatory discharge. 12 FMSHRC at 1533-34. 

However, the Commission vacated the judge's conclusion that JWR had 

affirmatively defended against the prima facie case and remanded that issue 

to the judge for further findings and analysis. 12 FMSHRC at 1534-36. The 

Commission stated: "On remand, the judge shall provide all parties with the 

opportunity to brief the merits of the issues being remanded." 12 FMSHRC at 

1536. 

The thrust of JWR's present motion is that the Commission should 

reconsider its prior action vacating the judge's determination on the "as 

applied" theory and remanding the affirmative defense issue to the judge. 

JWR argues further that the Commission should "allow JWR to brief the issue 

of discriminatory application ... before [the Commission] makes a 'Iinal 

determination to remand the affirmative defense issue to the ALJ." Motion 

at 3. 

As argued by the Secretary and the UMWA in their oppositions to JWR's 

Motion for Reconsideration, JWR had ample opportunity -- both at the time 

that it submitted its motion to strike and following denial of that motion --

to submit a request for leave to file a reply brief in response to Part III 

of the UMWA brief. JWR chose not to do so. 

As noted above, at oral argument, the Commission specifically denied 

JWR's motion to strike and permitted argument of "as applied" issues. This 

made clear the Commission's intention to consider those issues in its 

disposition of this case. Under these circumstances, JWR's failure, either 

at oral argument or at any time prior to issuance of the Commission's 

decision, to submit a briefing request was tantamount to waiver of any right 

to file a reply brief. JWR's present request for reply briefing after the 

Commission decision remanding this matter to the judge for further 

proceedings is untimely and inconsistent with orderly judicial process. We 

emphasize that the Commission's prior decision expressly affords JWR the 

right to brief the affirmative defense issue on remand. Nor is this a hollow 

opportunity because it affords JWR the right to focus on the issues raised in 

Part III of the UMWA brief and to respond in light of the Commission's broad 

observations concerning the evidence. See 12 FMSHRC at 1534-36. We further 

note that in its prior decision the Commission did not reach or resolve the 

ultimate merits of the affirmative defense issue. 

Indeed, the Commission based its remand of the affirmative defense 

issue, in large part, on a determination that the judge had not completely 

examined and evaluated all evidence relevant to the merits of JWR's 

affirmative defense. See 12 FMSHRC at 1534-36. The Commission's remand 

therefore contemplates reanalysis of the evidence and factual resolutions by 

the judge. To grant JWR's motion at this point would enmesh the Commission 

in the necessity of fact finding and evidentiary analysis, which is best 

performed by the judge. 

Finally, the Commission's decision in this case, given its remand to 

2420 
the judge, is not final Commission action. JWR and the other parties will 

have the right, following the judge's decision on remand, to petition the 

Commission again for discretionary review of any and all issues in this case, 

whether by way of a request for reconsideration of any of the Commission's 

prior holdings or by way of appealing the judge's determinations on remand. 

In view of this consideration, and the others discussed above, we are 

satisfied that JWR has not been deprived of any due process and has had, and 

will continue to have, adequate opportunity to plead its case to the 

Commission. 

Accordingly, for the foregoing reasons, JWR's motion for 

reconsideration is denied. 2 

Richard V. Backley, Acting~airman 

Ar~en~ioner 

L. Clair Nelson, Commissioner 

2 Commissioner Holen assumed office after this case had been considered at 

a Commission decisional meeting. A new Commissioner possesses legal authority 

to participate in pending cases, and such participation is discretionary. 

Commissioner Holen elects to participate in the disposition of this matter. 

2421 
Distribution 

Robert K. Spotswood, Esq. 

John W. Hargrove, Esq. 

Bradley, Arant, Rose & White 

1400 Park Place Tower 

Birmingham, Alabama 35203 

Don Stichter, Esq. 

Stichter & Reidel, P.A. 

100 Madison Street 

Tampa, Florida 33602 

Edward LoBello, Esq. 

Levin, Weintraub & Crames 

225 Broadway 

New York, New York 10007 

Colleen A. Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Hary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge James A. Broderick 

Federal Hine Safety & Health Review Connnission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

2422 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 6 1990 

LAWRENCE A. BROUSSARD, DISCRIMINATION PROCEEDING 

Complainant 

v. Docket No. CENT 90-118-DM 

AKZO SALT INCORPORATED, SC MD 90-13 

Respondent 

Avery Island Mine 

ORDER OF DISMISSAL 

On September 6. 1990, Respondent filed a Motion to Dismiss. 

On October 2, 1990, a Show Cause Order was issued which contained 

the following language: 

"[I]t is ORDERED that Complainant shall, by October 15, 

1990, file a Response to the Motion to Dismiss. Failure to file 

such a response, shall result in the entry of a Default Judgment 

in favor of Respondent, and the Dismissal of this case." 

To date, Complainant has neither filed a response to the 

Motion to Dismiss nor filed a response to the Show Cause Order. 

Accordingly, it is found that Complainant is in default. 

It is ORDERED that a Default Judgment shall be entered in 

favor of Respondent, and it is further ORDERED that this case be 

DISMISSED. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

Mr. Lawrence A. Broussard, Route 8, Box 89, New Iberia, LA 70560 

(Certified Mail) 

James M. Day, Esq., Cotten, Day & Selfon, Suite 1200, 1899 L 

Street, NW, Washington, DC 20036 (Certified Mail) 

dcp 

2423 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041. 

NOV 8 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

SATURN MATERIALS, INC., 

Respondent 

1990 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 90-161-M 

A.C. No. 15-16075-05510 

Saturn Materials, Inc. 

Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, 

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

for the Secretary of Labor (Secretary) ; 

Talbert Ball, President, Saturn Materials, Inc., 

Belfry, Kentucky, for Respondent {Saturn). 

Before: Judge Broderick 

This proceeding involves seven alleged violations of 30 

C.F.R. § 56.14107 charged in section 104(a) citations issued 

February 21, 1990, because of inadequate guarding on moving 

machinery parts. Saturn filed an answer by its agent Ike Khosla. 

Pursuant to notice, the case was called for hearing in 

Prestonsburg, Kentucky, on October 31, 1990. Before testimony 

was taken, Saturn's President, Talbert Ball stated that he did 

not contest the violations and agreed to pay the amount 

originally assessed,_ $1393. The Secretary described the 

violations, and moved that the proposed settlement be accepted. 

I have considered the motion in the light of the criteria in 

section llO(i) of the Act and conclude that it should be 

approved. 

Accordingly, the settlement is APPROVED and Respondent is 

ORDERED TO PAY the sum of $1393 within 30 days of the date of 

this order. 

;/i .. ·7 ' .· 

A ' . /I • .,,,· t ' /I f,1 ,;·, ;-._ ///./f ... ·YJ//;_,./•"7 .l./tv '"" v ~c........., . ._,-- I '-' '- ....... l.-''-'",,· - l.- I\,__ 

1 James A. Broderick 

' Administrative Law Judge 

Distribution: 

2424 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 8 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. SE 90-66 

A.C. No. 40-00520-03720 

Matthews Mine 

Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, 

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

for the Secretary of Labor (Secretary); 

Walter J. Scheller, III, Esq., Pittsburgh, 

Pennsylvania, for Respondent, Consolidation 

Coal Company. 

Before: Judge Broderick 

This proceeding involves a single alleged violation of 30 

C.F.R. § 75.604(b) charged in a section 104(a) citation issued in 

January 31, 1990. 

Pursuant to notice the case was called for hearing in 

Knoxville, Tennessee, on October 30, 1990. Federal coal mine 

inspector John J. Sipos was called as a witness by the Secretary. 

Following inspector Sipos' testimony, and a discussion off the 

record between counsel, the Secretary moved to approve a 

settlement agreement. Counsel stated that the violation was not 

significant and substantial; that it was unlikely to result in 

injury and was the result of low negligence. Consol agreed to 

pay and the Secretary agreed to accept a penalty of $20 for the 

violation which was originally assessed at $206. 

On the basis of the inspector's testimony and considering 

the criteria in section llO(i) of the Act, I stated on the record 

that I would approve the settlement. 

2425 
Accordingly, the settlement agreement is APPROVED: the 

citation is MODIFIED to delete the significant and substantial 

classification and Respondent is ORDERED to pay the sum of $20 

within 30 days of the date of this order. 

J

A /j ~ I ,/ # 1· .~ . 0'.:-1,. .· uvvu..-4 .ltlvtu(_ /~'t·t?£ 

James A. Broderick 

'-' Administrative Law Judge 

Distribution: 

Mary Sue Taylor, Esq., U.S. Department of Labor, Office of the 

Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37225 (Certified Mail) 

Walter J. Scheller, III, Esq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241 -1421 

(Certified Mail) 

slk 

2426 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 9 1990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

W.J. MENEFEE CONSTRUCTION CO., 

Respondent 

. . 

Docket No. CENT 90-109-M 

A.C. No. 23-00762-05507 

Dresden Farm Quarry 

DECISION APPROVING SETTLEMENT 

Appearance: 

Before: 

Evert H. Van Wijk, Esq., U.S. Department of Labor, 

Office of the Solicitor, Kansas City, Missouri, for 

the Petitioner. 

Judge Maurer 

This case is before me upon a petition for assessment of 

civil penalty under section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). At the hearing, petitioner filed a 

motion to approve a settlement agreement and to dismiss the case. 

A reduction in penalty from $315 to $187 is proposed. I have 

considered the representations and documentation submitted in 

this case, and I conclude that the proffered settlement is 

appropriate under the criteria set forth in section llO(i) of 

the Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that respondent pay a penalty of $187 within 

30 days of this order, if it has not already done so. 

urer 

ative Law Judge 

Distribution: 

Evert H. Van Wijk, Esq., U.S. Department of Labor, Office of the 

Solicitor, 911 Walnut Street, Room 2106, Kansas City, MO 64106 

(Certified Mail) 

Jack L. Arnold, Safety Officer, W.J. Menefee Construction Co., 

P.O. Box 998, Sedalia, MO 65301 (Certified Mail) 

/ml 

2427 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 9 1990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEVA 90-136 

Petitioner A.C. No. 46-03805-03956 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

. . 

DECISION 

Martinka No. 1 Mine 

Appearances: Glenn M. Loos, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for the Secretary of Labor (Secretary) ; 

Rebecca J. Zuleski, Esq., Furbee, Amos, Webb 

and Critchfield, Morgantown, West Virginia, 

for Southern Ohio Coal Co. (SOCCO). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks in this proceeding a civil penalty for 

an alleged violation of the mandatory safety standard in 30 

C.F.R. § 75.902. The violation was charged in a section 

104(d) (2) order of withdrawal issued November 1, 1989, because an 

approved fail-safe ground check monitoring system was not 

provided for the grounding circuit for two cooling motors in the 

No. 3 Main belt conveyor drive unit. Both parties engaged in 

pretrial discovery. Pursuant to notice, the case was called for 

hearing on September 19, 1990, in Morgantown, West Virginia. 

Virgil Brown, Dennis Cain, and Stanley Shelosky testified on 

behalf of the Secretary; John Randolph Cooper, Kenneth G. Moore, 

and Paul McKinney testified on behalf of socco. Both parties 

filed post hearing briefs. I have considered the entire record 

and the contentions of the parties and make the following 

decision. 

FINDINGS OF FACT 

I 

At all times pertinent to this proceeding, socco was the 

owner and operator of an underground coal mine in Marion County, 

West Virginia, known as the Martinka No. 1 Mine. SOCCO is a 

2428 
large operator. Between November 1, 1987 and October 31, 1989, 

1,010 violations were assessed and paid during 965 inspection 

days at the subject mine. One was a violation of 30 C.F.R. 

§ 75.902. This history is not such that a penalty otherwise 

appropriate should be increased because of it. 

II 

on October 31, 1989, Federal coal mine inspector, electrical 

specialist, Virgil Brown, while conducting a regular electrical 

insp.ection at the subject mine, received a written complaint from 

a miner under section 103(g) of the Act. The complaint (dated 

October 22, 1989) stated that the ground monitor packages on the 

No. 3 54 inch belt drive cooling pumps were not working on both 

pumps. 

III 

on November 1, 1989, Inspector Brown, accompanied by a mine 

foreman and a union representative, proceeded to the No. 3 belt. 

The belt drive was energized and had been in operation. The 

controller box was opened, disclosing two pump motors, one a 

10 horsepower motor, the other 15 horsepower. The ground 

monitors had a jumper wire between the No. 3 and No. 4 tabs on 

the unit. The wire had been put on in lieu of a ground monitor 

circuit package which apparently had been installed but was not 

operative. Because the ground monitor circuit package was 

inoperative, the jumper wire was needed in order that the pumps 

continue running. 

IV 

The belt drive is powered by two 300 horsepower motors on a 

common frame with the cooling pumps. The cooling pumps must be 

operative for the belt drive to run. There are grounds on the 

belt drive, and while the belt drive is running, the entire 

system including the cooling motors is adequately grounded. 

v 

Inspector Brown issued an order of withdrawal under section 

104(d) (2) of the Act because of the absence of a ground monitor 

on the grounding circuit for the two cooling motors. Although 

the violation was originally designated as significant and 

substantial, it was later modified to delete this designation, 

and the inspector concluded that an injury was unlikely to result 

from the violation. He concluded that it resulted from 

Respondent's unwarrantable failure because the equipment had been 

allowed to operate for approximately three weeks without ground 

monitors for the cooling motors. The pump motors can be made to 

operate with the "jog button," even though the ground for the 

2429 
large 575 volt frames is disconnected. such a situation would 

occur if the cooling motors were replaced or tested. 

The evidence establishes that the jumper wire was inserted 

at the direction of John Randolph Cooper, general maintenance 

superintendent of the subject mine. Cooper believed that the 

many parallel grounding pads on the belt drive, and the fact that 

there was a common frame between the cooling controls and the 

acceleration control satisfied the standard. Inspector Brown 

agreed that as long as the belt drive was operating, the entire 

system was ground monitored. However, when work is being done on 

the pumps or pump motors,, the belt system is required to be 

deenergized, and the ground monitor system would be inoperative. 

If the pump motors are started with the jog button, they would 

not be ground monitored, unless they had a separate operative 

ground monitoring package. I accept the inspector's testimony on 

this issue. 

IV 

The violation was abated by extending the monitor from the 

belt starter box up to the pump motors by attaching a length of 

wire. This took from 30 minutes to one hour. This method of 

abatement was permitted by the inspector to avoid a long shut 

down of the belt, and the order was terminated. Subsequently, 

operative ground monitor packages were installed on the pump 

motors. 

REGULATION 

30 C.F.R. § 75.902 provides in part: 

ISSUES 

On or before September 30, 1970, low- and 

medium-voltage resistance grounded systems 

shall include a fail-safe ground check 

circuit to monitor continuously the grounding 

circuit to assure continuity which ground 

check circuit shall cause the circuit breaker 

to open when either the ground or pilot check 

wire is broken • • • 

1. Whether the evidence establishes a violation of 30 

C.F.R. § 75.902? 

2. If so, whether the violation resulted from Respondent's 

unwarrantable failure to comply with the standard? 

3. If a violation is established, what is the appropriate 

penalty therefor? 

2430 
CONCLUSIONS OF LAW 

I 

Respondent was at all times pertinent to this case subject 

to the provisions of the Mine Act in the operation of the subject 

mine, and I have jurisdiction over the parties and subject matter 

of this proceeding. 

II 

On November 1, 1989, and for some weeks prior thereto the 

No. 3 Main belt cooling motors in the subject mine were not 

provided with a ground monitor check circuit. This was a 

violation of 30 C.F.R. § 75.902. 

III 

The violation was not serious in that it was unlikely to 

result in injury to a miner. This was so because the system was 

adequately grounded while the belt was in operation. The weekly 

electrical examination of the circuit breakers and the electrical 

equipment is conducted by visual examination without stopping the 

belt. The ground monitors are examined only on a monthly basis. 

IV 

Unwarrantable failure means aggravated conduct, constituting 

more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997 

(1987); Southern Ohio Coal Company, 12 FMSHRC 1498 (1990). 

"While negligence is conduct that is 'inadvertent,' 

'thoughtless', or 'inattentive', conduct constituting an 

unwarrantable failure is conduct that is •not justifiable' or is 

'inexcusable'." socco, 12 FMSHRC at 1502. 

Respondent here attempted to install the ground monitor 

packages in the cooling motors, but was unable to make them 

operational. It then intentionally by-passed the ground monitors 

in order to continue running the belt. Respondent believed in 

good faith that the many grounds and ground monitor systems on 

the belt drive itself provided a fail-safe ground monitor for the 

cooling motors. I do not accept this conclusion, but cannot 

conclude that it therefore constitutes inexcusable or aggravated 

conduct. The violation did not result from Respondent's 

unwarrantable failure to comply with the standard. 

v 

Respondent is a large operator with an average history of 

prior violations. The violation here was not serious. It 

resulted from Respondent's negligence. It was promptly abated in 

2431 
good faith. Based on the criteria in section llO(i) of the Act, 

I conclude that an appropriate penalty for the violation is $250. 

ORDER 

Based on the above findings of fact and conclusions of law 

IT IS ORDERED: 

1. Order ~o. 3111547 is AMENDED to a section 104(a) 

citation. The finding of unwarrantable failure is DELETED. 

2. As amended, the citation is AFFIRMED. 

3. Respondent shall, within 30 days of the date of this 

decision, pay the sum of $250 as a civil penalty for th~ 

violation found herein. 

Distribution: 

J .'!rA .. I , • - - -. "" ·,/; . · 1 •. • :, ditu.-.:;,, f-{.,-;~(J,c ,'t.l l 

James A. Broderick 

Administrative Law Judge 

Glenn M. Loos, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203 

(Certified Mail) 

Rebecca J. Zuleski, Esq., Furbee, Amos, Webb & Critchfield, Suite 

4, 5000 Hampton Center, Morgantown, WV 26505 (Certified Mail) 

slk 

2432 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 · 

NOV 131990 

GREEN RIVER COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GREEN RIVER COAL COMPANY, 

Respondent 

. . 

CONTEST PROCEEDING 

Docket No. KENT 90-95-R 

Order No. 3420071; 1/25/90 

No. 9 Mine 

Mine ID 15-13469 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 90-133 

A.C. No. 15-13469-03741 

No. 9 Mine 

Mine ID #15-13469 

DECISION 

Appearances: B. R. Paxton, Esq., Paxton & Kusch, P.S.C., 

Central City, Kentucky, for the Contestant/ 

Respondent; 

Before: 

William F. Taylor, Esq., U.S. Department of 

Labor, Office of the Solicitor, Nashville, 

Tennessee, for the Respondent/Petitioner. 

Judge Maurer 

STATEMENT OF THE CASE 

Contestant, Green River Coal Company, Inc., (Green 

River), has filed an application for review challenging the 

issuance of Imminent Danger Withdrawal Order No. 3420071 at 

its No. 9 Mine. The Secretary of Labor (Secretary) has also 

filed a petition seeking civil penalties in the total amount 

of $2400 for the violations charged in Citation Nos. 3420072 

and 3420073, which were issued in conjunction with the 

aforementioned imminent danger order. 

The general issue in a contest case concerning an 

imminent danger order is whether the cited condition could 

reasonably be expected to cause death or serious physical 

harm. The limited issue herein is whether such a condition 

existed at the time the subject order was written. 

2433 
An issue more specific to this case raised by Green 

River is to what extent the existence of a functioning CO 

monitoring system that will give an immediate fire warning 

will ameliorate what would otherwise undoubtedly be an 

imminent danger condition. 

The general issues in the civil penalty proceeding are 

whether the citations were properly issued, i.e., whether 

there was a violation of the cited standard, and, if so, 

whether that violation was "significant and substantial", as 

well as the appropriate civil penalty to be assessed for the 

violation, should any be found. 

Pursuant to notice, these cases were heard in Owensboro, 

Kentucky on June 14, 1990. The parties each declined to file 

post-hearing proposed findings of fact and conclusions of law 

but rather orally argued on the trial record. I have 

considered the entire record herein and make the following 

decision. 

I. Docket No. KENT 90-95-R; Order No. 3420071 

Order No. 3420071, issued pursuant to section 107(a) of 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (the Act), charges as follows: 

The following condition of which collectively 

constitutes an imminent danger was observed in the 

lB-Belt entry. 30 CFR 75.0400. Accumulation of 

loose coal and Float Coal dust, 30 C~R 75.1725 - 23 

bad or damaged belt rollers. The belt was running 

on the ground in 2 different locations loose coal 

underneath, for a total distance of 210 feet. 

Section 107(a) of the Act provides in part as follows: 

If, upon any inspection or investigation of a coal 

or other mine which is subject to this Act, an 

authorized representative of the Secretary finds 

that an imminent danger exists, such representative shall determine the extent of the area of 

such mine throughout which the danger exists, and 

issue an order requiring the operator of such mine 

to cause all persons except those ref erred to in 

section 104(c), to be withdrawn from, and to be 

prohibited from entering, such area until an 

authorized representative of the Secretary 

determines that such imminent danger and the 

conditions or practices which caused the imminent 

danger no longer exist. 

Section 3Cj) of the Act defines "imminent danger" as the 

existence of any condition or practice in a coal or other 

2434 
mine which could reasonably be expected to cause death or 

serious physical harm before such condition or practice can 

be abated. 

In analyzing this definition, the U.S. Courts of Appeals 

have eschewed a narrow construction and have refused to limit 

the concept of imminent danger to hazards that pose an 

immediate danger. See ~, Freeman Coal Mining Co. v. 

Interior Bd. of Mine Op. App., 504 F.2d 741 (7th Cir. 1974). 

Also, the Fourth Circuit has rejected the notion that a 

.danger is imminent only if there is a reasonable likelihood 

that it will result in an injury before it can be abated. 

Eastern Associated Coal Corp. v. Interior Bd. of Mine Op. 

~., 491 F.2d 277, 278 (4th Cir. 1974). The court adopted 

the position of the Secretary that "an imminent danger exists 

when the condition or practice observed could reasonably be 

expected to cause death or serious physical harm to a miner 

if normal mining operations were permitted to proceed in the 

area before the dangerous condition is eliminated." 491 F.2d 

at 278 (emphasis in original>. The Seventh Circuit adopted 

this reasoning in Old Ben Coal Corp. v. Interior Bd. of Mine 

Op. App., 523 F.2d 25, 33 (7th Cir. 1975). 

Mr. Michael McGregor, Safety Director for Green River 

was called and testified, initially at the behest of the 

Secretary. He furnished Belt Examiner's Reports for the days 

and weeks just prior to the issuance of the imminent danger 

order at bar. Suffice it to say that there were a multitude 

of reports concerning bad rollers and the belt running on the 

ground, as well as coal accumulations note,d. 

Federal Coal Mine Inspector Ronald Oglesby then 

testified that he arrived at the mine at about 10:00 a.m. on 

January 25, 1990, and proceeded underground, accompanied by 

Mr. McGregor. When they started to walk the lB .... Belt Entry, 

he found accumulations of loose coal and coal dust. There 

were also bad rollers and places where the belt was running 

in coal on the bottom. The bottom belt was running on top of 

the ground. The rollers had been damaged and destroyed to 

the point that they were no longer operable. The inspector 

found the belt running on the ground in two different 

locations and a situation where some of the belt rollers were 

warm and in some instances, even the coal surrounding them 

was already warm. 

More particularly, the inspector found 23 bad rollers. 

However, subsequently 28 were replaced to abate the condition. 

They were in varied condition. In some of these rollers, the 

bearings were completely gone, creating a fire hazard from 

the heat of friction. In others, not only were the bearings 

gone on the rollers, but the rollers themselves had spun 

until they had broken the rod running through the roller. 

2435 
This condition likewise presents a source of friction and 

heat and therefore is a fire hazard. 

The inspector also testified that there was combustible 

material present in the same areas where the heat was being 

generated from the bad rollers. The entire beltline had 

accumulations of coal dust, float coal dust and other loose 

coal. These accumulations were from two to six inches deep 

generally. The belt itself was on the ground, running in 

loose coal, two to six inches deep, for a length of 150 feet 

at two points along the lB-Belt line. Additionally, there 

were two major areas of float coal dust extant, one near the 

head, and the other near the tail. 

The credible evidence in this record establishes t:trat 

accumulations of black coal dust was deposited on top of 

previously rock dusted surfaces along the belt conveyor 

system at the locations described by the inspector. 

Furthermore, float coal dust was deposited on the ribs, the 

floor and the belt structure itself. These accumulations 

were located in belt conveyor areas which included potential 

sources of ignition, i.e., the overheating damaged belt 

rollers. 

The inspector believed the mine hazard presented by the 

accumulation of coal dust was a fire. Since sixteen miners 

worked on the No. 1 unit and were inby the belt, he was 

justifiably concerned that they would be exposed to fire and 

smoke hazards, and possible entrapment. Moreover, I conclude 

and find that the inspector's credible testimony establishes 

that the float coal dust accumulations in question which I 

believe one may assume were cumbustible and were located in 

areas where potential ignition sources were present, 

presented a fire and smoke hazard as well and also possibly 

an explosion hazard. 

The existence of accumulations of coal dust and float 

coal dust along a rather extended area of the belt line along 

with the number of damaged and overheating rollers that were 

present to provide a ready source of friction heat could also 

propagate any fire that got started. In defending this case, 

the respondent put a lot of emphasis on the existence of a 

carbon monoxide monitoring system on the belt line that picks 

up any kind of smoke that contains carbon monoxide. There 

are sensors located along the belt line at each header and 

tail piece and at each 2000 foot interval. The system alarms 

outside and the outside person can then determine where the 

problem is located. He thereupon calls on the mine phone to 

the foreman underground and he will go to the suspected 

location and find out what the problem is. Within five 

minutes, someone is in the alarmed area to investigate. 

Therefore, respondent's theory is that as long as this 

monitoring system is working there can be no imminent danger 

2436 
because to have a fire large enough to cause serious injury 

would take longer than five minutes to build up. By that 

time, it would be discovered and corrective action begun. 

However, the decision the inspector had to make on the 

scene was whether the condition he found could reasonably be 

expected to cause death or serious physical harm to the 

miners working in that area. The focus is on the "potential 

of .the risk to cause serious physical harm at any time." The 

legislative history of the Act states the intention of 

Congress to give inspectors "the necessary authority for the 

taking of action to remove miners from risk," and that an 

imminent danger is not to be defined "in terms of a 

percentage of probability that an accident will happen." 

s. Rep. No. 181, 95th Cong., 1st Sess. 38 (1977), reprinted 

in Senate Subcommittee on Labor of the Committee on Human 

Resources, 95th Cong., 2nd Sess, Legislative History of the 

Federal Mine Safety and Health Act of 1977 at 626 (1978). 

The focus is clearly and properly on the potential of 

the risk involved and I find that there was plenty of 

potential for a mine fire here given the conditions the 

inspector found. All the ingredients were present: 

accumulations of combustible materials and nearby ignition 

sources. 

Respondent's argument fails to recognize the role played 

by MSHA inspectors in eliminating imminently dangerous 

conditions. Since he must act immediately, an inspector must 

have considerable discretion in determining whether an 

imminent danger exists. The Seventh Circuit recognized the 

importance of the inspector's judgment: 

Clearly, the inspector is in a precarious position. 

He is entrusted with the safety of miners' lives, 

and he must ensure that the statute is enforced for 

the protection of these lives. His total concern 

is the safety of life and limb ••• We must support 

the findings and the decisions of the inspector 

unless there is evidence that he has abused his 

discretion or authority. 

Old Ben Coal Corp. v. Interior Bd. of Mine Op. App., 523 

F.2d 25, 31 (7th Cir. 1975). 

For all the reasons enumerated earlier in this decision, 

I find that the inspector did not abuse his discretion in 

this instance; an imminent danger did exist at the time he 

wrote the order. Furthermore, in my opinion, the presence of 

the monitoring system does nothing to change the basic 

situation the inspector found. There was still a danger of a 

mine fire starting that could produce a significant amount 

of smoke and/or fire before that condition could be abated. 

2437 
Accordingly, I find that there was an imminent danger and 

affirm Order No. 3420071. 

II. Section 104(a) Citation Nos. 3420072 and 3420073 

These two section 104(a) citations were issued in 

conjunction with the imminent danger order discussed earlier 

in this decision. 

Citation No. 3420072 alleges a "significant and 

substantial" violation of the standard at 30 C.F.R. § 75.1725 

and charges as follows: 

A violation was observed in the lB-Belt entry in 

that there were 23 bad or damaged rollers. The 

rollers were damaged to the extent some were cut 

into, some half missing from center rods, some 

completely missing from stands. 

(This citation was one of the factors that 

contributed to the issuance of imminent danger 

Order No. 3420071, dated 1/25/90 therefore, no 

abatement time was set.) 

Citation No. 3420073 alleges a "significant and 

substantial" violation of the standard at 30 C.F.R. § 75.0400 

and charges as follows: 

A violation was observed in the lB-Belt entry in 

that [an] accumulation of loose coal and float 

coal dust was present on previously rock dusted 

surfaces. The loose coal was present between 

No. 19 and No. 20 crosscut, from No. 7 to No. 9 

crosscut, and from No. 3 to No. 2 crosscut. The 

loose coal was from 2 to 6 inches in depth. 4 ft 

wide under the -belt. The belt was running in 

loose coal in two of the places. The loose coal 

was deposited on both sides of the belt. The 

total distance of loose coal was 280 ft. Float 

coal dust was present on previously rock dusted, 

starting at the first overcast inby the lB-header 

and extending for 4 crosscuts in the lB-Belt 

entry, the second place float coal dust was 

present was starting at the lC-Belt header and 

entending 5 crosscuts outby. The float coal dust 

was deposited on the floor, ribs, timbers, and 

belt structure. Total distance both locations was 

630 feet. 

(This citation was one of the factors that 

contributed to the issuance of imminent danger 

Order No. 3420071 dated 1/25/90 therefore, no 

abatement time was set. 

2438 
Respondent admits the violation of the mandatory 

standard in both citations, but disputes the "significant and 

substantial" findings contained therein. 

A "significant and substantial" violation is described in 

section 104(d)(l) 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 C.F~R. § 814(d)(l). A violation is properly 

designated significant and substantial "if based upon the 

particular facts surrounding the violation there exists a 

reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious nature." 

Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 

1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term 

"significant and substantial" as follows: 

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: Cl) 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. 

In United States Steel Mining Company, Inc., 7 FMSHRC 

1125, 1129, the Commission stated further as follows: 

We have explained further that the third element of 

the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which 

there is an injury." U.S. Steel Mining Co., 6 

FMSHRC 1834, 1836 (August 1984). We have emphasized 

that, in accordance with the language of section 

104(d)(l), it is the contribution of a violation to 

the cause and effect of a hazard that must be 

significant and substantial. U.S. Steel Mining 

Company, Inc., 6 FMSHRC 1866, 1868 (August 1984): 

U.S. Steel Mining Company, Inc., 6 FMSHRC 1573, 

1574-75 (July 1984). 

The question of whether any particular violation is 

significant and substantial must be based on the particular 

facts surrounding the violation, including the nature of the 

2439 
mine involved. Secretary of Labor v. Texasgulf, Inc., 

10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Company, 

9 FMSHRC 2007 (December 1987). 

I have previously recited the pertinent facts earlier in 

this decision. The same conditions that caused the violations 

of the two mandatory standards at bar were also the basis for 

the imminent danger withdrawal order that the inspector issued 

at the same time. Since I have previously found an imminent 

danger existed, that is, a condition "which could reasonably 

be expected to cause death or serious physical harm" it 

follows that these are "significant and substantial" 

violations as well under the test announced by the Commission 

in Mathies, supra. 

If a fire were to occur, it would be reasonably likely 

that the miners would be exposed to smoke and fire hazards and 

suffer disabling injuries of a reasonably serious nature, even 

given the presence of the operable CO monitoring system. By 

the tirne the fire could be finally extinguished, it is 

reasonably likely that serious injuries would have already 

occurred. 

Considering the criteria in section llO(i) of the Act, 

I conclude that an appropriate civil penalty for each of the 

above violations is $1000. 

ORDER 

1. Section 107(a) Order No. 3420071 IS AFFIRMED. 

2. Section 104(a) Citation Nos. 3420072 and 3420073 

ARE AFFIRMED. 

3. Green River Coal Company, Inc., is ordered to pay 

the sum of $2000 within 30 days of the date of this decision 

as a civil penalty foi the violations found herein. 

aurer 

s rative Law Judge 

Distribution: 

B. R. Paxton, Esq:, Paxton & Kusch, P.S.C., 213 East Broad 

Street, Central City, KY 42330-06550 (Certified Mail) 

W. F. Taylor, Esq., U.S. Department of Labor, Office of the 

Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, 

TN 37215 (Certified Mail) 

ml 

2440 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DAN-DEL COALS, INC., 

Respondent 

NOV 161990 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 90-193 

A.C. No. 15-15251-03541 

Wallins No. 3 Mine 

DECISION AND ORDER OF DEFAULT 

Appearances: Mary Sue Taylor, Esq., U.S. Department of Labor, 

Office of the Solicitor, Nashville, Tennessee, 

for the Petitioner; 

No appearance on behalf of Respondent. 

Before: Judge Maurer 

Pursuant to notice, a hearing was held in the captioned 

matter on October 16, 1990, in London, Kentucky. The Secretary 

appeared and presented the testimony of two witnesses; Howard 

Scott and Robert Blanton, both MSHA employees. No one appeared 

on behalf of the respondent, nor was any contact made by 

respondent with my office to cancel or continue this hearing. 

At the conclusion of the petitioner's testimony, she moved 

for a default decision. I took the motion under advisement on 

the record and when I returned to my off ice issued an Order to 

Show Cause to the respondent to show cause why it should not be 

defaulted for failing to appear at the scheduled hearing. 

Respondent filed a timely response, indicating that they 

try to call the courthouse in London and Mrs. Taylor's office to 

say they could not make the hearing. The letter does not say 

when these calls were made, but presumably the morning of the 

hearing itself. The letter went on to state that the company 

did 

is 

no longer in operation and has not been since July 27, 1990. All 

their employees have been laid off and have scattered. 

I do not find good cause in the respondent's explanation for 

their non-appearance. It is very expensive for the government to 

conduct these hearings. Four government employees and a court 

reporter traveled to this hearing site and conducted an 

evidentiary hearing in the absence of the party who originally 

requested it. Respondent could at the very least have requested 

cancellation of the hearing a week or even a few days beforehand. 

Had this been done, it could have been re-scheduled for another 

time when the company was better able to defend its position. 

2441 
Accordingly, petitioner's motion is granted and the 

respondent is found to be in default. The penalty of $1162 

proposed by the Secretary in this case must therefore be paid 

within 30 days of the date of this decision. 

Law Judge 

Distribution: 

Mary Sue Taylor, Esq., U.S. Department of Labor, Office- of the 

Solicitor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Darlene Roberts, Sec./ Treas., Dan-Del Coals, Inc., P.O. Box 62, 

Coldiron, KY 40819 (Certified Mail) 

/ml 

2442 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

NOV i 61990 

UNITED MINE WORKERS OF AMERICA, 

ON BEHALF OF 

DISCRIMINATION PROCEEDING 

FILBERT ROYBAL, . . Docket No. WEST 90-118-D 

complainant DENV CD 90-01 

v. . . 

. . Golden Eagle Mine 

Mine I.D. 05-02821 

WYOMING FUEL COMPANY, 

Respondent 

DECISION 

Appearances: Susan J. Tyburski, Esq., Denver, Colorado 

for Complainant; 

Before: 

Timothy M. Biddle, Esq., Washington, D.C. 

for Respondent. 

Judge Morris 

This case involves a discrimination complaint filed against 

Wyoming Fuel Company C"WFC"), pursuant to the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801, et~ 

The applicable portion of the Mine Act, Section 105(c)(l), 

in its pertinent portion provides as follows: 

Discrimination or interference prohibited; 

complaint; investigation; determination; hearing 

No person shall discharge or in any manner discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere with the exercise of the statutory rights 

of any miner, representative of miners or applicant for employment in any coal or other mine 

subject to this [Act] because such miner, representative or miners or applicant for employment 

has filed or made a complaint under or related 

to this [Act], including a complaint notifying 

the operator or the operator's agent, or the 

representative of the miners at the coal or 

other mine of an alleged danger or safety or 

health violation in a coal or other mine •••• 

30 u.s.c. § 815(c)(l). 

2443 
After notice to the parties, a hearing on the merits commenced in Denver, Colorado, on July 25, 1990. 

Both parties filed post-trial briefs. 

APPLICABLE CASE LAW 

The general principles of discrimination cases under the 

Mine Act are well settled. In order to establish a prima facie 

case of discrimination under Section 105(c) of the Act, a complaining miner bears the burden of production and proof in establishing that (1) he engaged in a protected activity, and (2) the 

adverse action complained of was motivated in any part-by·that 

particular activity. Secretary on behalf of Fasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on 

other grounds ~ nom. Consolidation Coal Co. v. Marshall, 663 

F.2d 1211 C3d Cir. 1981); Secretary on behalf of Robinette v. 

United Castle Coal Co., 3 FMSHRC 802, 817-818 (April 1981). The 

operator may rebut the prima f acie case by showing no protected 

activity occurred or the adverse action was in no part motivated 

by protected activity. If an operator cannot rebut the prima 

facie case in this manner, it nevertheless may defend affirmatively by proving that it also was motivated by the miner's unprotected activity and would have taken the adverse action in any 

event for the unprotected activity alone. Fasula, supra; Robinette, supra. See also Eastern Assoc. Coal Corp. v. FMSHRC, 813 

F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford construction 

Co., 732 F.2d 954, 958-959 (D.C. Cir. 1984); Boich v. FMSHRC, 719 

F.2d 194, 195-196 (6th Cir. 1983) (specifically approving the 

Commission's Fasula-Robinette test). Cf. NLRB v. Transportation 

Management corp., 462 U.S. 393, 397-413 (1983) (approving nearly 

identical test under National Labor Relations Act). 

ISSUE 

Was WFC's suspension of Complainant, with intent to discharge, motivated in any part by the exercise of rights protected 

under Section 105 of the Act. 

STIPULATION 

At the commencement of the hearing, the parties filed a 

written stipulation providing as follows: 

1. The Federal Mine Safety and Health Review Commission has 

jurisdiction over the parties and subject matter of this case 

under §§ 105(c) and 113 of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. §§ 815Cc) and 823 ("Act"). 

2444 
2. At all times relevant to this case, Complainant Filbert 

Roybal worked at Respondent Wyoming Fuel Company's ("WFC's") 

Golden Eagle Mine as a miner, as defined in § 4Cg) of the Act, 30 

u.s.c. § 802(g). 

3. On November 1, 1989, Mr. Roybal was suspended with 

intent to discharge by WFC. 

4. On November 13, 1989, Mr. Roybal filed a complaint with 

the Mine Safety and Health Administration, alleging that WFC discriminated against him in violation of § 105(c) of the Act, 30 

u.s.c. § 802(g). 

5. In a letter dated January 12, 1990, the Mine Safety and 

Health Administration informed Mr. Roybal that its investigation 

of his November 13, 1989, complaint did not reveal any violation 

of § 105(c) of the Act. 

6. By a January 16, 1990, Order of an Arbitrator in a 

grievance proceeding under the collective bargaining agreement, 

Mr. Roybal was reinstated as an employee of WFC, retroactive to 

December 1, 1989, and continues in the employment of WFC at the 

same wage rate as he earned before his suspension. 

7. On February 16, 1990, Mr. Roybal filed a complaint 

against WFC under § 105(c)(3) of the Act, 30 u.s.c. § 815(c)(3). 

SUMMARY OF THE EVIDENCE 

Complainant Filbert Roybal has worked for WFC since 1984. 

He has performed numerous jobs (Tr. 69). 

ROYBAL'S EXPERIENCE AND DUTIES 

Roybal was first employed in the mining industry in 1971 and 

held a variety of jobs, including as a continuous miner operator 

for CF&I, WFC's predecessor as the operator of the Golden Eagle 

Mine. He had also worked as a helper to a continuous miner operator. (Tr. 68-69, 81). His employment application showed that 

his last job with CF&I was in such a classification. CTr. 123). 

When Roybal applied for a job as a continuous miner operator with 

WFC, there were no such positions available, so Roybal was hired 

in 1984 as a shuttle car operator. (Tr. 103). However, since 

Roybal was an experienced miner operator, he was assigned periodically to fill in for regular continuous miner operators who 

were absent from work. (Tr. 70, 103). 

2445 
In October 1989, a continuous miner operator position became 

available and Roybal bid for it. (Tr. 70, 103-104). He was 

awarded the job and became a full-time continuous miner operator 

beginning on October 9, 1989. (Tr. 71, 104-105). 

On that date, Roybal reported for work on the afternoon 

shift. CTr. 71, 181). His foreman was Jerry Romero, a miner 

with 14.5 years underground coal mining experience. (Tr. 71, 

181). Romero and his crew - which included Roybal - were 

assigned to continue development of the longwall panel headgate 

entries of the Northwest Tailgate section. CTr. 181). Roybal 

was the continuous miner operator on the shift; his he.J.per was 

Donald Valdez. (Tr. 181-182). When the crew arrived on the 

section, Romero "task trained" both Roybal and Valdez because 

Roybal was starting a new job and federal regulations require 

task training under those circumstances; further, Valdez was 

filling in as a helper from his normal job as a mechanic. CTr. 

73, 105). 

PRE-ACCIDENT ACTIVITIES 

Romero took Roybal and Valdez to the continuous mining 

machine. He asked Roybal whether he wanted to read the company's 

task-training guidelines (Ex. C-10) or whether he wanted Romero 

to read them to him. (Tr. 73, 183). Roybal asked Romero to read 

them to him while he (Roybal) looked over the mining machine. 

(Tr. 73, 105, 183). Romero read the task-training guidelines to 

Roybal and pointed out the various controls with which Roybal was 

already familiar, since he had operated similar machines many 

times in the past. (Tr. 105, 183, 205-206). After he read the 

task-training guidelines to Roybal, Romero told Roybal to start 

the machine and operate it while Romero watched. (Tr. 73, 183). 

The pump for the rotating cutter head on the mining machine had 

lost its prime, and-Roybal could not restore it, so Romero did it 

for him. (Tr. 73-74, 185). l; Once the cutter head was fully 

operational, Roybal operated-the continuous miner without difficulty. Romero stayed to watch Roybal run it for 45 minutes. 

(Tr. 106, 184). 2/ Romero testified that, based on his observa1/ The need to prime a pump on a mining machine does not 

indicate there might be a throttle problem. (Tr. 355). 

2/ Romero did not witness any problems with the controls of the 

mining machine prior to the accident, nor did Roybal report any 

problems with the controls to Romero. (Tr. 185). 

2446 
tions of Roybal's handling of the mining machine, 

cern about Roybal's ability to operate it safely. 

In addition, Romero did not see any problems with 

worked with Roybal. (Tr. 185). 

THE ACCIDENT 

he had no con-

( Tr. 184). 

the way Valdez 

Filbert Roybal testified that on the day of the accident, 

about six hours into his shift, he started to cut the left side 

of the No. 2 Entry. Before the accident occurred, Valdez moved 

the continuous miner cable and Roybal backed up the miner. He 

then cleaned the right side of the entry, backed up, and then 

cleaned the center. His last intended move was to again clean 

the left side. At that point, he saw Valdez in a cross-cut; he 

was out of the way. Roybal turned to his left, centered the 

tail, and started moving the equipment to the face. He then 

heard some coal "dripping" on the tin covering the light. When 

he looked to his right, he saw Valdez and he knew what had happened. Roybal had not seen Valdez walk up on his blind side. 

(Tr. 76-78; Exs. R-1 and C-11 are drawings of the scene.) 

After he saw Valdez in the crosscut, Roybal looked away, to 

keep the ventilation tubing in his vision. (Tr. 79). 

Valdez had not signaled Roybal to indicate he was going to 

move. (Tr. 81-82). 

After the accident, Roybal gave statements to foreman Jerry 

Romero as well as to Mark Boyes, general foreman. He also participated in the investigation that followed the next day. (Tr. 

82). He met with Robert Butero and Mike Romero, Union safety 

officials at the home of Artie Maestas. (Tr. 83, 84). At the 

home meeting, Roybal explained how the accident happened. CTr. 

85). Later, he explained to MSHA officials how the accident had 

happened. CTr. 86). On October 16, company representative Huey 

notified him he would be on "load out" until further notice. He 

later received a "blue slip." (Tr. 88, 89; Ex. C-2). 

No one threatened him about participating in the investigation. (Tr. 109, 110). 

Michael Romero was in an entry adjacent to the one where 

Roybal was operating the mining machine. He heard a crew member 

yelling that Valdez was pinned against the rib and needed help. 

(Tr. 106, 190). Romero immediately went to the entry where 

Roybal had been operating the machine and found Valdez seriously 

hurt. (Tr. 190). He learned that Valdez had been crushed 

against the rib by Roybal's mining machine. (Tr. 190). 

2447 
Mr. Romero and other crew members administered emergency first 

aid and notifed appropriate officials. (Tr. 191). Valdez was 

taken out of the mine alive, but he died in the hospital early in 

the morning on October 10. (Tr. 190, 290). 

Shortly after the accident occurred, Mr. Romero asked 

Mr. Roybal what had happened. He told Mr. Romero that the throttle stuck while he was pivoting the machine, causing the mining 

machine to pin Valdez, crushing him against the rib. CTr. 190, 

203-204). Mr. Roybal later told Mr. Romero that he had been 

backing up the mining machine to reposition it in the entry and 

that he had not known that Valdez was beside him next to the rib. 

(Tr. 199-200, 203-204). On the night of October 9, Mr. Romero 

filled out a company form entitled "Foreman's First Report of 

Accident" in which he summarized his understanding of the nature 

and cause of the accident. (Tr. 194-195; Ex. R-2). He included 

Roybal's explanation of the stuck throttle in the report. (Tr. 

196). Later that same night, Mr. Romero completed another form 

entitled "Colorado Employee Personal Injury or Accident Report," 

which also provided information about the accident and its cause. 

(Tr. 197; Ex. C-6). That form essentially repeated information 

that was on the foreman's first report. Notwithstanding the 

information he provided on these forms, Mr. Romero had doubts 

that the throttle on Roybal's mining machine had been stuck, 

since he witnessed Mr. Roybal pivot the machine immediately after 

the accident and the throttle did not stick. (Tr. 193, 199). 

Mr. Romero also began to doubt that Mr. Roybal knew where Valdez 

was located when he pivoted the machine. (Tr. 199-200). Mr. 

Romero discussed his doubts with the company's accident investigators. (Tr. 199-200). After he talked with Mr. Roybal about 

the cause of the accident in the mine right after it happened, 

Romero had no further contact with him. (Tr. 201-202). 

PRELIMINARY INVESTIGATION 

The company's investigators, accompanied by a federal inspector, quickly arrived on the scene and interviewed Mr. Roybal 

and the other members of the crew. (Tr. 222). Mr. Roybal gave 

the company's investigators essentially the same account he had 

given Mr. Romero, including his claim that the throttle on the 

machine had stuck. (Tr. 228-229). The company's investigators 

took notes of each person's story. (Tr. 222). These notes were 

turned over to senior management, including Mr. Caller and Dave 

Huey, WFC's Manager of Mine Operations. (Tr. 223, 225-226). 

In addition to interviewing eye-witnesses, Frank Perko, 

WFC's Safety Supervisor, and Mel Shively, the local MSHA inspector, conducted an inspection of the accident scene. (Tr. 31, 

2448 
221, 228). Mr. Shiveley reported the results of the preliminary 

investigation to Mr. Callor. (Tr. 227-228). Mr. Shiveley told 

Mr. Callor they couldn't find anything wrong with the mining 

machine throttle when the machine was tested. (Tr. 31). 

On the morning of October 10, Mr. Callor met with UMWA 

International Safety Representative Robert Butero and UMWA Local 

President Mike Romero. CTr. 229). Based on the reports he had 

received from the company investigators, Mr. Callor briefed them 

on what he understood to be the sequence of events leading to the 

accident and its cause. (Tr. 229). 

THE FEDERAL INVESTIGATION 

The afternoon of October 10, MSHA and state investigators 

arrived at the mine and examined the accident scene underground 

with WFC and UMWA officials and the witnesses to the accident. 

(Tr. 230-231). The throttle on the continuous miner was not 

checked at that time. (Tr. 235-236). 

After the MSHA and state investigators completed their 

underground investigation, they interviewed Mr. Roybal and the 

other miners on his crew. (Tr. 233). During his interview, 

Mr. Roybal continued to claim that the mining machine throttle 

had stuck and that Valdez had been positioned well behind him 

immediately prior to his backing up the mining machine. (Tr. 

233, 308-309). Tom Hay, however, was 30 to 40 feet away from the 

accident site and the noise from his shuttle car and a nearby 

auxiliary fan would have made it difficult to hear whether a 

throttle stuck. (Tr. 206, 297-298, 298, 308-309). 3/ As a 

result of that testimony, Mr. Callor decided that the mining 

machine throttle should be checked more carefully. (Tr. 233-234). 

Mr. Callor conferred with Archie Vigil, the supervisor of the 

MSHA field off ice in Trinidad, and they decided an MSHA expert 

should examine the throttle. (Tr. 234). Accordingly, Mr. Vigil 

made arrangements for an MSHA hydraulics expert to come to the 

mine from Denver to tear down the throttle valve. (Tr. 32, 234). 

ll Mr. Romero testified that, at the time of the accident, 

Mr. Hay should have been sitting in his shuttle car which was 

located 30-40 feet from the scene of the accident. (Tr. 210; Ex. 

R-1 location of the shuttle car in relation to the continuous 

miner.) Mr. Callor testified that noise from a 60-horsepower fan 

and the engines of the shuttle car and the continuous miner would 

have made it difficult to hear whether the miner's throttle stuck. 

(Tr. 298, 352-353). 

2449 
Late in the day on October 11, Mr. Huey decided it would be 

best to remove Mr. Roybal from further operation of a mining 

machine and transferred him to another job. (Tr. 321). Mr. Huey 

made that decision because, as a result of the accident, he did 

not believe Mr. Roybal was in a state of mind to safely operate a 

mining machine; that transfer was not meant to be disciplinary 

action. (Ex. C-12). Accordingly, Mr. Roybal was informed on 

October 12 that he was being removed from his new job as a mining 

machine operator at least until MSHA's accident investigation was 

over. (Tr. 43). 

On the morning of October 12, Mr. Huey and MSHA officials, 

including Stanley Kretoski, the MSHA District 9 Special- Investigator, as well as the MSHA hydraulics expert, re-entered the mine 

to check the continuous miner. (Tr. 32-33, 236, 315). Under the 

supervision of the MSHA officials, Huey tested the miner, but 

found no operating problems and no stuck throttle. (Tr. 33, 

315-316). The throttle mechanism and the hydraulic valves were 

then disassembled underground under MSHA supervision and removed 

to the surface where they were taken apart and examined by MSHA's 

hydraulics expert and Leonard Carnavale, a maintenance expert at 

the mine, who also serves as a UMWA Local official. CTr. 236-

237, 316). No problems were found with the throttle mechanism 

or valve. (Tr. 34-35, 236-237, 316-317). In fact, the MSHA 

investigator commented that the valves were extremely clean. 

CTr. 317). At that point, Mr. Caller doubted that the throttle 

had stuck; he began to believe that the accident had been caused 

by Mr. Roybal's negligence in not assuring himself that he knew 

where Valdez was when he backed up the mining machine. (Tr. 237). 

The MSHA officials agreed that there was no problem with the continuous miner and that the accident must have been caused by 

human error, i.e., Valdez put himself in a dangerous position and 

Mr. Roybal failed to check Valdez's location before pivoting the 

machine. (Tr. 237)._ 

Between October 9 and 11, Charles McGlothlin, WFC's VicePresident for Operations, had been briefed regularly on the 

course of the accident investigation and the company's search for 

the cause of the accident. CTr. 366-368). ~/ Mr. Callar and 

4/ McGlothlin is the senior on-site company official for WFC 

operations, including the Golden Eagle Mine. He has final 

authority on personnel decisions. (Tr. 362-363, 373). 

2450 
witnessed the valve tear-down; Mr. Callor reported the results to 

Mr. McGlothlin. (Tr. 316, 326-327, 370). Both Callor and Huey 

began to suspect that Mr. Roybal's claim that a stuck throttle 

caused the accident was not true. Mr. Roybal was persisting in 

that claim. (Tr. 373). Messrs. Callor and Huey told 

Mr. McGlothlin of their suspicions. (Tr. 372-373). 

INVESTIGATION FINDINGS 

On October 12, MSHA conducted a conference at the mine to 

review the accident investigation up to that time. (Tr. 239, 

318-319). 5; Chief Investigator Kretowski gave company and UMWA 

representives his preliminary conclusions about what ccrused the 

accident. (Tr. 239, 318-319). His conclusion was that the accident had been caused by Roybal's failure to know where his helper 

was when he backed up the machine. (Tr. 240). 6; At that conference, Union representative Butero was critical of MSHA's investigators for failing to address the time it took to remove 

Valdez from the mine and in relation to the number of blankets on 

the section and the adequacy of the task-training provided 

Mr. Roybal. (Tr. 149, 163). Mr. Kretowski told Mr. Butero that 

the evacuation time and the blankets were not connected with the 

cause of the accident. (Tr. 163). Mr. Butero followed up his 

criticisms of the MSHA investigation with a letter in mid-October 

to the MSHA District 9 Manager. (Tr. 147-149). Although 

Mr. Butera had privately told Mr. Kretowski before the October 12 

conference started that he intended to write such a letter, no 

one from WFC saw the letter until after Mr. Roybal was suspended 

with intent to discharge. (Tr. 149, 164, 243, 402). 

After the conference with MSHA, WFC officials discussed on 

several occasions whether Mr. Roybal should be fired. 

5/ Although this conference was called a "closeout" conference, 

it was not the close of MSHA's accident investigation. The MSHA 

accident investigation did not end until October 31, according to 

those conducting it. (Tr. 36-37, 256). 

6/ Leonard Carnavale, the UMWA representative who assisted in 

the valve tear-down, agreed with Mr. Kretowski that the accident 

was the result of human error. The human error consisted of 

Valdez's placing himself in a bad position and Mr. Roybal's not 

knowing where Valdez was. (Tr. 239-240). 

2451 
(Tr. 377). Both Messrs. Callor and Huey recommended to 

Mr. McGlothlin that Mr. Roybal be fired for Cl) negligence, 

(2) ~or lying during the company's and MSHA's accident investigations 7; and (3) for conspiracy, because of testimony given by 

Mr. Roybal and other miners during the investigation who, in management's view, were trying to lay blame for the accident on the 

equipment, not Roybal. (Tr. 61, 252, 324-325, 372). 

Mr. McGlothlin, however, was not willing to take any action with 

respect to Mr. Roybal until MSHA's accident investigation was 

completed. (Tr. 377, 388-90). Mr. McGlothlin thought that more 

information, including any mitigating circumstances, might result 

from the continuing MSHA investigation. (Tr. 377, 390). 

On October 17, Colorado State mine safety regulatory officials presented WFC with their written report about the cause of 

the accident. (Tr. 44, 248, 323, 376). The primary cause of the 

accident, according to the state investigator, was "[Roybal] was 

not aware of where his helper was ••• "when he backed up the 

equipment. (Tr. 45, 249; Ex. R-8 at 3). 

Concerned about the effect of the collective bargaining 

agreement between WFC and the UMWA with respect to any disciplinary action against Mr. Roybal, Mr. McGlothlin discussed the 

Roybal matter with the president of KNEnergy, WFC's parent company, as well as with a labor consultant used by WFC for contract 

interpretation purposes and with outside legal counsel. (Tr. 

392). By that time, Mr. McGlothlin had talked extensively with 

Messrs. Callar and Huey, who had explained to him Mr. Roybal's 

degree of negligence, as evidenced by the position of the mining 

machine when the accident occurred. (Tr. 46, 61, 329-330). 

UNION REPRESENTATIVES 

Mike J. Romero, .President of Local Union 9856, District 15, 

has represented Mr. Roybal since 1979. 

Prior to this accident, Mr. Roybal had a very good work and 

safety record. (Tr. 124, 125). 

Mr. Romero received a copy of the blue slip (Ex. C-2) on the 

day it was served on Mr. Roybal, namely, November 1, 1989. (Tr. 

127). 

7/ Making false statements during accident investigations is a 

violation of Rule 7 of WFC's Rules of Conduct. Mr. Roybal was 

aware of and had acknowledged receipt of a copy.of such Rules. 

(Tr. 216-217~ Exs. R-3, R-4). 

2452 
Company representative Huey stated to Mr. Romero that they 

were "tired of the community accusing WFC of the fatality and 

blaming WFC. 11 Mr. Romero denied Mr. Huey's assertions. 

The next day, again in Mr. Huey's office, Mr. Callor said 

"they were tired of being hammered" and "tired of people going to 

Arlington. " (Tr. 12 9) • 

Robert Dale Butero also testified. He is an international 

representative of the International Union of the United Mine 

Workers of America. He is assigned to the Union's Department of 

Occupational Health and Safety. (Tr. 130). 

Mr. Butero went to the Golden Eagle Mine when he was notified of the accident. (Tr. 133). After talking to company representatives, he wanted·to talk to the crew. As a result, a 

meeting was held at Art Maestas's house. No company representatives were present. Mr. Butero told those present they were going to give statements to MSHA; he advi.sed them to give true 

statements. (Tr. 136-138, 162). 

The crew were later questioned in the presence of the witness, an MSHA investigator, a state inspector, and company representatives. At that time, Mr. Roybal stated the throttle had 

stuck. (Tr. 140). 

Mr. Butero stated he didn't believe the task training given 

to Mr. Roybal complied with MSHA's regulation. At that point, it 

bec~me very combative. (Tr. 141). In the course of the meeting, 

Mr. Butero raised several issues: task training, failure to have 

proper blankets, inadequate transportation from the mine (whether 

the miner died of shock or injuries). (Tr. 142-147). Mr. Butero 

agreed no citations were issued for the areas about which he was 

concerned. (Tr. 163.). 

MSHA said they were also going to have an MSHA Tech support 

man check the throttle valve. This was done the following day. 

(Tr. 147). 

Mr. Butero also wrote to John DeMichiei, MSHA district 

manager. In his letter, he complained about the investigation 

and he expressed his concerns. (Tr. 129, 149). ~/ 

~/ The letter to Mr. DeMichiei was not in evidence. 

2453 
On October 31, 1989, after writing to Mr. DeMichiei, MSHA 

reviewed the company's training records. About that time, 

Mr. Butero had a lengthy discussion with WFC's attorney 

Larry Corte. Mr. Corte was wondering why the union was "hammering" them through the investigation. (Tr. 152, 153). Mr. Butero 

explained why he wrote the letter to MSHA and he gave him a copy. 

Mr. Corte replied, "You're hammering us and stuff. If you don't 

quit, we're going to have some action." Then he said, "We're 

starting a good safety program here." (Tr. 154). Mr. Butero 

didn't know exactly what he meant. (Tr. 155). 

On November 1 or 2, Mr. Butero learned Mr. Roybal had been 

suspended with intent to discharge. (Tr. 156). 

In a mining community when a fatality occurs, people choose 

sides. Some blame the company, others blame the union. (Tr. 

157). 

Later Mr. Butero recommended that a 105(a) complaint be 

filed. Mr. Roybal agreed. (Tr. 160, 161). 

Mr. Butero wrote the discrimination complaint. In pursuing 

the case, Mr. Butero talked to Linda Raisovich-Parsons in Washington and told her the facts of the case. (Tr. 164-166). 

Mr. Butero agrees it was fair for the company to conclude 

that Mr. Roybal had performed an unsafe act resulting in a 

fatality; further, there was some basis for the company to 

believe someone wasn't telling about the stuck throttle "as it 

happened" and several miners agreed that they would identify the 

cause of the accident as the machine. (Tr. 168-170). 

The State of Colorado report was not issued by October 12. 

(Tr. 17 4). 

DECISION TO DISCHARGE 

On October 31, MSHA investigators completed the last part of 

their accident investigation by auditing WFC's training records, 

including those of Roybal and Valdez. (Tr. 37, 256, 379-380, 

396). No violations were found. When the audit had concluded, 

the MSHA investigators told Mr. Callar that the Valdez fatality 

investigation was over. (Tr. 163-164, 256). 9/ Messrs. Callor 

and Huey reported to Mr. McGlothlin that MSHA-had completed its 

investigation. 

~/ MSHA issued a written accident investigation report, but not 

until December 1989; it was received into evidence as Exhibit R-9. 

(Tr. 262-263). 

2454 
(Tr. 380). Shortly thereafter Messrs. Caller and Huey met with 

Mr. McGlothlin to make a decision about Mr. Roybal. CTr. 

256-257, 326). Since no new facts had come to light during 

MSHA's investigation, Mr. McGlothlin decided to accept Mr. Caller 

and Mr. Huey's recommendation and he approved Mr. Roybal's suspension with intent to discharge. (Tr. 379-380, 397). 10/ 

Messrs. McGlothlin, Huey, and Caller drafted a Notice or-suspension with Intent to Discharge that day. (Tr. 256-257, 326, 397). 

Mr. McGlothlin gave it to his secretary for typing and instructed 

Mr. Huey to issue it to Mr. Roybal the next day, November 1. 

(Tr. 257, 328, 331, 397). 

Huey gave Mr. Roybal the notice on the afternoon oI November 1 in the presence of Mr. Roybal's UMWA representative. (Tr. 

328, 330-331). The Notice informed Mr. Roybal that the company 

believed he had engaged in an unsafe act which resulted in the 

Valdez fatality, had violated company safety rules, had misrepresented the facts to investigators, and had engaged in a conspiracy to blame the company for the Valdez accident. (Tr. 326-328; 

Ex. C-2). The next day the UMWA filed a grievance under the collective bargaining agreement contesting Mr. Roybal's suspension, 

and WFC and the UMWA began the grievance procedure steps under 

the collective bargaining agreement. (Tr. 332, 398). 

THE § 105(c) ACTIONS 

On November 13, the UMWA filed a § 105(c) complaint on 

Mr. Roybal's behalf. (Tr. 161-162, 164; Ex. c-1). On February 16, 1990, Linda Raisovich-Parsons, a UMWA official in Washington, filed the§ 105Cc)(3) complaint at issue here. (Tr. 113). 

Mr. Roybal said he never· saw the second complaint and, indeed, 

testified that the allegation in the complaint that he had been 

"discriminated against because he had participated in an MSHA 

10/ After Mr. McGlothlin accepted the recommendations of Messrs. 

Caller and Huey, and after consultation with counsel for WFC, 

Mr. McGlothlin reported WFC's conclusions concerning the cause of 

Valdez's death to local law enforcement authorities. (Tr. 383-

384, 399). A meeting was held in late November between Messrs. 

McGlothlin, Lawrence J. Corte, WFC counsel, and the county district attorney and county sheriff. (Tr. 383-384). The district 

attorney informed Mr. Roybal in January 1990 that no criminal 

charges against him were contemplated. (Ex. C-15). 

2455 
dent investigation" was not true. (Tr. 114) 11; Mr. Roybal 

admitted that no one from WFC discussed the MSHA accident 

investigation with him. (Tr. 109-110). 12/ 

COLLECTIVE BARGAINING AGREEMENT 

In the meantime, Mr. Roybal's grievance was being processed 

in accordance with the collective bargaining agreement. (Tr. 

173, 260-262). Unable to resolve the grievance through the informal negotiations provided for in the contract, Mr. Roybal's 

grievance was heard by an arbitrator. After the hearing, the 

arbitrator decided that Mr. Roybal had been negligent but that 

the company's decision to discharge him was too severe:- Accordingly, the arbitrator ordered WFC to reinstate Mr. Roybal effective December 1, 1989, but upheld the company's suspension of 

Mr. Roybal for the period of November 1, 1989, to November 30, 

1989. WFC reinstated Mr. Roybal as required, paid him continuous 

miner operator wages, but did not allow him to operate a mining 

machine. (Tr. 114-115, 218-219, 261-262). At the time of the 

hearing in this proceeding, Mr. Roybal was employed by WFC as a 

belt cleaner being paid miner operator wages. 

DISCUSSION 

Under the Mine Act, a complaining miner bears the burden of 

proving that he was engaged in a protected activity, and that the 

adverse action complained of was motivated in any part by that 

activity. 

In this case, it is conceded that Mr. Roybal engaged in a 

protected activity by participating in the MSHA fatality investigation. It is further conceded that WFC took adverse action 

against Mr. Roybal by suspending him with intent to discharge. 

However, Mr. Roybal has failed to show the adverse action 

was motivated in some part by the protected action. The record 

11/ There was no testimony that WFC had interfered with Mr. Roybal 's participation in MSHA's accident investigation in any way. 

12/ The WFC personnel responsible for ordering Mr. Roybal's suspension with intent to discharge agreed with Mr. Roybal's testimony on this point. (Tr. 36, 201, 224, 241, 320, 371). 

2456 
fails to show any such motivation. In the second complaint 13/ 

filed here, Mr. Roybal alleges he had been "discriminated agaTnst 

because he had participated in an MSHA investigation." However, 

at the hearing he asserted this was not true. (Tr. 114). Further, there was no evidence that WFC had interfered with Mr. Roybal 's participation in MSHA's accident investigation in any way. 

Finally, Mi. Roybal admitted that no one from WFC discussed 

the MSHA accident investigation with him. CTr. 109-110). In 

addition, WFC witnesses Callor, Romero, Huey, and McGlothlin 14; 

corroborated Mr. Roybal's testimony. (Tr. 36, 201, 241, 320,~ 

371). 

In addition to the foregoing, the evidence establishes that 

WFC's decision to suspend Mr. Roybal was based on a valid business judgment. These reasons, stated in WFC's notice CEx. C-2) 

were Cl) Mr. Roybal's failure to comply with standard operating 

job procedures, (2) unsafe act resulting in fatality, (3) misrepresentation of facts, (4) conspiring with fellow employees 

against Wyoming Fuel Company. 

The first two reasons are amply supported by the uncontroverted evidence. The third factor is also apparent: during the 

period of the investigation, Roybal blamed the accident on the 

stuck throttle. However, the evidence indicates the throttle was 

not defective. At the hearing, Roybal did not refer to the 

throttle in any manner. The fourth facet of WFC's discharge, 

conspiring with fellow employees, was not established in the 

evidence. However, the Commission's function is not to pass on 

the wisdom or fairness of the operator's business justification, 

but rather only to determine whether they are credible, and 

whether they could have motivated the particular operator as 

claime?. Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (1982); 

Secretary on behalf of Brock Blue Circle, Inc., 11 FMSHRC 2181, 

2214 (1989) (Koutras; J). I find the company's motivations to be 

credible and they motivated the operator to proceed as it did. 

Mr. Roybal's witness Mr. Butero believed the company's 

of the accident were erroneous. However, he testified that 

has a reasonable basis to reach such conclusions. I agree. 

167-170). 

views 

WFC 

(Tr. -

13/ It is not necessary to explore the activities involving the 

filing of the complaints in this case. (Tr. 161-162, 164; Ex. 

C-1). 

14/ These are the WFC personnel responsible for ordering 

Mr. Roybal's suspension with intent to discharge. 

2457 
In sum, Mr. Roybal has failed to establish that the adverse 

action taken against him was for any protected activities. 

Mr. Roybal argues that WFC's activities establish a discriminatory intent. Specifically, he claims WFC discriminated 

against him because of his Union's protected activities during 

the investigation 15/ as well as Mr. Butero's letter to MSHA's 

District 9. 16/ ~ 

As to the initial facet, Mr. McGlothlin testified that allegations concerning first aid safety, transportation, training, 

and recordkeeping did not relate to Mr. Roybal. He indicated the 

misrepresentation of facts "has to do with the throttla valve 

that he alleged malfunctioned and caused the accident." (Tr. 

389). 

Further, Mr. McGlothlin was not aware of the Butero letter 

until after Mr. Roybal was suspended. (Tr. 154, 382). 

Mr. Roybal also relies on the Corte and Caller statements to 

establish discriminatory motive. 

The witnesses in this case all showed considerable partisanship. I consider the Corte statements (Tr. 153, 154), as 

related by Mr. Butero, to be hesitant and inconclusive. In analyzing the statement Mr. Butera himself stated "it didn't dawn on 

me that it might be action against Mr. Roybal." (Tr. 155). I 

agree it would be speculative to conclude that the Corte statement established discriminatory intent. 

In addition, there is no evidence that Mr. Corte had any 

involvement in Mr. McGlothlin's decision to suspend Mr. Roybal, 

nor is there any evidence that any WFC management official was 

aware that Mr. Corte had talked to Mr. Butero. (Tr. 397). 

The Callor statements (Tr. 292-294) were made during a 

grievance meeting concerning Mr. Roybal's suspension. The meeting was after Mr. Roybal had been suspended. In any event, the 

15/ Mr. Butero complained to MSHA about task-training, inadequate blankets, and evacuation methods. (Tr. 149, 163) MSHA's 

representative told Mr. Butera that these factors were not connected to the cause of the accident, hence not related to the 

investigation. (Tr. 163). 

16/ The Butera letter was not in evidence. 

2458 
main thrust of Mr. Caller's statements was that it was seeking 

advice whether it could counter what it saw as the Union's disruption of the MSHA investigation. An operator is entitled to 

seek expert advice as to what its rights are without being in 

violation of section 105{c) of the Mine Safety Act. 

Further, Mr •. Roybal claims WFC's contact with the Las Animas 

County District Attorney {Colorado) was an apparent attempt to 

persuade the District Attorney to file charges against him. 

The uncontroverted evidence shows the contact between WFC 

and the District Attorney occurred because WFC officials believed 

that the evidence uncovered during the accident investigation 

indicated there may have been a negligent act that resulted in 

the death. {Tr. 383). ' 

Company attorney Corte felt there was an obligation to 

report the fatality to the authorities. {Tr. 383). 

No doubt, the 

him file charges. 

does not establish 

within the meaning 

contact with the District Attorney was to have 

Given the circumstances involved, this conduct 

a discriminatory intent against Mr. Roybal 

of the Mine Act. 

Finally, Mr. Roybal perceives a discriminatory inference in 

WFC's delay until October 31 before taking adverse action against 

him. 

The decision to suspend Mr. Roybal was made following MSHA's 

review of WFC's training records. The event marked the conclusion of the MSHA accident investigation. {Tr. 379-380, 396). 

The management's communications with legal counsel and a Labor 

Relations consultant were made for the purpose of identifying 

what actions could be taken against Mr. Roybal. {Tr.392-396). 

WFC's delay was not inappropriate, since MSHA's investigation could have disclosed additional facts, including mitigating 

factors, which might indicate that suspension was inappropriate. 

{Tr. 390). Further, given the potential for litigation, WFC's 

consultations with legal counsel and a labor expert, were not 

inappropriate. 

In support of its position, Mr. Roybal relies on Phelps 

Dodge Corporation, 3 FMSHRC 2508 (1981), rev'd on other grounds 

sub nom, Donovan ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 

86 {D.C. 1983); Berch v. Federal Mine Safety & Health Review 

Com'n, 719 F.2d 194 {6th Cir. 1983) citing NLRB v. Transportation 

Management Corp., 51 U.S.L.W. 4761 {U.S. June 15, 1983); Eastern 
Associated Coal Corp., 7 FMSHRC 1766 (1985), aff'd in part and 

rev'd in part Eastern Associated Coal v. Federal Mine Safety & 

Health Review Com'n, 813 F.2d 639 (4th Cir. 1987)~ and Secretary 

of Labor, Mine Safety & Health Administration CMSHA) on behalf of 

Bobby Gooslin v. Kentucky Carbon Corp., 4 FMSHRC 1 (1982). However, these cases are not inopposite the views expressed herein. 

For the foregoing reasons, the complaint herein is 

DISMISSED. 

Law Judge 

Distribution: 

Susan J. Tyburski, Esq., BOYLE, TYBURSKI & TOLL, 50 South Steele, 

Suite 800, Denver, CO 80209 (Certified Mail) 

Timothy M. Biddle, Esq., CROWELL & MORING, 1001 Pennsylvania 

Avenue, N.W., Washington, D.C. 20004-2505 (Certified Mail) 

/ek 

2460 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 · 

NOV 161990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION. (MSHA) , 

ON BEHALF OF 

ALONZO WALKER, 

Complainant 

v. 

DRAVO BASIC MATERIALS COMPANY, 

INC., 

AND 

R & S MATERIALS, INC., 

Respondents 

Before: Judge Fauver 

DISCRIMINATION PROCEEDING 

Docket No. SE 90-86-DM 

MSHA Case No. MD 90-03 

Selma Mine 

ORDER 

Complainant has filed a satisfaction of order, stating that 

the relief provided in the order of September 28, 1990, has been 

fully accorded. 

WHEREFORE IT IS ORDERED that the decision of August 10, 

1990, and the order of September 28, 1990, 'constitute a final 

disposition of this proceeding. 

Distribution: 

(J;/.J_;_,..,. 9' MA "'V'-

William Fauver 

Administrative Law Judge 

William Lawson, Esq., Office of the Solicitor, U.S. Department of 

Labor, 2015 Second Avenue North, Suite 201, Birmingham, AL 35203 

(Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, P.C., USX Tower, 57th 

Floor, 600 Grant Street, Pittsburgh, PA 15219 (Certified Mail) 

Harold A. Bowron, Jr., Esq., Balch and Bingham, 1710 North Sixth 

Avenue, P.O. Box 306, Birmingham, AL 35201 (Certified Mail) 

/fb 

2461 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 161990 

CURTIS R. PICKEL, 

Complainant 

DISCRIMINATION PROCEEDING 

v n~rket No. LAKE 90-114-D 

B & LS CONTRACTING, INC., VINC CD 90-05 

ORDER OF DISMISSAL 

Before: Judge Melick 

Complainant Curtis Pickel, requests approval to withdraw 

his complaint in the captioned case for the reasoe that "we 

have reached an agreement between ourselves". Un er the 

circumstances herein, permissi n to withdraw is g anted. 

29 C.F.R. § 2700.11. This ca e is t ·erefore dismfssed and 

the hearings previously sched led a; accordingly! can~elled. 

/ /) G/L.-'_/l I\· /I ( 

Distribution: 

' j 

i 

I 

.· ! I I . ;-.,\ ... Gary elrck I.../ ,, ----- Adminf strative La Judge 

ii \ I !/ " I 

Mr. Curtis R. Pickel, 201 S. Main Street, Bicknel~, IN 47512 

(Certified Mail) 

Martin J. Klaper, Esq., Ice, Miller, Donadio & Ryan, One 

American Square, Bo~' 82001, Indianapolis, IN 46282 

(Certified Mail) 

nb 

2462 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

THE INDUSTRIAL COMPANY OF 

WYOMING (TIC), 

Respondent 

DENVER, CO 80204 

NOV 201990 

. . 

. . 

. . 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 89-108 

A.C. No. 48-00732-03503 ZC7 

Belle Ayr Strip 

Appearances: S. Lorrie Ray, Esq., Office of the Solicitor, U.S. 

Department of Labor, Denver, Colorado, 

for Petitioner; 

Sharp & Casson , P.C., Steamboat Springs, Colorado, 

for Respondent. 

Before: Judge Cetti 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to Section llOCa) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et 

~(the "Act"). The Secretary charges the Industrial Company 

of Wyoming CTIC) with a 104(d)(l) significant and substantial 

violation of 30 C.F.R. § 77~204. 

TIC filed a timely answer to the Secretary's proposal for 

penalty, denying the alleged violation. After notice to the parties, an evidentiary -hearing on the merits was held before me at 

Steamboat Springs, Colorado. Oral and documentary evidence was 

introduced. Both parties have filed post-hearing briefs which I 

have considered, along with the entire record in making this 

decision. 

STIPULATIONS 

1. The decedent, Jeffrey Rosenau, sustained fatal injuries 

when he fell through a 6-foot, 6-inch square opening at the top 

of the Fluid Dryer Bin Chamber at Level 183 of the dryer 

building. 

2. The decedent fell approximately 44 feet. 

2463 
3. The decedent was wearing a safety belt with a lanyard, 

but the lanyard was not tied off at the time of the fall. 

4. The printout of the history of respondent's violations 

(Ex. A) is accurate. 

5. Although respondent denies that it committed any violation and denies that any penalty should be imposed, the proposed 

$2,000 penalty would not affect the respondent's ability to continue in business. 

6. The Mine Safety and Health Administration has no written or published guidelines, standards, or policies regarding the 

structural steel construction or steel erection practices in the 

construction industry. 

7. Respondent immediately abated the alleged violation in 

good faith. 

I 

STATEMENT OF FACTS 

Respondent, The Industrial Co. of Wyoming CTIC), is a 

medium-size heavy industrial construction company. The majority 

of its activity and service involves structural steel erection. 

At the time of the Accident, the steel erection project at which 

respondent was working was located near Gillette, Wyoming, at the 

Belle Ayr Mine, owned by AMAX Coal Company. The prime contactor, 

McNally-Pittsburgh, Inc., had contracted with AMAX to design and 

erect certain structures and machinery in the modernization of 

the Belle Ayr Mine. McNally subcontracted to Respondent, TIC, 

the structural steel erection involved in the construction of the 

coal dryer building; 

Mr. Jeffrey Rosenau was an experienced iron worker who had 

worked high in the air for several years before he was hired as 

an iron worker by TIC. At the Belle Ayr site, Mr. Rosenau first 

worked on the construction of various steel structure components 

and trusses. He worked on the ground and up to 30-40 feet in the 

air. Later, at his request, he was transferred to work as a 

connector on the erection of the coal dryer building. He worked 

under Kevin Kelly, the iron worker lead man for TIC. 

On the day of the accident, Mr. Rosenau and Jessie Thomas 

were working as connectors installing steel beams on the coal 

dryer building, at level 183, which was 83 feet above the ground. 

2464 
Iron workers operating as connectors usually work at the highest 

level of the structure being erected. The steel beams were 

hoisted up to them by a crane located on the ground next to the 

building. The connectors working high in the air positioning 

each beam while still attached to the crane into a pre-designated 

position, putting sufficient bolts in each end of the beam to 

secure it in place. 

The accident occurred at approximately 5 o'clock on June 3. 

Just prior to the accident, Mr. Rosenau and Mr. Thomas were connecting and bolting up steel beams over the surge bin, a large, 

open, uncovered structure approximately 18 feet by 30 feet deep, 

which had been installed the previous day. This bolting-up procedure followed the reinstallation of a steel beam which had 

inadvertently been installed backwards. Mr. Rosenau apparently 

ran out of bolts, got up from where he was working directly over 

the surge bin, and walked in the direction of the bolt bag about 

28 feet away. The bolt bag was located near the opening to the 

dryer bin on Level 183 of the coal dryer building. It is not 

known for certain precisely what route Mr. Rosenau took from the 

surge bin to the bolt bag or how the accident occurred. There 

were no eye witnesses to the accident. However, Mr. Rosenau did 

pass through the opening of the dryer, as he fell through space. 

The opening was surrounded by structural steel beams located just 

above the opening. These are the beams, which would eventually 

support the decking or floor at Level 183. These beams were not 

yet squared and the bolts holding them in place were not fully 

tightened and thus the beams were not in final place. 

Mr. Rosenau received fatal injuries after falling approximately 

44 feet to the bottom of the dryer bin. Mr. Thomas did not see 

Mr. Rosenau fall, but did hear what sounded to him like tools 

bouncing off the steel structure. 

The Department of Labor, Mine Safety and Health Administration CMSHA) investigated the accident and, in its report received 

in evidence, summarized how the accident occurred as follows: 

Jeffery Rosenau, age 26, Iron Worker, fell from a 

beam he was traveling on through a 6-foot, 6-inch square 

opening at the top of the Fluid Dryer Bed Chamber. The 

victim fell about 44 feet, receiving fatal injuries. 

Rosenau was wearing a safety belt with lanyard, but the 

lanyard was not tied off because he was moving from one 

location to another. 

2465 
MSHA stated in the body of its report:' 

Work progressed normally until about 4 p.m. While 

installing steel beams, it was determined that a steel 

beam had been installed incorrectly. The steel beam was 

attached to a Bucyrus Erie Crane used for hositing and 

positioning steel, unbolted, turned around, repositioned 

in the correct direction, and secured in place. Bolts 

used to attach other beams to the installed beam were 

located approximately 28 feet from the beam to be installed in the immediate work area. 

About 5 p.m., Rosenau unlatched his safety lanyard 

and began walking a W 10 by 22-wide flange I-beam 10.17 

inches deep with a flange width of 5.75 inches. He apparently gathered enough bolts from where the bolts were located, and started back to the work area. The beam he was 

traversing was located above the dryer chamber adjacent to 

where the top unit of the chamber was to be installed. A 

6-foot, 6-inch square opening in the top of the chamber was 

located south of the I-beam he was traversing. Rosenau 

lost his footing and fell through the opening. 

MSHA's Narrative Findings for a Special Assessment described 

the accident as follows: 

The injuries were caused when the victim slipped or 

stumbled as he was walking on an I-beam with a 5.75-inch 

flange; and he fell 43 feet, 8 inches. The victim was 

wearing a safety belt with lanyard, but because of his 

movements, he was not able to tie off to prevent a fall. 

Based upon the record, I find that this fatal fall-of-person accident occurred when the 26-year old steel erection worker 

slipped or stumbled as he was walking on an I-beam on his way 

back to his immediate work area after obtaining additional bolts 

he needed to complete the steel beam connecting erection work he 

was performing at the 183 level of the dryer building. In accordance with the usual and customary practice of connectors in 

the steel erection industry, he was walking on the 5.75-inch wide 

flange of an I-beam when he slipped or stumbled and fell from the 

beam. As he fell into space, he fell through the 6 x 6'6" opening of the dryer bin and landed on the bottom of the bin. The 

victim was wearing a safety belt with lanyard, which he used, as 

is the custom and practice of connectors in steel erection to 

prevent fall-of-person injuries. Undoubtedly, he unlatched the 

end of the lanyard so he could travel across the steel gridwork 

2466 
at Level 183 where the bolt bag was located, approximately 28 

feet away. Thus decedent was not tied off at the time of the 

accident because he was traveling to an area beyond the length of 

the lanyard. 

The parties stipulated that MSHA has no written or published 

guidelines, standards, or policies regarding the construction of 

structural steel or steel erection practices in the construction 

industry. Four witnesses - Kevin Kelly, Lee Dessnar, Steve 

Johnson, and Melvin Cox - all experienced in the steel-erection 

industry - testified regarding the construction methods utilized 

by Respondent in the construction of the coal dryer building and 

about the standards, customs, and practices used in the- stuctural 

steel erection industry generally. Each of these four witnesses 

testified that the methods and practices utilized by TIC in the 

construction of the coal dryer building were consistent with 

those standards, customs, and practices. 

Kevin Kelly, who has been an iron worker for more than six 

year and who has worked on approximately 20 structural steel 

buildings similar to the coal dryer building during that time 

period, testified that the standard and customary sequence of 

construction of a building of this type is to set the vertical 

columns, set the steel beams in what will eventually be a horizontal floor, set any equipment or machinery that may come up 

through that floor, put bolts in the ends of the steel beams, 

tighten the bolts and square the structure, and then install the 

flooring and cover all holes which would not otherwise be covered 

by flooring or filled with machinery. Lee Desner, who has been 

and iron worker for eight to ten years, and who has worked on 

approximately 30 structural steel buildings during that time 

period, testified to the same standard and customary sequence of 

construction followed both in the structural steel erection industry generally and- by Respondent in the construction of the 

coal dryer building. Steve Johnson, who has been involved in 

instructural steel construction for 20 years, and who was the 

construction manager for Respondent at the Belle Ayr Mine, also 

testified to the standard and customary fashion in which a structural steel building such as the coal dryer building is erected, 

and that the coal dryer building was constructed in the standard 

and customary fashion. Melvin Cox, who was the project superintendent at the Belle Ayr Mine for McNally-Pittsburgh, Inc., and 

who has 19 years of experience in the structural steel erection 

industry, participating directly in the construction of over 100 

structural steel buildings, testified that the sequence of construction of a structural steel building always follows a standard sequence of standing the vertical steel columns, installing 

any equipment which will pass up through the building, installing 

2467 
the steel beams which will eventually support a horizontal floor, 

one layer at a time, bolting the beams in place, "rattling" or 

squaring and tightening the beams, and then installing the flooring and covering all openings which will not be covered by flooring or immediately filled by equipment or machinery. He further 

testified that the standard sequence and methods of construction 

of structural steel buildings are always the same no matter what 

the design or ultimate function of that building, and that Respondent constructed the coal dryer building and Level 183, the 

site of the accident, in conformance with the standards and customs of the structural steel erection industry. 

All of the witnesses who testified at the hearing-stated 

that Level 183, the site of the accident, was an open gridwork of 

steel beams with numerous openings through which men or materials 

could fall and that the dryer bin opening was but one of many 

such similar openings. The photographs (Exhibits 5, B, D, E, F 

and G) received into evidence, also clearly depict the state of 

construction of Level 183 and the open gridwork of steel beams, 

containing approximately 46 openings through which men or materials could have fallen the same or a similar distance as through 

the dryer bin opening. 

Jessie Thomas, Lee Dessner, Steve Johnson and Melvin Cox, 

all testified without exception that, given the stage of construction existing at Level 183 of the coal dryer building at the 

time of the accident, the dryer bin opening would not have been 

covered; they would not have covered it and they would not have 

expected it to be covered. Further, those witnesses testified 

that the dryer bin opening would have been covered in the standard and customary sequence of construction always followed in the 

structural steel erection industry and that there was no reason 

to deviate from that standard sequence. 

MSHA inspector Caughman testified that the highest floor 

below Level 183 was a completed floor and, as such, it had no 

uncovered openings in it. 

Jessie Thomas, Lee Dessner, Steve Johnson and Melvin Cox 

also testified without exception that, as experienced iron workers, they did not consider the dryer bin opening to be any different or more hazardous than any of the approximately forty-five 

other similar openings present a Level 183 at the time of the 

accident and that they did not recognize it as a hazard which 

needed protection. 

Kevin Kelly and Steve Johnson both testified that, at the 

stage of construction existing at the time of the accident, the 

2468 
dryer bin cover was not installed because to install it out of 

the standard and customary sequence would have created a construction problem; that since the cover was to be attached to 

both the bin top and to the surrounding steel beams, it could not 

be installed until the steel beams had been installed, square& 

and tightened, which had not yet occurred; and that, in fact, it 

had to be moved again in order to complete the construction of 

Level 183. 

MSHA Inspectors Ferguson called by the Secretary admitted 

that, if Mr. Rosenau had fallen in any other direction through an 

opening of a similar nature for a similar distance, MSHA would 

not have cited Respondent for any violation of 30 C.F.R. § 77.204. 

Mr. Cox testified that falls through the openings to the south 

and the north of the dryer bin opening, as well as through most 

of the openings at Level 183 would have involved a fall of the 

same distance as through the dryer bin opening. 

MSHA Inspectors Ferguson and Caughman also testified that 

MSHA did not require the covering or protecting of any of the 

other forty-five similar openings at Level 183, that MSHA considered the area safe for resumption and completion of normal 

structural steel construction activities after the dryer bin 

opening had been covered, and that MSHA did not cite Respondent 

for any violations for the other forty-five openings in this 

incomplete structure with its steel gridwork of openings through 

which men or materials could have fallen. 

II 

MSHA, after investigating the fatal accident, issued a citation alleging TIC violated the provisions of 30 C.F.R. § 77.204 

which read as follows: 

§ 77.204 Openings in surface installations; 

safeguards. 

Openings in surf ace installations 

through which men or material may fall 

shall be protected by railings, barriers, 

covers or other protective devices. 

I 

The Secretary's position appears simple and straightforward. 

The decedent obviously fell through an opening through which men 

or material could fall. Nevertheless, the application of this 

regulation to the facts of this case strikes me as being an inappropriate wooden application of this regulation. 

2469 
TIC asserts that 30 C.F.R. § 77.204 is unenforceably vague 

as applied to the facts of this case because it does not give 

fair warning to TIC, or any other structural steel erection contractor, that the conduct complained of--lack of a cover or barrier over the dryer bin opening--is prohibited by the terms of 

that regulation.. TIC asserts that to pass constitutional muster, 

the regulation must provide adequate notice to TIC of the precise 

parameters of its responsibility and that 30 C.F.R. § 77.204 of 

30 C.F.R. especially in light of the introduction to Part 77 

contained in § 77.200, does not provide such adequate notice and 

fair warning. 

TIC contends that whether the regulation provides constitutionally adequate warning and notice is measured by the standards, practices and customs of the industry at issue, i.e., the 

structural steel erection industry. Measured by the standards of 

conduct followed in that industry, § 77.204 fails to provide the 

adequate notice and fair warning, because those customs, practices and standards, as adhered to by TIC in this construction 

project, do not expect or require the covering of this one opening among approximately forty-six similar openings at the stage 

of construction existing at the time of the accident. Further, 

when measured against the reasonable man in the industry standard 

used by the courts to determine if a person engaged in the structural steel erection industry would have recognized this one 

opening among forty-six similar openings as a hazard and protected against it, the evidence is clear and undisputed that such 

an opening in the incomplete, open and unexisting at Level 183 on 

the day of the accident would not have been covered or otherwise 

protected •• 

TIC asserts an employer cannot be cited and penalized where 

his conduct is not specifically addressed by a regulation, as has 

been admitted by MSHA in this case, and where that conduct complained of, conforms to the common practice and customs of those 

engaged in the structural steel erection industry. 

By its express terms, 30 C.F.R. § 77.204 does not specifically apply to ongoing, incomplete construction of structural 

steel buildings at the stage of construction existing at the time 

of the accident. TIC asserts a building, especially one level in 

that building under construction and incomplete, cannot be "maintained" and "repaired" pursuant to § 77.200, and the obvious inintent of § 77.204 is to require the covering or other protection 

of an opening in an otherwise completed building or completed 

floor of a building. 

2470 
TIC argued that given the stage of construction existing 

at Level 183 of the building being erected, the condition complained of by MSHA was not foreseeable, and therefore, cannot 

form the basis of a citation and a penalty. TIC correctly points 

out that the testimony is clear and uncontroverted that it was 

not foreseeable that this one opening among forty-six similar 

openings posed any problem or hazard different from the others 

existing at Level 183 at the time of the accident and for which 

MSHA has admitted it did not and would not cite Respondent. 

At the hearing, I heard evidence regarding important facts 

from witnesses experienced in the matters at issue. I also heard 

opinion testimony from MSHA inspectors who admitted they have no 

experience in the steel erection industry. Thus many of the 

facts, as established by Respondent's witnesses were uncontroverted. The matters established by Respondent--and left uncontroverted by Petitioner--relate to the customs, standards and 

practices of the structural steel erection industry and the fact 

that at the stage of construction that existed at the time of the 

accident, o_ne opening among forty-six similar openings did not 

create a different or more hazardous condition than the other 

openings, and would not have been covered at that stage of the 

construction. 

Elaborating on the constitutional argument TIC contends that 

30 C.F.R. § 77.204 is unenforceably vague as applied on due process grounds because in the factual circumstances presented by 

this case. It does not give fair warning to TIC, in light of the 

common understanding and commercial practices applicable to the 

structural steel erection industry, that the conduct complained 

of is proscribed by its terms. 

TIC in its post-hearing brief states the following: 

A. Where the imposition of penal sanctions is at issue in a proceeding brought by 

an enforcing administrative agency, the due 

process clause of the United States Constitution requires that the regulation sought to be 

enforced give "fair warning" of the conduct it 

prohibits or requires, and if it does not, it 

is unenforceable. United States v. L. Cohen 

Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 

L.Ed. 516 (1921). The United States Supreme 

Court and the Circuit Courts of appeal have 

consistently held that regulations sought to 

be enforced must clearly describe what conduct 

2471 
is required or prohibited, and if the regulation is too broad or general and does not provide that specificity, it is unconstitutionally vague and unenforceable. "[B]ecause we assume that man is free to steer between lawful 

and unlawful conduct, we insist that laws give 

the person of ordinary intelligence a reasonable opportunity to know what is prohibited, 

so that he may act accordingly." Grayned v. 

City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 

2294, 2298, 33 L.Ed.2d 222 (1972), quoted in 

Diebold v. Marshall, 585 F.2d 1327, 1335 (6th 

Cir. 1978). The principle to be applied is 

the due process requirement of fundamental 

fairness and, "[elven a regulation which governs purely economic or commercial activities, 

if its violation can engender penalties, must 

be so framed as to provide a constitutionally 

adequate warning to those whose activities are 

governed." Diebold, Inc. v. Marshall, _supra 

at 1335-36. See also, ~' Phelps Dodge Corporation v. FMSHRC, 681 F.2d 1189, 1193 99th 

Cir. 1982); Kropp Forge Co. v. Secretary of 

Labor, 657 F.2d 119, 122-24 (7th Cir. 1981); 

B & B Insulation, Inc. v. OSHRC, 583 F.2d 

1364, 1367-71 (5th Cir. 1978). "Regulations 

must 'give the person of ordinary intelligence 

a reasonable opportunity to know what is prohibited'." Phelps Dodge Corporation v. 

FMSHRC, 681 F.2d 1189, 1193 (9th Cir. 1982); 

Kropp Forge Co. v. Secretary of Labor, 657 

F.2d 119, 122-24 (7th Cir. 1981); B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1367-71 

(5th Cir. 1918). "Regulations must 'give the 

person of ordinary intelligence a reasonable 

opportunity to know what is prohibited'." 

Phelps Dodge Corporation v. Federal Mine Safe-

_!:y, supra at 1194, quoting Lloyd c. Lockrem, 

Inc. v. United States, 609 F.2d 940, 943 (9th 

Cir. 1979). This "reasonable opportuity" requires that a regulation give those to whom it 

purportedly applies "adequate notice • • • of 

the exact contours of his responsibility." 

Dravo Corporation v. OSHRC, 614 F.2d 1227, 

1234 (3rd Cir. 1980), quoted in Kropp Forge 

Co. v~ Secretary of Labor, supra at 122. Obviously, an alleged violation of 30 C.F.R. 

§ 77.204 exposes Respondent to penalties, and 

these principles of law apply in this case. 

2472 
B. The question whether a regulation provides such "adequate notice" is to be answered 

"in the light of the conduct to which [the 

regulation] is applied." United States v. 

National Dairy Products Corp., 372 U.S. 29, 

36, 83 Sup. Ct. 594, 600, 9 L.Ed.2d 561 

(1963), quoted in Diebold, Inc. v. Marshall, 

supra at 1336. "[T]he constitutional adequacy 

of the warning given must be measured by common understanding and commercial practice'." 

Diebold, Inc. v. Marshall, supra at 1336, 

quoting United States ex rel. Shott v. Tehan, 

365 F.2d 191, 198 (6th Cir. 1966). In other 

words, the "common understanding and commercial practice" to which these standards of 

analysis apply is that of the practices, customs and procedures that establish the standards of conduct in the industry in which the 

employer participates. See Diebold, Inc. v. 

Marshall, supra at 1336-37, and Cape and Vineyard Division v. OSHRC, 512 F.2d 1148, 1152-53 

Clst Cir. 1975). Such standards of conduct 

are those of "a reasonable prudent employer" 

in that industry. See B & B Insulation, Inc., 

supra at 1370. "[Alilappropriate test is 

whether a reasonably prudent man familiar with 

the circumstances of the indus-try would have 

protected against the hazard." Cape and Vineyard Division, supra at 1152. This "reasonable man standard" is used by the courts to 

determine if a reasonable person engaged in 

the industry in question would have recognized 

the hazard and protected against it. B & B 

Insulation, Inc., supra at 1369-70. This 

Court must look to persons whose conduct would 

be subject to judgment by that reasonable man 

standard, i.e., employers engaged in the steel 

erection industry. 

The conduct of the reasonably prudent employer is established by reference to industry 

custom and practice. Cape and Vineyard Division, supra at 1152. 

The standards, customs and practice of 

the steel erection industry were established 

through the undisputed testimony of Kevin 

2473 
Kelly, Lee Dessner, Steve Johnson and Melvin 

Cox, persons experienced in the structural 

steel erection industry, and those witnesses 

testified without contradiction that the dryer 

bin opening was not a recognizable hazard, 

given the stage of construction existing on 

June 3, 1988, and would not have been covered 

or otherwise protected by a reasonable employer in the industry. 

Diebold, Inc., supra at 1336, sets forth 

certain factors which in combination deprived 

the employer in that case of constitutionally __ adequate warning as to what conduct was prohibited by the regulation at issue. Examination of similar factors in this case leads to 

the same result. 30 C.F.R. § 77.200, the introductory and definitional section to Subpart C of § 77, states as follows: 

All mine structures, enclosures, or 

other facilities (including custom coal 

preparation) shall be maintained in good 

repair to prevent accidents and injuries 

to employees. 

First, an employer could conclude from 

from this general language that buildings ununder construction, which by their very nature 

cannot be "maintained" or "repaired" until 

they are completed, were exempted from the 

broad, general requirements of that section, 

as well as of § 77.204. 

Second, the undisputed "common understanding in commercial practice" relating to 

the erection of structural steel buildings as 

testified by Kevin Kelly, Lee Dessner, Steve 

Johnson and Melvin Cox, do not require the 

covering of an opening such as that for which 

Respondent was cited in this case at the stage 

of construction which existed at the time of 

the accident. Those witnesses testified that 

structural steel erection always follows a 

standard and customary sequence, which is the 

only way such buildings can be constructed, 

and that that sequence was followed with respect to the construction of the dryer building in which the dryer bin opening was located. 

2474 
From that, this Court must conclude that TIC, 

as an average employer in the structural steel 

erection industry, was unaware that § 77.204 

required the covering of one opening at the 

stage of construction existing on June 3, 

1988, while approximately 45 other openings of 

similar or identical nature were not required 

to be covered. Therefore, whether TIC or any 

other employer in the structural steel erection industry looked to § 77.200 and § 77.204 

or to industry customs and practices, it would 

have been led to the conclusion that the dryer - bin opening at issue in this case was exempted 

from the requirement of a covering or other 

protective measures at the stage at which the 

construction existed on June 3, 1988. 

Petitioner has also recognized that Respondent's conduct in this case must be measured by "the stage of construction that an 

opening existed" and the particular "nature of 

the construction" involved, i.e., open structural steel erection. (Section 4.b of Petitioner's Response to Pre-Hearing Order). 

Petitioner has thus recognized and admitted 

that the standards, customs and practices of 

the steel erection industry provide the benchmark by which Respondent's conduct is to be 

measured. The testimony presented by Respondent at the hearing in this matter clearly established--wi thout refutation by Petitioner--

the standard and customary sequence of construction in the structural steel erection 

industry and -the methods and procedures used 

to accomplish that construction. 

The constitutional adequacy of the conduct mandated or prohibited by § 77.204 must 

be measured by those standards and customs, as 

presented by witnesses Kevin Kelly, Lee Dessner, Steve Johnson and Melvin Cox. Diebold, 

Inc. v. Marshall, supra at 1336-37. Respondent complied with the standards and customs of 

conduct of "a reasonable prudent employer" in 

the steel erection industry, B & B Insulation, 

Inc., supra, and measured by those standards 

and customs, § 77.204 clearly fails to provide 

constitutionally adequate warning. 

2475 
Where an employer's conduct is not addressed by a detailed and precise regulation 

and that conduct conforms to the common practice and customs of those similarly situated 

in the industry, the employer cannot be cited 

and penalized. B & B Insulation, Inc., supra 

at 1371. 

C. The testimony was clear and uncontroverted that if Mr. Rosenau had fallen to either side of the dryer bin opening or in almost any other of the numerous openings exisexisting in Level 183 on June 3, 1988, he 

would have fallen almost as far as he fell 

through the dryer bin opening CT. 300-04). 

MSHA Inspectors Ferguson CT. 103, lines 14-19) 

and Caughman CT. 190, lines 4-B, p. 210, lines 

4-8) both stated unequivocally that had Mr. 

Rosenau fallen in any other direction for the 

same distance, MSHA would not have cited the 

Respondent for a violation of 30 C.F.R. 

§ 77.204. Witnesses Kelly, Dessner, Johnson 

and Cox all clearly testified that the dryer 

bin opening was no different from nor more 

hazardous a condition than any of the other 

forty-five openings existing on Level 183 at 

the time of the accident. (See pages 6-7 of 

this Brief for relevant citations to the 

record). 

Section 77.204 does not require the covering or protecting of bin openings while providing that all other openings of a similar 

nature through which men or materials may fall 

a similar distance with a similar result need 

not be covered or protected. However, this is 

now the arbitrary interpretation which MSHA 

wishes to have this Court give to § 77.204. 

The law is clear, however, that MSHA and the 

Secretary of Labor cannot construe § 77.204 

to mean what it does not adequately and 

clearly express, even if the foregoing was 

intended by that agency. Phelps-Dodge Corp., 

supra. at 1193, and Gates & Fox Co., Inc., 

supra at 156. To allow otherwise would result 

in arbitrary, subjective and inconsistent interpretations of the unclear regulation. The 

rule-making procedures of the Administrative 

Procedures Act may not be supplemented by ad 

24 76 
hoc adjudicatory proceedings based on an MSHA 

inspector's subjective interpretation. NLRB 

v. Wyman-Gordon Co., 394 U.S. 759, 564, 89 

s.ct. 1426, 22 L.Ed.2d 709 <1969). Further, 

MSHA and the Secretary of Labor would apparently assert the authority to decide what a 

reasonable prudent employer would do under the 

circumstances and state of construction existing in this case on June 3, 1988, even though 

the uncontroverted testimony clearly established that none of the experienced witnesses 

would have followed the course of action which 

MSHA and the Secretary of Labor would now attempt to dictate. MSHA and the Secretary of 

Labor may not disregard this demonstrated and 

uncontroverted industry custom and practice 

which was followed by Respondent in this case. 

B & B Insulation, Inc., supra at 1370-71. As 

stated above, only by reference to industry 

customs, practices and standards can the conduct of the "reasonable prudent employer" be 

established, and Respondent's conduct in this 

case must be measured by those industry customs, practices and standards. Id.; Cape and 

Vineyard Division, supra at 1152. Petitioner 

has wholly failed to prove that a reasonable 

prudent employer familiar with the customs, 

practices and standards in the structural 

steel erection industry would have recognized 

the dryer bin opening as a hazard and, therefore, covered or otherwise protected this one 

opening among forty-six similar openings. 

D. Specific standards of conduct are 

desirable so that the goal of reducing industrial accidents can be reached by employer 

compliance through elimination of specifically 

identified safety and health hazards by specifically prescribed remedial measures. "Preventive goals are obviously not advanced where 

broad standards are extended to encompass 

every situation which gives rise to an unlikely accident." B & B Insulation, Inc., v. 

OSHRC, supra at 1371. Thus, in the case at 

hand, the Secretary of Labor bears the burden 

of clearly demonstrating that a reasonable 

structural steel erection employer at the 

stage of construction existing on June 3, 

2477 
1988, would have recognized the dryer bin 

opening to be a hazard and, therefore, required the use of "railings, barriers, devices" to protect open gridwork that is necessarily created as steel beams are lowered in 

place by a crane and bolted to pre-existing 

framework in a building under construction at 

a level not yet prepared for installation of 

covers, machinery and flooring. See B & B 

Insulation, Inc. v. OSHRC, supra at 1372. 

Petitioner's own witnesses stated that such 

openings need not be covered and, as a result, 

Petitioner has not met his burden of proof. --

II. 30 C.F.R. § 77.204 does not apply to 

ongoing, incomplete construction of 

structural steel buildings. 

30 C.F.R. § 77.204 appears in Subpart C 

of Part 77, 20 C.F.R., Chapter 1. Subpart C 

is entitled "Surface Installations." The general requirement of Subpart C appears in 

§ 77.200 which states: "All mine structures, 

enclosures or other facilities (including custom coal preparation) shall be maintained in 

good repair to prevent accidents and injuries 

to employees." Section 77.204 states: "Openings in surface installations through which 

men or material may fall shall be protected by 

railings, barriers, covers or other protective 

devices." Neither of these provisions gives 

specific fair warning that they apply to the 

erection of structural steel framework and 

the procedures and processes necessary thereto, as presented by the facts and circumstances specific to this case. 

First, § 77.200 refers to "structures, 

enclosures, or other facilities" which "shall 

be maintained in good repair", thereby strongly implying that § 77.200 is to apply to completely constructed "structures, enclosures, 

or other facilities" which can be "maintained 

in good repair." Buildings under construction 

cannot be "maintained" and "repaired". CT. 

272, lines 7-21). Second, § 77.204 refers to 

"openings" in such "structures, enclosures, or 

2478 
other facilities," requiring them to "be protected by railings, barriers, covers or other 

protective devices." The basic purpose of 

these provisions, fairly fairly read, is to 

require protection by "railings, barriers, 

covers, or other protective devices" of "openings" in completed structures, such as floor 

openings in completed floors or roof openings 

in completed roofs, and neither § 77.200 nor § 

77.204 can, in fundamental fairness, be applied to ongoing, incomplete construction of 

structural steel beam frameworks in which open __ 

spaces between beams are necessarily created 

and existing as construction progresses. 

The only case involving 30 C.F.R. 

§ 77.204 of which Respondent is aware is Secretary of Labor v. Pittsburg & Midway Coal 

Mining Co., 3 MSHC 1637 (Central Dist. 1984). 

That case involved the issuance of several 

citations to the operator, one of which was a 

§ 77.204 citation for failing to provide a 

railing at the opening of a loading dock in a 

warehouse. That case involved a completed 

building, and the Court held that the definition of a surface installation in § 77.200 was 

broad enough to include a loading dock, an 

opening in and being used in a completed 

structure. Common sense and fairness do not 

allow a reading of § 77.204 to require "maintenance" and "repair" of an ongoing, incompletely constructed structural steel building. 

III. The condition complained of by MSHA was 

not foreseeable, and, therefore, cannot 

form the basis of a citation and 

penalty. 

The testimony presented at the hearing 

clearly established that there were approximately forty-six similar gridwork openings at 

Level 183 and that such openings are inherent 

in the construction of structural steel buildings at the stage of construction present at 

Level 183 on June 3, 1988. The construction 

was still in progress, and ironworkers continued to move across all of the open grids to 

perform their work in the construction of the 

2479 
dryer-·building before the accident on June 3, 

1988, during the investigation and abatement 

process, and after the investigation during 

the completion of the dryer building project. 

CT. 49, lines 10-21; p. 108, lines 10-25; p. 

109, lines 1-25; p. 110, line l; p. 197, lines 

11-14~ p. 230, lines 11-25; p. 231, lines 

1-9). 

Respondent's witnesses testified that it 

was not foreseeable that this one open area in 

relation to the other forty-five open areas 

would or could be a problem at that stage of 

construction. CT. 272, lines 22-25; p. 273, 

lines 1-8; see pages 6-7 of this Brief for 

further relevant citations to the record). 

They further testified that they did not deem 

that opening any different a condition or hazard than any of the other openings necessarily 

present and inherent in the construction of 

structural steel buildings. (See pages 6-7). 

In the case of Pyro Mining Company v. FMSHRC, 

3 MSHC 2057 (6th Cir. 1986), the Court found 

that where a condition claimed by MSHA to be 

properly the subject of a citation was not 

foreseeable to the operator, that conditon 

could not be the basis for a finding of negligence and issuance of a citation. In the case 

at hand, only with the benefit of hindsight 

and by ignoring the clear and uncontroverted 

testimony of Respondent's witnesses can a 

finding be made that the open area complained 

of and the rsulting accident involving that 

open area were foreseeable to the Respondent. 

The condition of Level 183 was standard and 

customary for the stage of construction 

existing on the date of the accident, and 

given the unforeseeability of this condition, 

it cannot be the basis for a valid citation. 

III 

The purpose of the safety standard § 77.204 is to protect 

against fall-of-person injuries. The section states several 

specific ways this can be done and concludes with the phrase 

"or other protective devices." It can be argued that the decedent was wearing and using whenever practical a "device" (safety 

belt and lanyard) to prevent a fall-off-person accident even 

2480 
though at the time of his fall he was not able to "tie off." He 

was not able to "tie off" because he was moving to a location 

beyond the length of his lanyard. It is also noted that there is 

no evidence that anyone worked at Level 183 other than the two 

steel erection workers (connectors) positioning and bolting beams 

hoisted up to them by a crane. There is no evidence these connectors did not use their safety belts and lanyards to prevent 

fall-of-persons accident whenever it was practical to do so. The 

decedent and his fellow connectors were working together to bolt 

in place the steel beam that would support the decking or flooring at the level. It should be noted that there was undisputed 

evidence from the inspector and others that the highest completed 

floor below the 183 Level had no uncovered or unprotected 

openings. 

It can also be noted that what caused the accident in this 

case was not the opening in the bin but the fact that this ironworker slipped or stumbled and fell while traversing on a beam in 

the customary manner of steel erection work while connecting. It 

was only after falling into space that he fortuitously passed 

through the opening in the top of the dryer bin rather than falling in another direction which would have resulted in the same 

tragic result but no citation. 

The crucial question, as I see it, is the applicability of 

30 C.F.R. § 77.204 to the facts of this case given the nature of 

steel erection which involves positioning and bolting together 

steel beams hoisted into the air by a crane to create a steel 

gridwork of many openings. 

The opening involved in this case was not an opening in a 

f lo·or, a walkway, or an work platform which in my opinion would 

clearly come within the perview of the cited safety standard even 

in an unfinisted building under construction. Under the circumstances and facts of this case I find and conclude that at the 

stage of construction that existed at the time of the accident 

that there was no violation of 30 C.F.R. § 77.204. 

2481 
ORDER 

1. Citation No. 3226562 is VACATED and its related proposed 

civil penalty SET ASIDE. 

2. Docket No. WEST 89-108 is DISMISSED. 

, .. -....... 

Distribution: 

~·-·~ ~ {!ffic 

t F. cettiV -

istrative Law Judge 

s. Lorrie Ray, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Richard T. Casson, Esq., SHARP & CASSON, 401 Lincoln Avenue, 

P.O. Box 774608, Steamboat Springs, CO 80477 (Certified Mail) 

/ek 

2482 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 201990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BEECH FORK PROCESSING, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 90-87 

A.C. No. 15-16162-03542 

Docket No. KENT 90~88 

A.C. No. 15-16162-03525 

Docket No. KENT 90-89 

A.C. No. 15-16162-03526 

Beech Fork Mine No. 1 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On November 9, 1990, the parties filed a Joint Motion for 

approval of a settlement reached by the parties in these cases. 

The violations were originally assessed at $10,123 and the 

parties propose to settle for $8000. 

The penalties for the twenty violations in Docket No. KENT 

90-87, the agreement proposes to reduce from $5704 to $4288; the 

penalties for the fourteen violations in Docket No. KENT 90-88 

from $3315 to $2608; for the penalties for the five violations in 

Docket No. KENT 90-89, originally assessed at $1104, the parties 

agree that the amount originally assessed will be paid. 

The settlement is based on Respondent's inability to pay the 

amounts originally assessed. The motion states that Respondent 

is suffering financial difficulties, and might be forced to cease 

operation if it were required to pay the full penalties. 

I have considered the motion in the light of the criteria in 

section llO(i) of the Act, and conclude that it should be 

approved. 

Accordingly, the settlement is APPROVED and Respondent is 

ORDERED to pay the sum of $8000 as follows: 

2483 
$1000 on December 1, 1990, and $1000 per month thereafter 

until the $8000 is paid in its entirety. 

• • 1· ' · ;JU I 

· }/ o/u !,(__[.::; ./rr .J "'va'(_,1,/l c ~ .· James A. Broderick 

1 Administrative Law Judge 

Distribution: 

W. F. Taylor, Esq., U.S. Department of Labor, Office of the 

Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

James H. Booth, President, Beech Fork Processing, Inc., P.O. Box 

190, Lovely, KY 41231 (Certified Mail) 

slk 

2484 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 231990 

ARCH OF KENTUCKY, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

CONTEST PROCEEDING 

Docket No. KENT 90-395-R 

Citation No. 3384541; 7/17/90 

No. 37 Underground Mine 

Mine ID 15-04670 

ORDER OF DISMISSAL 

Appearances: Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant, 

and Combs, Lexington, Kentucky, for Contestant. 

Mary Sue Taylor, Esq., Office of the Solcitior, 

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

for Respondent 

Before: Judge Melick 

At hearing, following modification by the Secretary of 

the subject citation from one issued under section 104Cd)(l) 

of the Federal Mine Safety and Health Act of 1977 to one 

issued under section 104(a), Contestant requested approval to 

withdraw its Contest in the captioned case, Under the 

circumstances herein, permission to withdraw was granted. 

29 C. F .R. § 2700 .11. This ise ·{· s there!re dismissed. 

i/. ~L v

1 

~ 1. I f I i 

. I -' . U .... 1 I { 1. · /_,..--,\ 

Gary ,Mel1c]( 1\. r . -

.. AdmiriistratiJie Law Judge 

I 1 -/ I 

Distribution: f /i 

Marco M. Rajkovich, Jr., Esq.; 250 West Main Street, 

Lexington, KY 40507 (Certif~ed Mail) 

I 

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. 

Department of Labor, 2002 Richard Jones Road, Suite B-201, 

Nashville, TN 37215 (Certified Mail) 

nb 

2485 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

NOV 2 61990 

RICHARD R. MAYNES, 

Complainant 

. . 

. . DISCRIMINATION PROCEEDING 

v. 

: Docket No. CENT 89-132-DM . . MD 89-35 

PHELPS DODGE CORPORATION, 

Respondent 

DECISION 

Appearances: Michael J. Keenan, Esq., Ward, Keenan & Barrett, 

Phoenix, Arizona, 

Before: 

for Complainant; 

Michael D. Moberly, Esq., Ryley, Carlock & Applewhite, Phoenix, Arizona, 

for Respondent. 

Judge Lasher 

This proceeding arises under Section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et 

seg.,(1982) (herein "the Act"). Complainant's initial complaint 

with the Labor Department's Mine Safety and Health Administration 

(MSHA) was dismissed. Both parties were well represented at the 

hearing. l; 

CONTENTIONS OF THE PARTIES 

Complainant contends that when he became unit chairman for 

the Steelworkers Union in ~988, he became involved in efforts to 

resolve a dispute over certain protective equipment at the Ivanhoe concentrator and that, because of this and his engaging in 

various safety-related issues as well as non-safety related issues which he engaged in as a union representative, he was retaliated against by Respondent. (I-T. 22-23). Specifically, Complainant alleges that the disciplinary action (discharge) taken 

by Respondent against him was due to his pursuit of an MSHA 

complaint over safety equipment, various safety complaints he 

lodged in his capacity as union representative, and his pursuit of safety-related grievances. CI-T. 24). 

1/ The hearing was held on four hearing days over a two-term 

hearing period, i.e., February 7, 8, and 9, 1990, and May 8, 1990. 

For each of the four days of hearing there is a separate transcript beginning with page one. Accordingly, transcript citations will be prefaced with "I", "II", "III", and "IV" for 

February 7, 8, and 9, and May 8, respectively. 

2486 
Respondent contends that it is engaged in a dangerous mining operation and has concern for the safety of its employees and 

that in furtherance thereof it has implemented a rule that an 

employee may be discharged for reporting to work under the influence of alcohol. Respondent points out that it has implemented a specific drug and alcohol policy which includes testing of 

employees who are suspected of being under the influence. Specifically, Respondent contends that when Complainant Maynes arrived 

at work on November 23, 1988, his supervisor Israel T. Romero 

suspected him to be under the influence because of his actions, 

his characteristics, his appearance, and the fact that he was 

chewing a large wad of chewing gum. According to Respondent, 

Mr. Romero asked a fellow supervisor Monty Wilson to coafirm his 

conclusion and Mr. Wilson stepped close to the Complainant and 

smelled alcohol on the Complainant's breath. After Mr. Wilson 

reported this to Mr. Romero, Romero contacted his supervisor who 

shortly thereafter questioned Mr. Maynes and also observed unusual behavior and smelled alcohol. 

Respondent contends Cl) Mr. Maynes was asked to undergo a 

drug and alcohol test at this point, in accordance with its policy; (2) Mr. Maynes, after initially agreeing to take the test, 

refused to take the test; and (3) Maynes was thereafter discharged on two independent grounds, first for refusal to submit 

to the drug and alcohol test, and secondly for reporting to work 

under the influence. CI-T. 25-31; II-T. 223; III-T. 13; Ex. 

R-6). 

FINDINGS 

Respondent's mine is located at Santa Rita, New Mexico, 

where it operates an open pit operation together with a concentrator and a smelter CI-T. 33) with a total payroll of 1600 employees. In November 1988, 125 employees were employed at the 

concentrator where Maynes primarily worked. CII-T. 98, 104, 166). 

Respondent has a collective bargaining agreement with the Steelworker's Union, as well as with other unions. CI-T. 34). 

Complainant, a 16-year employee of Respondent and Steelworkers member, was a concentrator maintenance mechanic since 

approximately 1983. CI-T. 114, 115, 117; II-T. 98). Complainant, who worked around "moving parts" and electricity CI-T. 116), 

described his work functions this way: 

Besides compressors, I have worked on mobile 

equipment, operating mobile equipment, preventive 

maintenance, lubrication, which I would--I would 

2487 
get oil samples. I perform--change oils on the 

bearing units in the pump, bearing units in various 

conveyors, working on conveyors and feed pumps, 

water pumps. C I-T. 116). 

Mr. Maynes conceded at the hearing that his job had the 

potential to be dangerous. C II-T. 73, 7 4) • ~/ 

Complainant engaged in various mine safety (protected) 

activities prior to his discharge: 

1. In early 1988, he assisted Manuel T. Serna, a Steelworkers' Safety Committeeman and MSHA designated representative, to 

obtain the signatures of other employees in the mechanical depa'rtment on a petition initiated by the Steelworkers and filed 

with MSHA regarding Respondent's alleged failure to provide 

safety equipment (protective clothing). CI-T. 34, 37, 39-42, 46, 

120-121). ~/ 

2. One of Mr. Mayne's union positions (which he assumed on 

August 24, 1988) was that of unit chairman. CI-T. 122). Samuel 

Silva, who like Maynes was a maintenance mechanic, held at different times the union positions of shop steward and unit chairman. Mr. Silva described the duties of unit chairman as follows: 

A unit chairman is the person responsible for 

all of the stuff that goes on within the union. 

That means appointing safety reps, job evaluation, 

shop stewards, grievance committees, setting up 

grievance committees, setting up safety meetings, 

2/ In the summer of 1988, several months before Maynes was discharged, Respondent had a fatal accident at its Tyrone plant, 

which resulted in its receiving a penalty of approximately $6000 

from MSHA for allowing an employee to operate equiment while under the influence. CII-T. 196-197). Respondent also established, relevant to the necessity for its drug/alcohol testing 

policy, that it had a high accident rate in its concentrator 

maintenance department where Mr. Maynes was employed CII-T. 146, 

167-168). I infer, as Respondent contends, that it would have 

been sensitive to enforcement of its alcohol policy on November 

23, 1988, as a result of those two factors. 

3/ Other miners circulated these petitions without being discharged or disciplined. (I-T. 51, 95-96). 

2488 
educating people on safety, just over all, you know, 

the people that are there, that work for him. 

CI-T. 55). 

3. In September 1988, Complainant, as Unit Chairman, participated in processing grievances CExs. C-8, C-9,; I-T. 57) involving safety matters, which activity was known to Respondent's 

management personnel. At one of the meetings held with company 

management attended by Tony Altringham, General Superintendent of 

the Ivanhoe concentrator CI-T. 41, 64), Mr. Maynes mentioned that 

he had contacted MSHA with respect to the matter. CI-T. 60-63). 

Respondent concedes that Complainant participated in making 

safety complaints (Respondent's Brief, p. 26). The record is 

clear, and I infer from the public nature of Mr. Maynes' activities, that Respondent was aware that Maynes held a position with 

the Steelworkers CII-T. 109), that he engaged in various mine 

safety activities and voiced safety concerns. CI-T. 66-69, 120, 

124, 126; II-T. 4, 7-10, 15-18, 20, 24, 40, 147). 

On November 23, 1988, Mr. Maynes' shift was to commence at 

7:30 a.m. CII-T. 117). His immediate supervisor was Israel T. 

Romero, maintenance supervisor at the Chino concentrator. CII-T. 

92, 98, 105, 165). Romero customarily met with his crew in the 

lunchroom shortly before 7:30 a.m. each day to give them their 

assignments. At this time, Sam Bencomo, a pipefitter in the 

maintenance department, told Romero that Maynes wanted him 

(Romero} to know that he (Maynes) was going to be a few minutes 

late. Maynes was not in the lunchroom when Romero gave out the 

work assignments. Romero then waited a few minutes in his office 

and started to leave when he observed Maynes coming toward him. 

Maynes came up to Romero and tried to stand next to him. CII-T. 

118-119, 166). Maynes told Romero at about 7:40 a.m. CII-T. 

124) that he was late because he had forgotten his keys and then 

said that, if it was okay with Romero, he wanted to leave early 

that afternoon to go check his children out of school and get 

them hunting licenses. CI-T. 119; II-T. 78). 

Romero noticed something wrong with Maynes, stating in his 

testimony that " ••• I was attempting to face him and he kept 

sort of turning away from me." CII-T. 119). Maynes had a "big 

wad of gum" in his mouth. Romero observed that Maynes' face was 

"kind of flushed," or semi-swollen, and that his eyes were quite 

red. Romero also detected the smell of alcohol on him. CII-T. 

120). Romero credibly testified that this was the "smell of 

fresh alcohol." CII-T. 121-125, 148, 150, 151, 152). Romero, 

although concerned, gave Maynes his work assignment but then, 

2489 
because he had so many prior problems with Maynes, started tq 

look for another supervisor to confirm his suspicion that Maynes 

was either very hung over or still drunk. CII-T. 120-124). He 

asked Monty Wilson, a front-line foreman, i.e., concentrator 

maintenance foreman CII-T. 165, 179), to talk to Maynes and come 

back and tell him what he thought. Romero did not tell Wilson 

the nature of his suspicion, i.e., alcohol. (II-T. 123-124, 

173). Wilson then approached Maynes, who was in the locker room, 

and noticed that Maynes had a "wild expression" on his face, his 

"eyes were big," his face "was red and flushed," and that he had 

an enormous wad of gum in his mouth. CII-T. 174, 183-186). 

Wilson also detected the strong smell of alcohol on Maynes' 

breath. (II-T. 175-176, 184). 

Wilson then returned a short time later and told Romero: 

I think you have a problem with Richard Maynes. 

I think he's under the influence, and I think, 

for his sake and everybody's sake, you better 

do something. CII-T. 124). See also II-T. 153, 

176, 186. 

Wilson testified that he had the impression that Romero was 

going to do something about the situation and that, if he had not 

had such impression, he "would have definitely called Richard in 

the office right then on the spot." C II-T. 178). 

Romero then proceeded to the office of his supervisor, maintenance Superintendent Jim Crowley, and advised him of the problem. CII-T. 125). Crowley told Romero to get Maynes and take 

him to his (Romero's) office. CII-T. 126). Romero did so. 

Maynes still had the wad of gum in his mouth and he had a can of 

soda in his hand. CII-T. 128). When they arrived at Romero's 

off ice, Tony Mendoza_, the Respondent's plant safety inspector 

(II-T. 189), was there. (II-T. 203-206; III-T. 6). At this 

point, Mr. Mendoza had no knowledge that Maynes had made safety 

complaints or that he initiated safety grievances. CII-T. 203). 

Mendoza observed that Maynes' face was flushed and that he was 

ravenously chewing a large wad of gum. CII-T. 204-205). Maynes 

would look away from Mendoza when Mendoza asked him questions. 

CII-T. 205-206). Mendoza could smell alcohol even through the 

odor of the chewing gum. CII-T. 206). Maynes was also smoking 

heavily, according to Mendoza, and drinking "a lot of soda pop. 

CII-T. 207). Mendoza felt that Maynes was trying to mask the 

smell of alcohol CII-T. 207, 208, 231-232). Maynes, in his 

testimony, denied he was under the influence. CIII-T. 63). 

2490 
Mendoza conducted a conversation with Maynes, who admitted 

drinking a six-pack the night before CII-T. 50, 130, 157, 205). 

Maynes said he had the last one at 1:30 in the morning. (Maynes' 

version of what he had to drink on the evening of November 22, 

1988, is set forth at II-T. 40-43, 52). Mendoza asked Maynes if 

he would submit to an alcohol and drug test and Maynes said that 

he would. CII-T. 50, 131, 206, 208). Mendoza went out to his 

van to obtain a consent form CII-T. 207). Maynes asked Romero if 

he could use the phone and asked for Tony Trujillo's number. 

Trujillo is Respondent's Personnel Safety Supervisor. Romero 

gave him the number of Gwen Hansen, industrial relations representative, who works for Trujillo. Mendoza walked back--into the 

office and he gave Maynes Mr. Trujillo's phone number. Maynes 

told Trujillo in Spanish that he was being asked to take a drug 

and alcohol test and that Romero was harassing him again CII-T. 

51, 131-133, 207, 234; III-T. 5). Trujillo advised Maynes to 

take the test after Maynes admitted drinking the night before. 

Trujillo advised Maynes the penalty for not taking the test was 

"probable termination." CIII-T. 7, 38). 

Romero, being needed elsewhere, left his office a few minutes after 8 a.m. At this juncture, as far as Romero knew, 

Maynes was going to take the test CII-T. 133-134, 165). 4; 

Mr. Maynes then made another phone call, apparently to his union 

president and, after hanging up, he requested to see his shop 

steward, Samuel Silva, who was summoned. Silva and Maynes 

stepped out of the office and conferred. After five minutes, 

Mendoza called Maynes back in CII-T. 207-209). 

Mr. Mendoza then produced the drug and alcohol consent form. 

(Ex. C-5) and read and explained it to Mr. Maynes. 

Mr. Mendoza persuasively testified as to the efforts he then 

went through to advise Mr. Maynes concerning the test and, after 

Maynes protested, concerning the effect of taking the test "under 

protest," 

4/ Romero had no further involvement with Maynes on November 23, 1988, and he testified that, other than testifying at a 

subsequent hearing, he had nothing to do with any decision in 

connection with Maynes CII-T. 134), specifically indicating he 

played no part in the decision to discharge Maynes either by 

recommending such, or by being consulted with regard to such 

CII-T. 164). 

2491 
I began reading this authorization, explaining the program as I was reading it. When we got 

down to the last two lines where it states, 'I 

voluntarily submit to the test and desire those 

results to be released to Chino Mines security 

personnel,' he asked me how much alcohol a persoon had to have in his system to come out positive. I advised him it depended on several areas. 

How much sleep, how much food and liquids, and I 

advised him I was in no position to make a determination on his case. 

I advised him, by submitting to the test, that 

it was not going to incriminate if it was negative. 

If his test was negative, he would be returned to 

work with no loss in pay or benefits. At that 

point, he indicated that he would take the test, 

but under protest. 

I advised him that the standing rule in the 

medical community is, if an employee, an individual, goes into a clinic for any type of service 

and he protests it, that the medical community 

will not withdraw the sample or subject him to 

any type of treatment in that respect. 

He again indicated that he would protest it. 

I explained the program again. I advised him, essentially three times, if he fails to submit to 

the test, he would be suspended pending a hearing 

or probable termination. 

Q. Do you recall saying that to him on three occasions? 

A. Yes, sir. 

Q. Why so many times? 

A. I like Richard. I didn't want him to get in that situation. 

Q. Do you recall explaining to him taking the test under protest was the same as a refusal? 

A. Yes, sir. 

Q. How many times did you explain that? 

A. At least three times. 

2492 
Q. For the same reason? 

A. Yes, sir. And he continued his statement about taking it 

under protest. Finally, I just advised Mr. Maynes, I said, 

"Well, if you would not take it voluntarily, then it's under 

protest, and I have no choice but to suspend you, pending a 

hearing for termination." 

He said, "Well, that's fine. I understand." I said, "For 

your sake and my sake, indicate that you--you're protesting 

it." At that point, he made his statement, "I, Richard R. 

Maynes, protest--." 

Q. Okay. You're reading, when you say this statement, you are 

referring to the handwritten notation on the consent form? 

A. Yes, sir. 

Q. He wrote that in your presence? 

A. Yes, he did. CII-T. 210-212). (Emphasis supplied). 

It is clear, and I find that Cl) Tony Mendoza, Respondent's 

Plant Safety Manager, advised Complainant at the meeting on the 

morning of November 23, 1988, that Complainant could not take the 

alcohol test "under protest" because it would not be administered, and that "under protest" was the same as refusal. CI-T. 

87-88, 106; II-T. 54, 219-212, 222); (2) Mendoza told Complainant 

at this meeting that if he refused the test he-would be suspended pending a hearing to determine what further discipline would 

be implemented CI-T. 106; II-T. 211-212, 222), and (3) Complainant refused to take the alcohol test CI.T. 87-89, 105, 106, 107; 

II-T. 54, 71, 210-212; IV-T. 15). ~ 

After Maynes refused to take the test, he was suspended 

CII-T. 216) by Mendoza CII-T. 225). ~/ The procedure implemented 

5/ Mr. Maynes wrote on the consent form CEx. C-5; II-T. 71) as 

follows: "I Richard R. Maynes, protest takeing (sic) this test 

and refuse to take it. Because I am working under protest with 

foreman I.T. Romero." 

6/ While Mr. Mendoza made the decision to request that Maynes 

take the drug and alcohol test and the decision to suspend 

Maynes, he played no part in the subsequent decision to discharge 

Maynes CII-T. 225). Such decision, after a hearing on November 

28, 1988 CII-T. 225-226), is more fully detailed subsquently 

herein. 

2493 
by Mendoza, of which Mr. Maynes was specifically advised, was 

consistent with Respondent's drug and alcohol policy and rules of 

conduct. CExs. R-2 and R-4; II-T. 216, 230-231, 247). 

After being suspended by Mendoza, Mr. Maynes was driven home 

by Steven Escobar, a security guard for Burns Security Service, 

who was employed at the mine. CII-T. 56). ~/ 

At approximately 11:15 a.m., Mr. Maynes went to the Grant 

County Sheriff's Department and took a breathalyzer test; the 

test results were negative - there was not a detectable amount of 

alcohol in Mayne's system. CE. c-7; II-T. 58-62). Maynes then 

drove to the Gila Regional Medical Center for a blood--test, which 

was administered at approximately 12:12 p.m. CEx. C-6; II-T. 

62-66), the results of which were also negative CII-T. 64-65). 

These tests were administered approximately 3.5 to 4 hours after 

Maynes was asked to take the test by Respondent CII-T. 69), were 

arranged for by Maynes, on his own, and were not taken pursuant 

to Respondent's drug and alcohol policy CII-T. 69). 

On November 28, 1988, a hearing was held at which management 

and union representatives, among others, were present. CIII-T. 

8-10). Both sides were permitted to present evidence and to ask 

questions. CI-T. 66-67; III-T. 9-11). 

After the hearing was concluded, Mr. Trujillo, Jim Crowley, 

Concentrator General Maintenance Superintendent, and John 

Strahan, mechanical superintendent, jointly concluded that 

Mr. Maynes should be discharged CIII-T. 11, 12, 45) 8/ and 

presented their recommendation on November 29, 1988, to Duke 

Milovich, manager of the mine CIII-T. 11, 12) who concurred in 

the decision to discharge Maynes. CIII-T. 12-13). 

21 Escobar did not testify during the Commission hearing. He 

did testify at an arbitration hearing to the general effect that 

he did not smell alcohol on Maynes or detect other indications 

that Maynes was under the influence (Court Ex. 1, pp. 162-170). 

8/ At the hearing, Mr. Maynes presented the breathalyzer results from the sheriff's office and admittance report from the 

Gila Regional Center. Trujillo's view was, "I really wasn't interested in those documents. The fact remained, as was discussed 

during that hearing, that he had refused the company drug and 

alcohol test and the merits of his going out four - five hours 

later and taking that test on his own had no merit, as far as I 

was concerned, in accepting those documents." CII-T. 41). 

(Emphasis added). 

2494 
By letter dated December 1, 1988, from Mr. Crowley, Maynes 

was advised of his discharge. CEx. R-6; III-T. 13). 

Mr. Maynes was discharged for two separate and independent 

reasons: 

1. For reporting to work under the influence of alcohol, 

and 

2. 

~flicy. 

For failure to comply with Respondent's drug/alcohol 

(Ex. R-6; II-T. 81; III-T. 13, 14, 15, 44; IV-T. 15). 

One of various contentions raised by Complainant is that Respondent had no "formal" drug and alcohol testing program CComplainant' s Brief, p. 4). The record clearly reveals, however, that 

Respondent had in place on November 23, 1988, clear-cut rules and 

policy Cl> prohibiting a miner's reporting to work under the influence of intoxicants and (2) requiring an employee suspected of 

being under the influence to submit to "medical" testing under 

penalty of disciplinary action for refusal. Thus, its Rules of 

Conduct (Ex. R-4; II-T. 230-231; III-T. 14-16) provide inter alia 

COMPLIANCE WITH RULES OF CONDUCT 

The company expects all employees to observe common sense rules of conduct based on honesty and 

common decency. Employees who violate these 

widely accepted industrial rules of conduct may 

be disciplined including discharge, depending 

upon the seriousness of the offense. Following are examples of the most frequently encountered violations of the rules of conduct. 

1. Insubordination. 

2. Drinking, possession, or furnishing drugs to 

others. 

3. Unlawful possession, use of, or furnishing 

drugs to other employees. 

9/ Agreeing to take the test "under protest" is the same as r~fusal to take the test. CII-T. 54-56; IV-T. 9, 10, 11, 15, 28, 

46, 50). 

2495 
4. Reporting to work under the influence of 

intoxicants or drugs. 

* * * * * 

Respondent's drug and alcohol policy (Ex. R-2; II-T. 

191-196) provides in part: 

DRUGS/ALCOHOL ABUSE 

During the 1985 calendar year, Chino has experienced an increase of apparent drug usage. There 

have been several occasions when marijuana has 

been found on the property. 

To assure all employees a safer working area and 

to be in complete compliance with MSHA Standard 

56.2001, which states intoxicating beverages and 

narcotics shall not be permitted or used in or 

around mines, persons under the influence of alcohol or narcotics shall not be permitted on the job. 

The Chino Mines Rules of Conduct lists the following 

violations: 

* * * * * 

4. Reporting to work under the influence of intoxicants or 

drugs. 

Searches 

THE FOLLOWING STEPS WILL BE IMPLEMENTED TO CURB 

SUSPECTED USAGE OF ILLICIT DRUGS AND ALCOHOL 

a. Change Rooms: Dogs trained to detect drugs will be 

utilized to conduct searches in the change rooms. Employees will not be required to be present during this 

tour. If detection occurs, then the employee will be 

required to open his/her locker and allow a search of 

his/her locker and allow a search of his/her belongings. If the employee is not at work and cannot be 

reached, his personal lock will be removed and replaced 

with a Company lock. This Company lock will remain in 

place until such time as the employee is physically 

present to conduct a search of the locker contents. CA 

shop steward, if requested by the employee, may be 

present.) The Company will replace locks that it re2496 
moves at no cost to the employee. If an employee refuses to allow a search of his/her locker, the lock 

will be cut off (and replaced) by the Company. Refusal 

to open a locker will be considered a disciplinary 

matter. 

b. Lunchboxes: As employees are entering the clock station, they may be asked to open lunchboxes, purses, 

bundles, etc. If an illicit substance is found, the 

employee will be escorted to a neutral area for further 

investigation. Failure to comply will be considered 

under the disciplinary policy. 

c. Testing: If the Company has reasonable cause to suspect an employee is under the influence of drugs or 

alcohol, that employee will be requested to submit 

himself/herself to a medical test. If the employee 

refuses to take such a test, appropriate action will be 

taken. 

The record establishes that Mr. Maynes, prior to November 23, 1988, knew or should have been aware of these rules and 

policies (II-T. 191, 193, 194-196; III-T. 14). 

In an effort to establish that Respondent's application of 

its drug/alcohol policy to Maynes was disparate and thus discriminatory, Complainant introduced evidence that another employee, Robert Maldonado, who was involved in a truck accident in 

June 1987, and also completed his testing authorization form 

"under protest" was not discharged. (Ex. C-17; III-T. 48). The 

form first executed by Maldonado on June 20, 1987 (Ex. c-17), 

was altered to strike through the printed phrase: "However, I 

voluntarily submit to the test and desire those results be released to Chino Mines_ Security personnel," and initialed by 

Maldonado. Also, after Maldonado's signature appear the words 

"Under Protest." (III-T. 59; IV-T. 57). 

Respondent, however, established that Maldonado subsequently 

authorized release of the test results to the Respondent without 

indication of protest. (Ex. R-8; III-T. 49; IV-T. 7-9, 21-24, 

29, 46, 48). He passed the test CIII-T. 60; IV-T. 49). 

The record is not contradictory that, if the authorization 

form indicates that an employee is taking the test under protest, 

that neither testing facility, Gila Regional Medical Center or 

Med Square, would both perform the test and release the results 

to the Company. (II-T. 54; III-T. 49, 59; IV-T. 10-13, 22-24, 

51, 52, 70). 

2497 
DISCUSSION AND ADDITIONAL FINDINGS 

In order to establish a prima facie case of mine safety discrimination under Section 105Cc} of the Act, a complaining miner 

bears the burden of production and proof to establish Cl} that he 

engaged in protected activity, and (2) that the adverse action 

complained of was motivated in any part by that activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 

2786, 2797-2800 (October 1980), rev'd on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 C3d Cir. 1981): 

and Secretary on behalf of Robinette v. United Castle Coal Co., 3 

FMSHRC 803, 817-818 (April 1981). The operator may rebut the 

prima facie case by showing either that no protected activity 

occurred or that the adverse action was in no part motivated by 

protected activity. If an operator cannot rebut the prima facie 

case in this manner it may nevertheless affirmatively defend by 

proving that Cl} it was also motivated by the miner's unprotected 

activities, and (2) it would have taken the adverse action in any 

event for the unprotected activities alone. The operator bears 

the burden of proof with regard to the affirmative defense. Haro 

v. Magma Copper Co., 4 FMSHRC 1935, 1936-1938 (November 1982). 

The ultimate burden of persuasion does not shift from the complainant. Robinette, 3 FMSHRC at 818 n. 20. See also Baich v. 

FMSHRC, 719 F.2d 194, 195-196 (6th Cir. 1983): Donovan v. Stafford Const. Co., 732 F.2d 954, 958-959 CD.C. Cir. 1984) (specifically approving the Commission's Fasula-Robinette test>: and 

Goff v. Youghiogheny & Ohio Coal Company, 8 FMSHRC 1860 (December 

1986). 

In terms of the required prima facie case in discrimination, 

Complainant clearly established the first elements thereof, i.e., 

that he had engaged in protected safety activities and that Respondent's management was aware thereof prior to the time he was 

suspended on November 23, 1988, and subsequently discharged. 

The first of the two decisive issues posed are whether the 

adverse action taken by Respondent against Complainant was "in 

any part" motivated by Complainant's protected activities. 

The affirmative defense provided under the Commission's discrimination formula raises the second issue: Even assuming arguendo that Respondent was in part motivated by Complainant's protected activities, was it also motivated by his unprotected activities and would it, in any event, have discharged him for his 

unprotected activities alone. 

Under the 1977 Mine Safety Act, discriminatory motivation is 

not to be presumed but must be proved. Simpson v. Kenta Energy, 

2498 
Inc. and Jackson, 8 FMSHRC 1034, 1040 (1986). Here, the Complainant, in order to carry his burden of establishing discriminatory motivation, seeks to have an inference thereof drawn from 

various circumstantial factors. 

Respondent's management witnesses, however, have convincingly testified th.at they were not motivated by Complainant's protected activities in discharging, or recommending the discharge 

of, Mr. Maynes. 

The evidence introduced by Complainant to establish a motivational nexus between the allegedly discriminatory adverse action (discharge) taken against him and his mine safety__ activities 

was not convincing. 10; For example, Mr. Maynes contended that 

his supervisor, I.T.~omero, was harassing him because Romero 

once told him that he'd be "watching him." Romero's explanation, 

however, was plausible: 

Mr. Maynes had been working in the crusher the 

day before and had an accident, if I remember correctly, he had strained his back. The next morni-g, he came to work for me and I told him, in 

front of the mechanics, I told the other mechanic 

to watch out for him, and I told him I would be 

watching him. It was out of concern for the injury that he had before, not because I was harassing him. CII-T. 136-137). 

Mr. Maynes also complained that, at certain five-minute 

safety meetings, he had been prohibited from raising specific 

safety concerns. Romero, satisfactorily explained what had 

occurred: 

Q. With respect to the five-minute safety meeting, you heard 

Mr. Maynes testify he had occasionally been precluded from 

raising specific concerns in some of those meetings. Do you 

remember that testimony? 

A. Yes, I recall that testimony. 

10/ Complainant's contention that the Respondent's handling of 

Mr. Maynes' "under protest" alcohol testing situation was disparate and discriminatory when compared to the Robert Maldonado 

situation has been evaluated previously herein and is rejected. 

2499 
Q. Do you remember any incident of that nature? 

A. No. I recall having told Mr. Maynes that, when it came to 

safety malfunctions out there, okay, that I expected him to 

go out into my area, and if he's found something like that, 

I expected him to come and report it to me on that day or 

then; that I did not want somebody coming into my five-minute talks and trying to report to me something that he discovered three or four days earlier. Because it's a safety 

concern we need to address it then. 

Mr. Maynes, on a couple of occasions, wanted to do exactly 

that, and so I repeated myself to him. (II-T. 11~). 

The testimony of Respondent's witnesses was credible and 

convincing in establishing that the various management personnel 

who observed Maynes on November 23, 1988, were reasonable in 

their belief that his unusual behavior was due to his being under 

the influence. Thus, in addition to the smell of alcohol on his 

breath and the various types of unusual behavior described in 

detail above, Mr. Maynes had come in late that morning and immediately asked to leave early. I find no basis in the evidentiary 

record in this matter, including the non-authorized breathalyzer 

and alcohol tests obtained by Mr. Maynes on his own several hours 

after he reported to work, to conclude that Mr. Maynes was not 

under the influence withn the meaning and proscription of Respondent's Rules of Conduct. The tests obtained by Mr. Maynes 

himself later in the day do not excuse his refusal to take the 

tests required by the Respondent's alcohol/drug policy. Respondent established by the clear preponderance of the credible evidence that a miner's agreement to take such tests "under protest" 

is equivalent to refusal and Mr. Maynes was so advised and given 

every opportunity to take the tests required under the company's 

policy. 

As Respondent points out in its Brief: 

No one from the Company told Maynes that he was 

free to undergo an alcohol test several hours later 

at a place of his own choosing and have that test 

satisfy his obligation to undergo an alcohol test 

pursuant to the Company's drug and alcohol policy. 

The Company was entitled to a timely alcohol test 

performed by its carefully selected medical facility 

that was certified to perform such tests. If the 

Company cannot require its employees under circumstances such as those present here to undergo an 

2500 
alcohol test when requested to do so, and discharge 

those employees who refuse to take the test, then 

the Company's ability to comply with regulations 

promulgated under the Act, to insure that its employees are not under the influence of alcohol, and 

to promote the safety of its employees and operations, 

is severely damaged, if not destroyed. Cf., Mullen 

v. Jim Walter Resources, Inc., 3 MSHC (BNA) 1635, 

1636 (1984) (reasonable for company to require employees to submit to prompt alcohol test at medical 

facility.of the company's choice because, by refusing and later obtaining a test from a private phys~­

cian on her own, employee "caused a lower showing of 

blood alcohol content"). 

Direct evidence of actual discriminatory motive is rare. 

Short of such evidence, suc.h illegal motivation may be established if the facts support a reasonable inference thereof. 

Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 

2508, 2510, 2511 (November 1981), rev'd on other grounds sub nom. 

Donovan v. Phelps Dodge Corp., 709 F.2d CD.C. Cir. 1983); Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-1399 (June 1984). 

The weight of the evidence in this record is not probative that 

Respondent was illegally motivated in whole or in part, nor is 

there support for drawing an inference of such discriminatory 

intent. 

In reaching the conclusion that Complainant failed to establish that his suspension and discharge were discriminatorily motivated, consideration also has been given to the fact that the 

instant record does not reflect a disposition on the part of Respondent's management personnel, individually, or collectively, 

to engage in such conduct. A history of, or contemporary action 

indicating, antagonism or retaliatory reaction to the expression 

of safety complaints, was not persuasivley shown. Complainant 

points out several instances of what he considered hostile words 

or action taken by management personnel toward him. Yet, such 

were not demonstrated to be beyond normal workplace occurrences 

or, more to the point, were not shown to be attributable to his 

protected activities. There was no evidence of retaliation 

against other employees who had engaged in safety activities or 

who expressed safety complaints. Thus, other employees besides 

Maynes handled safety grievances and were not disciplined or 

discharged. For example, Samuel Silva, as shop steward, did so. 

CI-T. 51, 95-96; II-T. 135; III-T. 25-26). Further, other employees of Respondent who either refused to take the required 

blood alcohol test or failed it were terminated. CII-T. 216, 

217, 223-224, 236-239, 241; IV-T. 9, 21, 28, 32, 35, 58). 

2501 
CONCLUSIONS 

Respondent's motivation in suspending and then discharging 

Complainant was for his two independent unprotected activities 

(reporting to work under the influence and refusing to comply 

with Respondent's drug/alcohol policy) and the decision to take 

such adverse actions was justified. These adverse actions were 

not wholly or in part discriminatorily motivated. Thus, Complainant has failed to establish a prima facie case of discrimination under Section 105(c) of the Mine Act. 

Even assuming arguendo, that it were established oy a preponderance of the reliable probative evidence, that Complainant's 

suspension and discharge were motivated in part by his protected 

activities, Respondent established by a clear preponderance of 

such evidence that it was also motivated by Complainant's unprotected activities and that it would have taken the adverse action 

in any event for such. 11; 

ORDER 

Complainant, having failed to establish Mine Act discrimination on the part of Respondent, the Complaint herein is found to 

lack merit and this proceeding is DISMISSED. 

Distribution: 

~;J'L./~ 4·~~/h 91. /~f'ch~ A. {;;her, ~;: - Administrative Law Judge 

Michael D. Moberly, Esq., RYLEY, CARLOCK & APPLEWHITE, 101 North 

First Avenue, Suite 2600, Phoenix, AZ 85003-1973 (Certified 

Mail) 

Richard A. Maynes, P.O. Box 109, Central, NM 88026 (Certified 

Mail) 

Michael J. Keenan, Esq., WARD, KEENAN & BARRETT, 2020 North 

Central, Suite 1020, Phoenix, AZ 85004 (Certified Mail) 

/ek 

11/ See Gravely v. Ranger Fuel Corp., 6 FMSHRC 799 (1984). 

2502 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 61990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 90-141 

A.C. No. 46-03805-03961 

Martinka No. 1 Mine..-

Appearances: Glenn M. Loos, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for the Secretary of Labor (Secretary); 

David M. Cohen, Esq., Lancaster, Ohio and 

Joseph S. Beeson, Esq., Robinson & McElwee, 

Charleston, West Virginia, for southern Ohio 

Coal Company (SOCCO). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks a civil penalty for an alleged violation 

of 30 C.F.R. § 75.1725(c) charged in a citation issued August 8, 

1989. The citation resulted from the investigation of an 

accident occurring on May 5, 1989, and concluded that socco was 

not following safe wO-rk.procedures involving tagging and locking 

out machinery when workers are exposed to moving parts. Both 

parts conducted pretrial discovery. Pursuant to notice, the case 

was heard in Morgantown, West Virginia on September 19 and 20, 

1990. James Young, John s. Guido and Louis DeRosa testified on 

behalf of the Secretary; William Laird and Randolph Ice_ testified 

on behalf of SOCCO. Both parties have filed posthearing briefs. 

I have considered the entire record and the contentions of the 

parties and make the following decision. 

FINDINGS OF FACT 

I 

At all times pertinent to this proceeding, SOCCO was the 

owner and operator of an underground coal mine in Marion County, 

West Virginia known as the Martinka No. 1 Mine. socco is a large 

operator. In the 24 months prior to the violation alleged in 

2503 
this proceeding, socco had a history of 1049 paid violations in a 

total of 971 inspection days. None of these was a violation of 

30 C.F.R. § 75.1725(c). This history is not such that penalties 

otherwise appropriate should be increased because of it. 

II 

On August a, 1990, Federal Coal Mine Inspector James Young, 

when he arrived at the subject mine site, was given a written 

request by two union representatives to investigate an accident 

which had occurred at the mine on May 5, 1989. The request 

stated the miner Sam Guido was injured when the No. 5 conveyor 

belt was turned on while Guido was working on it. Insp-ector 

Young interviewed Martinka foremen William Laird and John Gowers, 

and miners Louis DeRosa, Frank Renick, and Dempsey McHenry. He 

did not interview Sam Guido who was not at work that day. 

III 

Following his investigation Inspector Young issued a 

section 104(a) citation fo~ a violation of 30 C.F.R. § 75.1725(c) 

because Respondent was not following safe work procedures 

involving tagging and locking out machinery when miners were 

exposed to moving parts. The inspector determined that the 

violation was significant and substantial and was the result of 

SOCCO's moderate negligence. 

IV 

On May 5, 1989, a crew working under belt supervisor Laird 

was engaged in extending the 5-54 inch belt during the midnight 

shift. The section had advanced and the belt had to be extended 

by one block. The top rollers were installed, and bottom rollers 

had still to be installed. Laird travelled to the headgate to 

take up the slack in the belt. He was unable to take up the 

entire slack with the take-up device so he called foreman Gowers 

to tell him he was going to start the belt. Gowers did not tell 

Guido and DeRosa who were working on the belt that the belt was 

going to be started. Neither did Laird tell them before he went 

to the headpiece. Guido had returned to the belt after having 

urinated and his gloves were on the belt. He intended to finish 

setting the top roller using a "come-along" (also called a "red 

devil"), when the belt was turned on. Guido was an experienced 

beltman. DeRosa was about 10 feet from Guido and had gone to the 

tailpiece to get some additional cribs. He heard the belt "bump" 

once or twice, and heard Guido yelling after the belt started. 

The come-along bounced along the belt after it was started. 

Dempsey McHenry shut off the belt. Guido claimed that he 

sustained injuries to his leg. 

2504 
Guido has had a substantial number of prior work connected 

injuries at Martinka. He also has a history of absenteeism. 

socco has attacked Guido's credibility and suggests that his 

testimony is influenced by the fact that he has a pending 

personal injury suit against socco arising out of the accident. 

However, the testimony of DeRosa alone establishes that the belt 

was ·started without warning when miners were working on or near 

it. 

REGULATION 

30 c.F.R. § 75.1725(c) provides as follows: 

ISSUES 

Repairs or maintenance shall not be performed 

on machinery until the power is off and the 

machinery is blocked against motion, except 

where machinery motion is necessary to make 

adjustments. 

1. Whether the evidence establishes a violation of the 

standard as charged? 

a. Whether extending a belt constitutes repairs 

or maintenance on machinery? 

b. If so, whether motion of the belt was necessary 

to make adjustments? 

2. If a violation is established, whether it was 

significant and substantial? 

3. If a violation is established, what is the appropriate 

penalty therefor? 

CONCLUSIONS OF LAW 

I 

socco was at all times pertinent to this proceeding subject 

to the provisions of the Mine Act in the operation of the 

Martinka mine. I have jurisdiction over the parties and subject 

matter of this proceeding. 

II 

I conclude that the action in extending the belt described 

in finding of fact IV constitutes maintenance on machinery as 

that term is used in the regulation 30 C.F.R. § 75.1725{c). The 

term maintenance may mean preserving a thing in proper condition, 

2505 
or it may include continuance, extension or prolongation. It is 

defined in the American Heritage Dictionary of the English 

Language (New College edition 1976) as 11 1.a The act of 

continuing, carrying on, preserving or retaining something 

3. The work of keeping something in proper condition." The 

Synonym Finder, J.I. Rodale (1978) lists the following synonyms 

for maintenance: 11 1. preservation, upkeep, annual upkeep, 

keeping up; 2. continuance, continuity, extension, prolongation; 

perpetuation, persistence, perseveration, repetition." (p.697) A 

belt move includes adding belt to an existing belt system, adding 

rollers, taking up the belt slack, and placing blocks to support 

the belt tail piece. All of these functions are necessary to 

produce coal as the face advances. The belt system is or 

includes machinery. Extending it involves adding and adjusting 

activities which constitute maintenance. 

III 

The evidence establishes that power was resumed on the belt; 

it was "bumped" once or twice before being started while miner 

Guido was performing maintenance work on the belt. There is 

conflicting evidence as to exactly what he was doing and whether 

he was actually on the belt when it started. I am not the proper 

forum to decide whether and to what extent Guido was injured as a 

result of the belt being turned on. I only have to decide 

whether a violation occurred. The evidence however, is clear 

that neither Guido nor DeRosa were informed that foreman Laird 

was going to start the belt. Although motion of the belt is 

necessary to make adjustments, it obviously cannot safely be 

accomplished while the belt is being worked on. All the affected 

miners must be informed if a belt which has been locked out is 

going to be started up. This was not done here. I conclude that 

a violation of 30 C.F.R. § 75.1725(c) has been established. 

IV 

Making repairs or adjustments on a belt while the belt is 

moving is a serious violation. This is so whether or not the 

injury Guido complains of resulted from the violation. Such a 

violation is reasonably likely to result in serious injury. 

Therefore it was appropriately designated as significant and 

substantial. Foreman Laird believed that he had informed the 

miners working on extending the belt that he was going to start 

the belt to take up the slack. In fact he informed foreman 

Gowers, and Gowers failed to notify Guido and DeRosa. I conclude 

that the injury resulted from socco•s negligence. 

Based on the criteria in section llO(i) of the Act, I 

conclude that an appropriate penalty for the violation is $300. 

2506 
ORDER 

Based on the above findings of fact and conclusions of law 

IT IS ORDERED: 

1. Citation 3118169 issued August 8, 1989, is AFFIRMED. 

2. Respondent shall within 30 days of the date of this 

decision pay the sum of $300 for the violation found herein. 

Distribution: 

? • 

1

kt·ites: /kO:vcle-c,-'1-eL_ ~ ~ames A. Broderick 

Administrative Law Judge 

Glenn Loos, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

David M. Cohen, Esq., American Electric Power Service Corp., 161 

w. Main Street, Box 700, Lancaster, OH 43120 (Certified Mail) 

slk 

2507 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

DENNIS WAGNER, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 61990 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. VA 88-21-D 

PITTSTON COAL GROUP, 

CLINCHFIELD COAL COMPANY, 

JACK CRAWFORD, 

MONROE WEST, 

WAYNE FIELDS, 

Respondent 

. . 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On October 26, 1990, I issued an order to Complainant to 

show cause within 20 days why the remaining allegations of the 

complaint should not be dismissed because such allegations were 

also charged in the case of Secretary/Wagner v. Clinchfield coal 

Company, Docket No. VA 88-l9-D. Complainant has not responded to 

the order to show cause. 

Therefore, the above proceeding is DISMISSED. 

Distribution: 

"7 

;J.1/t~11.£S )--/jr:>dL. ~c:/:.__ James A. Broderick 

Administrative Law Judge 

Jerry Talton, Esq., 222 East Main Street, Front Royal, VA 22630 

(Certified Mail) 

w. Challen Walling, Esq., Penn, Stuart, Eskridge & Jones, 306 

Piedmont Avenue, P.O. Box 2009, Bristol, VA 24203 {Certified 

Mail) 

slk 

2508 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 61990 

LARRY E. SWIFT, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

CONSOLIDATION COAL CO.MPANY, 

Docket No. PENN 90-233-D 

PITT CD 90-31 

Dilworth Mine 

ORDER OF DISMISSAL 

Before: Judge Melick 

Complainant requests approval to withdraw his complaint 

in the cpationed case for the reason that the issues 

underlying the Complaint were "substantially resolved" 

through a grievance settlement. Under the circumstances 

herein, permission to withdraw is granted. 29 C.F.R. § 

2700.11. This case is therefore dismissed. 

Distribution: 

J~1· . ,c , ~· I G1v0\ \ \J,/l_.j--\._ 

/Gary Melick \ [ 

' AdministrativE:l Law Judge 

(703) 756-6261 

Mr. Larry E. Swift, Chairman, UMWA, Local Union 1980, Health 

and Safety Committee, 206 S. Walnut St., Masontown, PA 15461 

(Certified Mail) 

Walter J. Scheller III, Esq., Consolidation Coal Company, 

Consol Plaza, 1800 Washington Road, Pittsburgh, PA 

15241-1421 (Certified Mail) 

nb 

2509 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 81990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

ON BEHALF OF 

BOB WAYNE HUBENAK, 

Complainant 

v. 

ALUMINUM COMPANY OF AMERICA, 

Respondent 

. . 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. CENT 90-34-DM 

MD 89-56 

Bayer Alumina Plant 

Appearances: Janice L. Holmes, Esq., Office of the Solicitor, 

U. s. Department of Labor, Dallas, Texas, for the 

Complainant~ 

Linda F. Schneider, Esq., Aluminum Company of 

America, Pittsburgh, Pennsylvania, for the 

Respondent. 

Before: Judge Weisberger 

Statement of the Case 

This case is before me, based on a Complaint filed by the 

Secretary (Complainant), on behalf of Bob Wayne Hubenak, alleging 

that the Operator (Respondent) violated Section 105(c)(2) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c)(2) 

(the Act). Pursuant to notice, the case was scheduled for 

hearing on May 15, 1990. On April 25, 1990, Respondent filed a 

Motion for Continuance, and the hearing was rescheduled to 

commence on June 26, 1990. On June 22, 1990, Complainant filed a 

Motion for Continuance, and the case was rescheduled to commence 

on October 10, 1990. 

On July 12, 1990, the case was reassigned to the undersigned. 

The hearing was rescheduled and subsequently heard in Corpus 

Christi, Texas, on September 10-11, 1990. Bob Wayne Hubenak, 

Robert W. White, Harry Elrod, Kerry Keller, and Jim Isaac 

Simmons, Jr. testified for Complainant. Charles F. DiMascio, 

Jeffrey Alan Shockey, Johnny Palmer, Jr., Thomas G. Russell, 

Harry Elrod, and Kerry Keller testified for Respondent. 

2510 
Proposed Findings of Fact and Memorandum of Law were filed 

on November 6, 1990. Respondent filed a Response on March 14, 

1990, and a Response was filed by Complaintant on November 15, 

1990, Respondent also filed a Joint Motion to Amend Pretrial 

Stipulations and this motion is granted. Complainant's Motion, 

filed November 15, 1990, for Leave to Amend its Proposed Findings 

of Fact, is granted. 

Stipulations 

The Parties entered into the following stipulations: 

1. Jurisdiction over this action is conferred upon-the 

Federal Mine Safety and Health Review Commission under 

Section 105(c}(2} and Section 133 of the Act. 

2. Respondent's Bayer Alumina Plant, referred to as 

Point Comfort Operations, located in Calhoun County, 

Texas, is a mine as defined in Section 3(n} of the Act, 

the products of which affect commerce under Section 4 

of the Act. 

3. At all relevant times Respondent, Aluminum Company 

of America ("Alcoa"), did business and operated its 

Point Comfort facility in production of alumina, and 

therefore is an operator within the meaning of 

Section 3(d) of the Act. 

4. Bob Wayne Hubenak was hired by Alcoa, at its Point 

Comfort Operations, in March 1969. 

5. In April 1969, Mr. Hubenak was assigned to work in 

the Precipitation Department and has worked in the 

department since that time. 

6. At all times relevant to this case, Mr. Hubenak 

held the position of "Area Operator" or "tank pumper" 

in the Precipitation Department and was therefore a 

miner within the meaning of Section 3(g) of the Act. 

7. On or about March 24, 1989, some overhead pipeline 

which was suspended by several broken metal pipe 

hangers fell to the ground. The area was barricaded to 

prevent access to the area. 

8. Following this incident, Company management 

inspected all pipe hangers in the area. 

2511 
9. Company management directed the Engineering 

Department to initiate a detailed inspection of pipe 

hangers and pipe supports in the Precipitation 

Department. 

10. After Mr. Hubenak learned that two MSHA inspectors 

would be inspecting the lights in his work area, he 

reported the broken pipe hangers to MSHA inspector 

Robert White. 

11. Upon learning of the condition of the pipe hangers, 

Alcoa barricaded the area to prevent others from walking 

under the pipes. 

12. A citation was issued to Alcoa by the MSHA Inspector 

for a violation of 30 C.F.R. § 56.20011. Alcoa did not 

contest the citation and promptly abated the condition. 

13. Hubenak engaged in protected activity by reporting a 

hazardous condition to an MSHA Inspector. 

14. On or about May 4, 1989, Mr. Hubenak was given a 

5 day disciplinary suspension. 

15. On or about May 24, 1990, Mr. Hubenak was also 

advised that he would receive an additional 25 day 

suspension, but the suspension was not given. 

16. Hubenak's complaint to the Secretary was filed on 

June 1, 1989. 

17. After an investigation, the Secretary filed her 

complaint, on Hubenak's behalf, with the Commission on 

December 20, 1989. 

18. Hubenak's-damages are equal to five (5) days pay at 

the rate he was receiving in May 1989, or $532.52, 

together with interest at the short-term Federal rate 

applicable to the under-payment of taxes in accordance 

with Local Union 2274, District 28, United Mine Workers 

of America v. Clinchfield Coal Co., 10 FMSHRC 1943, 

aff'd, 895 F.2d 773 (10th Cir. 1989). 

19. Paul Ernest Kelm was the Miner's Representative for 

Local 4370 of the united Steelworkers of America at 

Aloca's Point Comfort Operations at all times pertinent 

hereto. Prior to March 27, 1989, Kelm informed Hubenak 

that he would not represent him concerning safety 

complaints. 

2512 
Findings of Fact and Conclusion of Law 

Bob Wayne Hubenak is a miner employed by the Operator as a 

tank pumper in the Precipitation Department of its Point Comfort 

Operation. During the period in question, Hubenak worked in the 

area known as R-45, which contains approximately 6,000 pipe 

hangers spread over 200 acres. In the pertinent period at issue, 

Hubenak worked the 4:00 p.m. to midnight shift on March 24, 25, 

26, and 27, 1990. In the R-45 area, sometime during the shift 

that Hubenak worked on March 24, some overhead pipeline that had 

been suspended by several broken metal hangers, fell to the 

ground. According to Hubenak at approximately 7:30 p.m. on 

March 27, he came by the control room in the R-45 area. He said 

that the operators in the control room were talking abou~ the 

incident of a 150 foot section of pipe that had fallen on 

March 24. Hubenak went to check his work area to see if there 

were any broken hangers. According to Hubenak, he saw one or two 

broken hangers. Hubenak then went to the supervisor's office. 

In essence, he said that he asked his supervisor and the MSHA 

Inspectors who were present whether he could get in trouble by 

making a safety complaint to the Inspectors, and was told that he 

could not. According to Hubenak, while in the supervisor's 

office, in the presence of Kerry Keller, Paul Kelm, 

Bernard Gaash, and J. B. Steamer, he told the MSHA Inspectors, 

while looking at the former, that he had observed broken pipe 

hangers. He then went with the Inspectors, along with the others 

who were present, to inspect the broken hangers. 

According to Hubenak, approximately 2 weeks later, Harry 

Elrod, who was the area superintendent for precipitation during 

the period in question, asked him what happened the night of 

March 27, and advised him that he should have first informed his 

supervisor of the broken hangers that he observed, and that 

accordingly, he (Elrod) was contemplating taking disciplinary 

action. Hubenak indicated that on May 4, Elrod again asked him 

what happened on March 27, and he (Hubenak) informed the latter 

that he told the MSHA Inspectors of the condition of the hangers, 

" ••• because I could get something done before somebody got 

hurt."(Tr.35) Elrod informed him that he was giving him a 5 day 

suspension. 

The Commission, in a recent decision, Goff v. Youghiogheny & 

Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reiterated the 

legal standards to be applied in a case where a miner has alleged 

acts of discrimination. The Commission, Goff, supra, at 1863, 

stated as follows: 

A complaining miner establishes a prima facie case 

of prohibited discrimination under the Mine Act by 

proving that he engaged in protected activity and that 

2513 
the adverse action complained of was motivated in any 

part by that activity. Pasula, 2 FMSHRC at 2797-2800; 

Secretary on behalf of Robinette v. United castle Coal 

Co., 3 FMSHRC 803, 817-18 (April 1981). The Operator 

may rebut the prima facie case by showing either that 

no protected activity occurred or that the adverse 

action was not motivated in any part by protected 

activity. Robinette, 3 FMSHRC at 818 n. 20. See also 

Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59 

(D.C. Cir. 1984}; Boich v. FMSHRC, 719 F.2d 194, 195-96 

(6th Cir. 1983} (specifically approving the 

Commission's Pasula-Robinette test}. 

There is no conflict in the record with regard to-the fact 

that on March 27, 1989, Hubenak informed MSHA Inspector Robert W. 

White of the existence of broken pipe hangers in the R-45 area. 

As such, Hubenak was clearly engaged in protected activities. 

Further, the record establishes that Hubenak suffered adverse 

action, namely, a 5 day suspension. Thus, the key issue for 

resolution, is whether the Secretary has established a prima 

facie case by proving that the 5 day suspension was "motivated in 

any part" by Hubenak's having reported the condition of broken 

pipe hangers to the MSHA Inspector (protected activity}. 

(Robinette, supra, at 817-818). In essence, it is the 

Secretary's position that Hubenak was suspended because he chose 

to report the unsafe condition to the MSHA Inspector, rather than 

to his supervisor. As such, it is argued that Respondent has 

interfered with Hubenak's right to report an unsafe condition to 

an MSHA Inspector. Further, the Secretary argues that Respondent 

has not, up to this point, disciplined any of its employees for 

failure to report an unsafe condition to a supervisor. I did not 

find merit to these arguments for the reasons that follow. 

Jim Isaac Simmons, Jr., who worked for Respondent for 

28 years as an area operator or tank charger in the R-45 Area, 

testified that he was not aware of any of Respondent's employees 

who had been disciplined for not turning in a safety violation to 

a supervisor. Also in this connection, Elrod testified that in 

the 3 years that he was in charge of the R-45 Area, he did not 

discipline any miner for failure to report a safety violation to 

a supervisor. I find that these statements of Simmons and Elrod 

do not establish any discriminatory action against Hubenak. To 

establish that Hubenak received disparate treatment, it must 

first be proven that there were situations where other employees 

were aware of safety violations or hazardous conditions, but did 

not report them to their supervisors. It next must be 

established that Respondent knew of these situations and did not 

discipline the employees in question. The record does not 

contain any evidence that Respondent was aware that there were 

other employees who had knowledge of unsafe conditions, but did 

2514 
not report them to their supervisors. Nor does the record 

contain evidence that there were any incidents, aside from the 

situation in issue, wherein Respondent's employees knew of 

hazardous conditions or safety violations, and did not report 

them to their supervisors. Accordingly, evidence that no other 

employees were disciplined for not reporting safety violations 

does not, per se, establish that Hubenak was discriminated 

against. 

Nor does the record contain sufficient evidence to predicate 

an inference that Respondent's action, in suspending Hubenak, was 

motivated in any part by his having reported unsafe conditions to 

the MSHA Inspector. Any inferences in the record from which this 

conclusion might be drawn, have been successfully rebutted by 

Respondent. The only evidence of record that would tend to 

establish that Respondent manifested or harbored a negative 

attitude towards miners making safety complaints, is found in 

the testimony of Hubenak and Simmons. Simmons, in essence, 

testified that "supervisors" consider it "nitpicking" and give 

extra work, if a miner turns in a lot of safety complaints or 

repeats a safety complaint (Tr. 153). I do not place much weight 

upon this testimony of Simmons, as he did not cite the date or 

nature of any specific incidents. Also, it is significant to 

note that Simmons was not in Hubenak's work crew in the period in 

question, and there is no evidence that he was supervised at any 

time by Steamer, who was Hubenak's supervisor, during the period 

in question.l/ 

Hubenak related that on one occasion, in June or July 1989, 

when he inquired of his Supervisor Ed Savalla as to how the 

latter checked belts, the latter indicated" .•• you just griping. 

You just don't want to work. Go up there and put that belt on 

and go to work, clean that secondary." (sic) (Tr.45). Hubenak 

indicated that on another occasion when he complained for the 

second time that a "blind" had not been placed in the correct 

position, Savalla said " •.. lo6k like you never make no 

mistakes." C sic) C Tr. 48) • Inasmuch as Savalla was not 

Hubenak's supervisor during the period in question, and there was 

no evidence that Savalla in any way had participated in the 

decision to suspend Hubenak, I do not place much weight on this 

testimony of Hubenak. Further, Elrod, who suspended Hubenak, was 

the individual fully responsible for taking such an action. 

1/ On cross-examination Hubenak indicated that he did not have 

any problems with Steamer, and specifically was not afraid that 

the latter would take any action against him, if he turned in a 

safety complaint. 

2515 
There is no evidence that Elrod had ever manifested any animosity 

toward Hubenak or other miners making complaints to MSHA 

Inspectors or to management. On the contrary, the Secretary has 

not contradicted the testimony of Elrod, Charles F. DiMascio, 

Respondent's Director of Safety and Industrial Hygiene, Jeffrey 

Alan Shockey, who was the Safety and Industrial Hygiene Manager 

at Point Comfort Operation during the period in question, and 

Johnny Palmer, Jr., Production Manager, Alumina, all of whom 

described Respondent's strong policy of requiring employees to 

report safety and health hazards. 

It appears to be the Secretary's position that, in 

actuality, Hubenak's suspension by Respondent was motivated, in 

part, by the fact that Hubenak chose to report a hazardous 

condition to the Inspector rather than a supervisor. On the 

other hand, it is Respondent's position that the only motivation 

for its suspension of Hubenak, was because the latter had not 

reported, to his supervisor, a hazardous condition which he had 

known about for more than 2 days. In essence, for the reasons 

that follow, I find the evidence establishes that a good faith 

reasonable belief that Hubenak did not report to his supervisor 

the hazardous conditions which he had known of for a few days, 

was the only basis for the determination by Elrod to suspend 

Hubenak. According to Hubenak, on the evening of March 27, he 

went to inspect for broken hangers, and discovered one or two. 

He did not seek out his supervisor, but decided to report instead 

to the MSHA Inspector, "because I could get something done before 

somebody got hurt," (Tr. 35). According to Elrod, when he 

confronted Hubenak a few days after March 27, he asked him why he 

had not notified management if he had known, for a couple of 

days, of the existence of broken hangers. ·The latter did not say 

that he had just discovered the hangers on March 27, but, he made 

this assertion the first time when he was confronted again on 

May 4 when he was suspended. Further, Elrod indicated that he 

was told by Keller that Hubenak had found the broken pipes after 

the 150 length of pipe had fallen on the night of March 24. 

Accordingly, Elrod concluded that Hubenak had known of the 

hazardous condition when he worked over the weekend, March 24-26, 

and had not reported it to his supervisor in violation of Company 

policy.~/ 

2/ In this connection, the Secretary did not rebut the testimony 

of Respondent's witnesses that it was standard operating 

procedure to have placed guidelines dated April 20, 1988, on a 

bulletin board, which set forth, as pertinent, as follows: "The 

employee who believes that safety or health hazard exists shall 

notify his supervisor, discuss.the situation, and try to resolve 

the problem •••• " (Exhibit R-5J. Also, the Secretary did not 

rebut the evidence of Shockey that all employees are provided 

with a copy of the Safety Code of Conduct. Further, the 

personnel file of Hubenak contains notes indicating "went 

through" the safety book on various dates in 1977, (Exhibit R-12, 

page 000306). 

2516 
Company policy is embodied in the Safety Code of Conduct, which 

provides, as pertinent, as follows: "5. Be alert for unsafe 

conditions and report them immediately to your supervisor." 

(Exhibit R-3, page 000031). 

I specifically find that there was a reasonable basis for 

Elrod to conclude that Hubenak had known about the broken hangers 

since the weekend commencing March 24, and had not reported this 

to his supervisor. Hubenak did not testify to rebut Elrod's 

testimony, that when he asked Hubenak a few days after March 27, 

why he did not inform management if he had known, for a few days, 

about the broken hangers, and he CHubenak) did not maintain that 

he first learned of the conditions on March 27. Further, Elrod 

based his conclusion as to Hubenak's actions upon information 

provided him by Keller. This was corroborated by Keller, who 

indicated that Hubenak had told him that over the weekend 

(March 24-26) he had inspected for broken pipes and found some on 

a pipeline, although he (Hubenak) did not indicate exactly when 

this occurred. Hubenak did not rebut this testimony of Keller. 

Accordingly, I find that Elrod had good cause to conclude that 

Hubenak had known of the existence of broken hangers over the 

weekend, and had failed to report this condition to his 

supervisor. According to Elrod, he concluded that is "totally 

intolerable" if employees who are aware of unsafe conditions, 

fail to report them (Tr. 336). 

I thus conclude that Respondent's action in suspending 

Hubenak was motivated solely by his failure to inform his 

supervisor, or other management officials, of the existence of 

broken hangers, which Respondent reasonably believed Hubenak had 

known about since the weekend of March 24, ·1989. I thus conclude 

that Respondent has successfully rebutted the Secretary's case, 

and that the Secretary has failed to establish a prima facie 

case, i.e., that Hubenak's suspension was motivated, in any part, 

by protected activities. Accordingly, the Complaint shall be 

dismissed. 

ORDER 

It is hereby ORDERED that the Complaint filed on 

December 26, 1989, be DISMISSED. 

Avram 

£~ Weisberger 

Administrative Law Judge 

2517 
Distribution: 

Janice L. Homes, Esq., Office of the Solicitor, u. s. Department 

of Labor, 525 Griffin Square, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Linda F. Schneider, Esq., General Attorney Aluminum Company of 

America, 1501 Alcoa Building, Pittsburgh, PA 15219 (Certified 

Mail) 

dcp 

2518 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 81990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PENN 90-52 

A.C. No. 36-07783-03515 

v. 

Slope No. 1 Mine 

HICKORY COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Susan M. Jordan, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Petitioner; 

Mr. William Kutsey, Owner, Hickory Coal Company, 

Pine Grove, Pennsylvania, pro se, for the 

Respondent. 

Judge Fauver 

This is an action for civil penalties under § 105(d) of the 

Federal Mine Safety and Health Act of 1977,, 30 u.s.c. § 801 et 

seq. 

The case came on for hearing at Harrisburg, Pennsylvania, on 

November 1, 1990. After extensive testimony and the admission of 

documentary evidence, a settlement conference was held between 

the parties and before the judge. Based upon the conference, a 

settlement was reached and approved by the judge. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The parties' oral motion to approve a settlement 

agreement is GRANTED. 

2. Respondent is ASSESSED a civil penalty of $100 for each 

of the two citations involved herein and shall pay such penalties 

of $200 within 30 days of this decision. 

2519 
3. Citation No. 267748 and Order No. 2677021 are AFFIRMED. 

4. Citation No. 2676999 is AFFIRMED. 

5. Order No. 2677042 is MODIFIED to provide that: "The 

Michigan front-end loader, Model No. 55a, is permitted to be used 

for loading run of mine coal only; and all use of the front-end 

loader shall be confined to the loading area." As so modified, 

Order No. 2677042 is AFFIRMED. 

Distribution: 

/.tJtc~ ~tJvtl//f/1-- %.11iam Fauver 

Administrative Law Judge--

Susan M. Jordan, Esq., Office of the Solicitor, U.S. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

Mr. William Kutsey, owner, Hickory Coal Company, R.D. #1, 

Box 479, Pine Grove, PA 17963 (Certified Mail) 

/fb 

2520 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 301990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

WILLIAM A. MARSHALL, 

Complainant 

v. 

QUALITY READY MIX, INC., 

DISCRIMINATION PROCEEDING 

Docket No. LAKE 90-78-DM 

Quality Pit & Mill 

DECISION APPROVING SETTLEMENT 

AND DISMISSING PROCEEDING 

Before: Judge Broderick 

On November 21, 1990, the Secretary submitted a settlement 

agreement executed by Complainant William Marshall and by counsel 

on behalf of the Secretary and Respondent. The agreement provides 

that Respondent shall pay William Marshall the sum of $4500 in 

settlement of his claim against Quality Ready Mix, that Marshall's 

personnel file shall reflect that he was separated from 

Respondent's employ by mutual agreement of the parties. It further 

provides that the Secretary withdraws her demand for a civil 

penalty against Respondent in this proceeding. I have considered 

the agreement in the light of the purposes of the Act and conclude 

that it should be approved. 

Accordingly, the settlement agreement dated November 18, 1990, 

by and among the Secretary of Labor, William M. Marshall and 

Quality Ready Mix is APPROVED. 

IT IS ORDERED that the terms of the settlement agreement 

including the payment by Respondent to Marshall of the sum of $4500 

shall be carried out within 30 days of the date of this order. 

Upon compliance with this order, this proceeding is DISMISSED • 

. ..., 

./ ~ ... /! wt ,~::) ?'V (lt/1/1L{! ,((' v.; II' ~ _/ _./ " , .......___ 

. , James A. Broderick 

,/ Administrative Law Judge 

2521 
Distribution: 

Bruce Scott Goldstein, Esq., U.S. Department of Labor, Office of 

the Solicitor, 881 Federal Office Building, 1240 East Ninth Street, 

Cleveland, OH 44199 (Certified Mail) 

Theresa Jones, Esq., Robert J. Brown, Esq., Thompson, Hine and 

Flory, 2000 Courthouse Plaza, N.E., P.O. Box 8801, Dayton, OH 

45401-8801 (Certified Mail) 

slk 

2522 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

November 8, 1990 

JOHN A. GILBERT, 

Complainant 

. . DISCRIMINATION PROCEEDING 

v. 

SANDY FORK MINING COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA}, 

on behalf of 

JOHN A GILBERT 

Complainant 

v. 

SANDY FORK MINING COMPANY, 

Respondent 

Docket No. KENT 86-49-D 

BARB CD 85-61 

No. 12 Mine 

. . DISCRIMINATION PROCEEDLNG 

Docket No. KENT 86-76-D 

BARB CD 85-61 . . No. 12 Mine 

DECISION 

Appearances: Tony Oppegard, Esq., Appalachian Research and 

Defense Fund of Kentucky, Inc., Hazard, Kentucky, 

for John A. Gilbert; 

Thomas A. Grooms, Esq., Office of the Solicitor, 

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

for Secretary of Labor; 

Ronald E. Meisburg, Esq., and c. Gregory Ruffenach, Esq., 

Smith, Heenan and Althen, Washington, D.C., for 

Sandy Fo-rk Mining Company, Inc. 

Before: Judge Melick 

These cases are before me upon remand by the United States 

Court of Appeals for the District of Columbia Circuit in John A. 

Gilbert v. FMSHRC, 866 F.2d 1433 (1989} and upon subsequent 

direction by the Commission on June 2 8, 199.0, to resolve several 

specific issues. ' 

The facts and procedural history of these cases are set 

forth in detail in previous decisions. See 9 FMSHRC 1427 (1987} 

and 12 FMSHRC 177 (19 90}. In brief, following an initial 

evidentiary hearing, this judge determined that Sandy Fork 

Mining Company, Inc. (Sandy Fork} had not violated Section 

105(c}(l} of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq., the "Act". 8 FMSHRC 1084 (1986}. That 

decision was affirmed by the Commission but was subsequently 

2523 
reversed by the Court of Appeals which remanded the cases for 

resolution of several specific questions. The Court explained: 

On the record as we understand it, it is plain that 

Gilbert made a good faith attempt to communicate his 

reasonable fears to management. What is not clear, 

however, is whether management addressed Gilbert's 

concerns in a way that his fears reasonably should 

have been quelled. In other words, did management 

explain to Gilbert that the problems in his work area 

had been corrected? Or did management indicate to 

Gilbert that he would be assigned to another area in 

the mine that was free of safety problems? Or did 

management indicate to Gilbert that the situation was 

unsettled, and that he should wait five hours Cun~il 

the start of his assigned shift) before inquiring 

further about safety conditions in his area? These 

questions must be answered by the Commission in order 

for it to determine whether the management at Sandy 

Fork reasonably addressed Gilbert's fears on the 

morning of August 7. If management effectively 

"stonewalled" Gilbert in responding to his inquiries 

on the 7th, then his continued fears regarding work 

hazards were reasonable, and his refusal to return to 

work cannot be viewed as either unreasonable or in bad 

faith. On remand, the commission will be required to 

make the necessary factual findings to address these 

issues. 

These specific questions all relate to the larger issue of 

whether Gilbert's refusal to appear for work on August 7, was 

supported by the requisite good faith, reasonable belief in a 

hazard--an issue on which the Complainant bears the burden of 

proof. Secretary on behalf of Pasula v. Consolidation Coal 

Company 2 FMSHRC 2786 (1980) rev'd on other grounds sub nom. 

Consolidation coal Company v. Marshall 663 F.2d 1211 (3rd 1981); 

Secretary on behalf of Robinette v. United castle Coal Company, 

3 FMSHRC 803 (1981). 

In its initial decision following remand of this case the 

Commission reviewed the applicable discrimination law cited by 

the Circuit Court: 

We note initially that the court endorsed several 

important principles of Commission discrimination law. 

Citing Secretary on behalf of Bush v. Union Carbide 

Corp., 5 FMSHRC 993, 997 (June 1983) and Secretary on 

behalf of Robinette v. United Castle Coal Co., 3 

FMSHRC 803 (April 1981), the Court agreed with the 

Commission that section lOSCc> of the Act "protects a 

miner's right to refuse work under conditions that he 

reasonably and in good faith believes to be hazardous." 

866 F.2d at 1439. The Court subscribed as well to the 

2524 
Commission's view that in analyzing whether a miner's 

fear is reasonable, the perception of a hazard must be 

viewed from the miner's perspective at the time-of the 

work refusal. 866 F.2d at 1439, citing Secretary on 

behalf of Pratt v. River Hurricane Coal Company, 5 

FMSHRC 1529, 1533-34 (September 1983) and Haro v. 

Magma Copper Co., 4 FMSHRC 1935, 1944 (November 1982). 

The Court also approved Commission holdings that to be 

accorded the protection of the Act in engaging in a 

work refusal, a miner need not objectively prove that 

an actual hazard existed and, further, that a good 

faith belief simply means an honest belief that a 

hazard exists. Id., citing Secretary on behalf of 

Hogan & Ventura v. Emerald Mines Corp., 8 FMSHRC 1066, 

1072-73 (July 1986); Pratt, supra, 5 FMSHRC at 

1533-39, Haro, supra, 4 FMSHRC at 1943-44; and 

Robinette, supra, 3 FMSHRC at 810. 

To determine whether substantial evidence supported 

t.he Commission's conclusion that Gilbert's August 7 

work refusal lacked the required basis of a good 

faith, reasonable belief in a hazard, the Court 

adopted Commission guidelines for assessing a miner's 

"good faith". 866 F.2d at 1440. First, the court 

indicated that, where reasonably possible, a miner 

refusing work should ordinarily communicate or attempt 

to communicate to some representative of the operator 

his belief in the safety or health hazard at issue 

and, second, when a miner has expressed a reasonable, 

good faith fear in a hazard, the operator has a 

corresponding obligation to address the perceived 

danger. 866 F.2d at 1440, citing, Secretary on behalf 

of Dunmire & Estle v. Northern Coal Co., 4 FMSHRC 126, 

133 February 1982); Bush, supra, 5 FMSHRC at 997-98; 

Secretary v. Metric Constructors, Inc •• 776 F.2d 469 

Cllth Cir. 1985); Hogan and Ventura, supra, 8 FMSHRC 

at 1074. Applying these principles, the Court found 

that the record did not support the Commission's 

determination that on August 7 Gilbert did not 

entertain a good faith, reasonable belief that he 

would be required to work in a hazardous area. 866 

F.2d at 1140-41. 

The Commission, in its initial decision on remand also 

reviewed the court's evaluation of the evidence: 

The Court presented its view of the evidence • 

. Among other things, the court noted that Gilbert was 

working in an area of the mine in which it appeared to 

him that the prevailing roof conditions placed his 

safety in jeopardy; that he left work on August 6 with 

management's permission; that when he returned to work 

on the morning of August 7 he learned from other 

2525 
miners of a roof fall that had ocdurred overnight in 

the area where he had been working; and that when he 

inquired of management representatives what_had-been 

done to address the unsafe conditions, they "refused 

to address his concerns." 866 F.2d at 1440-41. The 

Court found that Gilbert's "initial fears" on August 6 

were reasonable and that on August 7 "he made a good 

faith attempt to communicate his reasonable fears to 

management." 866 F.2d at 1441. 

The Court, however, stopped short of outright 

reversal of the Commission's decision, stating that it 

was not "clear" whether "management addressed 

Gilbert's concerns [on the morning of August 7] in a 

way that his fears reasonably should have been -

quelled." 866 F.2d at 1441. See also 866 F.2d at 1441 

n.11. The Court explained: 

In other words, did management explain to 

Gilbert that the problems in his work area 

had been corrected? Or did management 

indicate to Gilbert that he would be 

assigned to another area in the mine that 

was free of safety problems? Or did 

management indicate to Gilbert that the 

situation was unsettled, and that he should 

wait five hours (until the start of his 

assigned shift) before inquiring further 

about safety conditions in his area? These 

questions must be answered by the Commission 

in order for it to determine whether the 

management at Sandy Fork reasonably 

addressed Gilbert's fears on the morning of 

August 7. If management effectively 

"stone-walled" Gilbert in responding to his 

inquiries on the 7th, then his continued 

fears regarding work hazards were 

reasonable, and his refusal to return to 

work cannot be viewed as either unreasonable 

or in bad faith. 866 F.2d at 1441. 

The parties now before me on remand requested to submit 

these issues on the existing record without further evidentiary 

proceedings. The essential existing evidence in this regard was 

summarized by the Commission in its February 16, 1990, decision: 

There is no question on this record that mine 

management was aware of the roof problems in the area 

where Gilbert was working and was taking steps to 

address the problems. As the judge found, and as we 

noted, when Gilbert brought the conditions that he 

perceived to be hazardous to the attention of his 

section foreman on August 6, the foreman responded 

2526 
that he would add more cribs to support the roof and 

that he would stand by and watch while coal was cut. 

8 FMSHRC at 1089; 9 FMSHRC at 1330; Gilbert-then went 

outside the mine and repeated his concerns to the 

general mine foreman, who told Gilbert that he would 

not insist that he resume work and that Gilbert should 

go home and return the next day to meet with Phipps, 

the general manager, and Begley, the mine 

superintendent. 

When Gilbert returned on August 7, Phipps and 

Begley were underground conducting an examination of 

the roof, and Gilbert was told by another miner that a 

roof fall had occurred in the mine during the night. 

After Phipps and Begley emerged from the mine, Giloert 

talked separately with each of them. 

Gilbert talked first with Phipps. Both Gilbert and 

Phipps testified that Gilbert told Phipps that he was 

afraid of the roof. Tr. I 39-40; III 89-92. Gilbert 

asked Phipps what management was going to do about the· 

roof and how the roof would be supported. Tr. II 

39-40. Gilbert testified that Phipps responded that 

"they [were] supporting what they could." Tr. I 39-40 

Similarly, Phipps stated that "primarily" he told 

Gilbert that the mine roof was all the top that the 

mine had. Tr. II 127. Both Phipps and Gilbert 

testified that Phipps asked Gilbert if he had any 

ideas for dealing with the roof (Tr. I 40; III 91), 

and Gilbert testified that he offered a few 

suggestions (Tr. I 40). Phipps further stated that he 

did not try to "convince" Gilbert that the roof was 

safe and that, although management was pursuing 

several approaches for alleviating the roof problems, 

he did not discuss those initiatives with Gilbert at 

that time. Tr. III 127-28. 

Gilbert then engaged Begley in a similar brief 

conversation. Gilbert and Begley also agreed that 

Gilbert told Begley that he was afraid of the roof. 

Tr. I 40-41; II 109. Gilbert testified that Begley 

replied that "that's all they can do ... that's all 

the top they [had]." Tr. I 41. Begley stated that he 

did not recall telling Gilbert anything about the top 

on the morning of August 7. Tr. II 111-12. Begley's 

recollection was that he and Gilbert discus~ed 

Gilbert's possible job transfer rather than roof 

problems. Id. After these two conversations, Gilbert 

left the mine. 

The Court rejected the judge's and Commission's 

determinations that in leaving the mine at this point, 

some five hours before his shift was scheduled to 

2527 
begin and before he had been told the specific area of 

the mine to which he would be assigned, G~lbert acted 

precipitately and unreasonably. 866 F.2d at 1140. 

Instead, the Court has directed us to determine 

whether management explained to Gilbert that the 

problems in his general work area had been corrected, 

or had indicated that he would be assigned to another 

area of the mine free of safety problems, or had 

suggested that the situation was unsettled and that he 

should wait until the start of his assigned shift 

before inquiring further about safety conditions in 

his area. 866 F.2d at 1441. 

Within the limited scope of review on this remand-and 

considering the uncontradicted and credible evidence it must be 

concluded that Gilbert's safety concerns were indeed not 

addressed in a manner sufficient to reasonably quell his fears 

at the time of his meetings with Phipps and Begley on August 7 

five hours before the beginning of his shift. To paraphrase the 

Commission in its February 16, decision, given the Court's 

belief that Gilbert did not act precipitately and its finding 

that he entertained a good faith, reasonable belief in a hazard, 

I feel similarly constrained to conclude that Gilbert's 

departure from the mine and decision not to return for the 

beginning of his work shift on August 7, constitutued a 

constructive discharge in violation of section 105Cc)Cl) of the 

Act. 

ORDER 

Sandy Fork Mining Company, Inc. discharged Complainant 

John A. Gilbert on August 7, 1985, in violation of Section 

105Cc)(l) of the Federal Mine Safety and Health Act of 1977. 

Accordingly the appropriate parties hereto are directed to 

attempt to reach stipulations regarding the criteria for 

assessing civil pen~lties under section llO(i) of the ~t and 

damages and costs including attorneys fees, within 20 days of 

the date of this decision. If the appropriate parties are 

unable to reach stipulations as to these issues, hearings will 

be held on the remaining issues on December 11, 1990 at 

11:30 a.m. in London, Kentucky. The courtroom in which the 

hearings will be held will be designated at a later date. This 

is not a final decision in these cases and no final decision 

will be issued until such time as all is ues relating o civil 

penalties costs and damages are resolved 

2528 
Distribution: 

Tony Oppegard, Esq., Appalachian Research and Defense Fund of 

Kentucky, Inc., P.O. Box 260, Hazard, KY 41701 (Certified Mail) 

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

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Ronald E. Meisburg, Esq., Smith, Heenan & Althen, 1110 Vermont 

Ave., Washington, D.C. 20005 (Certified Mail) 

William A. Hays, Esq., P.O. Box 817, Middlesboro, KY 40965 

(Certified Mail) 

nb 

2529 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 15, 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CYPRUS BAGDAD COPPER 

CORPORATION, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 90-289-M 

A. C. No. 02-01738-05516 

Bagdad Millsite 

DECISION DISAPPROVING SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

On July 19, 1990, a copy of the operator's notice of contest 

of the civil penalty was received by the Commission. On September 21, 1990, the Solicitor orally advised my law clerk that a 

settlement had been reached and that a settlement motion would be 

filed in lieu of a penalty petition. On October 29, 1990, the 

parties filed a joint motion to approve settlement of the one 

violation involved in this case. 1 The originally assessed 

penalty was $2,500 and the proposed settlement is $250. 

Citation No. 3467683 was issued for a violation of 30 C.F.R. 

§ 56.14107(a) because guards for the primary and secondary drive 

pulleys for the Nos. 3 and 4 transfer belts were not adequate. 

The Narrative Findings adopted by MSHA to support its original 

assessment set forth that one miner was fatally injured as a 

result of an accident in which he placed himself on the belt just 

prior to the start-up of the conveyor system. The Narrative 

Findings further recite that the violation was a contributing 

factor to the fatal~ty because .the guardrails were not secured so 

as to prevent an employee from simply lifting the guard and 

because the distance between the guards wa.s wide enough to permit 

an individual to go inside. This is apparently what happened 

here as the Findings state that the miner was pulled into the 

pulley by the belt. The operator was found negligent on the 

basis that it is the duty of management to see that all moving 

parts are adequately guarded at the worksite. 

The settlement motion advises that the Secretary now be1 ieves that insufficient evidence exists to support the degree of 

negligence initially asserted. Actually, the citation only found 

The parties attached to the motion a copy of the MSHA 

assessment sheet, narrative findings for special assessment and the 

citation. 

2530 
moderate negligence. The settlement motion now says there was no 

negligence and that the Secretary no longer asserts that the 

violation caused the accident. However, the motion fails to 

discuss any of the salient facts which have led the Secretary to 

conclude that the operator was not at fault and, even more 

importantly, why the cited violation which was first thought to 

be a cause of the accident, now has nothing to do with it. 

It is well established that the Commission and its Judges 

bear a heavy responsibility in settlement cases pursuant to 

section llO(k) of the Act, 30 u.s.c. § 820(k). See, s. Rep. No. 

95-181, 95th Cong., 1st Sess., 44-45 (1977), reprinted in Senate 

Subcommittee on Labor, Committee on Human Resources, 95th Cong., 

2d Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 632-633 (1978); Wilmot Mining Company, 9 

FMSHRC 684 (April 1987). Further, it is the Commission's responsibility to determine the appropriate amount of penalty, in 

accordance with the six criteria set forth in ~ection llO(i) of 

the Act. 30 U.S.C. § 820(i). Sellersburg Stone Company v. 

Federal Mine Safety and Health Review Commission, 736 F.2d 1147 

(7th Cir. 1984). Consolidation Coal Company, 11 FMSHRC 1935 

(October 1989). 

The Commission's obligation to oversee the propriety of 

recommended settlements is particularly pronounced in a case such 

as this which presents a fatality. The parties must provide the 

precise circumstances which they believe support their present 

views and justify the suggested 90% reduction in the penalty 

amount. The Commission cannot accept a settlement motion in any 

case on faith alone, much less in a matter such as this. 

In light of the foregoing, it is ORDERED that the proposed 

settlement be and is hereby DISAPPROVED. 

It is further ORDERED that within 21 days from the date of 

this order the parties SUBMIT information sufficient to support 

their settlement recommendations. Otherwise the case will be set 

for hearing. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Douglas White, Esq.,Counsel, Trial Litigation, Office of the 

Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Room 

414, Arlington, VA 22203 (Certified Mail) 

2531 
Alan M. Raznick, Esq., Office of the Solicitor, U. s. Department 

of Labor, 71 Stevenson Street, Room 1110, San Francisco, CA 

94105-2999 (Certified Mail) 

Michael R. Peelish, Esq., Cyprus Minerals Company, 9100 East 

Mineral Circle, P. o. Box 3299, Englewood, co 80155 (Certified 

Mail) 

Mr. Harry w. Cosner, Vice President, Cyprus Bagdad Copper 

Corporation, P. O. Box 245, Bagdad, AZ 86321 (Certified Mail) 

/gl 

2532 -tr U. S. Government Printing Office: 1990 - 281-753 (24311)