MARCH 1984 

Connnission Decisions 

3-07-84 James Eldridge v. Sunfire Coal Company 

3-07-84 Patrick Mooney v. Sohio Western Mining Co. 

3-30-84 MSHA for John Cooley v. Ottawa Silica Co. 

Administrative Law Judge Decisions 

3-01-84 

3-06-84 

3-06-84 

3-06-84 

3-06-84 

3-07-84 

3-08-84 

3-13-84 

3-13-84 

3-14-84 

3-16-84 

3-19-84 

3-20-84 

3-22-84 

3-22-84 

3-22-84 

3-23-84 

3-23-84 

3-23-84 

3-23-84 

3-27-84 

3-28-84 

3-29--84 

3-30-84 

3-30-84 

MSHA v. Robert G. Miller 

Helen Mining Company 

Allied Chemical Corporation 

Peabody Coal Company 

MSHA for Douglas Burke v. Brown & Root, Inc. 

Martin County Coal Corporation 

Lonnie Jones v. Mingo Coal Co., Inc. 

Elias Moses v. Whitley Development Corp. 

Ramah Mines Company 

Eddie Lee Sharp v. Magic Sewell Coal Co. 

Alabama By-Products Corporation 

Shamrock Coal Company, Inc. 

MSHA v. Kenneth Denson 

Homestake Mining Company 

Turner Brothers, Inc. 

U.S. Steel Mining Co., Inc. 

Riverway North, Inc. 

Kentucky Blue Coal Company, Inc. 

Little-J Coal Company, Inc. 

Kitt Energy Corporation 

Phelps Dodge Corporation & USWA 

David L. Williams v. Southern Utah Fuel Co. 

Ralph Fitzwater v. Mettiki Coal Corp. 

Pontiki Coal Corporation 

Scoria Products Branch, Ultro, Inc. 

KENT 82-41-D 

CENT 81-157-DM 

LAKE 81-163-DM 

WEVA 83-277 

PENN 83-200-R 

WEST 80-217-M 

WEST 83-73 

WEST 83-95-DM 

KENT 80-354 

KENT 83-257-D 

KENT 79-366-D 

WEST 83-22-~ 

WEVA 82-399-D 

SE 83-44 

KENT 84-24 

WEST 82-191-M 

CENT 81-42-M 

CENT 83-9 

PENN 82-311 

KENT 83-132 

KENT 83-244 

WEVA 81-498 

WEVA 84-60-R 

WEST 81-236-M 

WEST 83-122-D 

YORK 83-3-D 

KENT 83-181-R 

WEST 80-293-M 

Pg. 509 

Pg. 510 

Pg. 516 

Pg. 527 

Pg. 529 

Pg. 592 

Pg. 612 

Pg. 628 

Pg. 630 

Pg. 632 

Pg. 636 

Pg. 692 

Pg. 694 

Pg. 699 

Pg. 701 

Pg. 704 

Pg. 709 

Pg. 721 

Pg. 722 

Pg. 731 

Pg. 733 

Pg. 735 

Pg. 748 

Pg. 756 

Pg. 778 

Pg. 780 

Pg. 781 

Pg. 788 

MARCH 

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

Kenneth Wiggins v. Eastern Associated Coal Corporation, Docket No. 

WEVA 82-300-D. (Judge Moore, February 16, 1984) 

Review was Denied in the following case during the month of March: 

Bobby Holt v. Southern Stone Company, Docket No. SE 83-49-DM. (Judge 

Broderick, February 17, 1984) 

Request for Review was withdrawn in the following case during March: 

Secretary of Labor, MSHA v. Mich Coal Company, Docket No. CENT 83-4. 

(Judge Kennedy, Interlocutory Review of January 30, 1984 Order) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

JAMES ELDRIDGE 

v. 

SUNFIRE COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 7, 1984 

Docket No. KENT 82-41-D 

ORDER 

This discrimination case arises under section 105(c) of the Federal 

Mine Safety and Health Act, 30 u.s.c. § 801 et~ (1976 & Supp V 1981). 

The oral argument in this proceeding, originally scheduled for February 29, 

1984, was postponed upon notification by the parties that they had agreed 

to settle the case and would file a motion to dismiss. 

On February 24, 1984, the parties filed with the Commission a joint 

motion to withdraw their cross-petitions for discretionary review and to 

dismiss the case. In support of the motion, the parties attached a copy 

of their signed settlement agreement, dated February 21, 1984. The agreement, which is signed by the complaining miner, provides that Sunfire Coal 

Company will pay "as soon as possible" the sum of $25,341 in back pay wages 

to the complaining miner and the sum of $25,000 in attorneys' fees to the 

miner's attorneys. 

In light of the parties' settlement agreement, we grant the parties' joint 

motion to withdraw their petitions for discretionary review. Payment of the 

sums specified in the settlement agreement shall be made within 30 days of 

issuance of this order. Accordingly, this case is dismissed. This is the 

final decision of the Commission in ~ proceedin~ /Jii;,- ose~ollyer, Chairman 

L. Clair Nelson, Commissioner 

509 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR. 

WASHINGTON, D.C. 20006 

March 7, 1984 

PATRICK.J. MOONEY 

v. Docket No. CENT 81-157-DM 

SOHIO WESTERN MINING COMPANY 

DECISION 

This case involves a discrimination complaint brought by Patrick J. 

Mooney against Sohio Western Mining Company (Sohio) pursuant to the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. 

(1976 & Supp. V 1981). At issue is whether Sohio's discharge-of Mooney 

on September 9, 1980, violated section 105(c)(l) of the Mine Act, 30 

U.S.C. § 815(c)(l)(Supp V 1981). Following a hearing on the merits, the 

Commission's administrative law judge determined that Sohio did not 

violate section lOS(c)(l) and dismissed Mooney's complaint. 4 FMSHRC 

440 (March 1982)(ALJ). For the reasons that follow, we affirm the 

judge's decision. 

Mooney was employed as an underground laborer by Sohio at its J.J. 

No. 1 uranium mine from February 5, 1980, until September 9, 1980, when 

he was discharged. During most of this period, however, Mooney was 

disabled and received worker's compensation as a result of a workplace 

injury that occurred on April 10, 1980. On that date Mooney was injured 

while he and his partner, Donald Benton, were standing in the elevated 

bucket of a front-end loader installing ground support. Mooney's 

left foot was broken when a slab of rock fell from the crown, that part 

of the drift where the rib meets the back. The rock fall and injury 

occurred in a large area that Sohio was excavating to serve as an underground maintenance shop. Earlier in the shift Mooney had refused an 

assignment requiring him to climb a ladder underneath a shale bulge in 

this area. 

Mooney was unable to work as a result of his injury from April 10 

until September 2, 1980, when he reported for duty. Mooney brought to 

the mine a statement from his doctor that he was ready for regular duty. 

In accordance with normal company practice, Mooney met with Sohio's 

safety director, Rudolph Siegmann, when he returned to duty. Mooney 

complained to Siegmann that accident reports filed concerning his injury 

5lQ 
omitted the name of, or any information from, the other miner in the 

bucket when the injury occurred and failed to state that the area had 

not been properly supported. These omissions, in Mooney's view, denied 

him a 10 percent increase in worker's compensation benefits allegedly 

payable under the applicable state worker's compensation statute if an 

employer's failure to use safety equipment results in injury to an 

employee. Mooney informed Siegmann that he would pursue the matter further. 

After this meeting Mooney was assigned to a surface job digging ditches, 

because he did not have safety glasses and could not go underground. The next 

morning Mooney called the mine to report that he would not be reporting for 

work because his foot hurt. Mooney made an unsuccessful attempt to see his 

doctor that day. The following day, September 4, 1980, Mooney returned to 

work and, because he did not have a note from his doctor, was given a 

warning and 3-day suspension. On two earlier occasions, February 28 and 

Uarch 7, 1980, Mooney had presented a doctor's note after being absent 

from work for one day. He had also received a warning slip on April 3, 

1980, for failing to furnish a doctor's note after being absent April 2nd. 

The warning Mooney received September 4th stated that a third warning would 

result in termination. Mooney's suspension period included a weekend, so 

that he next reported to work on September 9th. Mooney arrived 10 to 15 

minutes late on that date, was given a third warning and was terminated. 

On October 15, 1980, Mooney filed a written complaint of discrimination with the Department of Labor's Mine Safety and Health Administration (MSHA). See 30 U.S.C. § 815(c)(2). MSHA investigated the 

complaint but determined that Mooney had not been discriminated against 

in violation of the Mine Act. Proceeding~~' Mooney thereafter 

filed a complaint with this independent Commission. 30 U.S.C. § 815(c)(3). 

In his decision the Commission administrative law judge concluded 

that Sohio's discharge of Mooney did not violate section 105(c). The 

judge began his analysis by considering whether Mooney established his 

participation in protected activity. With regard to Mooney's allegation 

that on April 10, 1980, he had refused to climb a ladder under a shale 

bulge, the judge stated that this action "would be protected under the 

Act if it were shown that such refusal to work prompted his firing." 4 

FMSHRC at 443. _Concerning Mooney's complaints to the operator in 

September 1980 regarding the alleged filing of inaccurate accident reports, 

the judge stated: "If these complaints were motivated by a sincere belief 

by Mooney that such matters were related to safety and health conditions 

in the mine, it would constitute protected activity." 4 FMSHRC at 444. 

The judge found, however, that Mooney was concerned because he had not 

received an additional amount in workers' compensation payments that he 

believed he was due under state law, purportedly as a result of the 

operator's alleged filing of erroneous accident reports. According to the 

judge, because Mooney's complaints were "motivated by monetary reasons rather 

than safety and health", these complaints were not protected under the Mine 

Act. Id. The judge further found that Sohio had established that it had 

Legitimate reasons for terminating Mooney based on violations of company policy 

concerning time and attendance. 

511 
On review, Mooney contends that the judge erred in concluding that 

illegal discrimination had not occurred. He argues first that the judge 

erred in determining that his complaints to the operator concerning the 

alleged filing of false accident reports were not protected because 

Mooney's motive for complaining was monetary. He maintains that he was 

injured in an accident occurring at Sohio's mine; the Act requires 

accurate reporting of such accidents; in his view Sohio did not accurately 

describe the accident in its reports; this alleged inaccurate reporting 

constitutes a violation of the Act; and, therefore, his complaints 

concerning this alleged violation were protected regardless of his 

personal motivation for making the complaints. Mooney's second argument 

is that the operator improperly determined that he had violated the 

company's time and attendance requirements, and, therefore, that he was 

"unjustly terminated." Mooney submits that under proper application of 

company attendance policies no cause for termination was present. 

Although we agree with the administrative law judge's ultimate 

conclusion, we find it necessary to modify in certain aspects the rationale 

he utilized to support his conclusion. 

In order to establish a prima facie case of discrimination under 

section lOS(c) of the Mine Act, a complainant bears the burden of production and proof to show (1) that he engaged in protected activity and 

(2) that an adverse action against him was motivated in any part 

by the protected activity. Secretary on behalf of Pasula v. Consolidation 

Coal Co., 2 FMSHRC 2786 .(October 1980), rev'd on other grounds sub nom. 

Consolidation Coal Co. v. t1arshall, 663 F.2d 1211 (3d Cir. 1981), and 

Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 

(April 1981). In order to rebut a prima facie case, an operator must 

show 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 (1) it was also motivated by the 

miner's unprotected activities, and (2) that it would have taken the 

adverse action in any event for the unprotected activities alone~ 'Ille 

operator bears a burden of proof with regard to the affirmative defense. 

Haro v. Magma Copper Co., 4 FMSHRC 1935, 1937 (November 1982). 'Ille 

ultimate burden of persuasion that illegal discrimination has occurred 

does not shift from the complainant. Secretarv on behalf of Robinette v. 

United Castle Coal Co., 3 FMSHRC at 818 n. 20. 'Ille Supreme Court recently 

approved the National Labor Relations Board's virtually identical analysis 

for discrimination cases arising under the National Labor Relations Act. 

NLRB v. Transportation Management Corp., 76 L.Ed. 2d 667 (1983). See also 

Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983)(approving the Commission-rs--

Pasula-Robinette test). 

The judge's decision is unclear as to whether he concluded that Mooney 

established a prima facie case of unlawful discrimination. At the hearing, 

at the close of Mooney's presentation of his case-in-chief, the judge 

denied Sohio's motion to dismiss stating: "I feel that the complainant 

has made a prima facie case and that its [sic] up to respondent to rebut 

this." Tr. 107. In his final written decision, however, he found that 

Mooney had not established a prirna facie case (4 FMSHRC at 446) while 

also concluding that Sohio had "successfully defended." 4 FMSHRC at 

445. 

512 
Despite these conflicting findings, viewing them in context we are · 

satisfied that the judge intended the following: As to Mooney's refusal to 

work under the shale bulge on April 10, 1980, the judge believed that Mooney 

had established the first element of a prima facie case, but not the second, 

i.e., the work refusal was protected but Mooney's discharge was not motivated 

by this incident. As to Mooney's complaints upon his return to work in 

September 1980 regarding Sohio's alleged filing of false accident reports, 

the judge believed that the firs't element of a prima facie case had not 

been established, i.e., he believed that Mooney's complaints did not 

constitute protected activity because they were motivated by monetary 

rather than safety and health concerns. 

On review Mooney does not take issue with the judge's finding that the 

shale bulge incident did not motivate the operator in its discharge of Mooney. 

Therefore, we need not review this aspect of the judge's decision. 30 U.S.C. 

§ 823(d)(2)(A)(iii). However, the judge inappropriately hinged his 

determination of whether Mooney engaged in any protected activity on whether 

an adverse action resulted. Protected activity under the Act does not gain 

or lose protected status dependent upon whether an adverse action resulted. 

We believe, however, that the judge was simply trying to state with regard to 

the incident in April 1980, that Mooney's work refusal did not motivate the 

operator to discharge him in September 1980. To this effect the judge stated 

that Mooney's "concerns in this matter were apparently accepted as valid and 

another employee was assigned to perform the task," and the "firing occurred 

approximately five months later and the ladder incident alone would seem 

rather remote." Id. 4 FMSHRC at 443. 

We also find it unnecessary to address whether the judge erred in 

determining that Mooney's complaints upon his return to work were not 

protected simply because of their monetary basis. Even if we assume 

arguendo that Mooney's complaints were protected by the Mine Act, 

we conclude that the record amply supports the judge's conclusion that 

Sohio, whether in rebuttal or defense, successfully overcame Mooney's 

case and established that it terminated Mooney for legitimate business 

reasons. In this regard, the judge made the following relevant findings 

of fact. On two occasions shortly after the start of his employment and 

prior to his injury, Mooney was absent from work for one day for medical 

reasons and upon his return to work on each occasion he provided a 

doctor's note. (Findings of Fact Nos. 3 and 4; 4 FMSHRC at 441). On a 

third occasion prior to his injury, Mooney was absent for one day due to 

illness, but failed to provide a doctor's note upon his return. Mooney 

was given a written warning for this failure. (Finding of Fact No. 5; 

Id). The 'day after his return to work from disability Mooney was absent 

for one day for medical reasons, returned to work without a doctor's 

note, was given a second written warning and 3-day suspension, and 

was notified in writing that a third warning would result in termination. 

(Finding of Fact No. 13; 4 FMSHRC at 442). On the next day that he was 

scheduled to work, Mooney arrived late, was given a third warning and 

thus was terminated. (Finding of Fact No. 14; Id.). 
Under the Mine Act, an administrative law judge's findings of fact are 

to be affirmed if they are supported by substantial evidence. 30 U.S.C. 

§ 823(d)(2)(A)(ii)(I). The evidence supporting the above findings is 

not only substantial, it is largely uncontroverted. The judge further 

found that Sohio had established that it terminated Mooney for legitimate 

business reasons pertaining to Mooney's repeated violations of the 

operator's time and attendance policies; that Mooney was aware of these 

policies; and that the policies had been applied to Mooney consistently 

from the beginning of his employment and prior to his engaging in any 

protected activity. 4 FMSHRC at 444-45. Although Mooney argues for a 

different result and requests that contrary inferences be drawn from the 

circumstances surrounding his termination, on this record progressive 

discipline was established and we cannot say that the finding o.f the 

judge concerning the operator's motivation is not supported by substantial 

evidence or is otherwise contrary to law. J:./ 

Accordingly, the judge's decision finding that Sohio's discharge of 

Mooney did not violate section 105(c) of the Mine Act is affirmed insofar 

as it is consistent with this decision. 

Chairman 

L. Clair Nelson, Commissioner 

J:./ Our affirmance of the judge's conclusion that Mooney was discharged 

in conformity with company policy is not, as Mooney argues, inconsistent 

with a decision of an appeals referee of the State of New Mexico's Employment Security Department. Exh. C-4. In that decision, the appeals referee 

found that· the written policy at the mine required a doctor's note after 

an absence of two days. That decision also indicated, however, that a 

different policy requiring a note for one day's absence pertained in 

Mooney's section. For purposes of awarding state unemployment compensation, 

the referee held that Sohio's written policy controlled, and, therefore, 

that Mooney had not been discharged for "i!tisconduct" and was entitled 

to state unemployment benefits. The question presented under the Mine Act 

is not the same. Because the administrative law judge's conclusion that 

Mooney legitimately was discharged for violation of the mine operator's 

time and attendance policies, rather than for reasons protected by the 

Mine Act, is supported by substantial evidence, it must be affirmed. 

514 
Distribution 

Patrick J. Mooney 

2312 Alvarado NE 

Albuquerque, New Mexico 87110 

Derwood H. Rusher, II, Esq. 

Sohio Western Mining Company 

125 South Wacker Drive 

Chicago, Illinois 60606 

Robert Araujo, Esq. 

Sohio Western Mining Company 

69 West Washington Street, Suite 700 

Chicago, Illinois 60602 

Administrative Law Judge Virgil Vail 

Federal Mine Safety & Health Review Commission 

333 West Colfax Ave., Suite 400 

Denver, Colorado 80204 

515 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MsHA) 

on behalf of John Cooley 

v. 

OTTAWA SILICA COMPANY 

1730 K STREET NW, &TH· FLOOR · 

WASHINGTON, . D.C. 20006 

March 30, 1984 

Docket No. LAKE 81-163-DM 

DECISION 

This discrimination case arises under section 105(c) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1976 & 

Supp. V 1981), and involves a miner's discharge for refusing to perform 

an allegedly dangerous task. The Commission's administrative law judge 

held that the miner's work refusal was protected and that his discharge, 

by Ottawa Silica Company ("Ottawa") violated the Mine Act. The judge · 

ordered reinstatement with back pay and benefits, without interest. The 

judge also denied, without prejudice, the Secretary of Labor's request 

for assessment of a civil penalty in this proceeding. 4 FMSHRC 1013 

(June 1982)(ALJ). For the reasons that follow, we affirm the judge's 

finding of a violation and his severance of the civil penalty proceeding. 

However, we vacate the judge's back pay and benefits award and remand 

for a recomputation of the amount due the complainant. 

Ottawa mines and processes silica sand at its Michigan Division 

Quarry, where the events at issue occurred. The operation involves the 

drying of wet sand in a large natural gas-fired.dryer. The dryer has an 

electric spark plug that ignites the pilot light. The pilot ignites the 

flame of the main burner. These operations are usually performed from a 

control panel located approximately ten feet from the ignition area. At 

times, during 1979 and 1980, difficulties in lighting the dryer occurred 

when the electric spark plug failed to ignite the pilot light. On these 

occasions, the pilot was ignited manually. 

Manual lighting required two people, one at the control panel and 

another who would hold a piece of burning paper to the pilot. To light 

the pilot a worker would climb eight feet above the floor to a metal 

walkway which surrounded the dryer. The pilot was 54 inches away from 

516 
the closest vantage point on the walkway. There was an opening between 

the pilot and this point on the walkway called a floor-hole, which was 

two feet wide. In order to reach the pilot a worker had to lean or 

climb over the guardrail on the walkway. Then, while reaching over the 

floor-hole, the worker would touch the burning paper to the pilot. 

John Cooley, the complainant, had been employed by Ottawa as a 

laborer for eighteen months prior to his discharge in May 1980. During 

his employment with Ottawa, Cooley had a history of absenteeism, work 

refusals, and insubordination, and was nearing the conclusion of a oneyear disciplinary probation when he was discharged. As noted above, at 

the time in question, the pilot light on the dryer did not always ignite 

automatically. When this occurred, a second worker, usually a laborer, 

was called to assist the dryer operator by igniting the pilot with 

burning paper. Cooley testified that he had been instructed in this 

method by two supervisors, including David Chalmers, his foreman at the 

time of his discharge. Cooley had been directed to ignite the pilot 

manually on over 30 occasions. Cooley testified that he complained 

throughout this period to his foreman, as well as to the dryer operators, 

that this was an unsafe procedure. 

Cooley eventually bid on the job of dryer operator. When Cooley 

won the bid on the dryer, he was assigned a five-day training period in 

April 1980, with an experienced operator, Marvin Phelps. During his 

training the pilot had to be ignited manually on several occasions. 

Cooley was again assigned to light the pilot with burning paper, while 

Phelps worked the control panel. On every occasion Cooley complained to 

Phelps that the manual lighting procedure was unsafe. 

On Friday, May 2, 1980, the last day of Cooley's five-day training 

period, the dryer was down when the shift started. Shortly before 

lunch, Cooley had to manually light the pilot. He testified that in 

doing so, he singed the hair on the knuckles of his right hand. He was 

very angry and wanted to confront management. He testified that he 

calmed himself down, realizing that he was on probation. He decided, 

however, that he would not manually light the pilot again. Under 

Ottawa's collective bargaining agreement with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and ·Helpers of America, 

Cooley was permitted to withdraw his bid during the training period. 

Because of his general dissatisfaction with the dryer operator's job, 

Cooley voluntarily withdrew his bid. Cooley so informed Chalmers, who 

agreed. Cooley told Chalmers he would return to working as/a laborer 

after lunch. 

Later that day, after having returned to his work as a laborer, 

Cooley was in the lunchroom when he received a telephone call from 

Chalmers, who told him to manually light the pilot on the dryer. Cooley 

testified that he innnediately cursed. Cooley told Chalmers, however, 

that he was not cursing at him but that he would not light the pilot. 

He also said that if that were the proper way to light the pilot, the 

dryer would have been supplied with "a carton of matches and a bale of 

paper." Cooley reiterated this position in the face of renewed demands 

by Chalmers, who reminded him that he was still on probation. Chalmers 

then told Cooley to meet him at his office but Cooley replied that he 

would be in the lunchroom. 

517 
Chalmers· met Cooley in the lunchroom and again ordered him to light 

the dryer manually. After a brief exchange, Chalmers stated that he did 

not want to hear Cooley's explanation and ordered Cooley off company 

property. Before leaving, Cooley met with his union steward, Kenneth 

Stumpmier, a former dryer operator. Cooley told Stumpmier that he was 

being sent home because of his refusal to light the pilot for safety 

reasons. Stumpmier attempted to talk to Chalmers about Cooley's work 

refusal after Cooley left but Chalmers refused to discuss the matter. 

On Monday, May 5, 1980, Hilliard Bentgen, Ottawa's Industrial 

Relations Supervisor, discussed Cooley's behavior with Chalmers. Under 

Ottawa's personnel policies only Bentgen had authority to discharge an 

employee. Bentgen also met with Cooley and Stumpmier and discussed 

Cooley's safety concerns. In response to an inquiry by Bentgen, 

Stumpmier stated that he also would not light the pilot manually because 

it was unsafe to do so. 

Bentgen discharged Cooley by letter dated May 6, 1980. The letter 

explained that Cooley was discharged because of his previous disciplinary 

problems, his refusal to follow the instructions of Chalmers, and his 

use of foul and abusive language in speaking with Chalmers. 

In his decision, the Commission's administrative law judge concluded that Cooley engaged in a protected work refusal. The judge 

determined that Cooley had a good faith, reasonable belief that manually 

lighting the dryer was unsafe and exposed him to possible injury. The 

judge also found that the practice of lighting the pilot with a burning 

piece of paper was, in fact, unsafe. He rejected Ottawa's contention 

that Cooley communicated his safety concerns only after his refusal to 

work and concluded that Cooley had consistently complained that the 

procedure was unsafe. The judge noted that it was uncontested that 

Cooley's concerns were clearly expressed to Bentgen before Bentgen's 

decision to discharge. He held that the communication made by Cooley 

regarding his safety concerns fell within the test enunciated in 

Secretary on behalf of Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 

126 (February 1982). 

Finally, the judge rejected Ottawa's contention that Cooley was 

discharged because of his profanity toward his supervisor. First, he 

held that Cooley's use of profanity was part of the protected work 

refusal. Second, he held that the "[t]estimony and evidence adduced ••• 

[did] not support a conclusion that the respondent would have fired Mr. 

Cooley for the manner in which he communicated his work refusal to his 

supervisor." 4 FMSHRC at 1048. The judge noted the absence of evidence 

that Cooley or any other employee had ever been disciplined for using 

profanity. He also noted testimony that Cooley's "cursing" was directed 

at the method of lighting the dryer, not at Chalmers, and that Ottawa's 

assertions that Cooley used "vile," "foul," and "abusive" language were 

based on Chalmers' report to Bentgen. Chalmers, who had been discharged 

for poor work performance, did not testify at the trial below. The 

judge, therefore, held that Cooley's discharge violated the Mine Act. 

518 
Under the analytical guidelines established in Secretary on 

behalf of Pasula v. Consolidation Coal Corp., 2 FMSHRC 2786 (October 

1980), rev'd on other grounds sub !!.2!!!· Consolidation Coal Corp. v. 

Marshall, 663 F.2d 1211 (3d Cir. 1981), and Secretary on behalf of 

Robinette v. United Castle Coal Company, 3 FMSHRC 803 (April 1981), a 

prima facie case of discrimination is established if a miner proves by 

a preponderance of the evidence that (1) he engaged in protected activity 

and (2) the adverse action against him was motivated in any part by that 

protected activity. If a prima facie case is established, the operator 

may defend affirmatively by proving that the miner would have been 

subject to the adverse action in any event because of his unprotected 

conduct alone. See NLRB v. Transportation Management Corp.,~- U.S. 

~' 76 L.Ed.2d 667 (1983). 

As explained in Robinette, a work refusal is protected under section 

105(c) only when the miner has a good faith, reasonable belief in a 

hazardous condition. Good faith in this context simply means an honest 

belief that the hazard exists. Accompanying the good faith requirement 

is the additional requirement that the belief in a hazard be a reasonable one under the circumstances. Good faith and reasonableness may be 

determined by evaluating all the evidence for detail, inherent logic and 

overall credibility. Robinette, 3 FMSHRC at 807-12. 

Ottawa challenges the judge's finding that Cooley had a reasonable 

belief that lighting the dryer manually was hazardous. Substantial 

evidence supports the judge's conclusion that Cooley's belief in this 

hazard was reasonable. The judge concluded that Cooley singed his hand 

and that this incident verified for Cooley his concerns over the manual 

lighting. The other dryer operators, while personally unconcerned with 

the danger, nonetheless respected Cooley's belief concerning the danger 

of the lighting procedure and did not find his reluctance unreasonable. 

Further, while there is no requirement that the reasonableness of Cooley's 

belief be verified objectively (Robinette, 3 FMSHRC at 811-12), the 

judge concluded that the practice was in fact unsafe, and substantial 

evidence supports that determination. We conclude that nothing in the 

record warrants reversal of the judge's conclusion that Cooley's belief 

in the hazard was reasonable. 

Ottawa also challenges the judge's finding on good faith. Substantial 

evidence supports the judge's finding that Cooley acted in good faith. 

The judge acknowledged Cooley's troubled work history, short temper and 

lack of self-restraint, but found him to be a credible witness. 4 

FMSHRC at 1045. The record is replete with references to Cooley's 

concerns over lighting the pilot manually, including complaints to 

Chalmers. It was the singing of Cooley's hand that prompted him to vow 

not to perform the task again. In the final analysis, the judge's 

finding that Cooley possessed a good faith belief in the hazard is based 

essentially on credibility resolutions, and we discern nothing in the 

record warranting reversal of that resolution. 

5,19 
Ottawa also asserts that Cooley did not communicate the safety 

related basis for his work refusal to his employer on a timely basis, as 

required by ·Dunmire and Estle. While Dunmire and Estle states a preference 

for contemporaneous communication, it also contemplates a reasonable 

attempt to communicate even after the work refusal, if the circumstances 

so warrant. 4 FMSHRC at 133. Ottawa's position ignores the effect of 

Chalmers' actions. The testimony is uncontroverted that when Chalmers 

and Cooley met in the lunchroom, moments after Cooley's initial refusal 

over the telephone, Cooley attempted to raise the safety of the procedure 

as a concern. Chalmers refused to listen, saying "I don't care. I 

don't care. I don't care. I want you off the property." Tr. 31. 

Chalmers' refusal to consider the reason for Cooley's actions was compounded by Chalmers' subsequent refusal to discuss Cooley's safety 

concerns with Stumpmier, the union steward. With the contemporaneous 

attempts to communicate made futile, the discussion with Bentgen on 

Monday, May 5, was the first opportunity for Cooley to present his 

concerns clearly. 

Ottawa has continually argued that Cooley concocted his safety 

concern over the weekend to save his job. However, the judge found that 

Cooley's history of complaints about the manual lighting procedure to 

his foreman and other dryer operators, including complaints during his 

training period, indicated a genuine and reasonable concern. The only 

evidence in the record to support a fabrication theory is the lapse of 

time over the weekend. We are persuaded that Cooley's previous statements, 

along with his inarticulate expressions of the basis for his refusal at 

that time, overcome the allegations of fabrication. 

On the basis of the above, Cooley showed that he engaged in protected activity, the first element necessary to prove a prima facie 

case. As to the second element of a prima facie case, Ottawa does not 

contest that Cooley's discharge was motivated in part by Cooley's refusal 

to work. The discharge letter from Bentgen stated that Cooley was being 

discharged in part because he had refused to follow the instructions of 

his foreman. Therefore, the element of motivation was proved and Cooley 

established a prima facie case of discrimination. 

Ottawa defended below and argues before us that Cooley's use of 

profanity toward his supervisor was a separable, unprotected action 

which would have resulted in Cooley's termination in any event, regardless of the work refusal. The Secretary of Labor argues that because 

the profanity was part of the communication of the refusal to work, it 

was part of the protected activity itself. The judge agreed with the 

Secretary's position, and found that the use of profanity during the 

telephone conversation in such a context was part of the protected work 

refusal. 4 FMSHRC 1047. We do not agree that the profanity was protected but we hold that Ottawa did not establish that it would have 

discharged Cooley for that reason alone. 

The right to refuse to work is not explicit in the Mine Act. In 

Pasula, we found that right to exist on the basis of the entire statute, 

statements of legislative intent and legislative history. We did not 

discern then, and we do not now, any foundation for protection of profanity or other opprobrious conduct, whether occurring contemporaneously 

520 
with or subsequent to a refusal to work. See Robinette, 3 FMSHRC at 

817, and Secretary on behalf of Bush v. Un~ Carbide Corp., 5 FMSHRC 

993, 997 (June 1983). Thus, because opprobrious conduct is not protected, the operator may show that such conduct motivated the adverse 

action, and that it would have taken such action against the miner in 

any event for that unprotected conduct alone. 

The close nexus between Cooley's swearing and his work refusal 

complicates this case. Therefore, the "in any event" test may be best 

applied by envisioning Ottawa's response to the situation without a work 

refusal, i.e., did Ottawa prove that it would have discharged Cooley if 

the events had occurred exactly as they did, except that Cooley had 

proceeded to light the pilot? 

Ottawa's discharge letter to Cooley clearly identified his•use of 

profanity as one motivating factor in his discharge. Ottawa therefore 

showed that it was, in part, also concerned by Cooley's use of profanity. 

However, in order to prevail Ottawa must also prove the second element 

of its affirmative defense--that it would have taken adverse action 

against Cooley in any event for this unprotected activity alone. The 

judge concluded that Ottawa did not carry its burden. We agree and 

find that substantial evidence supports the judge's conclusion. 

The record is clear that Cooley was less than an ideal employee. 

He had been discharged, reinstated on probationary status and suspended 

during that probationary period for insubordination. Bentgen testified 

that, given Cooley's record, Cooley would have been discharged for the 

use of profane language alone. However, there are countervailing 

factors on which the judge relied. Despite Cooley's disciplinary 

history, there is no evidence that Ottawa considered his difficulties to 

involve profanity. Further, there is no evidence that anyone had ever 

been disciplined by Ottawa for swearing or that the operator had a 

policy prohibiting swearing, either generally or at a supervisor. 

In addition, by Cooley's own admission the swearing came first, yet 

Chalmers did not threaten discipline then. Only when Cooley refused to 

light the pilot did Chalmers threaten to discipline him. Three times 

Chalmers attempted to get compliance by reminding Cooley that he was on 

probation. If the swearing had been of significant concern, it is 

unlikely that Chalmers would have repeatedly requested that Cooley light 

the dryer. Immediately after the incident, Chalmers told Stumpmier that 

he had sent Cooley home because of his refusal to light the dryer and 

that this was the reason he would recommend Cooley's discharge. He 

never mentioned Cooley's profanity in this discussion. 

521 
We recognize that Cooley's previous discipline involved incidents 

of possible insubordination involving work refusals. At the time of the 

dryer pilot incident, Cooley had not yet completed his one-year probation 

and was clearly at risk for any future acts of insubordination. The 

judge could have concluded that Ottawa proved that Cooley's language was 

a separate and serious basis for discharge. However, the judge concluded: 

After careful review of the record, I conclude and 

find that the testimony and evidence adduced in this 

case does not support a conclusion that the respondent 

would have fired Mr. Cooley for the manner in which 

he communicated his work refusal to his supervisor. 

4 FMSHRC at 1048. We conclude that substantial evidence supports the 

judge's interpretation of the evidence and his rejection of Ottawa's 

position. 

In conclusion, we find substantial evidence in the record to support 

the judge's conclusion that Cooley engaged in a protected work refusal 

and that his termination, based in part on that protected activity, 

violated section 105(c) of the Mine Act. Ottawa did not prove that it 

would have discharged Cooley in any event for his unprotected use of 

profanity and is therefore liable for its unlawful action. 1/ 

Issues remain concerning the judge's remedial order. The judge 

ordered Cooley reinstated with back pay but failed to award interest. 

The back pay award was based on data submitted by the Secretary, which 

utilized the dryer operator's rate of pay. Ottawa alleges that such 

calculations are in error because Cooley was a laborer at the time the 

discharge occurred. The Secretary argues that the awaLd should have 

included interest. 

The record reflects, and the judge held, that Ottawa discriminated 

against Cooley by discharging him. The Secretary's case did not involve 

allegations that Cooley's withdrawal of his bid for the operator's job 

resulted from discrimination. Cooley's testimony shows that he withdrew 

his bid for numerous reasons which did not involve the lighting procedure. 

Tr. 44-45, 64-65, Cooley Deposition 3-7. Cooley had voluntarily withdrawn his bid, without retaliation or conflict, before the incident that 

resulted in his illegal discharge. The record does not support a conclusion that the withdrawal of his bid in any way affected the events 

ll We note that Ottawa prohibited manual lighting of the dryer after 

the events in this case. It would thus appear that this dispute will 

not arise again. 

522 
leading up to or surrounding his discharge. Thus, Cooley had returned 

to ~is laborer's job when on May 2, as had happened in the past, he was 

again directed to manually light the dryer's pilot. Therefore, he 

should be reinstated to the position and pay rate he would have held but 

for the discrimination: that of laborer. Despite Ottawa's failure to 

respond to the judge's direction that the parties address remedy, 2/ it 

was error for the judge to fashion a remedy so clearly at odds with his 

findings and the evidence. Accordingly, we vacate the judge's award 

based on the dryer operator's pay rate and remand to the judge for the 

limited purpose of calculating a back pay award consistent with Cooley's 

status as a laborer at the time the unlawful discrimination occurred. 

Further, we hold that, under the circumstances of this case, the 

judge erred in awarding to Cooley an increment of 52% of the back pay 

award to cover unspecified benefits. It is unlikely that Cooley would 

be made whole by receipt of a cash payment for loss of pension contributions. Retroactive payment to the appropriate fund, to insure that 

there is no break in service or related abrogation of pension rights 

that would have accrued but for the illegal discharge, would appear to 

be the appropriate remedy. See NLRB v. Strong, 393 U.S. 357, 358-60 & 

n. 4 (1968). Different treatment of health care benefits may also be 

required in order to make Cooley whole. Thus, on remand, the judge is 

to afford the parties an opportunity to present any argument and additional relevant evidence to insure that the remedy assumes a make-whole 

character. 

The Secretary challenges the failure of the judge to award interest 

on the back pay. As we held recently, "Unless compelling reasons point 

to the contrary, the full measure of relief should be granted to a 

[discriminatee] •••• Included in that 'full measure of relief' is 

interest on an award of back pay." Secretary on behalf of Bailey 

v. Arkansas-Carbona Co., 5 FMSHRC 2042, 2049 (December 1983)(citations 

omitted). In Arkansas-Carbona, we established a formula for the computation of interest. In general, we contemplated only a prospective 

application of the Arkansas-Carbona interest formula. 5 FMSHRC at 2054. 

However, in this case, the judge failed to award any interest. This is 

inconsistent with the Mine Act because it penalizes Cooley without 

cause. Accordingly the case is remanded for computation of interest 

pursuant to the Commission's interest formula set forth in ArkansasCarbona. 

]:_/ Ottawa was ordered by the judge to address the appropriate back pay 

remedy in its post-trial brief. It failed to do so. A party is precluded by the terms of the Mine Act from raising issues on review that 

it did not raise below. 30 U.S.C. § 823(d)(2)(A)(iii)(Supp. V 1981). 

Were it not for the fact that, as discussed above, the utilization of 

the dryer operator's rate is totally without support in the record, 

Ottawa would be bound by the judge's award. 

52~ 
The' final issue in'this case is the Secretary's challenge to the 

judge's severance, without prejudice, of the civil penalty proceeding 

from the discrimination case. In Arkansas-Carbona we.approved the 

judge's severing of the Secretary's proposal for civil penalty from the 

underlying discrimination proceeding because the proposal was vague and 

unsupported by i~formation on the section llO(i) criteria for assessing 

a penalty. 30 u.s.c. § 8iO(i). We held in that case that the Secretary 

should henceforth include'a penalty request in the discrimination 

complaint, supported by allegations concerning the appropriate factors 

sufficient to give the operator notice of the basis for the proposed 

pen~lty.. 5 ·F;MSRHC'·at 2044-fi.8. We Aave since promulgated an interim 

procedural rule requiring this approach. Commission Interim Procedural 

Rule 42(b). 49 Fed. Reg. 5750 (1984)(to be codified at 29 C.F.R. 

2700.42). 

The present case was filed before the decision in Arkansas-Carbona 

and in many respects is similar to that case. The Secretary's complaint 

made only a naked request "for an order assessing an appropriate civil 

penalty against the respondent for violating section 105(c) of the Act." 

The only evidence specifically introduced by the Secretary on the 

penalty question was a computer printout of Ottawa's citation history 

and the size of Ottawa's Michigan division. Only in the Secretary's 

post-hearing bri~f w_as a dol.lcir figure for the penalty proposed. These 

facts reveal even less notice to the operator concerning the penalty 

issue than was the case in Arkansas-Carbona. As we stated in affirming 

the judge's actions in that case: 

Because the Secretary did not provide in his 

complaint sufficient notice to the operator of the 

amount of the penalty sought and the basis therefor, 

we ~annot say that the judge erred in severing the 

penalty proposal in order to provide such notice to 

the operator. Nor do we see the utility of a remand 

to allow the Secretary to amend his complaint. The 

judge's approach to the Secretary's inadequate proposal is consistent with the Act's notice requirement •••• 

5 FMSHRC at 2048. There is no reason to take a different approach in 

this case and we therefore affirm the judge's severance of the civil 

penalty proceeding. 

For the foregoing reasons, we affirm the judge's conclusion that 

Ottawa violated section 105(c)(l) of the Mine Act by discharging Cooley. 

Having so found, we order Cooley's immediate reinstatement to his 

position of laborer if such action has not been previously taken. 

We vacate the judge's award of back pay at the dryer operator's 

524 
rate and remand for recomputation of back pay at the laborer's rate with 

reconsideration of the treatment of fringe benefits. The judge shall 

award interest under the principles and methodology of Ar~nsas-Carbona. 

Lastly, we affirm the judge's severance of the request for a civil 

penalty from the merits of the discrimination case. 1,/ 

L. Clair Nelson, Conunissioner 

' 

3/ Ottawa has challenged the Commission's jurisdiction in this case, 

citing as its basis for this argument the enactment of H.R.J. Res. 370, 

Pub. L. No. 91-92, § 131, 95 Stat. 1183, 1199 (1981), during the hearing 

in this case. This enactment was a Continuing Resolution on appropriations, which included a prohibition against expenditures by the 

Department of Labor's Mine Safety and Health Administration ("MSHA") to 

enforce the Mine Act in sand, gravel, and crushed stone mining operations. 

That prohibition only affected MSHA's funding. The Conunission is a 

separate and independent federal agency, not connected to or part of the 

Department of Labor. At the time of the Resolution's passage, this case 

had already been filed with the Commission and the Commission had independent authority to resolve the issues. See generally Climax Molybdenum Co. 

v. MSHA and OCAW, 2 FMSHRC 2748, 2750 (October 1980), aff'd sub nom. 

Climax Molybdenum Co. v. Secretary of Labor, 703 F.2d 447 (10th Cir. 

1983). (In July 1982, supsequent to the hearing in this case, H.R.J. 

Res. 370.was superseded, and MSHA's previous enforcement authority over 

sand, gravel, and crushed stone operations was re-established.) 

525 
Distribution 

Frank X. Fortescue, Esq. 

Brown, McGlynn• tortescue & Smith 

500 North Woodward, Suite 320 

Bloomfield Hills, Michigan 48013 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge George Koutras 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

526 
Al)M1Nl$TIATIVE LAW JUI)GE DECISIONS 

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, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner Docket No. WEVA 83-277 

A.C. No. 46-02166-03517-A 

v. 

. . Beckley No. 1 Mine 

ROBERT G. MILLER, 

Respondent 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

The parties have moved for approval of settlement by 

payment of the civil penalty ($750) proposed in the petition. 

Grounds for the motion may be summarized as follows: 

1. This is a civil penalty proceeding brought under 

section llO(c) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. 820(c), against Respondent as an individual 

agent of Ranger Fuel Corporation, the operator of the Beckley 

No. 1 coal mine located in Bolt, Raleigh County, West Virginia. 

On the date in question, February 10, 1982, Respondent was 

acting as general labor foreman at said mine. 

2. On February 10, 1982, MSHA issued Citat~on No. 

1061681 under section 104(a) of the Act to Ranger Fuel 

Coroporation, citing a violation of a mandatory safety standard, 

30 CFR §48.7(c), as follows: 

It was revealed during a fatal track haulage 

accident that Bob Miller, foreman, as.signed 

William Hall, Jr., a general inside laborer, 

to assist Lee Hackworth, mine locomotive 

operator, in moving a piece of mining equiprqent 

(longwall roof support jack) from the end 

of the (013) longwall section mine track 

to the mouth of the section, a distance 

of about 2,000 feet. The roof support 

jack was being pulled by a mine locomotive 

on which Hall was assigned to ride. Hall 

was not given instructions in the health 

and safety aspects and safe work procedures 

related to the assigned task prior to pertorming 

such task. The investigation revealed 

that Hall had not performed this task o~ 

demonstrated safe work procedures for such 

task within the last 12 months. An examination 

of the training records revealed Hall had 

not been trained in such task. 

52_·''-
3. On June 28, 1983, the corporate mine operator, 

Ranger Fuel Corporation, paid an uncontested civil penalty 

assessment of $2,000.00 for the foregoing violation under 

MSHA Assessment Office Case No. 46-02166-03514. 

4. On August 30, 1982, ·pursuant to 30 CFR Part 100, 

· a proposed civil penalty assessment of $750. 00 was issued 

by the MSHA Assessment Office to Respondent under A.O. . Case No. 46-02166-03517-A for knowingly authorizing, ordering, 

or carrying out the foregoing violation as an agent of the 

corporate mine operator under section llO(c) of the Act. 

5. On September 19, 1983, Respondent filed a notice of 

.contest of said proposed assessment, resulting in this 

proceeding. However, Respondent now no longer wishes to 

contest the subject case and has tendered a check in the 

amount of $750.00 in full payment and settlement of the 

proposed civil penalty assessment and as a plea. of no 

contest entered herein for the purposes of this proceeding 

under this Act only, and not as an admission in any other 

proceeding. 

I find that the motion for settlement is consistent 

with the statutory criteria for civil penalties. Accordingly, 

the motion is GRANTED. 

ORDER 

WHEREFORE IT IS ORDERED ·that Respondent shall pay the 

above approved civil penalty of $750.00 and upon such payment 

this proceeding is DISMISSED. 

Distribution: 

~) t1 .. ·1 .. c,(/.#,~ ftwVi!--1- William Fauver 

Administrative Law Judge 

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

of Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203 

(Certified Mail) 

John c. Ashworth, Esq., Ashworth & Ashworth, P.O. Drawer AA, 

Beckley, West Virginia 25802-2824 (Certified Maill 

kg 

528 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

THE HELEN MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

HELEN MINING COMPANY, 

Respondent 

DECISIONS 

MAR 61984 

CONTEST PROCEEDINGS 

Docket No. PENN 83-200-R 

Citation No. 2111715; 5/25/83 

Docket No. PENN 83-201-R 

Citation No. 2111718; 6/1/83 

Docket No. PENN 83-202-R 

Order No. 2111719; 6/1/83 

Docket No. PENN 83-203-R 

Order No. 2111720; 6/1/83 

Horner City Mine 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 83-232 

A.C. No. 36-00926-03532 

Horner City Mine 

Appearances: Thomas c. Means, Esq., Crowell & Moring, 

Washington, D.C., for Contestant/Respondent; 

Catherine O. Murphy, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, 

for Respondent/Petitioner. 

Before: Judge, Koutras 

Statement of the Proceedings 

These consolidated proceedings were heard in Pittsburgh, 

Pennsylvania during the term November 8-9, 1983. The civil 

penalty docket concerns proposals for assessment of civil 

529 
penalties filed by the petitioner against the respondent 

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

Health Act of 1977, seeking penalty assessments for four 

alleged violations of certain mandatory safety standards 

promulgated under the Act. The contests were filed by the 

contestant to challenge the legality of one citation and 

three orders issued pursuant to section 104(d) (1) of the Act. 

Issues 

The issues presented in Dockets PENN 83-200-R, 83-201-R, 

83-202-R, and 83-203-R, are whether the conditions or practices 

cited by the inspector constituted violations of the cited 

mandatory safety standards, and whether or not the violations 

were "unwarrantable" and "significant and substantial." 

Assuming that the fact of violation is established in 

each of the above dockets, the remaining Docket, PENN 83-232, 

concerns the appropriate civil penalties to be imposed for 

each of the violations after taking into account the requirements 

of Section llO(i) of the Act. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, P.L. 

95-165, 30 U.S.C. § 801 et seq. 

2. Commission Rules, 29 CFR 2700.1 et ~ 

Docket No. PENN 200-R 

This docket concerns a Section 104(d) (1) Citation No. 

2111715, issued by MSHA Inspector Lloyd D. Smith at 9:10 a.m., 

on May 25, 1983. He cited a violation of mandatory safety 

standard 30 CFR 75.1722(c), and the condition or practice 

is described as follows on the face of the citation: 

A portion of the guarding provided at the 

6 East Crossover belt drive on the clearance 

side was laying on the mine floor and the 

lower half of the fan blades on the drive 

motor were exposed because part of the 

protecting shroud had been broken off exposing 

the moving fan blades. 

Inspector Smith found that the violation was "significant 

and substantial," and that the negligence by the mine operator 

was "High." 

530 
Inspector Smith fixed the termination date for the 

citation as May 25, 1983, 10:00 a.m., and he stated that if 

was terminated at 9:55 a.m. that day, and that "The guarding 

was put back in place securely." 

Docket No. PENN 83-201-R 

This docket concerns a Section 104(d) (1) Order No. 2111718, 

issued by MSHA Inspector Lloyd D. Smith on June 1, 1983. He 

cited a violation of mandatory safety standard 30 CFR 75.500(a), 

and the condition or practice is described as follows on the 

face of the order: 

A nonpermissible switch box was being 

used to supply electric power to a water 

pump located in a working place, crosscut 

No. 8 to No. 9 room of the D-Butt, 040 Section. 

This violation occurred on a previous shift. 

Inspector Smith noted that the violation was "significant 

and substantial," and he marked the appropriate negligence 

block on the citation form "Reckless Disregard." He also 

made reference to a previous section 104(d) (1) Citation No. 

2111715, which he issued on May 25, 1983. 

Docket No. PENN 83-202-R 

This docket concerns~ Section 104(d) (1) Order No. 2111719, 

issued by MSHA Inspector Lloyd D. Smith at 9:15 a.m., on 

June 1, 1983. Mr. Smith cited a violation of mandatory safety 

standard 30 CFR 75.200, and the condition or practice is 

described as follows on the face of the Order: 

The approved roof control plan was not 

being complied with in the D-Butt 040 Section 

in that mining operations had been completed 

in a crosscut No. 8 to No. 9 room, the 

mining machine had been removed and warning 

signs had not been installed to warn persons 

that the mine roof was unsupported in this 

area. The violation occurred on a previous 

shift. 

Inspector Smith did not find that the violation was 

"significant and substantial," but noted the negligence as 

"high" on the face of the order, that "the occurrence of the 

event against which the cited standard is directed was unlikely, 

and that any resulting injury would be "no lost workdays." 

As for the abatement of the cited condition, Mr. Smith noted 

that the order was terminated at 9:25 a.m., on June 1, 1983, 

and that "the warning signs were installed in the affected 

area." 

531 
Doc~et No. PENN 83-203-R 

This docket concerns a Section 104(d) (1) Order No. 

2111720, issued by MSHA Inspector Lloyd D. Smith at 9:17 a.m., 

on June 1, 1983. Mr. Smith cited a violation of mandatory 

safety standard 30 CFR 75.200, and the condition or practice 

is described as follows on the face of the order: 

It was evident that a person or persons 

had worked inby the permanent roof supports 

in a crosscut No. 8 to No. 9 room in the 

D-Butt, 040 Section in that a permissible 

type water pump had been installed 3 feet 

inby the last row of installed roof bolts 

and there were no temporary roof sup~orts 

installed in this working place to permit 

the installation of the pump. This 

violation occurred on a previous shift. 

Inspector Smith noted that the violation was "significant 

and substantial," and marked the appropriate negligence 

block on the citation form "High." He also made reference 

to his previous section 104(d) (1) Citation No. 2111715, 

which he issued on May 25, 1983. 

Inspector Smith noted that Citation No. 2111720 was 

terminated on June 1, 1983, at 9:45 a.m. and that "The pump 

was removed by dragging it out with the discharge line cut 

power cable." 

Stipulations 

The parties stipulated to the following: 

1. The Helen Mining Company owns and operates the 

Horner City Mine and both are subject to the jurisdiction of the Federal Mine Safety and Health Act of 

1977, Public Law 91-173, as amended by Public Law 

95-164 (Act) . 

2. The Administrative Law Judge has jurisdiction 

over this proceeding pursuant to Section 105 of 

the 1977 Act. 

3. The subject Citation No. 2111715 and Order Nos. 

2111718 and 2111720, were properly served by a duly 

authorized representative of the Secretary, Lloyd Smith. 

4. Copies of Citation No. 2111715, Order No. 2111718 

and Order No. 2111720 (attached to the Petition for 
Assessment of Civil Penalty) are authentic copies 

of the original citations and orders. 

4a. Copies of all documents offered and received 

by the parties as part of the hearing record in 

these proceedings are authentic copies of the 

original documents. 

5. The assessment of a civil penalty in this 

proceeding will not affect the operator's ability 

to continue in business. 

6. The computer printout reflecting the operator's 

history of violations is an authentic copy and may 

be admitted as a business record of the Mine Safety 

and Health Administration. 

7. The appropriateness of the penalty, if any, to 

the size of the coal operator's business should be 

determined based on the fact that the Homer City 

Mine has an annual production of 1,043,911 tons 

and Helen Mining Company has an annual production 

of 13,414,096 tons. 

8. The operator demonstrated a good faith effort 

to comply following issuance of Citation No. 2111715, 

Order No. 2111710 and Order No. 2111720 by taking 

immediate action to correct the cited conditions. 

PENN 83-200-R, Citation No. 2111715 

1. A guard was not securely in place over the lower 

portion of the ~an blades on the drive motor of a 

conveyor belt while the belt was being operated, in 

violation of 30 CFR 75.1722(c), ·on May 25, 1983, at 

the 6 East crossover belt drive of the Homer City 

Mine. 

2. The operator demonstrated ordinary negligence 

in failing to detect and correct the condition 

described in Citation No. 2111715. 

3. If an injury were to occur as a result of the 

violation described in Citation No. 2111715, it 

would be a serious injury. 

PENN 83-201-R, Order No. 2111715 

1. A nonpermissible switch box, which is the 

subject of Order No. 2111718, was located in the 

working place, inby the last open crosscut, No. 8 

to No. 9 room, 040 Section on June 1, 1983. 

533 
2. Two electrical power cables were connected 

to the subject nonpermissible switch box. One 

of these electrical cables was connected to a pump, 

the other cable extended a distance of approximately 

300 feet from the connection at the switch box 

to the power center. 

3. The power cable which led to the power center 

was not energized at the time Order No. 2111718 

was issued. 

4. The power cable which led from the switch box 

to the power center was not "tagged out" or labelled 

in any manner to indicate that it should not be 

energized. 

Docket PENN 83-200 

MSHA's testimony and evidence 

MSHA Inspector Lloyd Smith testified as to his background 

and experience, and he confirmed that he inspected the mine 

on May 25, 1983, and issued a Section 104(d) (1) citation for 

a violation of mandatory standard 75.1722(c), (exhibit G-1). 

He stated that he issued the citation after observing that the 

belting used for guarding the belt conveyor drive was lying 

on the floor. The belt drive was operating at the time he 

observed the condition, and he confirmed that he observed 

the protective shroud used to guard the lower half of the 

drive motor was broken off (Tr. 9-14). 

Inspector Smith identified exhibit J-2(a) as a photograph 

of the missing portion of the protective shroud used to guard 

the motor fan blades, and he identified exhibit J-2(d) 

as a photograph of the guarding which was off the equipment 

in question. He stated that he believed the violation to 

be "significant and substantial" because the protective 

belting which was lying on the floor was wet and slippery 

and if someone were to slip on it they would possibly fall 

into the unguraded opening on the metal motor fan blades 

(Tr. 18). He also considered the wet belting lying on the 

floor to be a tripping hazard (Tr. 19), and he confirmed 

that the person exposed to possible injury would be the 

preshift or belt examiner who walked the belt (Tr. 20). 

Inspector Smith indicated that abatement was achieved by 

installing a wooden support near the motor drive and nailing 

the belting back up (Tr. 21). 

534 
On cross-examination, Inspector Smith testified as to 

certain "cap lamps" which he observed at some distance in 

the No. 6 East Belt Haulage area, and he estimated that 

theythey were approximately 200 feet from the location of 

the unguarded drive motor (Tr. 24). He confirmed that the 

motor in question was partially guarded, and he indicated 

that his only concern was over the fact that the belt guarding 

normally used to guard the drive motor was lying on the floor 

(Tr. 27). 

Mr. Smith conceded that production crews would not 

normally be in the area of the unguarded belt motor. He 

also conceded that a clearly defined walkway, with "very 

good clearance" was located adjacent to the unguarded motor 

area (Tr. 28). He also confirmed that there were no coal 

accumulations in the area around the motor in question (Tr. 33). 

Mr. Smith stated that a preshift belt examiner would have 

occasion to be in the area in question because he would 

place the time, date, and his initials on the belting to 

confirm that he had examined the area (Tr. 35). 

In response to further questions, Mr. Smith testified 

that he observed footprints on the belting lying on the floor, 

and that this indicated to him that someone had walked across 

the belting while in that position (Tr. 37). He confirmed 

that the unguarded motor opening area which he was concerned 

about was approximately 26 inches, and he stated that he 

measured the distance and identified it on exhibit J-2 

(Tr. 38-41) . 

In response to additional questions, Mr. Smith confirmed 

that he identified the miners who he previously observed 

by their "cap lamps," and that he did so after the citation 

was abated and terminated. He identified them as belt cleaners, 

and he confirmed that they informed him that they were unaware 

that the belt guarding was down and that they had not been 

in the area (Tr. 41). Mr. Smith also confirmed that while he 

waited around the unguarded motor area before issuing the 

citation, no one appeared to do any work in the area, and 

the last inspection entry made on the belt guarding was for 

the day shift on May 24, which was the 8:00 a.m. to 4:00 p.m. 

shift (Tr. 44). He contacted the section foreman who had 

made this entry, and he informed him that the belt guarding 

was intact when he inspected the area, and Mr. Smith had no 

reason to disbelieve him (Tr. 45). 

In response to how long the belt in guarding was off the 

motor in question, Mr. Smith stated that he was informed 

by the safety committee that mine management was informed 

on May 20 that the belt guarding was off, and that the bottom 

535 
half of the protective motor shroud was missing (Tr. 47). 

He was also informed that a replacement for the broken 

shroud had been ordered, and that the belting guard was 

installed to keep people out of the area, and he explained 

the purpose of the belting as follows (Tr. 48-50): 

JUDGE KOUTRAS: My question is, if the 

shroud were in one piece, and wasn't 

broken off at the bottom, would there be 

a need for this belt guarding? 

THE WITNESS: Not in the location it's 

put there, no. There would be a need for 

guarding, but not where it is. 

JUDGE KOUTRAS: You mean there would be a 

need for an additional guarding on the motor 

to protect the motor blades other than the 

shroud? 

THE WITNESS: No, not the motor. The only 

guard on the motor would be over the coupler 

between the motor and the gear case drive. 

Maybe, if you let me walk over there, I can 

show you what I'm talking about. 

JUDGE KOUTRAS: Sure. Go ahead. 

THE WITNESS: If all of this shroud was intact, 

and there was no problem, then they would guard 

this area in here so a person would have no way 

to get in up in here. They would have to come 

around here. They would just guard this area 

right through here. 

JUDGE KOUTRAS: But, what I'm saying is, you 

issued the Citation because the blades of the 

motor were exposed. Right? 

THE WITNESS: Right. 

JUDGE KOUTRAS: Well, if the shroud was intact, 

completely over the blades of the motor, what 

would that belt guarding on the side do? 

THE WITNESS: What does this guard do? It 

prevents anybody from going in here, or slipping 

or falling in here, if that guard is up in place. 

JUDGE KOUTRAS: Is that belt guard there to 

protect other areas of that belt, or is it there 

simply to protect someone from falling into the 

exposed lower half of the motor blades? 

536 
THE WITNESS: Well, I think it's in there 

for both in this particular case. It's in 

there for both reasons. 

JUDGE KOUTRAS: Ms. Murphy, do you understand 

my question? 

MS. MURPHY: I think I do, Your Honor. 

JUDGE KOUTRAS: Is there an answer? 

MS. MURPHY: Whether or not he would have cited 

it if the shroud was on there. 

JUDGE KOUTRAS: That's right. 

MS. MURPHY: I think what he just testified to, 

Your Honor, is that there are other things there 

that he believes people should be prohibited, 

or prevented from getting in to, and that the 

belt guard that was not in place served that dual 

function. If the shroud was on, there would 

still be a need for a guarding in a different 

location to prevent entry into the moving parts. 

JUDGE KOUTRAS: My question, then, is, if the 

shroud were on, would we have this case. We 

might have had some other location as not 

guarded, but would we have an allegation that 

the fan blades on this motor, which were 

exposed, were not guarded? If that shroud 

were completely on, would he have issued a 

Citation on the fan blades of the motor? 

MS. MURPHY: From what I understand about the 

case, it would not with respect to the exposed 

moving parts on this piece of equipment. 

JUDGE KOUTRAS: My next question is; if the 

problem was caused by the bottom half of the 

shroud being broken off, .and if that condition 

were there, why was the Citation abated by 

simply permitting them to put this belting up 

rather than making the Operator put that shroud 

back the way it was? 

MS. MURPHY: The Operator had indicated to the 

Inspector that they had ordered a shroud, Judge, 

but, in the interim, I think --

JUDGE KOUTRAS: If I walked into this mine today, 

would I find a shroud or a belt? 

537 
·MS. MURPHY: We don't know. 

JUDGE KOUTRAS: Can somebody answer that question? 

Have you been back to this mine since May 25, of 

'83, back to this section? 

THE WITNESS: I would have to look in my notes. 

MR. MEANS: Your Honor, if I may explain. 

JUDGE KOUTRAS: Yes, Mr. Means. 

MR. MEANS: We may be able to get into some 

of this with my witness, Mr. Turner, but the 

shroud had broken when the device was being 

installed, I believe. The shroud had been 

ordered from the manufacturer. It's a special 

part you have to purchase from the manufacturer. 

And, in fact, one shroud had been delivered, 

and it was the wrong size and couldn't be 

installed, and so they had to order another one. 

In the meantime, they erected the belt guarding 

to preclude access to the area. 

JUDGE KOUTRAS: Okay. Now, my next question, 

Mr. Means, if you know, is the shroud on that 

motor today? 

MR. MEANS: I believe it is not. 

JUDGE KOUTRAS: Or is it still on order? 

MR. MEANS: 

right now. 

I believe it is not on that motor 

I believe it is still on order. 

JUDGE KOUTRAS: It is not? And, the reason it 

is not on is because MSHA abated the Citation, 

and is permitting you to use this belting as an 

adequate guarding, for that broken shroud? 

MR. MEANS: I don't know the answer to that. 

Inspector Smith explained that his concern was over 

the fact that if the guarding were left on the floor, anyone 

walking by and slipping on the wet belt guarding lying on 

the floor could have caught in the exposed motor blades 

(Tr. 53). He believed that the support post used for nailing 

up the belt guarding had either fallen down or was removed 

sometime during the immediate two preceding work shifts on 

the afternoon of May 24 or the morning of May 25 (Tr. 56). 

He further explained his reasons for issuing the citation as 

follows (Tr. 58-59): 

538 
JUDGE KOUTRAS: Let me ask you this question. 

Assuming that that belt guarding were not in 

place at that location, and assuming that the 

shroud was completely on that motor again; 

assume this, the shroud was in place completely 

over the blades of the motor, and the belt 

guarding was not in place, would you still have 

.issued the Citation? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: And the reason for that is, in 

your opinion, the belt guarding was put there 

to keep people from getting to of that belt? 

THE WITNESS: Right, to the drive rollers. 

JUDGE KOUTRAS: To the drive rollers, yes. 

Would you characterize this belt guarding, more 

or less, as a physical barrier to alert people 

to stay out, or actually as a physical guard? 

I'm not trying to be technical, but, what if 

they had a fence out there, or a couple of posts 

running horizontally. Is that to keep people 

out of there, or is it to serve as a physical 

guard? 

THE WITNESS: In this particular case, I think 

it's both. You see guarding in place. That 

kind of takes your eye. You see a barrier set 

up in front of you, guarding. It's like a 

barrier. 

JUDGE KOUTRAS: You cited them, now, with a 

provision of the Standard that says that, "Except 

when testing, guards shall be securely in place 

while machinery is being operated." You saw 

no evidence of testing? 

THE WITNESS: No, I didn't.' 

JUDGE KOUTRAS: Do you have any idea what the 

Company policy is with regard to doing maintenance 

on such equipment? In terms of locking out, and 

all that sort of business? 

THE WITNESS: What I've seen during my inspections 

there, they do lock equipment out prior to working 

on it. 

539 
Helen Mining Company's testimony and evidence 

David Turner, testified that he has been employed by the 

respondent as a dust sampler since 1979. He confirmed that 

Mr. Smith conducted an inspection on May 25, 1983, and that 

he issued the guarding citation in question (Tr. 62). 

Mr. Turner also confirmed that abatement was achieved by 

installing a post in place near the drive motor in question, 

and nailing the belt guarding on the post (Tr. 63). He 

stated that Mr. Smith told him that his concern was over 

someone possibly slipping and falling into the moving belt 

motor drive blades. 

Mr. Turner stated that the walkway adjacent to the area 

which concerned Mr. Smith was traveled by belt examiners, 

cleaners, or maintenance personnel, and he confirmed that 

the walkway was about eight feet wide (Tr. 65). He stated 

that any belt work is done between shifts while the belt is 

down, and he explained the procedures for cleaning and maintaining 

the belt in question (Tr. 65-67). He confirmed that a footprint 

was present on the belt guarding which was down (Tr. 68). 

However, he believed that the motor housing itself served 

as a "natural barrier" to the motor. He confirmed that the 

belt guarding was installed to take the place of the broken 

motor shroud, and that this was done until such time as a 

new shroud which had been ordered could be used to replace 

the broken one (Tr. 69-70). He believed that anyone slipping 

in the area in front of the motor would have to make a concerted effort to reach the exposed motor blades (Tr. 70). 

On cross-examination, Mr. Turner stated that the mine 

bottom in the area in question was wet and muddy, and that 

it was possible for someone to stick in the mud and lose 

their balance (Tr. 71). He generally described the equipment 

in the vicinity of the motor in question, and indicated that 

anyone using an oil fill-up on an adjacent motor would have 

to make a conscious effort to reach the cited location 

(Tr. 74). However, he conceded that someone standing immediately 

in front of the cited drive motor in question could reach 

in and contact the exposed blades, and that if he were to 

get himself between the guard and blades while standing 

at the perimeter of the motor housing, he could come in 

contact with the motor blades (Tr. 76). 

Mr. Turner confirmed that after the citation was issued, 

he ascertained that the broken motor shroud had been in that 

condition for at least two weeks, and while no one brought 

this condition to his attention, he assumed that the mine 

safety committee called it to MSHA's attention (Tr. 79). 

540 
When asked to explain what Inspector S.mith may have told 

him at the time he issued the citation, Mr. Turner stated 

as follows (Tr. 80-84): 

JUDGE KOUTRAS: Did Mr. Smith explain to you 

why he considered the violation to be 

unwarrantable? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: What did he tell you? 

THE WITNESS: He said that a belt examiner, 

as part of his normal duties, in that area, 

should have seen the situation, determined 

that it needed corrected, and had it corrected. 

Something to that particular effect. 

* * * 

JUDGE KOUTRAS: But, in the two intervening 

shifts, someone was required to go there 

and make an examination. 

THE WITNESS: Yes. 

JUDGE KOUTRAS: My question is, did anyone, 

either Mr. Smith or you, or the Company, 

during the period after the Citation 

was issued, determine, number 1, whether 

someone went there, and if so, why they 

didn't take appropriate action to make 

sure that the guarding was put back up? 

THE WITNESS: We did take action to try to 

pin that down. 

JUDGE KOUTRAS: And what was the result of 

that action? 

THE WITNESS: The result of that was that the 

two people in the two ·shifts making examinations prior to that could not remember if it 

was up or down. The person that was there on 

the third shift beforehand had seen it and said 

that it was up. And that's as close as we 

could pin it down. 

JUDGE KOUTRAS: Now, if it were down, I assume 

that the belt examiner is required to make some 

entry in the book. Is he not? 

·541 
·THE WITNESS: What he will do -- , he would 

probably, if it took a post and resetting the 

post, he would probably do that himself. 

If he could not correct the situation, then 

he should put something in the book to that 

effect. 

JUDGE KOUTRAS: It's obvious that nobody 

put the post up, or put the belting up, or 

you. wouldn't have the citation. 

THE WITNESS: Right. 

JUDGE KOUTRAS: So, there's a strong inference 

that what? He either saw it up, or it 

mysteriously fell down during the time that he 

inspected it, or --? 

THE WITNESS: It's one or the other. 

* * * 

JUDGE KOUTRAS: Did you determine whether or not 

any maintenance work was being done on this belt 

at any time during the intervening shifts prior 

to the time that the Inspector arrived? 

THE WITNESS: No. 

JUDGE KOUTRAS: Did you ascertain whether or not 

any testing was being done? 

THE WITNESS: There was no testing being done 

during that 24 hour period. 

MSHA's counsel conceded that if the motor blade protective 

shroud had not been broken in such a way as to expose as 

the bottom half of the motor blades, there would be no 

requirement for the belt guarding which was required to 

keep persons out of the area. Inspector Smith confirmed 

that he issued the citation for the exposed blades and nothing 

else (Tr. 87). He also confirmed that several days after 

the citation issued, the safety committee informed him that 

the broken shroud condition had previously been brought to 

mine management's attention, but that at the time of his 

unwarrantable failure finding he was not aware of that fact 

(Tr. 88). When asked to explain why he made an unwarrantable 

failure finding at the time he issued the citation, Mr. Smith 

explained as follows (Tr. 88-90): 

542 
Q. So that leads me to the next question. 

Why did you feel that this was an unwarrantable 

failure? 

A. Because that's an area that should be included 

in the examination. Regulations require, on the 

belt haulage examinations, that dates, times 

and initials be placed in a sufficient number of 

places to indicate that the entire belt haulage 

has been examined. 

Q. All right. 

A. There were no dates, times and initials there 

for the two previous shifts. And, I stated 

earlier, I did talk to the day shift Foreman that 

did have a date up there the prior day. I stated 

his comments. 

Q. Now, the Citation you issued was for failure 

to make the preshift examinations for the two 

shifts? Is that right? 

A. No, I did not. The Citation I issued under 

303(a)? 

Q. Yes. 

A. I cited, it was, the dates, times and initials 

were not evident to indicate that the area had 

been examined. There's no way I could say they 

did not examine it. 

Q. All right. Well now, that's what I'm saying. 

That doesn't mean the same thing, does it? 

A. No. I just cited them for not placing their 

dates, times and initials there to indicate 

they had been there. 

Q. Now, if the place where the fellow would 

normally write that information was down on the 

ground, would he have a place to write it? 

A. They were dating up right on the belt 

guarding. Primarily, right on the guarding between 

the two posts. That's where the previous day 

shift Foreman's date was. 

Q. Did you ever determine whether or not the 

two fellows that are required to make the preshift 

actually made it? 

543 
.A. Yes. I know that it was dated Fred ·oobson. 

It was dated up FD along the belt haulage going 

back to 7 east and 1 butt, which 1 butt didn't 

have a belt drive at that time. He had his dates 

along that entire belt haulage. 

Q. So, he did, in fact, make that particular 

location, the preshift? 

A. At 7 east he was dated up, and at the belt 

taii he was dated up, or crossover belt, yes. 

Q. Well, what I'm saying is, for the two 

previous shifts prior to your arrival, were you 

saying that they hadn't entered any dates or 

initials, and you issued Citations for not doing 

that, for not making that mechanical entry? 

Do you know whether they, in fact, inspected that 

area? 

A. Mr. Dobson stated he did. 

Q. He did. How about the other fellow? 

A. I don't know. I haven't been able to determine 

who was required to make that on the 4 to 12 

shift. 

Dockets PENN 83-201-R and PENN 83-203-R 

MSHA's testimony and evidence. PENN 83-201-R. 

~SHA Inspector Lloyd Smith confirmed that he was at the 

mine in question on June 1, 1983, to conduct an inspection. 

Upon walking into the No. 8 room located in the no. 8 to 

no. 9 crosscut working place he observed a nonpermissible 

switchbox lying along the left rib. He described the switchbox 

in question and stated that it was being used to supply 

power to a submersible pump located in the no. 8 and no. 9 

crosscut. The switchbox controlled t~e power from the box 

to the pump. A power cable ran from the box to the pump, 

and another power cable ran outby from the box towards the 

power center. The pump was approximately 20 to 25 feet 

from the box, and the pump was not running. The pump was 

located in water where the place had flooded out and the roof 

in that area was not supported. The power cable was not 

energized and the switch was off, and he estimated that the 

box cable was located approximately 300 to 400 feet from the 

power center. He estimated that the cable plug was approximately 

two to three feet from the power center. He identified 

exhibit G-3 as the section 104(d) (1) Order that he issued 

for the violation (Tr. 103-109). 

544 
Inspector Smith stated that his conclusion that 

the nonpermissible switchbox was being used to supply power 

to the pump was based on his observation of the pump, the 

flooded conditions, and a pump discharge line used to move 

the water. He also observed the power cable going to the 

power center, and since there was an obvious need for the 

pump in that working place, he concluded that the pump was 

used (Tr. 110). 

After making his initial observations, Mr. Smith stated 

that he began walking down the entry toward the power center 

with day shift foreman Mitsko, but was interrupted when he 

encountered company safety Dale Montgomery, and Mr. Mitsko 

continued on to the power center. Mr. Mitsko came back and 

informed him that the cable plug was not plugged into the 

power center, but that it had not been "dangered off." 

Mr .. Mitsko informed him that he had "dangered it off" or 

"tagged it" so that the plug could not be used (Tr. 111) . 

Mr. Smith gave the following explanation for the issuance 

of the order (Tr. 112-115): 

Q. Inspector Smith, I want to ask you to 

assume, for a moment, that the pump was not 

energized on the previous shift. Would the 

conditions you observed in that area still 

constitute a violation of 75.500(a), in your 

opinion? 

A. Yes. 

Q. Can you tell the Judge why? 

A. .500(a}, a nonpermissible distribution 

box, or switchbox, whatever you want to call 

it, was used to make physical electrical 

connections. And, .500(a) prohibits making 

power connections with nonpermissible equipment. 

JUDGE KOUTRAS: Well, as I read (a}, it simply 

$ays that all junctional distributional boxes 

used for making multiple power connections inby 

the last open crosscut shall be permissible. 

That presupposes that it was used? 

THE WITNESS: It was used to make those connections, 

yes. 

JUDGE KOUTRAS: In other words, what you found, 

quite candidly and frankly, was a circumstantial 

case. Isn't that true? That you assumed there 

was a pump, there was a cable, and all this, and 

it was set up to pump water. 

545 
THE WITNESS: Right. 

JUDGE KOUTRAS: How deep was the water? 

THE WITNESS: I couldn't say, at the face. 

JUDGE KOUTRAS: Everything that you saw led 

you to believe that that's what that pump 

was there for? 

THE WITNESS: Right. 

JUDGE KOUTRAS: So you came to the conclusion 

that it was used at some time to do what it 

was intended to do, that is, to pump the water 

out. 

THE WITNESS: Correct. 

Q. Inspector Smith, did the absence of the 

danger signs have any effect on your opinion 

that a violation of 75.SOO(a) would have still 

existed even if the pump wasn't energized? 

A. No, it would still be the violation whether 

it was connected or not. It was used to make 

electrical connections in a working place. It 

was nonperrnissible equipment. 

JUDGE KOUTRAS: Wait a minute. Her question was, 

would the absence or the presence of the danger 

sign, or a tag, tagging had made any difference? 

THE WITNESS: No. It would not. If it was 

dangered off at the power center, and that switchbox was where it was, it would still be a violation. 

JUDGE KOUTRAS: On the theory that someone would 

disregard the danger sign and, possibly, come 

up and plug it in, and would use it? Or, that 

at one time it was used? 

THE WITNESS: Well, no. Thinking that if the 

switchbox, itself, was lying there, no cables 

attached to it, nothing connected, I would say 

it would be no violation. A nonpermissible 

switchbox being there with cables connected to 

it, and connected to the circuit breaker within 

it, is a violation. 

546 
JUDGE KOUTRAS: Even though there's no power 

to it at the other end, from the power center? 

THE WITNESS: Right. It was used to make 

connections. 

JUDGE KOUTRAS: Okay. 

BY MS. MURPHY: 

Q. In your opinion, was the switchbox, or the 

box, available for use at the time that you 

cited the violation? 

A. That was readily available for use. 

Q. Why do you say that? 

A. All they'd have to do is plug it in to the 

power center, go up there and turn the switch on, 

and run the pump. The discharge line was hooked 

up. Everything was there. 

Mr. Smith stated that the presence of the nonpermissible 

pump posed a potential ignition explosion hazard because the 

mine liberates methane. He tested for methane in three places 

and found "three-tenths every place that I checked" (Tr. 117). 

He indicated that the mine is on a five-day spot inspection· 

cycle because it liberates over a million cubic feet of 

methane in 24 hours. In the event of any interruption to 

the ventilation, the switchbox would be a potential ignition 

source, and since it appeare<.l. to him that the operator's 

intent was to use the pump, all that he had to do was to 

plug it in. In these circumstances, he believed that it was 

reasonably likely that an ignition would occur if the 

nonpermissible switchbox were to be filled with an explosive 

mixture of methane (Tr. 118). 

Mr. Smith testified that the violation was "unwarrantable" 

because the preshift examiner had made an entry at the 

appropriate location in the area ~ndicating the dates of 

his examination, and since the examiner would have been in 

the area where the pump was located he should have observed 

the violation (Tr. 119). 

MSHA's Testimony and Evidence. PENN 83-200-R. 

MSHA Inspector Lloyd Smith confirmed that he issued a 

second Section 104(d) (1) Order on June 1, 1983, charging 

a violation of mandatory safety standard section 75.200 

(exhibit G-5). He stated that he issued the violation after 

547 
observing the water pump ref erred to earlier installed 

inby permanent roof supports. He identified a copy of the 

mine roof control plan (exhibit G-7), and he stated that the 

pump in question was approximately three feet inby the last 

row of roofbolts, and he measured this distance by means of 

a flexible tape ruler (Tr. 120-124). 

Mr. Smith stated that there was a violation of "safety 

precaution" No. 4, pg. 5 of the roof control plan in that 

the installation of the pump was accomplished without 

installing temporary roof supports. He observed no one 

travel under any unsupported roof while he was at the scene, 

but the location of the pump as he observed it led him to 

conclude that someone had to take it inby permanent supports 

to place it where he observed it (Tr. 125). He confirmed 

that he observed no temporary supports inby the last row of 

roofbolts, and that while he was alone in the area at.the 

initial observation of the pump, Mr. Mitsko came in and saw 

the condition and he informed him that he was issuing the 

order. He described the pump as approximately 24-30 inches 

high, and indicated that it had a power cable running to 

the switchbox, but that it was not energized (Tr. 126). 

Mr. Smith stated that the violation was "significant 

and substantial" because a sudden collapse of a roof could 

occur at any time, and if that happened and someone were 

under unsupported roof a fatality could occur. Since he 

believedsomeone had been under unsupported roof to install 

the pump, and since most fatalities caused by roof falls 

occur within 25 feet of the face area, he believed it was 

"reasonably likely" that a fall could have occurred (Tr.· 128). 

He did not know how long the unsupported roof condition 

existed, and he confirmed that he indicated on the face of 

his order that the pump had been "installed" because he observed 

it_ was placed "just right" so that the water discharge line 

was-"p61nting out of the place nice and straight" and that ~~-~- p~wer. cable "was going straight over to it from the swi tchbox, 

like everything had been placed right there and lined up 

to get rid of the water from the pump with the hose" (Tr. 128). 

': ~;- ·Mr. Smith believed that the violation was an "unwarrantable 

faiitire" because the ·preshift mine examiner, who is also 

the section foreman, examined the place. Since he is in the 

area a minimum of two or three times a day, he should be aware 

of the fact that pumps are installed in his working section 

(Tr. 129) • 

On cross-examination, Mr. Smith confirmed that simply 

having a pump under unsupported roof is not a violation of 

section 75.200, and he confirmed that he saw no one under 

548 
unsupported roof and that n_o one ever has advised him 

that anyone walked under unsupported roof to place the pump 

where he· found it (Tr. 130). Mr. Smith conceded that it 

was possible for someone to place the pump three feet inby 

the last row of roof bolts without going out under the 

unsupported roof, and he explained that someone could have 

"heaved it" out into the water (Tr. 131-132). He also 

confirmed that the most efficient use for the pump would have 

been to place it closer to the face where the water was the 

deepest. He said that the pump was not operating when he 

observed it, and his conclusion that someone had gone under 

unsupported roof was based solely on his observation of the pump 

in the location where he found it (Tr. 133). 

Mr. Smith confirmed that at the time he issued the order 

he was convinced that the pump had in fact been used on th~ 

previous shift, and his assumption was based on the fact that 

water was present and the pump was attached to a nonpermissible 

switch "set up in a position in which it could have been used." 

He also confirmed that no one ever told him that the pump 

was used in that location or that anyone ever intended to 

use it at that location with a nonpermissible switch (Tr. 134). 

Mr. Smith conceded that he subsequently became aware 

of the fact that the crew who worked the shift knew that the 

pump was not intended to be used until a permissible switchbox 

could be installed. He denied that at the time he issued 

the order that a permissible switchbox had been ordered to 

be brought in from the surface and that it in fact came in 

on the same mantrip which conveyed him to the section. He 

indicated that when he found the pump he did not know that 

it had been deenergized at the power center. He confirmed 

that the incoming foreman on the shift when the pump was 

found told him that he knew nothing about the pump or the 

switchbox, and although the order was issued at the beginning 

of the shift, the.preshift examination had already been 

conducted. He did not examine the preshift books prior to 

issuing the order, but the section was reported "safe" before 

anyone went underground (Tr. 138-139). 

In response to further questions, Mr. Smith stated 

that after the order· was issued, mine management told him 

that the pump was thrown inby the roof supports. He estimated 

the weight of the pump at ninety pounds, but stated that he 

has never attempted to pick one up and swing it, and no one 

demonstrated the purported method of throwing it. He did 

say that the pump has handles and that someone explained 

that it was thrown and then stopped by means of jerking on 

the cable. He believed that this was a bad practice because 

the cable could be damaged. In his opinion, however, the pump 

was placed in the area where he found it, and he based this 

opinion on the fact that "everything was lined up" and the pump 

was not where the water would be over one's boots (Tr. 143). 

549 
Mr. Smith stated that the violation was abated by 

removing the pump from the location where he observed it 

and he confirmed that it was dragged out by means of the 

cable and then picked up by the handles (Tr. 144). The 

pump was removed so that the nonpermissible switchbox could 

be replaced (Tr. 145). Mr. Smith also confirmed that at 

the time he observed the pump,mining operations had been 

completed in that crosscut and all of the machines had been 

taken out. The pump was there just to pump water (Tr. 148). 

Mr. Smith further explained the term "installation" as 

follows (Tr. 148-149): 

JUDGE KOUTRAS: This business of installing 

the pump, how long would it take to do the 

actual installation? I mean to put in the 

line that takes the water out, put the pump 

in and plug it up, get ready to go? 

Approximately. 

THE WITNESS: Momentary. Exposure under 

unsupported roof, momentary. Just setp 

out there and set it down and stip back. 

JUDGE KOUTRAS: So, the term "installation" 

and just placing it there are synonymous. 

Right? The term "installation" doesn't involve 

a whole lot of time, does it? 

THE WITNESS: No. The discharge line would 

be attached to the pump before you put it in 

the water, and tighten the clamps up. Your 

power cable is already attached. You would 

just lift it up and step out there and set 

it down and step back out. 

In response to certain bench questions concerning the 

general mine conditions where he issued the orders in these 

cases, Mr. Smith testified as follows (Tr. 148-160): 

JUDGE KOUTRAS: Did you examine the roof 

conditions.in that area where the pump was? 

THE WITNESS: I did. 

JUDGE KOUTRAS: And what did you find? 

THE WITNESS: Good at that time. 

JUDGE KOUTRAS: Roof conditions were fine? 

550 
THE WITNESS: Were good at that time. Good 

visually and sound. 

* * * 

JUDGE KOUTRAS: Now, since that area was mined 

out, would there have been any reason for any 

miners to be in there? 

THE WITNESS: No. 

JUDGE KOUTRAS: Other than, possibly, the fellow --

THE WITNESS: The mine examiner? 

JUDGE KOUTRAS: -- that threw the pump, or placed 

the pump, or installed the pump? 

THE WITNESS: No reason for anybody to be in there 

with the exception of the on-shift examiner and 

the preshift examiner~ 

* * * 

JUDGE KOUTRAS: On the switchbox now. Did you make 

any determinations, or did you make any examination 

of the ventilation in that area? 

THE WITNESS: The ventilation was adequate, over 

the switchbox and in the working place. Just 

like it's drawn there it was all intact. 

JUDGE KOUTRAS: Okay. How were the roof conditions 

in there? 

THE WITNESS: Good. 

JUDGE KOUTRAS: Were people working in that section 

or in that room when you were there and found this 

Citation? 

THE WITNESS: No. I was in there alone when I 

first went in there. 

JUDGE KOUTRAS: Would mining have taken place in 

there? 

551 
THE WITNESS: Mining could not have taken place 

in there, no. 

JUDGE KOUTRAS: Not at all? 

THE WITNESS: Not until the roof was supported 

and the water pumped out. They would have to 

pump the water out, bolt the roof, and then they 

could mine it. 

JUDGE KOUTRAS: They were working outby where 

those roof supports are. Right? 

THE WITNESS: They were working over on the left. 

It's marked as #9 room, is where the machine 

would be working. 

JUDGE KOUTRAS: Would they be working in the area 

where the pump switch was located? The nonpermissible 

pump switch. 

THE WITNESS: No. I would see no occasion for 

them to work in there, other than to, perhaps, 

go in at a later time and move the pump in. 

That's the only reason I could see them going 

up in that crosscut to work. They'd have to go 

in there for examinations. To do other work, 

they wouldn't have any reason to go in there. 

They couldn't do any work. 

JUDGE KOUTRAS: What is the significance of the 

three-tenths methane that you found? 

THE WITNESS: Methane is being liberated on that 

working section. 

JUDGE KOUTRAS: Well, how bad is three-tenths? 

THE WITNESS: Three-tenths is bad. It's not bad 

as long as it's being diluted and moved. 

JUDGE KOUTRAS: But was it being diluted and moved? 

THE WITNESS: At that time it was, yes. 

JUDGE KOUTRAS: Well now, if the methane was being 

diluted and moved, and there were no people working 

in there, and the ventilation was in good condition, 

if those were, in fact, the circumstances as you 

found them that day, you still maintain that it 

was significant and substantial? 

552 
THE WITNESS: I do. 

JUDGE KOUTRAS: And that's based on the fact that 

what? That they had a nonpermissible pump inby 

the last open crosscut, and in the event the roof 

fell or they had some kind of emission in there 

that was the right mixture of air and methane, 

they could have had an explosion. 

THE WITNESS: Based on the thinking that if you 

were to have an interruption of ventilation in 

that particular place. You see, what is not shown 

on that drawing, we talked a little when it was 

first put up, there are two ventilation controls 

that are not shown on that drawing right there. 

Where the arrow says, "to power center," you would 

have had a run through check curtain there used as 

a ventilation control. The pillar that the lift 

has been started in #7 to 8 room also has a canvas 

check curtain and line brattice installed as a 

ventilation control right next to the gob. Along 

that #7 room you've got your gob. You've got a 

fall there. You have an additional fall. Take 

that line brattice and check curtain down. Your 

air coming from 9 would go straight across. It 

would not go up in there where the pump switch is. 

It would short the air away from that, possibly. 

JUDGE KOUTRAS: What led you to believe all those 

things would have happened? 

THE WITNESS: The potential was there. That's a 

pillar section. They're retreating. That's 

a retreat section, pillar section. 

JUDGE KOUTRAS: I get the impression that you found 

that it was significant and substantial because, 

if you hadn't done anything, once they started up, 

all these potentials could have come to pass, and 

they could have had some kind of an accident. 

THE WITNESS: I felt the potential was there, being 

that close to the gob, workings. 

* * * 

JUDGE KOUTRAS: Did you have occasion to inspect 

any of those power cables, the one going to the 

power center, the one to the pump switch? 

553 
THE WITNESS: They were in good condition. 

JUDGE KOUTRAS: You found nothing wrong with the 

cables insofar as any permissibility or anything 

like that? The cables were in good condition? 

THE WITNESS: The cables were in good condition. 

The settings were proper for instantaneous trip 

at the breaker. We looked at that. 

In response to further questions concerning his 

"unwarrantable failure" finding, Mr. Smith explained that it 

was his opinion that the section foreman should have been 

aware of what was going on in his section. When asked to 

explain why he attributed the violation to a "prior shift," 

he explained that when he issued the order he did not know 

who was responsible for the condition, but that he later 

ascertained that the shift immediately prior to the one when 

he found the pump had actually installed the pump. He identified 

this shift as the midnight to 8:00 a.m. shift on June 1, 

and that is when the actual violation took place (Tr. 153). 

When asked whether he had spoken to the previous shift foreman, 

he replied as follows (Tr. 153-154): 

JUDGE KOUTRAS: Did you speak to. the Foreman 

on that shift, the 12 to 8 shift, before you issued 

the Citation? 

THE WITNESS: No. He was gone. 

JUDGE KOUTRAS: He had left the mine completely? 

THE WITNESS: At that time, yes. 

JUDGE KOUTRAS: On a situation like this where 

you have some circumstantial evidence that may 

have occurred on the previous shift, would there 

have been anything to preclude you from waiting 

until you contacted that Foreman before you 

issued the Citation? 

THE WITNESS: In this particular instance, with 

this particular violation, I would say "No." 

I think the facts were there. The pump was there. 

There were no temporary supports there. There were 

no warning signs there to indicate the unsupported 

roof. 

JUDGE KOUTRAS: But the essence of the violation 

is, assuming all that's correct, what you just said, 

but the essence of the violation is that you 

presumed that someone had walked under unsupported 

roof to put the pump there. 

554 
·THE WITNESS: Right. 

JUDGE KOUTRAS: The only question I'm asking 

you is, isn't the most logical way to determine 

that fact to determine who was working on 

that shift, who was responsible for putting the 

pump there, and to contact those people before 

you issued the Citation? 

THE· WITNESS: We don't generally do it that way. 

When asked to further explain his "significant and 

substantial" finding, ·Mr. Smith indicated that he was concerned 

about the "practice" of miners working under unsupported roof. 

However, he candidly conceded that he had no knowledge that 

the operator in this case had such a "practice," and he again 

reiterated his concern of a potential hazard, and while it may 

may have extreme he indicated that it "could happen" 

(Tr. 161-162). 

Helen Mining Company's Testimony and Evidence 

George Bondra, section foreman, testified as to his 

background and experience, and confirmed that he was the 

section foreman on the 12 midnight to 8:00 a.m. shift on 

June 1, 1983, and he confirmed that exhibit J-3 depicts 

the general area where he was working on that evening. He 

stated that his crew was mining coal and pumping water at 

the working face located at the 8 to 9 crosscuts. He identified 

exhibit C-1 as the notes which he made in his own handwriting 

that evening. He confirmed that a pump of the type shown 

in exhibits J-3(A) and (B) which was used during his shift 

at the crosscut of the 8 to 9 room where his crew was working. 

He stated that the pump was used at the beginning of the 

shift in the number 9 room, and that it had a permissible 

switch attached to it. He then stated that when the pump 

and switch were moved to the number 9 room, it was determined 

that the switch had a broken lead inside and that this caused 

it to malfunction, and could not be used. Since no permissible 

switch was available, a nonpermissible switch, which happened 

to be available, was .used to run the pump. However, he 

insisted that the nonpermissible switch was placed outby 

the last open crosscut in the No. 9 room to pump water in 

that room, and he indicated where it was placed and used 

by making notations on exhibit J-3. He confirmed that the 

nonpermissible switch was placed on two posts with a rubber 

mat under it to insulate it from moisture and prevent electrocution 

(Tr. 166-173) . 

555 

.. 
Mr. Bondra stated that the pumping of the water from 

the No. 9 room with the nonperrnissible switch was completed 

at approximately 5:00 a.m., and the pump was not used in any 

other locations during his shift. The pump was taken out 

of the way to permit the mining machine to move through 

the area, and that "towards quitting time" he dragged 

the pump, with the nonpermissible switch still attached, and 

took it to the room where it was later found by the inspector. 

He explained that he took it there so that the incoming foreman 

would have a.head start on pumping the water in the area, 

and he {Bondra} did not intend to use the pump to pump water 

in that area and he expected no one else to because the pump 

with the nonpermissible switch could not be used at the 

location where it was found by the inspector {Tr. 175). He 

confirmed that he did not replace the nonperrnissible switch 

after leaving it at that location, but that he did order a 

new one and the order was place when he first found that the 

permissible switch which had been on the pump had a broken 

wire. He identified exhibit C-2, as "a call our report" dated 

June 1 indicating a "breaker for a pump box was ordered," 

and he confirmed that the word "breaker" and "switch" means 

the same thing. He also indicated that the incoming foreman 

should have seen this report as this is part of the standard 

procedure {Tr. 177). 

Mr. Bondra confirmed that he personally moved the pump 

and switch in question to its new location at the end of .his 

shift and that he deenergized it before moving it by unplugging 

the cable from the power center and throwing the cable plug 

some 6 to 8 feet from the power center {Tr. 180). He stated 

that after moving the deenergized pump, he swung it out with 

his arms where it landed "just inby that last roofbolt" and 

he marked the location with an "x" mark on exhibit J-3. He 

denied that he went out under unsupported roof when he did 

this {Tr. 181). He stated that.if the roof had been supported 

further, he would have put the pump in deeper water, but since 

the roof was not further supported he did not want to take 

the time to put up additional temporary roof support to do 

this because it was late in the day {Tr. 182). He confirmed 

that the permissible switch was not put on the pump because 

the one he had ordered did not arrive until the next shift, and 

he stated that he discussed this fact with the oncoming shift 

foreman Lee Mitsko. He stated that the discussion took place 

"outside, between the shift change," and that the conversation 

took place in the foreman's room. He stated that this was 

the usual procedure, and that he advised Mr. Mitsko that he 

should not use the pump until such time as the permissible 

switch was placed on it. Mr. Bondra stated that he did not 

believe that leaving the pump with the nonperrnissible switch 

on it between shifts was not illegal because it was not plugged 

in or energized. He also believed that it would have been legal 

to change the switches at the place where he left it, {Tr. 184). 

556 
On Cross-examination, Mr. Bondra stated that there was 

an unusual amount of water. present in the section, that the 

pumps are used to pump water, and that he did not inquire 

as to the availability of a permissible switch on any other 

section because "the other sections probably wouldn't have 

one. There is no water in the other sections" (Tr. 186). 

He confirmed that while he could have taken the nonpermissible 

switch off the pump before leaving it where he did, he did 

not do so. He conceded that this may have made it easier 

for the next foreman to replace the nonpermissible switch 

with a permissible one, but he declined to do so because 

he is not a qualified mechanic. Even though a mechanic was 

present on his shift who could have done the work, he did not 

have him remove the nonpermissible switchbox (Tr. 187). 

Mr. Bondra did not know whether the oncoming foreman 

actually reviewed his "call out report," and he confirmed 

that his signature is not on it. Since Mr. Bondra was not 

present on the ensuing shift, he did not know how the permissible 

switch was installed. He stated that he did not tag the plug 

out when he unplugged it from the power center, nor did he 

ask anyone else to do it, because he was called away to 

attend to a problem with the mining machin~ and "I let it 

slip my mind" (Tr. 189). Mr. Bondra stated that in addition 

to Mr. Mitsko, he also informed the section maintenance 

foreman Greg Furey about the need for a new permissible switch. 

Mr. Bondra also indicated that the "call out report" is 

initially made to Mr. Furey before he calls out to make his 

report (Tr. 189-190). He confirmed that his report to Mr. Furey 

and the "call out report" are two separate reports because 

he does not know if Mr. Furey actually makes a notation of 

the report made to him on the section (Tr. 190). 

In response to further questions, Mr. Bondra stated 

that he first learned about the citation from his brother 

later on the evening of June 1, 1983, but did not contact 

Inspector Smith to explain the circumstance to him. However, 

he did contact Mr. Skvarch and discussed the circumstances 

with him (Tr. 193). Mr. Bondra also indicated that he did 

not tell oncoming shift foreman !-iitsko that he had dragged 

the pump and switch up the entry and left it at the location 

where it was found by Inspector Smith because there was not 

enough time to discuss it with him between shifts. However, 

he did speak with him after the citation was issued and 

Mr. Mitsko told him that he "had been raked over the coals 

with the inspectors" (Tr. 197). When asked whether Inspector 

Smith was wrong in assuming that the pump and switch had 

been used, Mr. Bondra answered in the affirmative and he 

explained that such switches are normally hung up or placed 

557 
on insulated material if they are to be used. Since the 

switch in question was simply lying on.the floor and was 

deenergized, Mr. Bondra was of the view that Mr. Smith 

should not have concluded that it was used (Tr. 198-201). 

Larry Plovetsky, mine mechanic and certified electrician, 

testified that he has worked at the mine for over seven years 

and is a member of the UMWA. He confirmed that he worked the 

midnight to eight shift on June 1, 1983, and that George Bondra 

was in charge of the crew. He confirmed that the pump in 

question was first used in the cross of the 8 to 9 room and 

that it had a permissible switch on it. It was then moved 

into the no. 9 room and in the process of moving it it was 

damaged. He then installed a nonpermissible Westinghouse 

switch which was available on the section, and he informed 

Mr. Bondra that it could only be used outby the last open 

crosscut. The pump was then used, and the switch was outby 

(Tr. 206). At the end of the shift Mr. Bondra informed 

him that he had disconnected the power and moved the pump 

up into the crosscut of the i to 9 room so that the incoming 

shift could install a new permissible switch and start pumping 

the water out (Tr. 207). 

Mr. Plovetsky stated that he first learned that the 

citation had issued when he returned to work on his next, 

shift on the following day. The crew met with Mr. Skvarch, 

and he asked them if they would make statements as to what 

happened. He identified copies of certain undated statements 

that he and several of the crew members signed (exhibits. C-3(a) 

through C-3(d)), (Tr. 208). He confirmed that he was present 

when they were signed by the crew, and he indicated this took 

place on June 2, 1983, at approximately 4:30 p.m. (Tr. 210). 

Mr. Plovetsky confirmed that the power on the section 

was turned off when he left on the morning on June 1, 1983, 

at the end of the shift, and that he saw the cable plug from 

the pump and switch approximately 6 to 8 feet outby the power 

center (Tr. 212). He stated that during his shift on June 1, 

he saw the pump at the crosscut in question and that it was 

being used to pump water. However, when he arrived early 

on the shift the pump was off and he had to energize the 

section after it was preshifted by Mr. Bondra (Tr. 213). 

On cross-examination, Mr. Plovetsky stated that he did 

not speak with any of the incoming crew on the 8:00 a.m. 

to 4:00 p.m. shift about the pump and switch in question, 

but that Mr. Bondra spoke with his boss about the fact 

that the pump could not be used inby, and that he did so 

when he called out for a new switch (Tr. 214). Mr. Plovetsky 

confirmed that he was qualified to remove the nonpermissible 

switch and replace it with a permissible one, but that this 

was not done (Tr. 214). 

558 
In response to further questions, Mr. Plovetsky stated 

that at the end of his shift on June 1, he locked out the 

plug on the power center which is used for the shuttle car, 

but since he had only one lock he could not lock out the 

power center plug used for the pump and it was not tagged 

(Tr. 216-217). When asked whether the inspector was wrong 

in assuming that the pump was used, Mr. Plovetsky answered 

as follows (Tr. 217): 

JUDGE KOUTRAS: You heard me ask Mr. Bondra 

about Mr. Smith's observation when he came on 

this particular area. Do you have any corn.~ents 

on that? He assumed, seeing that thing lying 

there, that somebody was, either, using it or 

was going to use it. 

THE WITNESS: Well, seeing it lying there, 

yes, I'd say you could assu:::ne that somebody 

was using it. But then, if you'd have gone 

back and seen how far that plug was thrown away 

from the power center, you'd think otherwise, 

too. 

Dale Montgomery, respondent's assistant safety director, 

testified as to his background and experience, and he confirmed 

that he accompanied Inspector Smith ahd Mr. Smith's supervisor 

during the inspection on June 1, 1983. He confirmed that while 

he was "in the area," he was not present when Mr. Smith first 

observed the conditions which he cited (Tr. 220). He testified 

as to the normal :::nine procedure used for "call out reports," and 

he confirmed that it is normal practice for the outgoing and 

incoming foreman to meet and talk before the oncoming shift 

goes underground. He confirmed that he, Inspector Smith, and 

Inspector supervisor Bob Nelson rode the mantrip in together 

with the day crew on June 1, and he stated as follows with 

regard to the switchbox (Tr. 220-221): 

Q. Other than the people you've indicated, 

was there anything else on the mantrip? 

A. From what I learned later on, and from 

what I saw being carried to the section, 

there was a permissible type switchbox for 

a pump on the mantrip. 

Q. So you saw it being carried to the section 

from the mantrip? 

A. I saw it being carried to the section. 

Q. Do you recall who was carrying it? 

559 
A. No, I do not. 

Q. Do you know what the switch was for? 

A. It's a 

used for. 

for, that 

switch. 

typical pump switch. That's what it's 

As far as I know, that's all it is used 

type of a switch. Permissible type 

On cross-examination, Mr. Montgomery stated that he did 

not look at the "call out report" in question before going 

into the mine the day the citation was abated, and he did 

not know whether Mr. Mitsko had reviewed the report. He 

confirmed that the report does not state that a nonperrnissible 

switchbox was located at the face or working place (Tr. 223). 

In response to further questions, Mr. Montgomery confirmed 

that he was present when the nonpermissible switchbox was 

replaced with a permissible one. He indicated that the 

mantrip in question holds 18 men, and that he saw a permissible 

switch being carried from the mantrip to the section, and 

later found out that it was the same switch used to abate 

the citation. He believed that Inspector Nelson may have 

mentioned the fact that he saw the switch on the mantrip 

(Tr. 225). Mr. Montgomery did not know whether Inspector Smith 

saw the switch on the mantrip (Tr. 225). 

Mr. Montgomery confirmed that he was not with Inspector Smith 

at the time he first observed the cited condition, but was 

with Mr. Nelson, and he explained what transpired as follows 

(Tr. 226-228) : 

JUDGE KOUTRAS: Where were you and Mr. Nelson? 

THE WITNESS: We were in the crosscut. In the 

#8 room. Not the furthest one inby, the next 

one. 

JUDGE KOUTRAS: And, when the mantrip stopped, 

and you all got off, you saw someone carrying 

a box? 

THE WITNESS: Right. 

JUDGE KOUTRAS: You didn't have the faintest idea 

what they were doing with that box at that time? 

THE WITNESS: No. 

JUDGE KOUTRAS: Sometime later in the morning, 

when you encountered Mr. Smith, he told you 

that he was issuing an Order and a Citation on 

560 
the nonpermissible switchbox, did lights 

start flashing all of a sudden? Did you 

say anything to Mr. Smith? 

THE WITNESS: Well, he told me of what he 

was issuing. I, immediately, went up to._ 

the area and started drawing a diagram a~~ 

looking around myself. ', 

JUDGE KOUTRAS: But, I mean, did you know, 

at that point in time, that the switch that 

was on that very same mantrip was being 

brought in to -- ? 

THE WITNESS: No, I didn't. I didn't 

realize it. 

JUDGE KOUTRAS: Am I to assume that if the man 

that had the switchbox beat ~r. Smith to that 

location and made the switch with the proper 

switchbox, you wouldn't have got cited? 

THE WITNESS: It's possible. If that's his 

order, yes. If he were to replace it before 

Mr. Smith would have got there. 

JUDGE KOUTRAS: Now, when Mr. Smith issued 

the Order, and informed you for the first time 

that he was citing you for having this 

nonpermissible switch in that location, was 

there any discussion about the box that was 

taken off of the mantrip? 

THE WITNESS: Not at that time, that I can 

remember, no. 

JUDGE KOUTRAS: Okay. ae issued his Order 

at 9:10, and, according to the Termination, 

it was terminated at 12:15, which would have 

been some three hours later. Right? 

THE WITNESS: Right. 

JUDGE KOUTRAS: When was the actual abatement 

done? 

THE WITNESS: It was just finished just before 

12:15. 

JUDGE KOUTRAS: I mean, from the time that 

Mr. Smith informed you that there was a Citation 

and Order issued on that switchbox, when 

were the wheels put in motion to make the 

correction? 

561 
THE WITNESS: Immediately. But, we had a 

problem with that new switchbox also. 

We couldn't get it to seal, from what I 

understand. That's why it took so long. 

JUDGE KOUTRAS: And were Mr. Smith and 

Mr. Nelson there during all this? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: Did you explain to either 

one of them what the situation was? 

THE WITNESS: No. 

JUDGE KOUTRAS: Why not? 

THE WITNESS: I didn't know. 

Mr. Montgomery stated that he was not present when the 

pump was placed inby the roof supports, but observed it in 

that location and helped drag it out to abate the citation 

(Tr. 229) • 

Edward Skvarch, respondent's safety manager, testified 

as to his mining background, education, and job responsibilities, 

and he confirmed that he.is aware of the orders which were issued 

on June 1, 1983, in these proceedings. He confirmed that he 

was present at a manager's conference concerning the orders, 

as well as a meeting at the mine concerning the "willful" 

aspects of those violations. The latter meeting was held 

on June 8, 1983, at the mine, and Inspectors Smith and Nelson, 

and foreman Lee Mitsko were among those present. The meeting 

was called to determine whether the nonpermissible switch 

order was a "possible willful violation," and he believed 

that Mr. Nelson requested the meeting to speak with Mr. Mitsko, 

and Mr. Skvarch identified the notes which he took at that 

meeting, ~xhibit C-4; Tr. 245-248). 

Mr. Skvarch testified that his notes of the June 8, meeting 

reflect that Mr. Mitsko was aware of the nonpermissible 

switchbox, and that he was aware of the fact that it had to 

be replaced (Tr. 249). Mr. Skvarch stated that he investigated 

the events of June 1, in connection with the issuance of 

the order, and that he did so in order "to determine whether 

there was unwarrantability on the part of the 12 to 8 shift 

foreman, George Bondra" (Tr. 250). Hie conclusions after 

investigation was that there was no "unwarrantability" on 

Mr. Bondra's part because the order stated that "a nonpermissible 

pump was used to pump water in the crosscut 8 to 9," when 

in fact his inquiry disclosed that the pump was not used to 

pump water (Tr. 251). 

562 
Mr. Skvarch stated in addition to Mr. Mitsko's 

statement that he was aware of the fact that the nonpermissible 

pump needed to be replaced, he also relied on a signed 

statement taken from mechanic Mark Decarlo on the Wednesday 

before the hearing in this case, that Mr. Mitsko told him 

they had a switch to take the section, and that either 

Mr. Decarlo or Mr. Mitsko placed it on the mantrip, and 

Mr. Decarlo carried it to the section, ~xhibit C-5; Tr. 252). 

Mr. Skvarch also alluded to information he received from 

production foreman Frank Hasychak indicating that he informed 

Mr. Mitsko that a nonpermissible switch was on the section 

and that he (Mitsko) "was to get it out" (Tr. 255). 

Mr. Skvarch stated that as part of his investigation 

he asked Mr. Bondra to denonstrate how he threw the pump 

in question inby the last row of roof bolts, and that when 

he threw it 3 1/2 to 4 feet inby, "that proved to me that 

it was possible to do it" (Tr. 256). Mr. Skvarch was of the 

opinion that it was "highly unlikely, or a remote probability" 

that an accident could have occurred as a result of the cited 

switchbox, because a series of events, i.e., electric current, 

methane accumulation, would have to be present. In this case, 

however, the switch on the box was off, the switchbox and 

pump were not energized, and there was no accumulation of 

methane (Tr. 257). 

On cross-examination, Mr. Skvarch confirmed that Mr. Bondra 

and Mr. Decarlo were not present at the June 8, meeting with 

the MSHA Inspectors, and he conceded that it was possible 

that the meeting was called at the company's request, but 

that he was not aware that this was the case (Tr. 260). 

Mr. Skvarch stated that while he was in the mine at the 

time the orders issued, he was not with Inspector Smith when 

he issued them. Although he spoke briefly with Mr. Mitsko at 

the time the nonpermissible switch was being replaced to abate 

the orders, Mr. Mitsko did not tell him that he knew the 

nonpermissible switch was there when he came into the mine 

(Tr. 267) . 

Mr. Skvarch testified that methane ignitions have 

occurred in the mine in question, but that these all occurred 

at the face on the mining cycle with the continuous mining 

machine, and no such ignitions have ever occurred with a 

nonpermissible pump switch (Tr. 271). He did not believe 

these face ignitions to be "unusual," and indicated that 

"it could occur with all due precautions taken. A face 

ignition could still occur in a mine that liberates methane" 

(Tr. 271}. He conceded that the untagged plug could have 

been plugged in, and he explained why he did not believe 

the violation to be unwarrantable as follows (Tr. 272-273}: 

563 
A. I base my opinion on unwarrantability 

on the basis of what was written on the 

Order. And that was that the pump was 

used, -- or, the switchbox was used to supply 

power to that pump. And, I'm saying, based 

on what was written on the Order, it isn't 

unwarrantable because that wasn't the fact. 

It was not used to supply power to that 

pump. 

Q. So, in your opinion, in order for it to 

be unwarrantable, it would have had to 

have been used on the previous shift? 

A. Or, possibly, the day shift. 

Inspector Smith was called in rebuttal by MSHA, and he 

testified that when he first observed the cited conditions 

he was by himself, but that he encountered Mr. Mitsko later 

in the shift. After advising Mr. Mitsko that orders had 

been issued, Mr. Mitsko advised him that he had not been on 

the section since the previous Thursday, and when asked by 

Mr. Smith whether "his buddy" had told him about the conditions, 

Mr. Mitsko replied "no" (Tr. 288). Mr. Smith confirmed that 

he made some notes about the violations, but did not indicate 

whether they included the asserted conversation with Mr. Mitsko 

(Tr. 288). Mr. Smith also confirmed that he first saw the 

power center plug after the orders were issued and after 

Mr. Mitsko tagged it out (Tr. 289-290). 

When asked to comment on Mr. Bondra's testimony regarding 

the use of the nonpermissible switch with the pump at another 

location in the section, Mr. Smith stated that had he observed 

this, he would have issued another order. He explained that 

the location of that nonpermissible switchbox as noted by 

Mr. Bondra, while outby the pump, was still within 150 feet 

of the working pillar, and this would be a violation of mandatory 

standard section 75.1000-1 or 1000-2 (Tr. 298-300). 

Mr. Smith stated that after listening to Mr. Bondra's 

explanation as to how the nonpermissible switch and pump 

came to rest at the location where he found it at the time 

he issued the orders, he was of the opinion that the story 

was credible and that "it could have happened that way" 

(Tr. 304). Mr. Smith also stated that he would not have 

issued the citation for the pump being under unsupported roof 

if Mr. Bondra had demonstrated to him how he threw it out 

from under supported roof (Tr. 311-312). 

564 
Mr. Smith confirmed that he was at the June 8 meeting 

or conference referred to by Mr. Skvarch, and after reviewing 

a notation that Mr. Mitsko knew that he had to replace "a 

pump starter box," Mr. Smith could not recall Mr. Mitsko 

making that statement. Mr. Smith said that the only thing 

he recalled Mr. Mitsko saying at that meeting was that he 

did not know that a nonpermissible switchbox was in the working 

place (Tr. 307). 

With regard to the switchbox being brought in on the 

mantrip, .Mr. Smith stated that he did not see it, but was 

later told by Mr. Nelson that he had seen it on the mantrip. 

Although Mr. Nelson was on the section at the time the orders 

were issued, he was not with Mr. Smith when he observed the 

conditions which caused him to issue those orders (Tr. 308). 

He informed Mr. Nelson about the violations after starting 

to walk down the entry with Mr. Mitsko, but Mr. Nelson did 

not mention that he had seen the switchbox on the mantrip 

(Tr. 308). When asked what he would have done had Mr. Nelson 

mentioned it to him, Mr. Smith stated as follows (Tr. 308-

309) : 

JUDGE KOUTRAS: Assuming that you had seen 

the switchbox on the mantrip, and assuming 

that that switchbox was, in fact, the one 

to replace the nonpermissible box that you 

found, would you still have issued the Order? 

THE WITNESS: Yes, sir, I would. 

JUDGE KOUTRAS: Why? 

THE WITNESS: Like I said, the way the things 

The facts that were there for me in the 

crosscut 8 to 9, in my mind, that pump was 

physically being used to pump water. There 

was nothing to prevent it from being used. 

JUDGE KOUTRAS: So, what you're saying is 

that you came to the conclusion, through the 

circumstantial evidence that you found, 

that that pump was, in fact, used to pump 

that water out. And that the switchbox was 

part of the pump assembly for that purpose. 

THE WITNESS: That's correct. I believed 

the pump was being used to pump water when I 

saw it, yes. 

JUDGE KOUTRAS: Now, on the Citation for 

the pump being inby unsupported roof, of course, 

565 
at the time that you decided to issue the 

Order, the significant and substantial 

portion of it had long gone. Hadn't it? 

I mean, what was so significant and substantial 

about a pump just lying out there under 

unsupported roof? 

THE WITNESS: The fact that I felt a person 

had, physically, gone beyond permanent 

suppcrted room to place that pump in there. 

JUDGE KOUTRAS: How was it reasonable and 

likely that, if nothing happened, that an injury 

would ,have occurred? If the unsupported roof 

was sound, and you sounded it, and visible 

inspected it, and the ~oof didn't fall, and 

nobody was hurt. Was it the practice that you 

were trying to address? 

THE WITNESS: More or less, yes. In that 

particular case. The practice of going beyond 

permanent roof supports to do it. Both, in 

fact. The pump was physically there, inby 

permanent supports. 

Robert G. Nelson, MSHA Supervisory Inspector, testified 

that he was at the mine on June 1, 1983, and that he went 

underground by means of an elevator and mantrip. He sat next 

to a mechanic, and Inspector Smith was at the front of the 

mantrip. Mr. Nelson stated that he observed a permissible 

switchbox which the mechanic had with him, and they generally 

discussed it. The mechanic advised him that he was taking 

the switchbox into the D Butt Section to replace one which 

had gone bad (Tr. 337}. 

Mr. Nelson stated that he went to D Butt Section after 

Mr. Smith's orders were issued, and that an hour or so later 

he discussed the matter with Mr. Mitsko. Mr. Mitsko advised 

him that he had not been on the section for a week, had no 

knowledge of the conditions cited, and that he was surprised 

about the orders which Mr. Smith had issued (Tr. 339). 

M~. Nelson confirmed that he was at the June 8th.meeting 

at the mine, and he recalled asking Mr. '1itsko some questions, but 

did not remember specifically what he asked. Although he 

couldn't recall Mr. Mitsko stating that he knew he had to 

replace the switchbox, Mr. Nelson stated that "he could have" 

(Tr. 341}. Mr. Nelson denied that he called the meeting, 

and when asked who did, he replied "nobody" (Tr. 341). He 

explained that he was at the mine for another reason, but 

that someone advised him that Mr. Mitsko "had something to 

tell us" (Tr. 341) . 

566 
On cross-examination, Mr. Nelson conceded that when he 

spoke to Mr. Mitsko the respondent had been charged with 

using a nonpermissible switch box to supply power in the 

cited crosscut (Tr. 344). He confirmed that the June 8th 

meeting at the mine resulted from an MSHA review of whether 

or not a "willful" Section llO(c) citation should be issued 

because of the nonpermissible switchbox situation. He 

also confirmed that he spoke with production foreman Hasychak, 

and that Mr. Hasychak expressed "surprise" over the presence 

of the nonpermissible switch, and indicated that he had no 

knowledge that it was used (Tr. 345). 

In response to further questions from the bench, Mr. Nelson 

.·stated that the purpose of the June 8th meeting was to talk 

with the mine safety committee c·hairman, and that before making 

any decision he wanted "to make a good review" (Tr. 351). 

Mr. Nelson could not recall Mr. Mitsko stating that he had 

knowledge of the switchbox in question, but indicated that 

if he did he would not have given it much thought because 

of his prior statement on June 1 that he had no knowledge 

of it (Tr. 351). Mr. Nelson confirmed that he took no notes 

at the June 8 meeting, and the meeting was not taped or otherwise 

recorded. He explained that "I was not interested in the 

meeting" because he wanted to talk to the safety committee 

chairman, and he believed that the decision not to file a 

Section llO(c) citation may have already been made, and 

indicated that "we just wanted to make sure" (Tr. 353). 

Mr. Nelson stated that on June 8th, he met separately with 

the safety committee, but that they had no input and "didn't 

know very much about it" (Tr. 354). 

Findings and Conclusions 

Docket No. PENN 83-203-R 

Fact of Violation 

In this case, the inspector cited a violation of 

section 75.200, when he observed a permissible water pump 

located approximately three feet inb~ permanent roof supports. 

The cited standard provides in pertinent part that no person 

shall proceed beyond the last permanent support unless adequate 

temporary support is provided. The standard also requires 

a mine operator to comply with its approved roof control 

plan, and the inspector testified that the cited condition 

violated a safety precaution provision of the mine plan which 

contained language similar to that found in the standard. 

567 
At the time he observed the cited condition, the inspector 

saw no evidence of any temporary supports, and his order states 

that the violation occurred on the previous shift, and that 

it was evident that a person or persons had worked inby 

the permanent roof supports. The basis for his belief that 

someone had gone inby to perform some work was not only the 

fact that the pump was there, but that it had "been installed." 

He explained that water was in the area, the pump had been 

"set up to be used," and he candidly conceded that his citation 

was issued on the assumption that someone had gone beyond 

permanent supports on the previous shift, placed the pump where 

he observed it, and used it to pump water. 

MSHA's counsel candidly recognizes the fact that the 

asserted violation is based on circumstantial evidence, and that 

the resolution of the matter depends on my assessment of the 

credibility of the witnesses. As correctly stated by counsel, 

the sole question as whether the section foreman's explanation 

for the presence of the pump inby supports is a believable 

one. In support of her position, counsel argues that the 

inspector testified that he never observed anyone throw 

such a pump into a flooded area and that such a practice 

subjects the equipment to strain which could result in damage 

to its internal connections. 

The fact that the inspector never observed anyone throw 

a pump is irrelevant. In this case, the inspector conducted 

no experiment, did not attempt to pick up the pump, asked 

no one to demonstrate it for him, and he confirmed that he 

made no effort to contact anyone from the shift on which he 

believed the violation occurred because he did not believe 

it was necessary. It occurs to me that with a little more 

investigative effort, the inspector would have been in a 

better position to ascertain the facts. As for subjecting 

the pump to strain by throwing it, the pump was described 

as weighing 90 pounds, and I believe the word "heave" is a 

better description. Further, the testimony in this case is 

that the pump condition was abated by someone dragging it 

out from under unsupported roof by pulling on the power 

cable, and that this was done in the presence of an inspector. 

Since no one inspected the pump in question, and since it 

was permissible, there is no evidence that the pump was 

damaged, and the practice of pulling it out by the cable 

is more likely to place a strain on the connectors. 

MSHA's counsel also argues that the inspector was not 

informed that the pump had been thrown into the area until 

568 
some time after the issuance of the order. The short answer 

to this is that he never asked. With respect to the argument 

that the area was flooded and that the individual who 

purportedly placed the pump.where it was found ventured no· 

further for fear of getting his feet wet is so speculative 

.. as to be rejected out of hand. 

With regard to the argument that the pump was "installed," 

and the suggestion that it was obvious th~t great pains were 

taken to "set up" the pump and water discharge line, the 

inspector candidly conceded that the line is already attached 

to the pump, that the purported "installation" would not 

involve a lot of time, and that "one would just lift it up 

and step out there and set it down and step back out" (Tr. 149). 

Under the circumstances, MSHA's argument on this point is 

given little weight. Photographic exhibits J-4-A and J-4-B 

show the pump in question, and the person shown in the photograph 

is lifting the pump by the handles. One photograph shows 

the plimp being held by one hand, and the second shows it 

being held by two hands. 

Helen Mining's defense is that shift foreman Bondra 

heaved the pump out for about three feet, or arm's length, 

at the end of his shift, and that he did so to make it easier 

for the oncoming shift to use the pump to dispel water. 

Since no one observed anyone go under unsupported roof, I 

find Mr. Bondra's testimony as to how the pump came to rest 

where it did to be credible and believable. Mr. Bondra's 

testimony is supported by Safety Manager Skvarch who confirmed 

that Mr. Bondra demonstrated to him how he placed the pump 

inby the permanent roof supports. Further, the inspector, 

when called in rebuttal, conceded that Mr. Bondra's story 

was credible and that "it could have happened that way." 

The inspector also candidly admitted that had Mr. Bondra 

demonstrated_ to him how he heaved the pump beyond the roof 

supports, he would not have issued the violation (Tr. 312). 

On the basis of all of the credible testimony in this 

case, I conclude and find that MSHA has failed to prove a 

violation. The lesson to be learned from this incident is 

that the failure to a~k questions, or to fully develop a case 

when it is fresh on everyone's mind, will ultimately lead to 

vacation of orders and citations for failure to prove the 

charges by a preponderance of any credible evidence. 

Accordingly, the order in question IS VACATED, and the contest 

IS .GRANTED. 

569 
Docket No. PENN 83-202-R 

This contest proceeding concerns a section 104(d) (1) 

Order No. 2111719, issued by MSHA Inspector Lloyd D. Smith 

on June 1, 1983, charging Helen Mining Company with a 

violation of mandatory standard section 75.200. The inspector 

was of the view that the approved roof control plan was 

violated when he found that a warning sign had not been posted 

at an area of unsupported roof. MSHA's civil penalty 

proposal for this alleged violation is part of civil penalty 

Docket No. PENN 83-232, and MSHA initially sought an assessment 

of $100 for this violation. When this docket was called 

for hearing, the parties advised that they proposed to settle 

the matter by 'Helen Mining Company paying a penalty in the 

amount of $50. 

The parties were afforded an opportunity to present 

their arguments in support of the proposed settlement on the 

record, and I tak.e note of the fact that the inspector who 

issued the order in question was present in the courtroom 

and expressed agreement with the proposed settlement disposition 

of this matter (Tr. 234-239). 

After careful consideration of the arguments presented 

on in the record in support of the proposed settlement, I 

conclude and find that it is reasonable and in the public 

interest. Accordingly, pursuant to Commission Rule 30, 29 

CFR 29.2700.30, IT IS APPROVED. 

ORDER 

Helen Mining Company IS ORDERED to pay a civil penalty 

in the amount of $50 in satisfaction of the section 104(d) (1) 

Order No. 2111719, issued June 1, 1983, and upon receipt of 

payment by MSHA, that portion of civil penalty Docket No. 

PENN 83-232, IS DISMISSED. 

In view of the approved settlement, Helen Mining Company's 

counsel stated on the record, that he would withdraw the 

contest (Tr. 239). Accordingly, contest Docket No. PENN 83-202-R, 

IS DISMISSED. 

Docket No. PENN 83-200-R 

Fact of Violation 

The inspector issued the citation in this case after 

observing that a portion of the belt guarding used to prevent 

entry into an area where a conveyor belt drive motor was 

570 
located lying on the floor and not nailed to a post where 

it normally is. The fan blades of that motor are protected 

by a metallic shroud which is attached to the motor housing. 

At the time he observed the belt guarding lying on the floor, 

he also observed that the lower portion of the shroud was 

broken off. Photographic exhibits J-2-A and J-2-C clearly 

show the motor shroud and belt guarding in question. Based 

on testimony during the hearing, it would appear that the 

shroud portion of the motor had broken off during transit 

approximately five days prior to the inspection in question, 

and that mine management had ordered a new shroud. While 

awaiting the new shroud, the belting in question was nailed 

across two posts as a means of keeping people out of the area. 

The citation issued by the inspector specifically 

charges that "a portion of the guarding provided at the 6 

East Crossover belt drive on the clearance side was laying 

in the mine floor." This seems to indicate that the citation 

was issued because the inspector believed that the belt 

guarding laying on the floor was obviously not securely in 

place as provided by subsection (c) of section 75.1722, 

and thus failed to provide adequate protection for the motor 

in question. However, since he also stated in the citation 

that the lower portion of the broken protective shroud 

exposed the fan to possible entry, one could infer that this 

condition also violated subsection (c). The inspector's 

explanation of precisely what he had in mind seems to indicate 

that the belting material nailed on the posts was placed 

there as some sort of "signal" to preclude entry into 

the area where the motor in question was located. When asked 

whether he would still require the belt guarding even if the 

shroud were not broken, the inspector suggested that the belting 

may be necessary to protect other unspecified areas in the 

proximity of the motor. When asked whether a citation would 

have been issued had the shroud not be broken off, MSHA's 

counsel stated "it would not with respect to the exposed moving 

parts on this piece of equipment." 

The parties stipulated that a guard was not securely 

in place over the lower portion of the fan blades on the 

drive motor in question. At page three of his posthearing 

brief, Helen Mining's counsel states that the parties have 

stipulated to the fact that there was a violation of section 

75.1722(c) in that the belt guarding was not securely in 

place. While I see a distinction in the two, since the 

parties are in agreement that a violation did in fact occur, 

I will not belabor the matter further. The violation IS 

AFFIRJ.\IBD. 

571 
Good Faith Compliance 

The parties stipulated that Helen Mining demonstrated 

good faith compliance in achieving abatement of the cited 

condition after the citation was issued, I adopt this as 

my finding and conclusion on this issue. 

Size of Business and Effect of Civil Penalty on the Respondent's 

Ability to Continue in Business 

The parties stipulated as to -the size of Helen Mining's 

coal mining operations, as well as the size of the mining 

operations as its Horner City Mine. Based on the production 

figures shown at page 5 herein, I conclude and find that 

Helen Mining Company is a large mine operator. 

The parties have stipulated that the assessment of civil 

penalties in these proceedings will not affect Helen Mining's 

ability to continue in business. I adopt this as my finding 

and conclusion on this issue. 

History of Prior Violations 

The history of prior violations at the Homer City Mine 

is reflected in a computer print-out for the period June 1, 1981 

to May 31, 1983. That print-out reflects a total of 498 

violations, eight of which are prior citations for violations 

of section 75.1722(c). 

MSHA advances no arguments concerning the mine compliance 

record, and does not suggest that any penalty assessments 

levied for the violation should be increased as a result 

of this compliance record._ Although I am not persuaded 

that eight prior citations of section 75.1722(c), indicates 

a lack of concern for the guarding standard cited, I take 

note of the fact that the computer print-out also includes 

five prior citations for violations of guarding standard 

section 75.1722(a). I also take note of the fact that 498 

violations over a two year span is not a particular good 

compliance record, and have taken this into account in 

assessing the penalty for the violation in question. 

Negligence and unwarrantable failure 

The parties stipulated that the violation resulted 

from ordinary negligence, and at pages 3-4, Helen Mining's 

counsel confirmed that this is the case. However, at one 

point in time during the hearing, the parties stipulated 

that the guarding citation was not unwarrantable (Tr. 90) 7 

572 
and that the violation resulted from ordinary negligence 

on the part of the contestant (Tr. 91) ~ Later, contestant's 

counsel conceded that the violation was unwarrantable 

(Tr. 98-99), and MSHA's counsel was of the opinion that a 

showing of ordinary negligence was sufficient to establish 

unwarrantability (Tr. 99). Contestant's counsel concurred 

in this view (Tr. 100). 

MSHA's posthearing arguments contain no further discussion 

concerning the "unwarrantable" nature of the violation. The 

aforementioned cited transcript pages are indicative of what 

I believe to be inconsistent positions taken on the question 

of "negligence" and "unwarrantable." In my view, these terms 

are synonymous, and indicate a degree of negligence, and 

if the parties agree that a finding of "ordinary negligence" 

means unwarrantable, then so be it. 

In view of the foregoing, I conclude and find that the 

violation in question was an unwarrantable violation caused 

by the respondent Helen Mining Company's ordinary negligence. 

Gravity 

The parties have stipulated that if an injury were to 

occur as a result of the violation, it would be a serious 

injury. Accordingly, I conclude that the violation was 

serious. 

Significant and Substantial 

Relying on the Commission's decision in Secretary v. 

Cement Division, National Gypsum Co., 3 FMSHRC 822 at 825, 

(1981), MSHA 1 s counsel argues that the record contains 

ample evidence to support a conclusion that harm or injury 

was reasonably likely to occur as a result of the violation 

in this case. In support of this contention, counsel states 

that the inspector issued the citation when he observed that 

the fan blades of the drive motor were only partially covered 

by a broken shroud, and that a piece pf rubber belting, 

which had previously been nailed. to a post and placed in front 

of the exposed moving parts, was found lying on the mine floor 

at the time the condition was cited. Since the inspector 

testified that the rubber belting was wet and constituted a 

"slipping hazard," and since he also testified that an employee 

could fall directly into the moving fan blades, MSHA's counsel 

concludes that she has established a "significant and 

substantial" violation. 

Helen Mining's argument that the violation was not 

significant and substantial is based on the assertion that 

573 
(1) there is no evidence that any person had been or would 

be exposed to the violation before the operator would have 

discovered the condition and corrected it, and there is 

no reason to believe that the guard had not been in place 

during the previous shift; (2) few persons ever have had any 

occasion to be in the immediate zone of the downed belt 

guarding. Further, the area was not travelled by production 

crews, and those persons who had business in the area would 

use a "clearly defined" walkway which provided ample clearance; 

(3) of the few persons who had occasion to come into the 

affected area, only the belt examiner would have occasion 

to do so when the equipment was running, and company policy 

dictated that the equipment be locked out and deenergized if 

maintenance work were performed; and (4) even if a person 

were to approach the affected area when the equipment was 

running, it would be unlikely that he would slip, trip, or 

fall into the zone of potential harm. 

Finally, even if somehow all of the foregoing conditions 

were to occur simultaneously during the narrow window of 

time before the condition could be discovered and corrected, 

Counsel suggests that would still not likely cause an injury 

because it is not reasonably likely that the slipping, 

tripping or falling person would reach and come into contact 

with the moving fan blades. Not only was the gap in the guarding 

through which a person would have to fall just 2 feet wide 

(26 inches) according to the inspector (Tr. 38-39), but it 

was another 3 feet to the edge of the shroud at a minimum (Tr. 78). 

Only a portion of the guard was down and the intact portion prevented 

a person from contacting the exposed part of the fan blades 

head on. The motor base restricted access to the exposed 

portion of the fan blades from the sides and from below, 

while the housing of the motor and the intact portion of the 

shrouding limited the likelihood that a person falling into 

the area would come into contact with exposed blades from 

the top or side. As a result, it would take a concerted effort 

by a person to contort himself to come in contact with the 

fan blades (Tr. 64, 73; see Exh. J-1, J-2). 

After close scrutiny of the testimony and evidence adduced 

by the parties in support of their case, including their 

posthearing arguments, I conclude and find that Helen Mining 

Company has the better part of the argument that the cited 

guarding citation was not significant and substantial. It 

seems obvious to me that the citation was issued because the 

inspector believed that the belt guarding material was not 

in place at the time of his inspection. Given those facts, I 

cannot conclude that anyone passing outby the posts, which 

served to anchor the belting material could have inadvertently 

574 
fallen into the unguarded lower portion of the motor in 

question, thereby becoming engangled in the moving fan. The 

motor was located in an elevated position on a concrete 

platform, the upper portion was guarded by a metal guard, and 

the distance from the elevated concrete slab to the belt 

guarding in question was such, that in my opinion, would take 

a deliberate act to place someone in contact with the moving 

blades. 

On the facts of this case, I am convinced that the belt 

guarding in question was placed there to serve as a warning 

that inby that area there was a motor with a guard which had 

been damaged, and that persons should avoid the area. In 

these circumstances, the actual guarding device was the metal 

grill work affixed to the motor itself, and not the belting 

material. However, the cited condition, as described by the 

inspector, clearly identifies the belting material, rather 

than the metal grill work as the guarding device. Given these 

circumstances, I am not convinced that the belt guarding, even 

if it were in place, would have served any useful purpose 

in preventing one from being caught in the exposed fan motor. 

Therefore, the fact that the belting was not in place, is 

not significant and substantial. 

In view of the foregoing findings and conclusion, I 

cannot conclude that MSHA has established that the violation 

was significant and substantial. Accordingly, the inspector's 

finding in this regard IS VACATED. I agree with Helen Mining's 

proposed conclusion that the chain of circumstances which would 

have to combine to cause an injury is too attenuated and the 

probability of injury too remote to sustain a section 104(d) (1) 

citation. Accordingly, the citation is modified to a section 

104(a) citation, and as previously noted, the violation is 

affirmed. 

Docket No. PENN 83-201-R 

Fact of Violation 

In this case, Inspector Smith cited a violation of 

section 75.SOO(a), after observing a nonpermissible switchbox lying in a room located in a working place inby the last 

open crosscut. It seems clear to me that Inspector Smith 

issued the order in question because he believed that the 

nonpermissible switchbox in question had been used on the 

previous shift in conjunction with the pump which he found 

inby permanent roof supports. His citation states that the 

switchbox was being used to supply electric power to the pump, 

575 
and while he had no direct evidence that this was in fact 

the case, Mr. Smith's belief was based on circumstantial 

evidence. 

The applicable language found in section 75.500(a), 

is as follows: 

(a) All junction or distribution boxes 

used for making multiple power connections 

inby the last open crosscut shall be 

permissible; * * * 

In his posthearing brief, Helen Mining's counsel points 

out that there is no disagreement that the switchbox in 

question was nonpermissible and that the area where it was 

found by the inspector was in fact inby the last open crosscut. 

Counsel points out that where the parties disagree is whether 

or not the switchbox was in fact used there. 

In support of its position, Helen Mining's counsel points 

to the fact that MSHA's evidence that the switchbox had. 

been used was the fact that the deenergized box was found 

there attached to the pump at the start of the next shift 

(Tr. 105-109, 133-134, 308, 309). In contrast, all of the 

relevant testimony was that the pump had not been used there 

with the nonpermissible switch (E.g., Tr. 170-174, 205-207, 251; 

Exh. C-3) • 

Counsel maintains that the uncontested evidence as 

to the pattern of operations during the shift in question 

belies any such inference: all of the relevant testimony 

details Helen's compliance with the standard throughout the 

shift, first in using a permissible pump in the 8 to 9 

crosscut early in the shift, in keeping the switchbox outby 

when using a nonpermissible switch in the 9 room, in ordering 

the replacement permissible switch from the surface, and in 

not even setting up the nonpermissible switch on the pasts 

and insulated mat when it was taken over to the 8 to 9 crosscut at the end of the shift (E.g., Exh. C-1, C-2, C-3, C-5; 

Tr. 170-171, 175-177, 202, 205-206). 

Counsel also argues that credible weight should be 

given to the statements of the UMWA miners as to compliance 

with the standard at all times during the shift, and that in 

the absence of any evidence to the contrary, Helen Mining is 

entitled to the presumption of legality. Finally, counsel 

suggests that MSHA has not proven that the standard was violated 

by using the switchbox to supply power to the pump during 

the previous shift, and that MSHA's speculative inference is 

simply not enough to support the violation. 

576 
In response to MSHA's "theories" that liability should 

nonetheless be imposed on Helen Mining because (1) the 

nonpermissible switch was intended to be used there (Tr. 118); 

(2) it could have been used there (Tr. 115, 118); (3) even 

if it were not used there to supply power, it was "used" just 

by the fact of being there attached to the pump (Tr. 112-115), 

counsel states that MSHA's action must stand or fall on 

the basis of the reasons stated by the inspector when he 

issued the citation, and not by "inventive" posthearing 

arguments by MSHA's counsel. Even if one were to consider 

MSHA's post hoc arguments as legally cognizable, counsel 

suggest there-Ts no evidence to support them. In support 

of this conclusion, counsel points to the fact that MSHA's 

theory rests only on the inspector's supposition, derived 

from the fact that the pump and switch were in the 9 and 9 

crosscut and could have been used to pump the water out. 

Further, even if they were, counsel asserts that the inspector's 

supposition flies in the face of the evidence here that there 

was no intent to use the pump until the permissible switch 

which had been ordered from the surf ace and brought in at 

the beginning of the shift had been installed (Tr. 134, 

174, 183-184; Exh. C-3). 

Helen Mining's counsel goes on to argue that MSHA's 

"clever" reading of the standard to say that the very function 

of "making multiple power connections" in the 8 to 9 room 

was the proscribed use of the switchbox must fail because 

though multiple connections were arguably made (cable to 

switch, switch to cable to pump), "multiple power connections" 

were not made because it is abundantly clear that power was 

never connected by means of the switchbox in question in 

the cited crosscut. Further, counsel points out that the 

pump-switch assembly was never energized since the power 

plug was pulled at the power center before the unit was ever 

taken into the crosscut and there is no evidence that it 

was subsequently energized. 

Finally, in anticipation of MSHA's arguments, as 

developed by its discovery, that its Inspector's Manual states 

a general MSHA policy that "A violation of section 75.500 

exists whenever a unit of nonpermissible electric equipment 

is taken into or used in or inby the last open cross~ut .•• ," 

counsel responds that MSHA may not interpret section 75.500 

in this way. Aside from the tact that the standard does 

not state this policy interpretation on its face, counsel 

cites the language of subsection (b), (c) and (d) of section 

75.500, which proscribes nonpermissible equipment taken into 

and used inby the last open crosscut, and states that this 

577 
language "stands in stark contrast" to the language found 

in subsection (a) that only the use of such nonpermissible 

switchboxes is proscribed. CitIIlg several court decision, 

counsel concludes that "where Congress has carefully employed 

a term in one place and excluded it in another, it should 

not be implied where excluded." 

In support of its case, MSHA's counsel asserts that the 

inspector issued the citation after observing that the pump 

and switchbox in circumstances which led him to conclude 

that the switchbox was used or was going to be used to rid 

the area of excess water. MSHA concludes that since the 

cable which led from the box to the power center had not 

been "tagged out" or "dangered off" in any way, the inspector 

further concluded that the nonpermissible switchbox was 

readily available for use by any employee who wanted to 

start the water pump. 

MSHA cites the definition of "permissible" as follows, 

as set forth at 30 CFR 75.2(i): 

"Permissible" as applied to electric face 

equipment means all electrically operated 

equipment taken into or used inby the last 

open crosscut of an entry or a room of 

any coal mine the electrical parts of which, 

including, but not limited to, associated 

electrical equipment, components, and 

accessories, are designed, constructed, and 

installed, in accordance with the specifications of the Secretary, to assure that 

such equipment will not cause a mine explosion 

or mine fire, and the other features of which 

are designed and constructed, in accordance 

with the specifications of the Secretary, to 

prevent, to the greatest extent possible, 

other accidents in the use of such equipment 

• • • (Emphasis added. ) 

MSHA asserts that the inspector made a reasonable 

inference from the conditions he observed upon entering the 

place that nonpermissible equipment was used in violation 

of section 75.SOO(a). Further, MSHA suggests that even if 

the inspector's conclusion regarding the use of the box 

was erroneous, the presence of the nonpermissible box inby 

the last open crosscut, where it was admittedly used to 

connect two power cables, is sufficient to establish a 

violation. 

578 
MSHA contends that section 75.500(a) clearly prohibits 

the operator from locating a nonpermis~ible junction or 

·distribution box "used for making multiple power connections" 

inby the last open crosscut. In this case, MSHA maintains 

that the box was, in fact, used to make two power connections, 

i.e., one power cable connected to the box and leading to 

the pump and one power cable connected to the box and leading 

to a location at or near the power center. The fact that 

the power cables were not energized at the time the inspector 

saw the condition does not change the fact that both were 

connected to the nonpermissible box which was located inby 

the last open crosscut. 

MSHA maintains that its position is further supported 

by the definition of permissibility cited above. It refers 

to "all electrically operated equipment taken into or used inby 

the last open crosscut ••• including, ••• associated 

electrical equipment, components, and accessories ••• " 

This definition goes on to state that the purpose of such 

permissibility requirements is: 

• to assure that such equipment will 

not cause a mine explosion or mine £Ire; 

and the other features of which are designed and constructed • . • to prevent, 

to the greatest extent possible, other 

accidents in the use of such equipment 

••• (Emphasis added). 

In response to Helen Mining's argument that there was 

no violation because the pump was not operating, the cables 

were not energized, and the pump had not been used on the 

previous shift, MSHA submits that this interpretation would 

not assure the prevention of the very hazard which the standard 

is designed to prevent. The condition observed by Inspector Smith 

posed a definite risk of mine fire or explosion because the 

power connections were made and management failed to insure 

that the improper equipment would not be energized while 

in the high-risk location of the working place. 

Conceding that there are no reported Commission decisions 

·interpreting section 75.500(a), MSHA suggests that the 

Commission has considered issues raised by operators in similar 

contexts which do offer some guidance in this case. Counsel 

cites Secretary v •. Eastover Mining Co., 2 FMSHRC 1638 (1982), 

where the.Commission considered the circumstances under which 

a violation of 30 CFR 75.507 occurs. That standard requires 

that "except where permissible power connection units are 

used· all power-connection points outby the last open crosscut 

shall be in intake air." In Eastover a pump control box 

with nonpermissible connection points was located in return 

air. The operator claimed that since the equipment was not 

energized, a violation was not established. In upholding 

the violation, the Commission explained: 

579 
• • • mer~ly finding a (nonpermissible) 

power-connection point in return air does 

not necessarily absolve an operator simply 

because it is nonenergized. In such cases, 

a violation may occur if the equipment 

has been, is about to be, could be, 

or habitually was, operated in return air. 

Cf. Solar Fuel Company, 3 FMSHRC 1384 

(1981) (Emphasis added) • 

Counsel points out that in the instant case the inspector 

was of the opinion that the pump had been used with the nonpermissible box, and that the box could be used and in fact, 

was readily available for use. Counsel maintains that this 

was not a situation where an isolated electrical component 

was inadvertently placed inby the last open crosscut, 

unconnected to any equipment or power source. The operator 

did not demonstrate with any assurance that this nonpermissible 

box "could not or would not have been energized." 

Counsel cites two Commission decisions where it was 

held that the word "used," when found in a mandatory standard, 

should be interpreted to mean "could be used" as well. 

Secretary v. Ideal Basics Industries, 2 FMSHRC 1243, 1244 

(1981); Secretary v. Solar Fuel Company, 2 FMSHRC 1359, 1360 

(1981). Counsel suggests that these decisions indicate that, 

in view of the very serious hazards posed by the use of 

nonexplosion proof equipment in locations where methane may 

be emitted, the standard should be interpreted in such a 

manner that assures prevention of the harm. Counsel concludes 

that Helen Mining's interpretation of the cited standard is 

extremely technical and would permit a result that is 

inconsistent with the intent of the regulation. 

By letter dated February 7, 1984, Helen Mining's counsel 

takes issue with MSHA's posthearing arguments concerning 

the applicable definition of the term "permissible." 

Counsel argues that since the separate requirements set 

forth in section 75.500(b) through (d), all address equipment "taken into or used inby the last open crosscut," the 

cited definition of the term "permissible" as found in 

section 75.2(i), and as relied on by MSHA would apply to 

any citations for violations of those subsections. However, 

since Helen Mining here has been cited with a violation of 

subsection (a) of section 75.500, which requires that boxes 

used for making multiple power connections inby the last 

open crosscut to be permissible, counsel asserts that the 

definition found in section 75.2(c) (1) is applicable in 

defining the term "permissible" as used in section 75.500(a). 

That definition states as follows: 

580 
(c) 'Permissible' as applied to--(1) 

Equipment used in the operation of a coal 

mine, means equipment, other than permissible 

electric face equipment, to which an approval 

plate, label, or other device is attached 

as authorized by the Secretary and which meets 

specifications which are prescribed by the 

Secretary for the construction and maintenance 

of such equipment and are designed to assure 

that such equipment will not cause a mine 

explosion or a mine fire. 

In the Eastover Mining Company case, supra, although the 

Commission affirmed the Judge's holding on the facts of the case, 

it specifically rejected the Judge's broad construction that 

a violation of section 75.507 always occurs whenever nonpermissible 

power connection points are located in return air r~gardless 

of the circumstances. The Commission emphasized the fact 

that the purpose of the standard was to prevent methane gas 

explosions caused by sources of ignition, such as arcing 

from power connections. The Commission observ~d that the 

arcing of power connection points is only possible if the 

equipment is energized or can be energized. The Commission 

went on to explain that a violation may occur if the equipment 

has been, is about to be, could be, or habitually was, operated 

in return air. 

The facts in Eastover Mining are similar to those in 

the instant case, and these are explored by the Commission 

as follows at 2 FMSHRC 1638-1639: 

We now apply the preceding principles 

to the facts of this case, based on the 

record as developed below. There is no 

question that the pump control box was 

not energized when the inspector issued 

the order. The foreman who placed the 

equipment in the return air during the 

shift prior to the one during which the 

inspection occurred testified that there 

was not enough cable to connect the pump 

to the power center. He also testified 

that he was familiar with the regulation 

and would not have left the control box 

in the return air if it were engerized. 

In this case it is claimed that the 

unit was not in fact located in the return 

air but was simply placed there temporarily 

until it could be moved to intake air. 

581 
In other words, it is contended that the 

location.was merely an interrupted transit 

to another position where it would be 

located as required by the regulation. 

Nevertheless, the record does not contain 

a satisfactory explanation of why the control box was left in the return air. Nor has 

Eastover completely dispelled our concern that 

the only reason the pump control box was not 

energized in return air was because the 

connecting cable was too short -- a 'problem' 

which unfortunately suggests an original intent 

to energize in return air and a possible intent 

to 'remedy' the situation by means other than 

moving the control box into intake air. We 

will not, however, indulge in speculative 

hypotheses. The record before us does not 

allow us to say with assurance that Eastover 

clearly showed that the equipment could not 

or would not have been energized in return air. 

Our concern is underscored by the undisputed 

facts that the mine had a history of methane 

liberation (the major danger in the event of 

arcing) and .1 to .2 volume percent of methane 

was found at the working place when the order 

was issued. 

MSHA makes the point that the switchbox plug was not 

"tagged out" or otherwise "dangered off." Even if it were, I 

suspect that MSHA would still argue that a violation occurred. 

As a matter of fact, in Eastern Associated Coal, 1 FMSHRC 

2209 (1979) , the Commission ruled that even though a mine 

operator placed a "danger tag" on a piece of equipment which 

had been cited for an inoperable parking brake, a violation 

still existed since the equipment remained operable in a 

working area. The Commission ruled that tagging out the 

piece of equipment did not abate the violation because: 

We hold that tagging the jitney was not 

sufficient to withdraw the jitney from 

service because the danger tag did not 

prevent the use of the defective piece of 

equipment. The jitney was still operable 

and the danger tag could have been ignored. 

In Ideal Basic Industries, 2 FMSHRC 1242, 1243 (1980), 

the Commission held that: 

582 
If equipment with defects affecting 

safety is located in a normal work area, 

fully capable of being operated, that 

constitutes 'use'. Here, at the time 

of the inspection, the mobile was parked 

in a usual location, right next to the 

area where railroad cars - which the mobile 

is used to move - are loaded. It was neither 

rendered inoperable nor in the repair shop. 

To preclude citation because of "non-use" 

when equipment in such condition is 

parked in a primary working area could 

allow operators easily to use unsafe 

equipment yet escape citation merely by 

shutting it down when an inspector arrives. 

Although on the facts of this case, we are not dealing with 

equipment "defects," the construction of the term "use" is 

pertinent in the context of nonpermissible equipment. 

In Solar Fuel Company, supra, the Commission interpreted 

the application of section 75.503, which requires a mine 

operator to maintain in permissible condition electric face 

equipment which is taken into or used inby the last open crosscut. 

The Commission reversed the Judge's ruling that the "intent" 

to take such equipment is not controlling, and that in order 

to establish a violation it must be shown that an operator 

did not maintain in permissible condition equipment which 

was taken into or used inby the last open crosscut. In 

reversing, the Commission emphasized the fact that the requirements for maintaining such equipment "permissible" is to 

assure that mine fires or explosions do not occur. Thus, 

the Commission reasoned that the emphasis "is not where 

equipment is located at the time of inspection, but simply 

whether it is equipment which is taken or used inby." The 

Commission then concluded that section 75.503 applies not 

only to equipment which has been taken inby the last open 

crosscut when inspected, but also to equipment which is 

intended to be or is habitually taken or used inby, even if 

it is inspected while located outby. · 

The term "face equipment" is defined at pg. 407 of 

the Mining Dictionary as "mobile or portable mining machinery 

having electric motors or accessory equipment normally 

installed or operated inby the last open crosscut in an entry 

or a· room." In this case, the electric pump, powered by a 

motor and the switchbox in question, fits the definition 

of electric face equipment, and the parties concede that 

it is the type of equipment covered by the cited standard. 

583 
A "switch" is defined by the Mining Dictionary, 1968 

Edition, at pg. 1111, as a "mechanical device for opening 

and closing an electric circuit." The term "connection box, 

electrical," is defined at pg. 251 as "a boxlike enclosure 

with removable face or plate within which electric connections 

between sections of cable may be made." 

There is no credible evidence to prove that the nonpermissible switchbox ~n question was in fact used to supply 

power to the permissible pump at the location where the 

inspector observed it. The pump was not energized or pumping 

water when he observed it, and he had no reason to believe 

that the cable plug was plugged into the power center or 

tagged out because he did not walk down to the power center 

before deciding to issue the order. His belief that the 

pump had been used on the prior shift, with the switchbox 

supplying the power, was based on circumstantial evidence, 

and MSHA has not rebutted Mr. Bondra's explanation as to 

the circumstances concerning the use of the pump and switchbox 

in question. Mr. Bondra's explanation is corroborated by 

the testimony of the electrician and mechanic (Plovetsky) , 

and the inspector himself conceded that Mr. Bondra's 

explanation was plausible. Further, the circumstances 

surrounding the ordering and delivery of a replacement 

permissible switchbox lends credence to Mr. Bondra's explanation. 

Although the unsworn statements of the miner's offered 

by Helen Mining's counsel are self-serving, the prior 

statement by Mr. Plovetsky is consistent with his testimony. 

W1th regard to the other statements, they were made available 

to MSHA in advance of the hearing as part of the discovery 

process, and MSHA had an opportunity to subpoena the miners 

if it had reason not to believe their statements. In any 

event, the statements concerning the actual use made of the 

pump and switchbox in question add nothing to the testimony 

of~record in this case. 

-~ _ In this case, Helen Mining is charged with using a 

non-permissible switchbox to supply power to a permissible 

pump ·-purportedly used to pump water on a shift prior to 

the one where the cited conditions were observed by the 

inspector. On the basis of all of the credible evidence 

and testimony adduced in this proceeding, I conclude and 

f-ind that Helen Mining has rebutted MSHA' s circumstantial 

case, and has established that the switchbox and pump in 

ques±ion were not in fact used to pump water as charged 

by the inspector in this case. However, given the language 

fDund in·section 75.500(a), which is different from that 

found in subsections (b) , (c) , and (d) , as well as in 

584 
section 75.507, the question presented is whether these 

prior interpretations in the context of the cases cited herein 

are equally applicable to the facts presented in this case. 

MSHA recognizes the fact that the prior cases considered 

by the Commission concern interpretations of the words 

"taken into or used." Had the inspector in the instant 

case cited Helen Mining with a standard using those words, 

I would be constrained to find that MSHA has established a 

violation in that the nonpermissible switchbox was taken into 

an area which was inby the last open crosscut. As a matter 

of fact, Helen Mining stipulated that the box in question 

was located in the working place, inby the last open crosscut 

at the time the inspector observed it. 

The regulatory language found in subsection {a) mandates 

that boxes used for making multiple power connections inby 

the last open crosscut shall be permissible. Thus, the 

critical question presented is whether or not MSHA has 

established that the switchbox was used for making a multiple 

power connection during the prior shift, as charged in the 

violation. Since I have concluded that MSHA has not established 

that the switchbox was used to supply power to the pump 

on the previous shift, logic dictates that I make the same 

conclusion and finding with respect to this question. However, 

before reaching that conclusion, a review of the Commission's 

prior interpretations of the permissibility regulations found 

in the cited cases is in order. 

As I read the prior Commission rulings in the cited cases 

relied on by MSHA in support of its case, it seems clear 

to me that the Commission believes that the intent of any 

permissibility regulation is to assure that all possible 

temptation to use nonpermissible equipment inby the last 

open crosscut be removed by an interpretation that practically 

prohibits the physical taking of such nonpermissible equipment 

inby the last open crosscut, regardless of whether "it is 

used," "interided to be used," "habitually used," or "ready 

to be used." 

Helen Mining maintains that since the definition of 

"permissible" found in 30 CFR 75.2{i), includes a reference· 

to electric face equipment taken into or used inby the last 

open crosscut, it may only be applied to citations based on 

subsections {b), {c), and {d) of section 75.500, because 

those subsections contain those very same words, while the 

cited subsection {a) does not. Helen Mining asserts that 

the proper definition for "permissible," in the context 

of an alleged violation of subsection {a) , is that fo~nd in 

30 CFR 75. 2 (c) (1). 

585 
On the facts of this case, the nonpermissible switchbox 

in question was characterized as "nonpermissible" because it 

was not constructed as an approved explosion proof device 

which has MSHA's "seal of approval." While there was some 

testimony that a wire or connection had become damaged when 

the box was dragged to another location during the beginning 

of Mr. Bondra's shift, that fact alone did not render the 

box in question "nonpermissible." Thus, on the facts here 

presented, regardless of which definition is applied, MSHA's 

arguments with respect to the intent and purpose of the 

permissibility regulations referred to in this case are well 

taken. Both definitions take into account the fact that the 

required permissibility parameters for the design, construction, 

and maintenance of such equipment are intended to assure 

that such equipment will not contribute to a mine fire or 

explosion. 

Helen Mining's argument that a multiple power connection 

had not been made because the power cable had not been plugged 

into the power center is rejected. While it is true that 

the inspector did not know whether the ·power plug was actually 

plugged into the power source at the time he observed the 

switchbox and pump, Mr. Bondra confirmed that he did not 

tag or "danger off" the plug when he left the switchbox and 

pump for the next shift. 

On direct examination, Mr. Bondra testified that he 

informed incoming foreman Mitsko that he needed a switch 

for the pump and that he should not use the pump until the 

new switch was installed {Tr. 184). He claimed that this 

conversation took place between the change in shifts. 

However, in response to my questions, Mr. Bondra testified 

that he did not tell Mr. Mitsko that he had left the pump 

with the nonpermissible switch attached to it at the location 

where it was found by the inspector, nor did he tell him 

that he had not plugged in the power. When asked why, 

Mr. Bondra responded that there was not enough time {Tr. 197). 

I find it rather incredible that section foreman Bondra 

could not find the time to pass on this information to 

Mr. Mitsko. In view of Mr. Bondra's previous explanation 

that he left the pump and switchbox where he did without 

tagging out the power plug because "he did not have time," 

I suggest that in the future he reexamine his priorities and 

take the time to carry out these supervisory details. 

Mr. Bondra's testimony confirms Inspector Smith's 

testimony that Mr. Mitsko advised him that the power plug 

had not been tagged out, and since Mr. Bondra did not discuss 

the matter with Mr. Mitsko before the switchbox and pump were 

586 
discovered by the inspector, it also supports Inspector Smith's 

assertion that Mr. Mitsko had no knowledge that the switchbox and pump were left by Mr. Bondra. 

Further confirmation that the power plug was not tagged 

out came from the mechanic, Mr. Plovetsky. He also confirmed 

that he could not lock out the power at the power center 

at the end of the shift when Mr. Bondra left the switchbox 

and pump because he had no lock-out device. Further, even 

though he was qualified to remove the nonpermissible switchbox, 

Mr. Plovetsky did not do so, nor did he speak to any of the 

incoming shift personnel to notify them that the switchbox 

and pump were left by Mr. Bondra, and that the power plug 

and power source were not locked out. 

In view of the foregoing circumstances, while there is 

no direct evidence that the nonpermissible switchbox was 

used on the prior shift, I am not convinced that Helen Mining 

has established that the pump and switchbox could not or 

would not be energized and used by the oncoming shift at 

the location where it was left by Mr. Bondra. In addition, 

I am not persuaded by the self serving disclaimer statements 

compiled by mine management to defend the citation, and they 

are rejected as a defense. It seems to me that with a little 

more attention to their duties, Foreman Bondra and Mechanic 

Plovetsky could have, and should have, either removed the 

switchbox, or at least secured the power source by obtaining 

a lock-out device, or tagging out the plug. By leaving the 

pump and nonpermissible switchbox, with the cable untagged, 

and with the power source not locked out, they did precisely 

what the Commission expressed concern about in Eastover Mining Co., 

Ideal Basic Industries, and Solar Fuel Company, supra. 

Accordingly, I conclude that the interpretation and application 

of the language "used for making multiple power connections" 

as found in section 75.500(a), should be precisely how the 

Commission interpreted the word "used" in the Eastover Mining 

Co. case, as well as the other cases cited by MSHA in support 

of the violation. All that was necessary here to energize 

the pump and switchbox was for someone to plug in the cable 

to the power source, and I am not convinced that Helen Mining 

has demonstrated with any assurance that this was not the 

case. Accordingly, I conclude and find that MSHA has established 

a violation of mandatory standard 30 CFR 75.500(a). The 

section 104(d) (1) Order No. 2111718, IS AFFIRMED, and the 

Contest IS DENIED. 

Significant and Substantial 

Helen Mining agrees that if an injury were to occur 

as a result of the alleged violation, it could reasonably 

587 
be expected to result in a potentially serious injury. 

However, its defense to the inspector's· "significant and 

substantial" findings is based on the argument that 

only an examiner and the person moving the pump would have 

any occasion to be in the area on an infrequent and brief 

basis, and that the possibility of an accident would be 

extremely remote. 

At page 34 of his posthearing brief, Helen Mining's 

counsel cites several hearing transcript references to support 

his assertion that the oncoming foreman (Mitsko) and his 

mechanic (Decarlo} were the only people who would energize 

the switchpump assembly. Counsel asserts that they had 

been told that they had to replace the switch before they 

could pump water. Mr. Mitsko is deceased and Mr. Decarlo 

did not testify. 

Mr. Plovetsky's testimony is that the oncoming mechanic 

and foreman were the only persons who should be responsible 

for energizing the power cable (Tr. 217-218). However, 

Mr. Plovetsky testified that he said nothing to anyone 

from the oncoming shift about the facts surrounding the power 

cable. Mr. Skvarch's testimony, at Tr. 249-255, simply 

recounts the information he developed during his investigation 

of the order, and it seems clear to me that he simply relied 

on Mr. DeCarlo's prior self-serving statement that he was 

to take the new permissible switchbox into the section. 

Further, the statements of the miners on the 12:00 to 8:00 

shift, exhibits C-3-B, C-3-C, and C-3-D, attesting to the 

fact that the pump was not used on their shift, and that 

they knew that a new switch had been ordered, is not relevant 

to what the oncoming shift would have done. Likewise, 

the statements by the miners listed in exhibit C-3(e), 

that it was not their job to operate pumps, and that they 

would not energize one if they thought it was illegal to do 

so is not persuasive. I conclude that since the pump and 

switchbox were placed and located in such a position as 

to .. make them readily available for use by someone merely 

plugging in the power cable, the possibility of this happening 

was not remote. This is particularly true where it appears that 

the area in question was flooded, and that the pump may have 

previously been used to pump water in the same area where 

the inspector found it when he happened on the scene. 

Although it may be true that the amount of methane detected 

by the inspector when he observed the pump and switch was 

not particularly substantial, given the fact that the mine 

does liberate a million cubic feet of methane in a 24 hour 

period, should there be any interruption to the ventilation, 

588 
the use of a nonpermissible switchbox would present an ignition 

source if the pump were inadvertently energized. Since there 

was a realistic potential present that someone could have 

inadvertently plugged in the pump and switch to begin pumping 

out the water which was present in the area, I conclude 

that there was a real potential for an accident, and Helen 

Mining's assertions to the contrary are rejected. I conclude 

and find that MSHA has established that the violation was 

significant and substantial, and the inspector's finding 

in this regard IS AFFIRMED. 

Unwarrantable Failure 

Helen Mining's arguments that the violation was not an 

unwarrantable failure ARE REJECTED. I agree with MSHA's 

posthearing proposed findings and conclusions that the facts 

and circumstances in this case support a conclusion that the 

violation resulted from Helen Mining's unwarrantable failure 

to comply with the cited standard. In my view, Section Foreman 

Bondra's actions in creating the conditions which resulted in 

the violation, when combined with his failure to take reasonable 

steps to insure that the switchbox in question was either 

tagged out or removed, clearly demonstrate to me that he knew 

or should have known of the violation, and that in these 

circumstances, he failed to exercise due diligence to prevent 

the conditions which the inspector reasonably concluded 

amounted to a violation. Contrary to Helen Mining's arguments, 

Mr. Bondra's conduct is attributable to Helen Mining, and I 

conclude and find that it should be held accountable for this 

conduct. I adopt MSHA's posthearing proposed findings and 

conclusions on the question of "unwarrantable failure" as 

my findings and conclusions on this issue, and the inspector's 

finding in this regard IS AFFIRMED. 

History of Prior Violations 

As indicated earlier, Helen Mining's history of prior 

violations for the period June 1, 1981. to May 31, 1983, 

reflects a total of 498 prior violations. However, I take 

note of the fact that this listing reflects no prior citations 

for violations of mandatory standard 30 CFR 75.SOO(a), and 

I have taken this into account in the civil penalty assessment 

for the violation in question. 

Good Faith Compliance 

The record establishes that once the order issued Helen 

Mining achieved timely abatement of the violation in question, 

and I have considered this in the civil penalty assessed 

for the violation in question. 

589 
Size of Business and Effect of Civil Penalty on the· Respondent's 

Ability to Continue in Business 

The parties stipulated as to the size of Helen Mining's 

coal mining operations, as well as the size of the mining 

operations at its Homer City Mine. Based on the production 

figures shown at page 5 herein, I conclude and find that 

Helen Mining Company is a large mine operator. 

The parties have stipulated that the 

civil penalties in these proceedings will 

Mining's ability to continue in business. 

my finding and conclusion on this issue. 

Gravity 

assessment of 

not affect Helen 

I adopt this as 

I conclude and find that the circumstances concerning 

this violation presented a reasonable likelihood of an 

injury or an accident, and that the failure by Helen Mining 

to insure that the nonpermissible switchbox was not removed 

from the area in question, and was permitted to remain 

without locking out the power source or tagging out the plug 

constituted a serious violation. 

Negligence 

I conclude and find that the failure by Section Foreman 

Bondra to see to it that the switchbox was removed from the 

area inby the last open crosscut, or to at least see to it 

that the power cable plug was tagged out or the power source 

locked out indicates a reckless disregard for the safety 

of the oncoming crew. It seems clear that even though 

Mr. Bondra and the mechanic working on his same shift 

(Plovetsky), had an opportunity to do so, they did not take 

reasonable steps to insure that the switchbox would not be 

used, nor did they inform the oncoming crew that the switchbox 

and pump were left in a location where anyone could reasonably 

have believed that it was ready to be energized and used to 

pump out the water which was in the area. In these circumstances, I conclude and find that the violation resulted 

from gross negligence, and this is reflected in the civil 

penalty assessed by me for the violation in question. 

Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llO(i) 

of the Act, I conclude and find that the following civil 

penalty assessments are appropriate for the violations 

which have been affirmed: 

590 
PENN 83-200-R 

Citation No. Date 30 CFR Section Assessment 

2111715 5/25/83 75.1722(c) $375 

PENN 83-201-R 

Order No. Date 30 CFR Section Assessment 

2111718 6/1/83 75.500(a) $2800 

ORDER 

Helen Mining Company IS ORDERED to pay the civil penalties 

assessed by me in the amounts shown above within thirty (30) 

days of the date of these decisions, and upon receipt of 

payment by MSHA, these cases are dismissed. 

Distribution: 

Thomas c. Means, Esq., Crowell & Moring., 1100 Connecticut 

Ave., N.W., Washington, DC 20036 (Certified Mail) 

Catherine o. Murphy, Esq., U.S. Department of Labor, Office 

of the Solicitor, 3535 Market St., Philadelphia, PA 19104 

(Certified Mail) 

/slk 

591 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 . 

DENVER, COLORADO 80204 MAR 61984 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HE.l\.LTH 

ADMINISTRATION CMSHA}, 

Petitioner 

v. 

ALLIED CHEMICAL CORPORATION, 

Respondent 

. 

. 

. . 

. . 

. . 

. . 

. . 

Docket No. WEST 80-217-M 

A.C. No. 48-00155-05030 

Docket No. WEST 80-292-M 

A.C. No. 48-00155-05038 I 

Docket No. WEST 80-299-M 

A.C. No. 48-00155-05039 

Docket No. WEST 81-28-M 

A.C. No. 48-00155-05058 

Docket No. WEST 81-32-M 

A.C. No. 48-00155-05061 V 

Docket No. WEST 81-332-M 

A.C. No. 48~00155-05077 I 

Docket No. WEST 81-405-M 

A.C. No. 48-00155-05085 

Alchem Trona Mine 

DECISION 

Appearances: Stephen Kramer, Esq., Office of the Solicitor, 

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

for Petitioner; 

Before: 

John A. Snow, Esq., Vancott, Bagley, Cornwall, 

and McCarthy, Salt Lake City, Utah, 

for Respondent. 

Judge Vail 

STATEMENT OF THE CASE 

These consolidated cases arise under the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 et~ In each case, the 

Secretary seeks to have a civil penalty assessed for an alleged 

violation of a mandatory safety standard. 

An evidentiary hearing was held in Green River, Wyoming. 

Based upon the entire record and considering all of the arguments 

of the parties, I make the following decision. To the extent that 

the contentions of the parties are not incorporated in this 

decision, they are rejected. 

ISSUES 

The principal issues presented in this proceeding are: Cl} 

whether respondent has violated the provisions of the Act and . implementing regulations as alleged in the proposal for assessment 

of civil penalties filed in these proceedings; and, if so, (2) the 

appropriate civil penalties that should be assessed against the 

592 
respondent for the alleged violations based upon the criteria as 

set forth in section llOCi> of the Act. Additional issues raised 

by the parties are identified and disposed of in the course of this 

decision. 

In determining the amount of a civil penalty assessment, 

section llOCi) of the Act requir~s consideration of the following 

criteria: Cl> the operator's history of previous violations, (2) 

the appropriateness of such penalty to the size of the business of 

the operator, (3) whether the operator was negligent, (4) the 

effect on the operator's ability to continue in business, (5) the 

gravity of the violation, and (6) the demonstrated good faith of 

the operator in attempting to achieve rapid compliance after 

notification of the violation. 

STIPULATIONS 

The parties stipulated to the following: 

1. Respondent is the owner and operator of the Alchem Trona 

mine. 

2. The products produced by the said mine enter and effect 

commerce. 

3. All of the above cited cases, except for Docket No. WEST 

No. 80-217, are governed by the provisions of the Federal Mine 

Safety and Health Act of 1977 and are properly before the Federal 

Mine Safety and Health Review Commission. 

4. That if penalties are assessed in these cases, it will not 

affect respondent's ability to continue in business. 

5. The respondent has two million, thirteen thousand and 

twenty five man hours annually and is considered a large ;nining 

operation. 

6. The Mine Safety and Health Administration CMSHA) 

inspectors involved in the above cited cases were duly authorized 

representatives of th~ Secretary of Labor (Secretary) at all times 

relevant herein. 

7. In respect to Docket No. WEST 80-217-M, in the twenty four 

months prior to September 25, 1979, 251 violations were assessed 

against the respondent. 

8. In Docket No. WEST 81-32-M, 482 violations had been 

assessed against respondent. 

9. In Docket No. WEST 81-405-M, 350 violations had been 

as·sessed against respondent in the 24 months preceding June 9, 

1981. 

59.3 
Docket No. WEST 80-217-M 

Citation No. 575879 (A)(B)(C)(D)(E)(F)(G) 

Petitioner issued a type 107(a) and 104Ca> order alleging 

violations of several mandatory safety standards in a fuel storage 

area being used by Peter Kiewit and Sons Construction Company (Exhibit GX-1). The facts in this case show that the fuel storage 

area is located on property owned by Church and Dwight Co. Inc. 

This property is adjacent to the property where the Alchem Trona 

Mine CAlchem mine) operated by the respondent is located. The fuel 

storage area was being used by Peter Kiewit and Sons, an independent contractor working at the Alchem mine when the order was 

issued (Exh. GX-7). Based upon this record and subsequent to the 

hearing, the Secretary has filed a motion to dismiss Docket No. 

WEST 80-217-M with prejudice citing the Commission's decision in 

Secretary v. Phillips Uranium Corp., 4 FMSHRC 549. The Secretary 

stated that he felt the decision in Phillips, supra is controlling 

on the facts in this case. I agree. Docket No. WEST 80-217-M is 

ordered dismissed with prejudice. 

Docket WEST 80-292-M 

Petitioner alleges respondent violated 30 C.F.R. § 57.9-3 when 

an accident occurred at the Alchem Mine causing serious injuries to 

a miner. The cited standard provides as follows: 

Mandatory. Powered mobile equipment shall 

be provided with adequate brakes. 

Citation No. 336642 issued in this case states that the 

respondent's LBT lube truck was not provided with operable brakes 

and that the emergency brake was disconnected. The unit moved 

ahead and injured a miner working between the lub truck and a 

continuous miner. 

The Secretary originally proposed the assessment of two 

penalties in this case as follows: Citation No. 336642A for 

violation of 30 C.F.R. § 57.9-3 and proposed a penalty of 

$7,000.00 and Citation No. 336642B for violation of 30 C.F.R. 

§ 57.9-37~/ proposing a penalty of $3,500.00. 

1/ 57.9-37 Mandatory. Mobile equipment shall not be left 

unattended unless the brakes are set. Mobile equipment with wheels 

or tracks, when parked on a grade, shall be either blocked or 

turned into a bank or rib; and the bucket or blade lowered to the 

ground to prevent movement .. 

594 
At the hearing, the parties moved that the Court approve a 

settlement in this case of $5,000.00 to be divided equally between 

the two alleged violations. The Secretary stated that it was his 

belief that he could not show a direct connection between the 

violation and the accident to establish a high degree of negligence 

in this case. However, it was believed that there is some degree 

of negligence involved in order to justify the proposed amended 

penalty of $5,000.00. Based upon a review of the record in this 

case and the representations of the parties, I find the proposed 

settlement is in accord with the Act. The stipulated agreement and 

motion of the parties is granted and penalty amounts of $2,500.00 

each for citation Nos. 336642A and 336642B are approved. 

WEST 80-299-M 

Citation Nos. 336643 and 336644 

In this case, petitioner alleges respondent violated 30 

C.F.R. § 57.21-78. The cited standard provides as follows: 

Mandatory. Only permissible equipment maintained 

in permissible condition shall be used beyond the last 

open crosscut or in places where dangerous quantities 

of flammable gases are present or may enter the air 

current. 

During an investigation of an accident at respondent's Alchem 

Mine, MSHA inspector Melvin Jacobson issued citation Nos. 336643 

and 336644 charging that two non-permissible vehicles were operated 

in the last open crosscut. 

Jacobson testified that he observed a lubrication truck and a 

maintenance vehicle located south of 96+23 crosscut in the 5 south 

entry of panel F-Main south of the Alchem Mine (Transcript at 4). 

This part of the mine consisted of seven entries 2/ which are referred to in the testimony as rooms, numbered from east to west as 

one Cl> through seven (7). The mining process used in this 

particular mine is a room-pillar method. In the section where the 

violations are alleged to have occurred, there were two crosscuts. 

The most northerly was designated as crosscut 96+23 and the next 

crosscut to the south nearest the face as crosscut 97+23. Both 

crosscuts. were driven through the seven rooms except for crosscut 

97+23 which crosscut had not been completed or opened between rooms 

5 and 4 (Exh. GX-13). 

On the day of the accident prompting this inspection, the lube 

truck had entered the F-Main South panel coming from the north 

traveling south through room 3. At crosscut 96+23, it turned left 

~/ An underground passage used for haulage or ventilation. 

595 
and traveled .to room 5 where it ~as parked in the intersection of 

room 5 and crosscut 96+23 at a right angle in front of the 

continuous miner. The lube truck remained in this location for 

approximately 40 minutes with its engine running at a fast idle to 

provide power to run a compressor used to dispense material for 

servicing the continuous miner. The truck rolled forward pinning a 

miner between the truck and the continuous miner. After the 

accident, the lube truck was backed into room 5 just south of 

crosscut 96+23 near a maintenance truck also parked in the area. 

{Tr. at 8 thru 11 and Exh. GX-13). At the time the accident 

occurred, the mine was not in operation and only maintenance work 

was being performed {Tr. at 40). 

The petitioner contends that the two trucks involved herein 

were not permissible equipment and were inby the 96+23 crosscut in 

room 5 and that this crosscut was the last open crosscut at this 

particular location in panel F-Main South {Petitioner's Brief at 

1 ) . 

Respondent denies this and contends that crosscut 97+23 at 

room 5 was the last open crosscut in this section of the mine 

{Respondent's Brief at 7, 8). 

The condition or practice cited by Inspector Jacobson in the 

two citations allege that the two pieces of non permissible 

equipment were being operated "in the last open crosscut." The 

cited standard § 57.21-78 states that only permissible equipment 

shall be used beyond the last open crosscut or in places where 

dangerous quantities of flammable gasses are present. At the 

hearing, the inspector testified that he observed both vehicles 

"parked beyond the last open crosscut in room 5" {Tr. at 4). 

Although the wording of the two citations is not explicit as to the 

violation alleged to have occurred, there is no doubt from the 

evidence presented at the hearing and the arguments in the post 

hearing briefs that both parties understood the issues. 

The threshhold issue is which crosscut, 97+23 or 96+23 at room 

5, was the last open crosscut. There is no disagreement as to the 

fact that the two vehicles were both non permissible equipment 

under the Act or that after the accident, they were parked in room 

5 south of crosscut 96+23. 

Neither the Act or the metal and nonmetallic underground 

standards define the term "last open crosscut." The term 

"crosscut" is defined in the Bureau of Mines, U.S. Department of 

Interior, A Dictionary of Mining, Mineral and Related Terms, {1968) 

p. 280, as follows: 

aL A small passageway driven at right angles to 

the main entry to connect it with a parallel entry 

or air course .... f. 1n room and pillar mining, 

the piercing of the pillars at more or less regular 

596 
intervals for the purposG of haulage and ventilation. 

Synonym for breakthrough. Kentucky, E..:_ 332. 9..!_ In 

general, any drift driven across between any two 

openings for any mining purpose. Bureau of Mines Staff. 

Some clarity of the term last open crosscut can be derived 

from the standards that apply to underground coal mines. The 

common usage of various terms in the mining industry, although not 

necessarily universal, often applies to both coal and metal and 

nonmetallic mines. 30 C.F.R. § 75.503 provides in part as follows: 

"The operator of each coal mine shall maintain in permissible 

condition all electric face equipment .•• which is taken into or 

used inby the last open crosscut of any such mine." 

The distinction here is that the coal standard states "inby 

the last open crosscut" whereas the standard cited in the present 

case reads, "beyond the last open crosscut." I do not believe the 

drafters of the standard intended a distinction here. Nor did the 

witnesses who testified at the hearing or the parties in their 

briefs contend a different meaning for they regularly referred to 

the location of the equipment as "inby" the last open crosscut 

rather than beyond. Accepting the term "inby" as common to the 

indu$try, this can give assistance in establishing the location of 

the last open crosscut in this case. The above also applies to the 

term "outby. 11 

The term "inby" is defined by the DMMRT, p. 527 as follows: 

a. Toward the working f~ce, or interior, of the mine; 

away from the shaft or entrance; *** b. In a direction 

toward the face of the entry from the point indicated as 

the base or starting point. c. The direction from a 

haulageway to a working face ***. d. Opposite of outby. 

[Emphasis added.] 

The term 11 outby 11 is defined by the mining dictionary as 

follows: 

a. Nearer to the shaft, and therefore away from the 

face toward the pit bottom or surface; toward the mine 

entrance. The opposite of inby. Also called outbyeside. 

B.C.I.; Fay. b. In a direction toward the mouth of the 

entry from the point indicated as the base or starting 

point. 

The mining dictionary referred to above defines the term 

"face" in pertinent part as "the solid surface of the unbroken 

portion of the coalbed at the advancing end of the working place," 

"a point at which coal is being worked away," or "a working place 

from which coal or mineral is extracted." 

In one of the earlier cases decided under the 1969 Act, the 

597 , 
former Board. of Mine Operations J\ppeals defined the term "inby the 

last open crosscut" and in so doing affirmed a judge's ruling that 

it means "inby the interior-most rib or wall." In this case the 

term exterior rib line was defined to mean the line of the wall 

closest to the portal of the mine. Mid-Continent Coal and Coke 

Company, 1 IBMA 250 (December 29, 1972). 

The face of F-Main South section was located a short distance 

south of crosscut 97+23 CExh. GX-13). Inspector Jacobson testified 

that the last open cr6sscut for rooms 1 through 4 and 6 through 7 

was crosscut 97+23. He further stated that he believed 96+23 was 

the last crosscut for room 5 as there was not an opening between 

rooms 4 and 5. CTr. at 12). 

I do not find this argument by Inspector Jacobson and the 

Secretary persuasive as to this issue. It is not consistent with 

the other rooms in this section of the mine. If the reason is that 

room 5 at 97+23 is only three sided, so is room 7, room 4 and 1. 

Yet, Jacobson has indicated on Exhibit GX-13 by drawing in blue 

dotted lines to show the outby edge of the last open cross cut as 

extending along 97+23. Only in room 5, does he distinguish this 

difference without other explanation than the cut was not made 

through between 4 and 5. I reject the Secretary's argument. The 

definitions of a crosscut indicates it is a passageway at right 

angles to the main entry, and being 97+23 is the last crosscut 

driven at right angles from the face of room 5, it is the last open 

crosscut at that location. 

The Secretary further argued in his brief that great weight 

should be given to the Mining Enforcement and Safety Adminis~ 

tration's Assistant Administrator's interpretation of 30 C.F.R. § 

57.21-78 as contained in a memorandum dated November 8, 1974 and 

the testimony of Inspector Jacobson relative thereto (Sec. Br. at 4 

and Exh. GX-13A). In this memorandum, the contention is that the 

last open crosscut is a return airway for ventilating air and only 

permissible equipment shall be allowed in or beyond the last open 

crosscut. This is because it is a place where flammable gasses are 

present or may enter the air current. 

I do not find that this argument is valid. It is well settled 

that inspectors' guide lines and manuals do not have the status of 

official mandatory safety standards. See Kaiser Steel Corporation, 

3 IBMA 489, (1974), King Knob Company, Inc., WEVA 79-360 (June 29, 

1981). The "policy" statement instructing inspectors to cite 

equipment in the last open crosscut as it is a return airway is not 

consistent with the wording of the standard which refers to 

non-permissible equipment beyond the last open crosscut. 

In this case the Secretary referred to the above memorandum 

and argued that the location where the cited equipment was observed 

was a return air flow (Sec. Br. at 5, 6). The most credible 

evidence of record does not support this argument. The facts 

598 
established that the ventilation system at this location in the 

mine, and as· shown on Govern~entis Exhibit GX-13, has fresh air 

traveling up room 5 towards the face. After sweeping the face, the 

return air is exhausted through vent tubing or ducts. There are 

six fans pulling the air through these ducts, one fan in room 1 and 

7, and two fans in room 2, and 6 (Tr. at 16 and 55). There is no 

evidence that the cited pieces of equipment were in a return air 

course. 

Petitioner further contends that the respondent had a 

recirculation problem in this section of the mine The most 

credible evidence of record fails to supp~rt this claim. At the 

time the citations were issued, :'\ISHA inspector Potter moni tared 

methane in the immediate area and found there was none (Tr. 37). · Jacobson testified to some reports and data regarding a recirculation problem at respondent's mine. However, this data referred 

to a period of time prior to the accident and another period of · time two and half years after the citations were issued which is 

not shown to have been relevant or material to these citations. 

Charles McLendon, respondent's chief engineer, who holds a 

degree in mining engineering, testified that he did not believe 

methane would accumulate at the intersection of room 5 and crosscut 

96+23 for the reason that any methane at the face would be removed 

through the vents and the fans would prevent any recirculation (Tr. 

at 80-82). I find this testimony more credible than that of the 

inspector as it is based upon tests performed by the party 

responsible at the time for the ventilation system in the mine. 

The inspector's opinion was basea upon outdated data and 

speculation. 

In view of the foregoing findings and conclusions, I find the 

petitioner has failed to establish violations of section 57.21-78, 

as charged in citation Nos. 336643 and 336644, and order that these 

two citations are vacated and petitioner proposal for assessment of 

civil penalties dismissed. 

Docket Nos. WEST 81-28-M and WEST 81-32-M 

The above two cases are related as they involve the same 

alleged defective part in respondent's cited No. 16 man trip. In 

Docket No. WEST 81-28-M, MSHA inspector Merrill Wolford issued 

Citation No. 575827 on April 18, 1980 alleging several violations 

of 30 C.F.R.§ 57.9-2 which standard provides as follows: 

Mandatory. Equipment defects affecting safety shall 

be corrected before the equipment is used .. 

In the citation, the inspector stated as follows: 

The #16 mantrip has the idler steering control arm worn 

out. The flexible U joint to the steering gear has a 

599 
broken bolt and (sic> lose. The right front spring 

brac~et is worn egg shaped. The accelerator pedal is 

missing. The brake lights are inoperative and Csic) 

only one taillight works. This vehicle was voluntarily 

taken out of service by Safety Engr. to be repaired 

(Exhibit GX-14). 

In Docket No. WEST 81-32-M, inspector Wolford observed on May 

9, 1980, respondent's No.16 mantrip operating in the F-28 panel and 

determined that the previously cited steering idler control arm 

ball joint had not been repaired. Wolford issued 104Cb) 3/ Order 

No. 576844 in which he again alleged a violation of 30 C.F.R. § 

57.9-2 and stated as follows: 

Citation t0575827 was issued on the #16 mantrip for 

safety defects on 04-18-80 with a termination date of 

1600 hrs. on 04-25-80. This mantrip was observed being 

used in F-28 panel on 05-09-80 still with a badly worn 

and Csic) loose steering idler control arm ball joint 

which could cause the driver to lose control. This 

vehicle is used to haul men and (sic) materials about 

1 mile from the #2 shaft to the F-28 panel work area. 

This vehicle had been voluntarily taken out of service 

by the Safety Engr. to be repaired on 04-18-80. This 

vehicle is now ordered removed from service until 

properly repaired. 

In Docket No. WEST 81-28-M, citation No. 575827, the 

petitioner proposed the assessment of a penalty in the amount of 

$725.00. In WEST 81-32-M, petitioner filed a proposal for penalty 

alleging that citation 576843 was issued for a violation of 30 

C.F.R. § 57.9-73 and proposed a penalty in the amount of $1,200.00. 

Section 57.9-73 provides "Mandatory. Defective equipment, removed 

from service as unsafe to operate shall be tagged to prohibit 

further use until repairs are completed." 

At the commencement of the hearing involving these two cases, 

the parties entered into a stipulation in which the respondent 

admitted all violations alleged in citation No. 575827 except for 

that which pertained to the subject ball joint. The respondent 

ll 104Cb) provides in part as follows: 

If, upon any follow-up inspection ••• an authorized 

representative of the Secretary finds Cl) that a violation 

described in a citation issued pursuant to subsection (a) has not 

been totally abated within the time originally fixed therein or as 

subsequently extended, and (2) that the period of time for the 

abatement should not be further extended, he shall •.• promptly 

issue an order. 

600 
agreed to pay the proposed penalty of $725!00 in settlement of all 

the other violations. It was fu~ther agreed by the respondent that 

if a violation was found regarding this ball joint, the penalty 

could be increased. As to WEST Bl-32-M, order No. 576843, if a 

violation is found as to the subject ball joint, an additional 

penalty can be assessed in this case (Tr. at p. 6, 7, 8 and Resp's 

Br. at 2). Following the hearing the respondent submitted a brief. 

The Secretary decided to waive his right to submit a post hearing 

brief stating he.would rely upon the arguments presented at the 

trial. · 

The threshold issue in this case is whether the ball joint in 

the idler steering control arm oE the No. 16 mantrip was defective. 

If so, did it affect safety? 

The No. 16 mantrip is a vehicle assembled from various 

automative components for use in mines. The front end is from an 

International Scout II (Tr. at 70). The alleged defect cited in 

this vehicle is a part of the front end and specifically described 

as the worn condition of the ball joint of the idler steering 

control arm (Tr. at 13). The operation and function of the idler 

steering control arm is to attach the shaft of the steering 

assembly to the wheel of the mantrip so that the wheel turns when 

the steering wheel is operated. It was only the one ball joint of 

this assembly closest to the steering wheel alleged by the 

inspector to be defective (Tr. at 17, 18). 

Inspector Wolford testified that when he observed the front 

end of the No. 16 mantrip on May 9, 1980, the ball joint lacked any 

dust cover or grease sealer, and that the grease fitting referred 

to as a "zerk" was missing. He observed that there was no 

lubrication in the joint CTr. at 19 and Exhibit GX 15-B). Further, 

that the housing around the ball joint appeared worn in an egg 

shape and the nylon bushing material that was used as a liner had 

come out of the drag link housing CTr. at 27, 28). 

Wolford testified that the worn condition of the ball joint 

would affect steering of the vehicle and might under the right 

circumstances come apart or break. The No. 16 mantrip is used in 

the mine to haul eight to nine miners in and out of the working 

areas. It is also used to transport supplies. At the Alchem mine, 

the vehicle is used underground in confined areas over rough 

surfaces. A loss of control of the vehicle could cause it to go 

into a rib and roll over. The vehicle is not supposed to be 

operated at speeds of over 15 miles per hour and probably would not 

go over 25 miles per hour (Tr. at 33, 34). 

An examination of the drag link was made on April 16, 1981 

by Kazimir Niziol, a mining engineer with MSHA's Safety and Health 

Technology Center in Denver, Colorado. Niziol issued a written 

report in which he described the cited ball joint to be in very 

601 
poor condition with the grease fitting and dust cover missing and 

containing no trace of grease. He stated that the ball stud was 

extremely loose in all directions being approximately~ 1/8 inch to 

3/16 inch. Also the drag link was bent into an S shape. In this 

report Niziol stated his conclusions as follows: 

The steering system of any vehicle is an important 

safety consideration. Any damage, deterioration or 

excessive wear to steering components is extremely 

dangerous. When such conditions are found to exist, the 

worn parts should be immediately replaced or the vehicle 

removed from service. rJoose pins, ball joints or any 

other loose parts increase front wheel impact and also 

result in loss of control of the vehicle even at low 

speeds. The draglink examined exhibited such wear and 

was considered to be dangerous particularly since the 

vehicles operate underground in confined conditions and 

on rough surfaces. CExh. GX-15). 

The respondent argues that although MSHA proved the ball joint 

was loose, it did not show that it was a defect that in any way 

actually affected the safe operation of the mantrip CResp's. Br. at 

4). In support of this position, it points out that the inspector 

did not attempt to drive the mantrip or try the steering mechanism 

under operating conditions to determine if the wheels would 

"chatter" or the ball come out of the socket. 

In support of respondent's position, William C. Adler, a 

foreman for Allied at the Alchern mine, testified he had driven the 

No. 16 mantrip during April and May, 1980, and that he had not 

experienced any problems with the steering {Tr. at 151). James N. 

Ingram, a civil engineer employe·:i in Allied' s reliability 

engineering department, testifie1 that he had supervised tensil 

tests of the steering assembly ball joints conducted at the 

University of Wyoming in May 1981. Three ball joints were tested 

including the one cited here, a new ball joint, and one selected at 

random off of a similar mantrip. The conclusion was that the cited 

ball joint was essentially as strong in tensil strength as the 

others tested and did not fail until the application of 15,700 

pounds {Tr. at 103 and Exh. R-3). Ingram also tested the amount of 

loads or pressure which would be required to cause failure of the 

other parts of the steering assembly rather than the base joint. 

He testified that the other parts would fail before the subject 

ball joint {Tr; at 73, 74 and 76-78). 

I have carefully reviewed and considered the testimony, 

exhibits, and brief submitted in this case and conclude that there 

was an equipment defect involving the subject ball joint on the No. 

16 mantrip. 

This case presents a classic example of two experts presenting 

directly opposite views on the question at issue here. However, 
the uncontroverted evidence establishes that the subject ball joint 

showed wear, was without a grease zerk, and lacked lubrication. 

The amount of movement of the ball in the socket and its · transference to the wheels is disputed but its existence is not 

denied by the respondent. The fact that the joint was worn is 

admitted by respondent. However, it is argued that it was not 

proven that it was defective (Resp. Br. at 8). 

The term defect is defined in Webster's Third New 

International Dictionary (1976 Ed.) at p. 591 as follows: 

1. An irregularity in a surface or a structure 

that spoils appearance or causes weakness or failure7 

2. want or absence of something necessary for completeness, perfection, or adequacy in form or functions. 

As stated previously, I find from a careful review of all the 

evidence in this case that the subject ball joint was defective. 

Also, I am persuaded that the most credible evidence supports 

petitioner's argument that the defect to the ball joint in the· 

steering mechanism could affect safety. Even assuming, that the 

mantrip does not travel over 15 miles per hour, as argued by the 

respondent, the fact remains that the vehicle is hauling eight to 

nine miners underground in a confined area over rough terrain where 

the steering mechanism of the vehicle is vital to stability and 

direction. I am not persuaded that the tensil tests performed on 

the ball joint as reported by James Ingram would refleet the danger 

that exists from the ball joilits condition as described by all the 

parties. The tensil strength would determine the metals ability to 

withstand certain forces. However, the looseness in the steering 

and the deterioration of the ball joint from lack of lubrication 

seem to me to be vital in this case. 

Respondent has cited the case of Medusa Cement Co., 1 MSHRC 

2454, (May 1980)(ALJ), in support of its position in this case. I 

find that there is a distinction between the facts of these two 

cases which effect the final conclusion. In the Medusa case, 

supra, the Judge found that the defect, a broken bushing, would not 

adversely affect the control of the grader involved and render it 

unsafe to operate. Further, there was only the one miner, the 

operator, exposed to any risk. It is also noted that in Medusa, 

the Judge. distinguished his facts from those in Phelps Dodge 

Corporation, 1 FMSHRC 2018 (Dec. 1979)(ALJ) wherein Judge Merlin 

decided that a violation of 55.9-2 occurred when a truck was not 

safe when it was found all the lugs on a wheel were loose. The 

distinction here is whether the equipment defect would affect . safety and based upon two different fact situations, a different 

conclusion was reached. 

In light of the stipulation entered by the parties regarding 

Docket No. WEST 81-28-M, I find that the penalty already agreed 

upon in the amount of $725.00 should be raised by the amount of 

603 
$75.00 for the violation of a defective ball joint making a total 

penalty to be $800.00. 

Docket No. WEST 81-32-M 

As stated at the beginning, the parties agreed that if I 

should find a defective ball joint in the prior case affecting 

safety, an additional penalty may be assessed for the violation 

alleged in citation No. 576843. I find that the evidence shows the 

respondent was negligent in failing to repair the defective ball 

joint after it had been cited under citation No. 575827. The 

citation read that the respondent had voluntarily taken the 

equipment out of service by the respondent's safety engineer to 

have it repaired (Ex. GX-14). The evidence of record shows that 

all the other defective parts were repaired but the ball joint was 

not repaired which subsequently required the vehicle to return to 

the shop several times for mechanical work (Exhibits GX-15, F and 

G). These complaints all related to the steering mechanism. Upon 

the inspector's return approximately two weeks later, the repair 

work was still not accomplished. 

I am not persuaded that a penalty of the size originally 

proposed by the Secretary is warranted in this case. The facts 

suggest that the respondent did not determine that replacement of 

the part was necessary. It would appear that the defect was not 

corrected because of a failure of communication and not through an 

attitude of defiance. 

I find that a penalty of $100.00 is appropriate in this case. 

Docket No. WEST 81-332-M 

Petitioner alleges respondent violated 30 C.F.R. § 57.9-2 

which standard provides: 

Mandatory. Equipment defects affecting safety shall 

be corrected before the equipment is used. 

On October 9, 1980, MSHA inspector David Anspach conducted an 

investigation following an accident at the Alchem mine and issued a 

104(a) type citation No. 337557 which included the following 

statement: 

A 400 gal. oil tank that was being towed in GME 

roadway broke loose and struck a man that was 

standing in front of a lube truck. The retaining 

pin between the towing bar and the 400 gal. tank came 

loose releasing the tank. The tank equipped with 

4 fixed wheels continued on the roadway striking a 

man between the tank and a stopped lube truck 

C E xh • G X -1 7 ) • 

604 
Following a. hearing in Green River, Wyoming, the parties submitted 

post hearing briefs. 

Issue 

The specific issue in this case is whether there was a defect 

in the tow bar connecting the 400 gallon tank trailer to the 

tractor before the equipment was used. If so, then a determination 

must be made as to the amount of the penalty to be assessed the 

respondent. 

Discussion 

The facts in this case are not in dispute. The vehicles 

involved in this accident were a 400 gallon hydraulic oil tank 

being towed by a Ford forklift tractor. The location of the 

equipment was in an underground roadway of the Alchem mine. The 

tractor was connected to the trailer by a tow bar that was in the 

shape of an A with the point or narrow part of the tow bar attached 

to the tractor by a pin that dropped through two braces on the body 

of the vehicle. The wider part of the tow bar fit over a tube of 

steel attached to the trailer through which was inserted a pin. A 

cotter pin was to be inserted in the end of the pin so that the pin 

would not slip out (Tr. at 11, 12 and Exh. GX-19, 20). As the 

tractor was pulling the tank along the underground roadway, the tow 

bar came loose and the tank continued along pinning a miner between 

the tank and a lube truck (Tr. at 12 and Exh. GX-21). The reason 

the tow bar came loose in this instance was because the cotter pin 

was missing. Why the pin was missing is not established in this 

case. 

Respondent contends that in order to prove a violation of 

standard 57.9-2, petitioner must prove that there was a defect 

affecting safety which must have existed before equipment was used. 

In this case, respondent argues that the defect was not proven. 

MSHA inspector Anspach testified that the reason the citation 

was issued was that the cotter pin dropped out of the tow bar. 

However, under questioning, Anspach testified as follows: 

Q. Could you explain to us why you checked the box 

there under condition or practice that says, "could 

not have been known and predicted or cured due to 

circumstances beyond the operator's control?" 

A. This was as a result of that key coming out of 

there. I don't think there was any way they could 

predict when that key will come out of there, or when 

that could come out of there. The reference is to the 

key, to the cotter pin. 

Q. I see. 

605 
In this case, we do not have a situation where the inspector 

who issued the citation claims that the equipment was defective 

before it was put in use. He admitted under cross examination that 

it was unknown whether the cotter pin was in or out when the 

equipment was operated and testified as follows: "as far as that 

particular pin missing I don't believe they were negligent. What 

I'm saying is if they looked at it and it was missing I don't know" 

CTr. at 20). Also, he answered a question put to him as follows: 

Q. 

and 

you 

your 

9-2. 

And with respect to the safety chain and whatever --

the failure to have safety chains or welding devises 

said the company should have perhaps found that, but 

not asserting that for purposes of the violation of 

A. No. This is after the fact (Tr. at 21). 

I find from the evidence of record and particularly the 

testimony of the inspector that the violation of 57.9-2 was not 

proven and particularly that part relating to defects in equipment being known before it is put in use. The proposal for a civil 

penalty should be dismissed. Sec Grove Stone and Sand Company, 2 

FMSHRC 1263 (May 1980)(ALJ). 

Petitioner argued that several Commission decisions uphold 

their position in this case that the respondent violated 57.9-2. 

I disagree. In Secretary v. Ideal Basic Industries, 3 FMSHRC 843, 

the Commission considered a piece of equipment put in use with a 

known defect even though it was alleged the defect was not used. 

In the instant case, it was never proven that anyone knew of a 

defect when the equipment was put in use. In Secretary v. Allied 

Chemical Corp., 4 FMSHRC 503 (March 1982)(ALJ), Judge Morris found 

that there were defects existing when the machine was put in use. 

That is a different situation than is being considered in the case 

at issue here. Similarly, the same was true in Secretary v. Raid 

Quarries, 4 FMSHRC 728, Cl982)(ALJ). 

Docket No. WEST 81-332-M is hereby dismissed. 

Docket No. WEST 81-405-M 

Petitioner alleges respondent violated 30 C.F.R. § 57.21-33. 

The cited standard provides as follows: 

Mandatory. The volume arid velocity of the current of 

air coursed through all active areas shall be sufficient 

to dilute, render harmless, and carry away methane, smoke, 

fumes, and dust. 

HOS 
During a regular inspection of the Alchem mine Inspector 

Martin B. Kovick issued Citation No. 577485 stating in the 

condition and practice section as follows: 

Issue 

In the H.M.S. underground shop, there is not enough 

air movement to carry away smoke and fumes. There was 

not enough air to turn an anemometer approximately 

4-5 feet from the fan. There is not enough air movement to take a smoke tube reading approximately 4-5 

ft from the fan. The whole shope area was filled with 

what appeared to be smoke fumes and dust. There are 

approximately four to six men working in the shop and 

under these conditions. It is apparent that ventilation 

is not adequate to carry toxic fumes etc. to the return 

airway. 

Was the volume and velocity of the current of air in the 

H.M.S. shop sufficient to dilute, render harmless, and carry away 

fumes and dust? 

DISCUSSION 

The facts in this case show that on June 17, 1981, MSHA 

inspector Kovick conducted a regular inspection at respondent's 

Alchem mine. While underground at the H. Main South shop area, he 

observed a man using an arc welder to weld on a piece of mining 

equipment. Kovick testified that he saw blue smoke and haze 

"hanging" in the shop area. He considered it an excessive amount 

of smoke and haze (Tr. at 11). At this time the inspector 

attempted to test the air flow in room 3 with an anemometer but 

there was not enough air to turn the testing device. He then 

performed several smoke tube tests. This is done by squeezing off 

a puff of smoke and measuring the speed of its travel over a 

distance of ten feet to determine the air flow. Kovick stated that 

instead of traveling ten feet, the smoke in this case drifted to 

the ceiling (Tr. at 12). The smoke tube tests were performed also 

approximately 30 feet from the ventilation exhaust fans (Tr. at 16). 

The only way that the smoke would go through the ventilation fan 

was by sticking the tube approximately 4 to 5 inches from the fan 

(Tr. at 17) •• Further tests were conducted and resulted in similar 

results in rooms 4, and 5 in the H.M.S. shop area CExh. GX-23). 

The inspector testified that he was in the shop area for an hour 

and that he began to feel nauseous from the fumes (Tr. at 24). 

607 
Inspector Kovick also conducted two "cricket" tests which is 

used to obtain air samples for an analysis of gases such as 

methane, carbon dioxide, and other gases. The report on this test 

was relatively neutral for the above gases but the inspector failed 

to request a report for gases given off by welding (Tr. at 37). 

Two hours after the inspection in which citation No. 577485 

was issued, Jack Thorner, safety engineer and Don Schwartzenberg, 

mining engineer for respondent, conducted ventilation tests in the 

H.M.S. shop area. They were also unable to get an anemometer 

reading (Tr. at 102). They conducted smoke tests in rooms 3 and 4 

and concluded that the cubic feet per minute (CFM) of air movement 

was 9100 and 5050 respectively. Schwartzenberg believed that 

quantity of air was sufficient for removal of fumes from the shop 

area (Tr. at 104). 

Respondent argues that petitioner has failed to prove that the 

air movement in the shop area was insufficient to dilute, render 

harmless and carry away fumes and that the fumes were harmless. 

This is based upon the testimony of Thorner that at the time of the 

inspection, he thought the shop seemed clear, except for some smoke 

in the pockets in the back (ceiling). Further, respondent contends 

that the results of Kovick's tests were inaccurate. First, that 

only one test was taken in each room and that they were taken 

approximately 20 to 30 feet from the stopping which would render 

them inaccurate as stoppings cause the air flow to eddy (Resp. Br. 

at 7 and 8). 

After a careful review of all of the evidence and arguments in 

this case, I conclude that the most credible evidence substantiates 

the .fact that a violation of standard 57.21-33 did occur. There 

was considerable evidence presented by respondent in this case 

regarding velocity of air and whether or not the fumes were harmful. 

I find that the various arguments, although well presented, misses 

the mark as far as interpretation of the standard violated here. 

The standard 57.21-33 requires that the volume and velocity of the 

air through the working area be sufficient to dilute, render 

harmless' and carry away methane, smoke, fumes, and dust. In light 

of the foregoing and the plain language of the standard, I find 

that the air moving through the shop was not adequate to remove the 

smoke and fumes that had accumulated. There was no disagreement 

between the parties that on the day of the inspection, welding was 

being performed in the H.M.S. shop area. There is a difference of 

opinion as to the amount of smoke, haze, and fumes that existed in 

this area when the inspection party arrived. Under all 

circumstances, I find the testimony of Inspector Kovick more 

credible on this point than that of respondent's witnesses. He 

testified that when they entered the shop area you could see the 

blue smoke and haze hanging in the shop area and it appeared to him 

to be an excessive amount (Tr. at 11). Jeff Sawyer, respondent's 

maintenance foreman, said it was normal to have a little smoke in 

608 
pockets in the top (Tr. at 67). I do not find Sawyer's testimony 

persuasive as it was his area of responsibility where the citation 

was issued. Jack Thorner, safety engineer, also testified that he 

was along with the inspection party and that he thought the room 

cited seemed clear to him except for pockets of blue smoke close to 

the back. Although there is conflicting testimony as to the degree 

of smoke in the shop, I believe the inspector's testimony is more 

credible on this point. 

The evidence shows that when the inspection party entered the 

shop area, two of the exhaust fans were turned off, one in room 3 

where the welding was being performed and another in room 4. 

Thorner, confirmed this and stated that he did not know why these 

fans were off CTr. at 87, 88). Sawyer had testified that the men 

in the shop had been welding on a Jof frey Miner in room 3 all day 

(Tr. at 71). Based upon these facts, it is reasonable to conclude 

that there would be smoke, fumes, and haze from the welding and if 

the fans were off, it would not provide adequate air movement to 

remove the contaminates from the area. The lack of movement of 

smoke from the inspector's smoke bomb confirms this. 

The standard cited refers to methane, smoke, fumes, and dust. 

It doesn't explicitly require that a determination be made as to 

how toxic these are. Therefore, I reject respondent's argument 

that the petitioner failed to prove the fumes were harmful. It is 

sufficient to show that there was either smoke or fumes in the area. 

Further, the evidence established that the smoke and fumes were a 

result of the arc welding that was being performed in the area. 

Further Kovick and inspector Jacobson testified to the fact that 

significant hazards are associated with fumes occurring from 

welding CTr. at 59-64). This was uncontroverted by respondent's 

witnesses. 

In view of the above, I find a violation by respondent of 

standard 57.21-33 as alleged in citation No. 577485. I find the 

respondent knew of the violation as members of management had been 

present in the area. Also, the fact that exhaust fans were turned 

off during the welding in the area is evidence of negligence. The 

gravity is serious as the effect of smoke and fumes on miners 

working in the area can be injurious to their safety and health 

when inhaled over a period of time. The respondent demonstrated 

good faith in abating this violation by installing regulators in 

the stoppings to replace the exhaust fans. I find that $140.00 is 

an appropriate penalty in this case. 

CONCLUSION OF LAW 

Based upon the entire record in these consolidated cases 

including the stipulations of the parties and upon the factual 

determinations reached in the narrative portions of this decision, 

it is concluded: 

609 
1. That the Commission has jurisdiction to decide these seven 

cases. 

1. Docket No. WEST 80-217-M. 

Based upon motion of the petitioner, and order approving same, 

WEST No. 80-217-M which included Citation No. 575879 is dismissed. 

2. Docket No. WEST 80-292-M 

Based upon the stipulation of settlement entered into between 

the parties, the following agreed settlements for the designated 

citations are approved as follows: 

Citation No. 336642A 

Citation No. 3366428 

Approved Penalty 

$2,500.00 

2,500.00 

Total Penalty $5,000.00 

3. Docket No. WEST 80-299-M 

The most credible evidence establishes that petitioner failed 

to prove by a preponderance of the evidence in citation Nos. 336643 

and 336644 a violation of 30 C.F.R. § 57.21-78 and that this case 

is dismissed. 

4. Docket No. WEST 81-28-M and WEST 81-32-M 

In WEST 81-28-M, citation No. 575877, the evidence shows that 

respondent violated 30 C.F.R. § 57.9-2 by allowing a piece of 

equipment containing defects affecting safety to be used. An 

appropriate penalty is $800.00. In WEST 81-32-M, citation No. 

576843, the evidence shows that respondent failed to remove 

equipment from service after being cited in violation of 30 C.F.R. 

§ 57.9-2. An appropriate penalty in this case is $100.00. 

5. Docket No. WEST 81-332-M 

The credible evidence establishes that petitioner failed to 

prove by a preponderance of the evidence that a violation of 30 

C.F.R. § 57.9-2 occurred warranting the issuance of citation No. 

337557.· ·The facts did not prove that respondent knew of a defect 

in the equipment being cited in this case before it was put in 

service and WEST 81-332-M is dismissed. ' 

6. Docket No. WEST 81-405-M 

Citation No. 577485, issued in this case and alleging a 

violation of 30 C.F.R. § 57.21-33 is affirmed. It is determined 

that an appropriate penalty in this case is $140.00. 

610 
ORDER 

Accordingly; based upon the foregoing findings of fact and 

conclusions of law, the respondent is ordered to pay the total sum 

of $6,040.00 within forty days oE this decision. 

Distribution: 

_,,/ -·-- ,. /. ,,.--:--(.J , • ') <'.: . ~--- ,,.. ( -,?"'./ . p ·"' ,,,,-' / 

c:-:/;,-/?~Y c ?' {./ct~-

Virg·il E. Vail 

Administrative Law Judge 

Stephen Kramer, Esq., Office of the Solicitor 

United States Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 (Certified Mail) 

John A. Snow, Esq., Vancott, Bagley, Cornwall & McCarthy 

50 s. Main Street, Suite 1600 

Salt Lake City, Utah 84144 (Certified Mail) 

/blc 

611. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 . MAR 61984 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

DECISION 

Docket No. WEST 83-73 

A.C. No. 02-00533-03503 

Black Mesa Mine 

Appearances: Marshall P. Salzman, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, 

California, 

for Petitioner: 

Michael o. McKown, Esq., Peabody Coal Company, 

St. Louis, Missouri, 

for Respondent. 

Before: Judge Morris 

This case, heard under provisions of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq., (the "Act"), arose 

from an inspection in November, 1982 of the Black Mesa surface coal 

mine of Peabody Coal Company. The Secretary of Labor seeks civil 

penalties because respondent allegedly violated two safety 

regulations adopted under the authority of the Act. 

After notice to the parties, an expedited hearing was held 

in Phoenix, Arizona on December 13, 1983. Respondent's request for 

an expedited decision, made at the hearing, was granted. 

Both parties filed post trial briefs. 

Stipulation 

The parties stipulated that Peabody is a large company with a 

moderate history. The company abated the alleged violation in good 

faith. Further, the imposition of a civil penalty will not affect 

the company's ability to stay in business (Tr. 5). 

612 
Citation 2006837 

In this citation the Secretary of Labor seeks a civil 

penalty of $2,000 because respondent failed to provide a berm on 

its elevated roadway thereby violating the mandatory standard 

published at 30 C.F.R. § 77.1605(k), which provides: 

Ck> Berms or guards shall be provided on the outer 

bank of elevated roadways. 

Issues 

The issues are whether berms are to be provided at the edge 

of a 130 foot bench in the working pit of a multiple seam surface 

coal mine1 further, a secondary issue is whether the diminution 

of safety doctrine is viable. If a violation exists then an 

issue is presented as to what penalty is appropriate. 

Summary of the Evidence 

The facts surrounding the death of dozer operator Cecil 

Yazzie are basically uncontroverted. 

Petitioner's evidence, in the main, addresses the details of 

the accident. Respondent's evidence generally addresses the 

operation of its surface coal mine. A sketch, in Exhibit Pl, 

illustrates the location of the highwall, the coal seam, the path 

of Yazzie's dozer, the keyway and the spoil pile. 

William G. Denning testified for MSHA: In November 1982 MSHA 

Inspector Denning investigated a fatal accident that had occurred 

in the Jl-N6 pit at respondent's Black Mesa coal mine (Tr. 7, 10, 

11, Exhibit Pl). His investigation established that on November 

5, 1982, at the commencement of the shift, at 4 p.m., dozer 

operator Cecil Yazzie met his supervisor, Moreo, in the pit area. 

Moree drove Yazzie through the pit from the coal face on the Blue 

seam coal bench to ramp c. Moree instructed Yazzie in his work. 

His duties included leveling the shot coal from the previous 

shifts, making ramps up the coal face, and building portions of 

ramp C. (Exhibit Pl). 

After leveling the shot coal Yazzie proceeded to Ramp C and 

began working at that location. At about 11:30 p.m. Yazzie, 

Moreo and Ralph Charlie (shooter/blaster) were located near the 

bottom of Ramp C, preparing to set off a coal shot on the Blue 

coal seam. Yazzie's dozer, parked on the ramp, was used for 

protection from the blast. After a delay the shot was set off. 

Moreo found no misfires and he left the coal bench. While he was 

leaving the pit Moreo passed Yazzie who was starting to tram his 

dozer from Ramp c through the pit to the carry-all bus at Ramp E. 

Moree continued out of the pit and stopped for a few minutes to 

613 
talk to the coal loader operators. He then proceeded to Ramp E. 

After arriving at Ramp E, Moreo became concerned because he could 

not find Yazzie. Moree traveled to the coal face on the Blue 

seam and, after a brief inspection, he observed Yazzie's upset 

dozer in the keyway near Ramp c. (Tr. 13, Exhibit Pl). Moreo, 

who was also an Emergency Medical Technician, and others could 

not revive Yazzie (Exhibit Pl). 

The keyway, or ditch, is an area excavated by the dragline 

along the seam coal bench. It was 31 feet to the bottom of the 

keyway. At the time of the accident the keyway extended from 

Ramp C approximately 600 feet toward Ramp E. 

The inspector's investigation further established that, 

after leaying Ramp c, Yazzie's dozer traveled in a path at a 

slight angle away from the keyway. After traveling approximately 

75 feet Yazzie made a correction toward the keyway. He made 

another slight correction when 40 feet from it but he continued 

in the general direction of the keyway. After the second change 

in direction he traveled approximately 35 feet before toppling 

off the coal bench into the keyway. At that point his dozer was 

at the edge of the coal shot (Exhibit .Pl). 

The dozer tread marks for the final 35 feet indicate the 

dozer was still tramming forward at the time of the accident. It 

appeared that the outer edge of the coal bench collapsed under 

the dozer, causing it to roll sideways off of the bench (Exhibit 

pl). 

The dozer fell about 31 feet, impacting on the top edge of 

the rollover protective structure. Yazzie remained inside the 

operator's cab; however, it appeared he was not wearing the seat 

belt that was provided (Exhibit Pl). 

After the coal shot and before this accident occurred the 

dragline had resumed operations. While digging, the dragline's 

lights illuminated the pit and accident area; however, as the 

dragline spoiled, it swung away from the pit, leaving the area 

relatively dark. This change from light to dark could have 

affected Yazzie's perception. Also while spoiling, the dragline 

created dust in ·the pit that could have affected visibility. (Exhibit Pl). . 

Yazzie was normally assigned to work at the J-7 pit area. 

He worked in the J-1 pit only when needed. A keyway, as 

excavated in the J-1 pit, is sometimes, but not always, present 

in the J-7 pit. The unexplained changes in the direction of the 

dozer could have been made by Yazzie in order to tram the dozer 

around the shot coal. Since Yazzie was newly assigned to the J-1 

pit he may have forgotten about the keyway being adjacent to the 

shot coal and trammed the dozer into it (Exhibit Pl). 

614 
As a result of its investigation MSHA concluded that the 

accident occurred due to Yazzie turning the dozer and tramming it 

toward the keyway. The lack of a berm along the outer edge of 

the elevated Blue seam coal bench contributed to prevent travel 

into the keyway. MSHA could not determine the reason why Yazzie 

turned the dozer toward the keyway. In MSHA's opinion a 

contributing factor to the fatality was Yazzie's failure to wear 

the seat belt provided in the dozer (Exhibit Pl). 

MSHA's inspection manual contains guidelines construing the 

berm standard. The manual states: 

The requirements of Section 77.1605Ck> apply to that 

part of an elevated haulage road where one bank is, 

or both banks are, unprotected by a natural barrier 

which will prevent vehicles or equipment from running 

off and rolling down the unprotected bank or banks. 

"Elevated roadways", as used in this requirement, are 

roadways of sufficient height above the adjacent 

terrain to create a hazard in the event mobile equipment ran (sic) off the roadway. 

"Berm" as used in this requirement means a pile or 

mount of material at least axle high to the largest 

piece of equipment using such roadway, and as wide at 

the base as the normal angle of repose provides. Where 

guard rails are used in lieu of berms, they shall be of 

substantial construction. 

The width of the haulage road does not preclude the 

need for berms or guard rails. 

(Exhibit P8). 

In December 1981, in response to questions concerning the 

berm standard, the admini•trator for coal mine safety and health 

issued MSHA's policy memorandum 81-40C. The administrator, on 

behalf of MSHA, stated in part as follows: 

Section 77.1605Ck>, 30 CFR 77, is applicable to all 

elevated roadways on mine property, including roads 

used to transport coal, equipment, or personnel~ and 

regardless of the size, location, or characterization 

of the roadways. Berms or guards are required on all 

exposed banks of elevated roadways. Thus, elevated 

roadways with two exposed banks are required to have 

berms or guards on both sides. 

(Exhibit P7). 

At the time of the accident the dragline had exposed the 

Blue coal seam. Two ramps were being used for access to the pit 

area (Tr. 12, 13, Exhibit Pl). 

615 
In the inspector's opinion a berm should have been placed 

from the point where Ramp C intersected the Blue coal seam bench 

back towards Ramp E, a distance of about 600 feet (Tr. 22). The 

inspector considered the bench a roadway· because the same type of 

equipment uses the coal bench and the haul roads (Tr. 23). 

Surface changes occur in the mine as mining progresses from 

one seam to another but there is always a bench in the coal pit 

used for a travelway (Tr. 23). 

The MSHA surface inspection manual (Exhibit P8, pages 336, 

337) and the MSHA policy memorandum define an elevated roadway. 

These defintions are applicable to respondent's work place (Tr. 

24-26, 61). The inspector relied on the policy memorandum in 

forming an interpretation of what constitutes a roadway (Tr. 43). 

A roadway is a travelway used to transport equipment, personnel 

and coal (Tr. 43, 44, 61). The inspector would not consider a 

surge pile to be a roadway (Tr. 49, 50). 

In the inspector's opinion there are some "gray areas" as to 

what constitutes a roadway; in addition, an inspector has a 

degree of judgment as to the citations he can issue (Tr. 50, 51). 

The lack of a berm, as here, presents a hazard to a miner 

such as Yazzie (Tr. 26). A berm can either stop a vehicle, 

redirect it, or warn an operator that he is in close proximity to 

the edge (Tr. 27, 39, 40). 

In the inspector's opinion a berm would not be necessary if 

the dozer was cleaning the coal or pushing dirt off of the edge 

of the bench (Tr. 50). 

Respondent's Evidence 

Buck Woodward, Tracy Northington, Alan Cook, Don Holt, Rick 

Contratto and Joe.Johnson testified for respondent. 

At the Black Mesa mine respondent uses a multiple seam 

mining process for its five seams of coal (Tr. 70-72). The 

company uses a color coding system to differentiate between its 

coal seams (Tr. 71). These seams are respectively designated, 

from the surface down, as green, blue, red, bottom red, and 

yellow (Tr. 71, Exhibit F). 

The coal bench is the area where the dragline and other 

pieces of mining equipment are located. The highwall is the face 

left by the dragline and the stripping equipment (Tr. 71; for a 

cross section view see Exhibit B). 

Black Mesa uses a Marion 8750 dragline to first cut a keyway 

or ditch (Tr. 71-73). A drill crew then drills through the 

616 
overburden. to the first coal seam (Tr. 73). The dragline removes 

the drilled and shot overburden by depositing it in an area that 

has already been mined (for an illustration of the pit 

configuration see Exhibit C). 

The pit highwall results when the overburden is removed. 

The removal of the overburden also exposes the coal seam which 

is, in turn, drilled and shot. Shovels and other equipment load 

the coal onto trucks (for an illustration of the coal loading 

operation see Exhibit D). 

The mining sequence continues as the dragline removes the 

coal. Drilling, shooting, and loading activities follow behind 

the dragline (Tr. 74). The dragline, using the wide radius of 

its shovel, spoils the overburden and later the parting l; into a 

pit where the coal has already been removed (Tr. 74). -

In the Jl-NG pit the bench is 130 feet wide. Respondent 

tries to maintain that distance but it narrows slightly at the 

bottom coal seam (Tr. 15). 

As a result of this citation MSHA requires a berm when the 

topmost (green) coal seam is exposed. The berm must be installed 

prior to any shooting. The berm is approximately six feet high 

and sixteen and one half feet wide at the base (Tr. 77). This 

berm must later be pushed off so the crews can shoot the coal 

beneath it. 

MSHA also requires a third berm on the parting between the 

second and third seams (blue and green seams). This berm must, 

in its turn, be pushed off so the drilling crews can fragment the 

area beneath it. The dragline, in turn, removes the parting (Tr. 

79). 

The construction and removal of the berms continues as the 

mining progresses. The progression is both downward as the coal 

seams are exposed and removed and laterally as the dragline, 

shooters, and auxiliary equipment remove the coal or the parting 

(Tr. 79-80). In this mining progression 12 berms must be 

constructed and removed (Tr. 80). 

The pit, designated as Jl-NG, is the working pit of an 

active surface coal mine. Haulage trucks and loader crews are 

actively engaged in the coal removal. The haulage trucks, 16 

feet 8 inches wide, primarily drive down the middle of the bench, 

~/ Parting is the interburden between coal seams. 

617 
or a bit to the highwall side (Tr. 82). In the pit there is one 

direction of traffic. Once the trucks reach the ramp they go out 

of the pit area until they reach a permanent haulage road. The 

trucks then travel to a preparation site (Tr. 88). 

In the opinion of respondent's engineer an active pit area 

is not a roadway. One reason is that the area changes daily. 

Haul roads at mines are designed to certain specifications and 

they take into consideration the speed of vehicles using them. 

Also the drainage of a haul road is a factor to be evaluated (Tr. 

82, 83). 

Respondent uses track type and a rubber tired dozer to 

emplace its berms. When necessary dump trucks haul in material 

to construct the berms. (Tr. 81). 

Berms, such as MSHA requires here, are not required at any 

other mine in the west (Tr. 84>. 

In the opinion of respondent's engineer a berm in place here 

would not have prevented the accident. Yazzie was entering the 

coal shot area and his duties would have required that he level 

the .area (Tr. 84). 

Respondent's industrial engineer conducted a time and motion 

study relating to the installation and removal of berms (Tr. 97). 

A videotape (Exhibit U) shows the building of a berm with 

respondent's Clark 380 rubber tired dozer (Tr. 98-100). The 

front portion of the dozer goes out over the edge of the bench 

when building and even more so when removing the berms (Tr. 

98-102). In building a six foot high berm the average dozer 

cycle ~/ is .47 minutes. 

Normally berms are built during the third shift, from 

midnight until 8 a.m. (Tr. 101). Northington has monitored over 

4000 dozer cycles. 

When berms must be built at the edge of parting seams then 

material must be hauled in to construct the berms since there is 

no loose material available. Respondent estimates that, on an 

annual basis, it has hauled in 150,000 yards of material, about 

2,000 truck loads, to build such berms (Tr. 104). 

In removing the berms the dozer operator, whose vision is 

blocked by his equipment, goes right to the edge. Some operators 

have stated this was unsafe (Tr. 105). 

2/ A cycle is the elapsed time from when the dozer starts 

forward, reverses its motion, and again starts forward (Tr. 99, 

100). 

618 
Trucks in the pit never operate closer than within 80 to 100 

feet of the edge of the bench (Tr. 106>. 

Respondent submitted a tirne and motion study comparing the 

"before and after" exposure of its men and equipment in abating 

this citation. All calculations were made on an annual basis 

(Tr. 107, Exhibits V, W, X). 

Before the issuance of this citation respondent's activities 

resulted in its miners and equipment being exposed to the hazard 

of being within 20 feet of the parting ditch edge for 1,085.8 

hours. This exposure was primarily the time required to drill in 

the 20 foot zone next to the edge of the ditch. This exposure is 

still incurred because it is still necessary to drill and remove 

the coal in the 20 foot zone (Tr. 108). But the exposure in this 

zone is now. increased to 1,880.6 hours. This 73 percent increase 

results from the construction and removal of the berms now 

required by MSHA (Tr. 109, Exhibit X). 

Before the berms were required the only dozer exposure to 

the ditch edge occurred during the cleaning of the coal. This 

was for 40.48 hours (Tr. 109, Exhibit W). As a result of abating 

the citation the exposure is now 831.5 hours, an increase of 1954 

per.cent. 

In removing the coal, respondent's rubber tired dozer cuts a 

14 foot swath and approaches the edge 7,619 times (Tr. 109, 

Exhibit V). Since respondent is now building and removing berms 

there are 103,451 cycles to the ditch edge, an increase of 1,612 

percent (Tr. 109-110, Exhibit V). Respondent has constructed 58 

miles of berms to abate this citation (Tr. 115, 116). 

Respondent puts berms on active haul roads where there is 

vehicular traffic traveling "at a good speed" (Tr. 125). 

In the opinion of mine superintendent Joe Johnson the 

standard does not apply to the working area of the pit. The 

company is constantly mining this area. MSHA has never 

previously cited respondent for failure to have berms in an 

active pit area. But the company has been cited due to an eroded 

berm on a haul road (Tr. 151, 154, 155). 

Don Holt, respondent's safety director for its mines in 

Kentucky and Ohio, is familiar with MSHA regulations 1605(k). In 

Holt's opinion the purpose of the regulation is to provide a 

guide on a haul road to keep vehicles within a confined area. 

Further, in Holt's opinion, the section does not apply to the 

working pit of surface mines (Tr. 132-134). 

In the mines in the eastern portions of the United States 

619 
the working pits are 45 to 80 feet wide. It would practically 

shut down such mines if MSHA requires berms as it does here. 

MSHA does not now require berm:3 in other active working pi ts. 

(Tr. 136, 137). 

Discussion 

Respondent's post trial brief asserts that the term 

"elevated roadway" does not include active work areas within the 

pit of a surface mine; that MSHA's reliance on its policy 

memorandum and its Surface Inspection Manual are misplaced; that 

there are profound differences between a roadway and a working 

pit bench; that as defined by a recognized treaties and a Bureau 

of Mines report a pit bench is not a roadway; that the failure to 

enforce this regulation elsewhere points out its vagueness and 

lack of clarity, that the Penn Allegh doctrine is not controlling; that all of respondent's witnesses and a time study 

confirm the extent of an additional hazard created by MSHA's 

erroneous interpretation of the regulation; that the emplacement 

of a berm would not have prevented Yazzie's accident; that MSHA 

failed to present the inspector who wrote the citation and failed 

to offer the citation in evidence; that MSHA's interpretation 

would shut down the surface coal mines in the United States. 

The post trial briefs filed in this case do not cite the 

Commission decision of El Paso Rock Quarries, Inc., 4 FMSHRC 35 

(1981). In El Paso Rock the Commission considered whether a 

violation of a berm standard occurred. The Commission held that 

a "bench" 3; in a quarry is an "elevated roadway" within the 

meaning of-the standard. In El Paso Rock the bench where the 

trucks operated were 40 feet above a lower bench. Berms were 

required. 

The standard in contest here, 30 C.F.R. § 77.1605(k), 

applies to surface coal mines, including open pit and auger 

mines" 30 C.F.R. § 77.1. The standard in El Paso Rock, 30 C.F.R. 

ll In El Paso the Commission, in footnote 7, stated: 

The term "bench" is in part defined by a A Dictionary of 

Mining, Mineral, and Related Terms, Department of the Interior 

( 1968), as: 

A ledge, which, in open-pit mines and quarries, forms 

a single level of operation above which mineral or 

waste materials are excavated from a continuous bank 

of bench face. The mineral or waste is removed in 

successive layers, each of which is a bench, several 

of which may be in operation simultaneously in 

different parts of, and at different elevations in an 

open-pit mine or quarry. 

620 
§ 55.9-22, was applicable to metal and non-metallic open pit 

mines, 30 C.F.R. § 55.1. But since the wording in each standard 

is exactly the same I consider El Paso Rock to be binding 

precedent. 

Respondent initially asserts that the berm regulation does 

not encompass an active work area within the pit of a surface 

mine. In its rationale respondent cites the testimony of MSHA's 

only witness, William Denning. Respondent argues that his 

testimony is vague and inconclusive. It cites his testimony that 

a coal bench seam is a roadway "because the same type of 

equipment that used the bench also used the haulage system in the 

mine" (Tr. 22-24). Then respondent cites Denning's cross 

examination where he admits that "elevated roadway" is not 

defined in 30 C.F.R. Part 77 (Tr. 61). And in arriving at his 

conclusion the inspector relies on the Inspection Manual and 

MSHA's policy statement (Tr. 61, Exhibits P7, PS). 

Respondent may argue that the evidence is inconclusive but 

basically the evidence is.uncontroverted. Respondent's haulage 

trucks operated on the coal seam bench. The bench was 30 feet 

above the adjacent keyway. There were no berms. The foregoing 

were the circumstances prohibited in El Paso Rock. There appears 

to be no difference between a coal bench and a quarry bench. 

Respondent contends that the MSHA Surface Inspection Manual 

and the policy statement CP7 and P8) are not binding on the 

Commission. I agree. Further, I do not rely on those exhibits. 

The documents fail to define a roadway. They assume a roadway 

exists; therefore, when it does, it must be bermed. For example, 

the inspection manual states that 1605Ck> applies to ••• "an 

elevated haulage road"; "Elevated roadways ••• are roadways", 

"the width of a haulage road." Further, the policy statement 

indicates 1605(k) applies to "all elevated roadways." For 

example, "Berms •.• are required on ••• elevated roadways •••• 

elevated roadways with two exposed banks", etc. 

Respondent argues that the berm regulation does not apply 

because of the profound differences between a coal bench and a 

roadway. The most striking difference is that coal is removed 

from the coal pit. The removal is daily, even hourly (Tr. 155). 

All of the equipment including draglines, dozers, trucks and the 

like are engaged in this task (Tr. 82-83). Obviously, coal is 

not extracted from a haul road (Tr. 39). 

MSHA's witness Denning indicated that the nature of the 

traffic is one of the factors to be considered before issuing a 

citation in this "gray area" (Tr. 35, 36, 54). One of the traffic 

features revolves on the speed of the equipment: In the pit the 

vehicles do not travel much more than five miles per hour. But a 

haul truck on a level road could reach 30 to 40 miles per hour. 

CTr. 35, 36, 54). Respondent's evidence, confirmed by MSHA's 

621 
witness Denning, establishes that the Mudd Series on Surface 

Mining defines a haul road as qa road built to carry heavily 

loaded trucks at a good speed" (Tr. 37). Respondent contends 

that this obviously excludes a coal bench. Further, the type and 

character of the tiaffic is substantially different. The 

draglines, the loaders, the dozers, and the haul trucks are 

essentially congregated in the pit. The nature of this traffic 

in the pit is, by virtue of its continuing activities, 

substantially different from the traffic on the haul road. 

The evidence here shows that the bench was 130 to 140 feet 

wide (Tr. 20, 116). The inspector assumed "the haulage truck 

drove down the middle of the coal seam" (Tr. 48). On this basis 

the 18 foot wide haul trucks would be no closer than 65 to 70 

feet from the edge of the bench (Tr. 46, 47). Or, as the inspector stated, "If traveling down the middle the trucks would be 

60 feet from the edge" (Tr. 46, 47). In short, on the facts no 

vehicles were closer than 60 feet of the edge of the bench. 

On the foregoing facts, I would rule that the coal bench is 

not a roadway and I would vacate the citation. But the mandate 

in El Paso Rock is explicit: "Under the facts of this case, the 

quarry bench where the haulage trucks were driven is indeed an 

elevated roadway within the meaning of section 56.9-22", 3 FMSHRC 

at 36. 

The El Paso Rock case was originally heard by Commission 

Judge Charles c. Moore, Jr., 1 FMSHRC 2046 (1979). The trial 

judge's decision does not indicate how close El Paso's trucks 

were operated to the edge of the bench. However, I lack the 

authority to carve an exception to the Commission decision. 

Respondent in its brief cites a report published by the 

Bureau of Mines stating "Barriers should be used only in areas 

such as a very heavily, traveled, permit haul road." (Tr. 63-64). 

MSHA's witness only identified this as a statement in a book. On 

this minimal authentication I give such evidence zero weight. 

In support of its argument that the regulation is vague and 

lacks clarity respondent cites the failure of MSHA to previously 

enforce the regulation at this site and elsewhere as to a coal 

seam bench. · 

The foregoing position is basically a plea in estoppel. But 

it is well established that estoppel does not apply against the 

federal government. King Knob Coal Company, 3 FMSHRC 1417, 1421. 

Respondent argues that its time study (witness Northington) 

and its video tape (Exhibit U) are not offered to prove that 

MSHA's enforcement of§ 77.1605(k) diminishes safety or causes a 

greater hazard. But it argues that if MSHA interprets the 

regulation in such a way that dangers are increased then that 

622 
interpretation is not correct. In short, respondent agrees that 

berms on an elevated roadway increase safety. But a coal bench 

is not a roadway and if MSHA interprets it to be so then MSHA is 

wrong because there is a clear increase in danger. It is 

axiomatic that the greater the exposure to the hazard, the more 

likely an accident. Respondent's uncontroverted evidence clearly 

establishes that the placement of berms can be hazardous CTr. 

143). Further, the type of berms MSHA requires here (some 58 

miles) are transient. Their duration can be as short as three 

hours (Tr. 144). But a berm on a bona fide elevated roadway is 

not so transient CTr. 83). 

The Commission in El Paso Rock did not.consider the factors 

respondent now raises. But to reiterate, I lack the authority to 

overturn the Commission's clear directive. Further, while 

respondent's videotape and supporting testimony were generally 

admissible it was basically a revisit to the diminution of 

safety, or as it is sometimes called, the greater hazard doctrine. 

Respondent argues that Penn Allegh, 3 FMSHRC 1392, 1399 is not 

controlling because the case dealt with explicit cabs and 

canopies regulations. But here, the parties are arguing over a 

relatively vague standard. 

I disagree. Respondent's evidence seek to invoke the 

diminution of safety, or the greater hazard doctrine. In Penn 

Allegh the Commission refused to approve such an attempt to short 

circuit the Act. The Commission observed that when those 

situations exist where the application of the standard 

diminishes, rather than enhances, miners' safety the operator may 

petition the Secretary of Labor for relief from the application 

of the standard. The Act provides a set procedure for granting 

or denying the relief sought. Penn Allegh at 1397. There are 

detailed regulations governing the processing of such petitions, 

30 C.F.R. Part 44. . 

In sum, respondent's evidence seeking to establish the 

diminution of safety, or greater hazard doc~rine, is rejected. 

Respondent asserts that even if a berm had been emplaced it 

would not have prevented Yazzie's accident. It is claimed that 

no one knows what caused Yazzie to veer off course and he would 

probably have trammed right through a berm in any event. Since a 

coal shot had heaved the area the previous berm Chad there been 

one) would have been removed for the drilling and shooting 

sequence. Further, Yazzie would have been the first dozer 

operator in the area (Tr. 147). 

It is certainly reasonable to infer that a proper berm would 

not have prevented Yazzie's accident. But a nexus is not 

required between an accident and the violation of a standard. 

The presence of a berm might well have served to warn Yazzie of 

the presence of the keyway. 

623 
Respondent's arguments that MSHA failed to offer as a 

witness the inspector who wrote the citation and further failed 

to offer the citation itself in evidence lack merit. Inspector 

Denning testified as to the issuance of the citation {Tr. 28). 

He further wrote Exhibit Pl, an extensive report of this fatality. 

In Exhibit Pl MSHA entered its finding as follows: "A berm was 

not provided on the elevated outer back of the haulage road in 

pit 001-0 from ramp c for a distance of about 600 feet along the 

Blue seam coal bench, a violation of Section 77.1605CK), 30 CFR." 

Respondent's a~guments seek to elevate form over substance • 

. Respondent 1 s claim that MSHA's interpretation would shut 

down the surface coal mine operations in the United States is 

rejected. 

Respondent has obviously not shut down its surface coal mine 

operation at the Black Mesa Mine in Navajo County, Arizona. 

Respondent's evidence and argument that the mines in the eastern 

part of the United States would be shut down must await the detailed evidence in such a case. In short, I decline to rule on a 

hypothetical situation. 

For the above stated reasons, I conclude that Citation 

2006837 should be affirmed. 

Citation 2006838 

In this citation the Secretary of Labor seeks a civil 

penalty of $241 because respondent's employee Yazzie failed to 

wear a seat belt thereby violating the mandatory standard 

published at 30 C.F.R. § 77.1710{i) which provides: 

Each employee working in a surf ace coal mine or 

in the surface work areas of an underground coal 

mine shall be required to wear protective clothing 

and devices as indicated below: 

Ci> Seat belts in a vehicle where there is a danger 

of overturning and where roll protection is provided. 

Issue 

The issue is whether respondent violated the seat belt 

regulation. 

Summary of the Evidence 

MSHA's evidence shows that Yazzie was not wearing a seat 

belt at the time of th~ accident {Tr. 28, Exhibit Pl). MSHA, 

in its written report, concluded the failure to wear the seat 

belt in the vehicle was a contributing factor to Yazzie's death 

{Exhibit Pl). 

624 
Respondent's mine superintendent indiGated that the company 

requires that seat belts be worn. The workers are informed of 

this requirement through task training, annual retraining, 

individual contacts and general discussion CTr. 153). 

If an employee is caught not wearing a seat belt he is given 

a warning. If it occurs again he receives a written warning (Tr. 

153). 

Respondent's safety manager and pit boss confirmed the 

superintendent's testimony. Further, he indicated that the 

company reinstalls seat belts if they are damaged or removed (Tr. 

117, 120, 121, 129, 147). Equipment operators have been 

disciplined for failing to wear seat belts (Tr. 130, 148, 149). 

The discipline graduates to suspension or discharge CTr. 130). 

Discussion 

The Secretary, in his post trial brief, is aware of the 

Commission decision in Southwestern Illinois Coal Corporation, 5 

FMSHRC 1672, (October 1983). But the Secretary claims the 

majority decision violates the long line of strict liability 

cases imposed by the Act. Further, the Secretary argues that the 

minority view is more persuasive. The Secretary's contentions 

are rejected. I am obliged to follow the majority view in 

Southwestern Illinois. 

The Secretary further argues that the respondent has not 

satisfied the criteria in North American Coal Company, 3 IBMA 93, 

cited in Southwestern Illinois. The Secretary's argument is. 

this: pit boss Contratto had never given a written seat belt 

warning to anyone and he was unable to present actual examples of 

a warning. I agree the evidence shows that Contratto himself had 

never gave an employee a written disciplinary notice for failing 

to wear a seat belt (Tr. 148, 149). But the Secretary misconstrues the evidence in the transcript at 149, 150. Contratto 

testified that there have been written disciplinary actions. But 

he hadn't brought notices to the hearing (Tr. 148-150). On this 

record Johnson and Cook establish that respondent was diligent in 

the enforcement of its seat belt regulation (Tr. 120, 121, 129, 

130, 153, 154). Southwestern Illinois criticized the operator 

because the wearing of belts was delegated to the discretion of 

each employee. This is not the situation here. Witnesses 

Contratto, Johnson and Cook establish that the respondent was 

diligent in its enforcement of the seat belt regulation. 

I further note that no facts indicated that the company knew 

Yazzie had his seat belt off at the time of the accident, if, in 

fact, it was off. (Tr. 29). 

625 
I reject the Secretary's Brguments. 

For the foregoing reasons Citation 2006838 and all penalties 

therefor should be vacated. 

Civil Penalty 

The Secretary seeks a civil penalty of $2,000 for the berm 

violation. 

Section llOCi> of the Act, codified at 30 u.s.c. 820Ci>, 

requires the Commission in_ penalty assessments to consider the 

size of the operator's business, its negligence, its ability to 

continue in busihess• the gravity of the violation, and the 

operator's good faith in seeking rapid compliance. 

The parties stipulated that respondent, a large operator, 

has a moderate history. Further, the imposition of a civil 

penalty would not affect its ability to continue in business CTr. 

5). Respondent was negligent. The gravity is high when one 

considers the possibility of a 31 foot fall into a keyway. But 

on the other hand, I cannot hold the absence of berms necessarily 

contributed to.Yazzie's accident and resulting death. To the 

operator's credit is its demonstrated good faith in rapidly 

abating the citation. 

The Commission file does not contain the Secretary's special 

assessment narrative but on balance I conclude that a penalty of 

$750 is appropriate. 

The Solicitor and respondent's counsel have filed detailed 

briefs which have been most helpful in analyzing the record and 

defining the issues in the case. I have reviewed and considered 

these excellent briefs. However, to the extent they are inconsistent with this decision, they are rejected. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portions of this decision, the following 

conclusions of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. Respondent violated the mandatory standard published at 

30 C.F.R. § 77.1605Ck) and an appropriate penalty therefor is 

$750. 

3. Respondent did not violate the mandatory standard 

published at 30 C.F.R. § 77.1710Ci), and all proposed penalties 

therefor should be vacated. 

626 
ORDER 

Based on the foregoing facts and conclusions of law I enter 

the following order: 

1. Citation 2006837 is affirmed and a penalty of $750 is 

assessed. 

2. Citation 2006838 and all proposed penalty therefor are 

vacated. 

Distribution: 

Marshall P. Salzman, Esq., Office of the Solicitor 

U.S. Department of Labor 

11071 Federal Building, Box 36017 

450 Golden Gate Avenue 

San Francisco, California 94102 (Certified Mail) 

Michael o. McKown, Esq. 

Peabody Coal Company 

P .o. Box 373 

St. Louis, Missouri 63166 (Certified Mail) 

/blc 

627 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 MAR 61984 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

DOUGLAS A. BURKE, 

Complainant 

v. 

BROWN & ROOT, INC., 

Respondent 

. . 

: 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEST 83-95-DM 

MSHA Case No. MD 82-95 

Colony Oil Shale Project 

DECISION APPROVING SETTLEMENT 

Before: Judge Carlson 

\ 

The parties have submitted a stipulation and settlement 

agreement which, if approved, will resolve all issues in this 

discrimination case. 

Under the terms of the agreement, respondent, Brown and 

Root, Inc. (Brown and Root), agrees to pay to Douglas A. Burke 

the sum of $7,500.00 for loss of back wages and all other 

expenses resulting from his discharge. Brown and Root further 

agrees to expunge from complainant's employment record any 

adverse references relating to his discharge. 

Complainant, in turn, relinquishes any claim to reinstatement to the job he held prior to his discharge. 

The parties agree that approval of these terms will fully 

settle all issues raised in the cas.e. 

Having reviewed the file and considered all the circumstances, I conclude that the settlement should be approved. 

Accordingly, the agreement of the parties is approved in its 

entirety. 

Brown and Root shall therefore tender to Douglas A. Burke 

through the United States Department of Labor, 1585 Federal 

Building, 1961 Stout Street, Denver, Colorado 80294, the sum of 

$7,500.00. The sum shall be paid within 30 days of this present 

628 
order. Brown and Root shall further, within that same time 

period, expunge from the employment record of Douglas A. Burke 

any adverse references to his discharge. 

In view of this settlement, this discrimination proceeding 

is dismissed. 

SO ORDERED. 

Distribution: 

' 

John A. Carlson 

Administrative Law Judge 

Robert J. Lesnick, :E:~q., Office of the Solicitor 

United States Department of Labor, 1585 Federal Building 

1961 Stout Street, Denver, Colorado 80294 CCertif ied Mail) 

Peter R. McLain, Esq., Brown & Root, Inc., 

Legal Department, (01-7th), P. o. Box 3, Houston, Texas 77001 

<Certified Mail) 

/ot 

629 
FEDERAL MINE SAFETY AND HEAL TH 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. 

MARTIN COUNTY COAL CORPORATION,: 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 80-354 

No. 1-S Mine 

ORDER OF DISMISSAL 

Before: Judge Steffey 

Counsel for the Secretary of Labor filed on September 12, 

1980, in the above-entitled proceeding a petition for assessment of civil penalty seeking to have a penalty assessed for 

the violation of section 105(c) (1) of the Federal Mine Safety 

and Health Act of 1977 which I had found occurred in my decision issued in Martin County Coal Corporation v. Secretary of 

Labor (MSHA), et al., Docket Nos. KENT 80-212-R, et al., 2 

FMSHRC 2829 (19lfO}. - -

The Commission's decision in Council of Southern Mountains, 

Inc. v. Martin County Coal Corporation, Docket No. KENT 80-222-D, 

6 FMSHRC , issued February 29, 1984, reversed my decision 

reported at 2 FMSHRC 2829 and held that no violation of section 

105(c) (1) occurred when Martin County Coal Corporation refused 

to allow a non-employee miners' representative to come on mine 

property for the purpose of monitoring Martin County Coal Corporation's training classes. 

Since no violation of section 105(c) (1) occurred, the 

civil penalty sought for that violation in the petition for 

assessment of civil penalty filed in this proceeding must be 

dismissed. 

WHEREFORE, it is ordered: 

The petition for assessment of civil penalty filed in Docket No. KENT 80-354 is dismissed and all further proceedings in 

this case are terminated. 

630 

~ e.ol:tAf# Richard c. stef fe;r '?-

Administrative Law Judge 
Distribution: 

Jack w. Burtch, Jr., Esq., Mcsweeney, Stutts & Burtch, 121 

Shockoe Slip, Richmond, VA 23219 (Certified Mail) 

L. Thomas Galloway, Esq., Galloway & Greenburg,, Suite 601, 

1725 I Street,· NW, Washington, DC 20096 (Certified Mail) 

J. Davitt McAteer, Esq., Center for Law & Social Policy, 1751 

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

Edward H. Fitch, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

631 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

LONNIE JONES, 

v. 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 HAR 81984 

. . DISCRIMINATION PROCEEDING 

Complainant : 

. . 

. . Docket No. KENT 83-257-D 

MINGO COAL COMPANY, INC., 

Respondent 

. . 

. . BARB CD 83-19 

Appearances: 

Before: 

DECISION 

Jeffrey A. Armstrong, Esq., Appalachian Research 

and Defense Fund of Kentucky, Inc., Barboursville, 

Kentucky, for Complainant; 

David w. Burton, Esq., Leick, Hanunons & Burton, 

Corbin, Kentucky, for Respondent Mingo Coal Company, Inc.; 

Larry Conley, Esq., Williamsburg, Kentucky, for 

D & R Contractors. 

Judge Melick 

This case is before me upon the complaint of Lonnie Jones 

under Section 105(c)(3) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 801, et seq., the "Act", alleging that he 

was discharged as an employee of Mingo Coal Company, Inc. (Mingo) 

on April 25, 1983, in violation of Section 105Cc)Cl> of the Act.l 

As subsequently amended, his complaint charges alternatively 

that if he was not an employee of Mingo then he was unlawfully 

discharged on that date from the partnership known as D & R Contractors. On August 18, 1983, Mingo filed a Motion to Dismiss 

and Motion for sununary Decision alleging inter alia that Jones 

had never been its employee and that it had nothing to do with 

his discharge or removal from D & R Contractors, an alleged independent contractor. For the reasons set forth below, the Motions 

are granted. 

lsection 105Cc)Cl> of the Act provides in part as follows: "No 

person shall discharge *** or cause to be discharged or otherwise 

interfere with the exercise of the statutory rights of any miner 

*** in any *** mine subject to this Act because such miner *** 

has filed or made a complaint under or related to this Act, including a complaint notifying the operator or the operator's 

agent *** of an alleged danger or health violation in a *** mine 

*** or because of the exercise by such miner *** on behalf of 

himself or others of any statutory right afforded by this Act." 

632 
As a preliminary matter, it is nece~sary to review the legal 

and factual basis for Mr. Jones' complaint herein. In order to 

establish a prima facie violation of Section 105(c)(l) of the 

Act, he must prove by a preponderance of the evidence that he 

engaged in an activity protected by that section and that his 

discharge or removal was motivated in any part by that protected 

activity. Secretary, ex rel David Pasula v. Consolidation Coal 

Company, 2 FMSHRC 2786 (1980), rev'd on other grounds, sub !!Q!!! 1 

Consolidation Coal Company v. Secretary, 663 Fed. 2d 1211 C3d 

Cir. 1981). See also NLRB v. Transportation Management Corporation 76 L. Ed. 2d 667 (1983), affirming burden-of-proof allocations similar to those in the Pasula case. 

In this case, Mr. Jones asserts that he was discharged on 

the afternoon of April 25, 1983, because he refused to work a 

double shift of sixteen hours. At hearing, Jones alleged that he 

arrived at the Mingo coal mine for work at about 7:15 on the morning of the 25th and worked until approximately 5:00 p.m. with 

only one-half hour break for lunch. He ftirther alleged that he 

had a headache and the flu that day and was therefore not feeling 

well. He thus claims that when the "foreman", Ron Perkins, approached him that afternoon about working additional overtime, he 

declined, believing it would be hazardous. Jones claims that 

when he was discharged later that afternoon by Perkins, that action was based upon his refusal to work overtime, a work refusal 

protected by the Act. A miner's exercise of the right to refuse 

work is a protected activity under the Act so long as the miner 

entertains a good faith, reasonable belief that to work under the 

conditions presented would be hazardous. Robinette v. United 

Castle Coal Company, 3 FMSHRC 803 (1981). See also Eldridge v. 

Sunfire Coal Company, 5 FMSHRC 408 (1983), pet. for review granted July 11, 1983. 

As noted, Mingo argues in its motions that whether or not 

Ron Perkins violated Jones' rights under the Act is irrelevant 

because Perkins and Jones were not its employees or agents but 

were operating as partners in a completely separate business venture known as D & R Contractors, an independent contractor with 

which Mingo had contracted to produce coal from its mine.2 

Mingo further asserts that it had nothing to do with Jones' •discharge" from D & R Contractors. 

It is not disputed that Mingo is a corporation under Kentucky law and is wholly owned by Roger Daniel. Daniel and his 

wife are the only officers of the corporation which owns the 

coal mine involved in this proceeding. It is further undisputed 

2D & R Contractors was later joined as a respondent in this proceeding and that case has been severed for separate proceedings , under Docket No. KENT 83-257-DCA). 

633 
that Ron Perkins formed a "partnership" known as D & R Contractors which contracted with Mingo to produce coal from the Mingo 

mine and to put it "outside" at a specified price per ton. Daniel testified that he never hired, fired, or disciplined any persons affiliated with D & R Contractors and never directed any of 

its work. It is indeed clear that Daniel did not direct any of 

the underground mining operations but left that to Ron Perkins 

and D & R Contractors. There is, moreover, insufficient evidence 

in this case that Perkins was an employee or agent of Mingo. 

Lonnie Jones admits that in connection with his work at the 

Mingo mine he signed a partnership agreement, was told that he 

"worked for" D & R Contractors, was paid by D & R Contractors, 

was directed in his work by one of the partners, Ron Perkins, and 

was "discharged" by Perkins. In addition, except for the first 

few paychecks, Jones was paid based on a share of the coal produced by the partnership and when he was "discharged" was paid 

based on a"share of the coal then piled outside the mine. Jones 

also admitted at hearing that after he began receiving his pay on 

checks from D & R Contractors, he assumed he was working for D & R 

Contractors. While it appears from this evidence that under Kentucky law Jones may very well have been a partner of D & R Contractors, Jones maintains that if he was not an employee of Mingo 

Coal Company, he was an employee (and not a partner) of D & R 

Contractors. See Ky. Rev. Stat. § 362.180. For purposes of this 

decision, however, it is not necessary to determine whether Jones 

was an employee or partner of D & R Contractors. In any event, 

it is clear that Jones was not an employee of Mingo and therefore 

Jones could not have been discharged from Mingo. 

It is nevertheless arguable that Mingo through one of its 

agents caused Jones' expulsion or discharge from D & R Contractors. While there is insufficient evidence in this case to indicate that Perkins was an employee or agent of Mingo, the argument 

is advanced that Roger Daniel, acting on behalf of Mingo, participated in Jones' discharge from D & R Contractors. In this regard, 

however, Jones admits that when he was "fired" by Perkins, Roger 

Daniel was merely standing nearby and said nothing. Jones also 

testified that when he later asked Daniel if he would help (presumably to intervene on his behalf> , Daniel responded, "Don't 

look at me, I run the outside." Perkins and Daniel testified 

that Daniel was not present when Jones was discharged by Perkins, 

that Daniel had not previously been consulted about Jones' discharge, and that Daniel had no advance knowledge of the discharge. 

I cannot find from either version of events that Daniel had any 

part in the discharge of Jones. Accordingly, I do not find that 

Mingo was responsible in any way for Jones' discharge from the 

partnership, D & R Contractors. Since Mingo was not responsible 

for the discharge, it makes no difference for purposes of Mingo's 

liability under the Act whether that discharge was in violation 

634 
of the Act. Accordingly, the Moti s for.Dismissal and Summary 

Decision filed by Mingo are granted and the c mplaint against 

Mingo is dismissed.3 

Distribution: 

Jeffrey A. Armstrong, Esq., Appalachian Research and Defense Fund 

of Kentucky, Inc., P.O. Box 919, Barboursville, KY 40906 CCertif ied Mail> 

David w. Burton, Esq., Leick, Hammons & Burton, First National 

Bank & Trust Company Building, P.O. Box 2388, Corbin, KY 40701 

(Certified Mail> 

Larry E. Conley, Esq., P.O. Box 577 102 South Third Street, Williamsburg, KY 40769 (Certified Mail> 

/nw 

3This is a final disposition of the proceedings captioned Lonnie 

Jones v. Mingo Coal Co., Inc., Docket No. KENT 83-25 7-D. Commission Rule 65, 29 C.F.R. § 2700.65. The case Lonnie Jones v. D & R 

Contractors has been severed for further proceedings and assigned 

Docket No. KENT 83-257-DCA). 

635 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

ELIAS MOSES, . 

v. 

OFFICE OF ADMINISTRATIVE LAW '.JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE ' 

I 

FALLS CHURCH, VIRGINIA 22041 MAR 131984 

DISCRIMINATION PROCEEDING 

Complainant I 

Docket No. KENT 79-366-D 

MSHA Case No. CD 79-217 

WHITLEY DEVELOPMENT CORPORATION, Becks Creek Surf ace Mine 

Respondent 

DECISION ON REMANDED ISSUE OF BACK PAY 

Appearances: William E. Hensley, Esq., and Don Moses, 

Esq., 1/ Corbin, Kentucky, for Complainant; 

David Patrick, Esq., Harrodsburg, Kentucky, 

for Respondent. 

Before: Judge Steffey 

PROCEDURAL BACKGROUND 

The Commission issued a decision in this proceeding on 

August 31, 1982, affirming my finding that complainant had 

been discharged in violation of section lOS(c) (1) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c) (1), 

and remanding the case to me "* * * for the limited purpose of 

allowing the parties to present arguments and additional evidence concerning the proper amount of back pay to be awarded 

the discriminatee" (4 FMSHRC at 1475). 

After receiving the Commission's decision of August 31, 

1982, I issued an order on September 7, 1982, asking counsel 

for the parties to advise me by September 24, 1982, as to the 

types of evidence and/or arguments they might wish to present 

on the issues of back pay and asking whether they wished me to 

convene a supplemental hearing to receive· evidence on the backpay issues. Thereafter, I issued an order on October 6, 1982, 

granting the parties' request for an extension of time within 

which to answer the questions asked in my order of September 7, 

1982. The order of October 6 also answered respondent's questions regarding the kinds of evidence needed for resolving the 

back-pay issues. 

1/ Although Mr. Moses entered an appearance at the first 

back-pay hearing, he has not been awarded any reimbursement 

for attorney's fees. 

636 
Subsequently I issued an order on November 2, 1982, granting respondent's request for the convening of a hearing on the 

issues of back pay. The hearing was scheduled for November 30, 

1982, because respondent's counsel is the "Public Defender" in 

his community and November 30, 1982, was the first day of a 

3-day period then open on his calendar of hearings. 

The hearing was convened on November 30, 1982, as scheduled, but it became obvious during the cross-examination of 

respondent's owner that he did not havei in the hearing room the 

detailed facts required to support his claim that complainant 

would have been laid off in 1980 for economic reasons if he had 

not been discharged on July 3, 1979 (BPTr. 31; 34-36). 2/ Because of other commitments (BPTr. 57; 58; 60) I there was no day 

during the remainder of the week after the convening of the 

hearing on November 30, 1982, when counsel for the parties and 

respondent's owner could meet to make a detailed examination of 

respondent's payroll records for the purpose of determining 

when complainant would have been laid off for economic reasons 

if he had not been discharged on July 3, 1979. Therefore, it 

was agreed that I would personally examine respondent's payroll 

records on December 1, 1982, that I would thereafter issue a 

proposed decision on the issue of back pay, and that the parties would be allowed to comment on the proposed decision and 

be granted a supplemental hearing if either party still believed 

that one was necessary (BPTr. 63). 

Before I could issue the proposed decision on the issue 

of back pay, however, respondent filed on December 23, 1982, a 

motion asking that the record be reopened for the purpose of 

permitting respondent's counsel to introduce newly discovered 

evidence which respondent's counsel claimed he could not have 

discovered prior to the time the original hearing was held on 

November 18, 1980. The Commission issued a supplemental order 

on January 14, 1983, authorizing me to decide the issues raised 

by the filing of respondent's motion for reopening the record 

to receive newly discovered evidence. On January 18, 1983, I 

issued an order requiring respondent's counsel to submit by 

February 7, 1983, additional justification in support of his 

motion for reopening of the record. 

On January 20, 1983, I issued the proposed decision on 

the issue of back pay. The proposed decision provided for the 

parties to file responses to the proposed decision on back-pay 

issues by February 21, 1983, and stated that no final decision 

as to back pay would be issued until I had first resolved all 

issues pertaining to respondent's motion for reopening the hearing. 

2/ The letters "BP" are used as an abbreviation for the words 

"back pay" and mean that I am referring to one or more pages 

from the transcript of the hearings held on the back-pay issues 

on November 30, 1982, and July 12, 1983, to distinguish such 

references from other references to the transcript of the original hearing which was held on November 18, 1980. 

637 
Neither party filed any objections' to the proposed decision 

within the 30-day period. Therefore, oh February 28, 1983, I 

wrote the parties a letter advising them that I had decided to 

deny the motion to reopen the record and that I would issue the 

proposed decision as to back pay in final form after respondent 

had been given an opportunity to review my back-pay calculations 

so that my decision could specify a verified amount of back pay 

to which complainant was entitled. 

Instead of replying to my request for a verification of 

the calculation of back pay, respondent filed a motion requesting that I disqualify myself as the judge in this proceeding. 

The Commission issued an order on March 23, 1983, 5 FMSHRC 297, 

authorizing me to decide the issues raised in the motion for 

disqualification and I issued an order on April 1, 1983, denying the motion for disqualification. In that order, I also extended to April 18, 1983, the time for the parties to submit 

objections, if any, to the proposed back-pay decision issued 

January 20, 1983. Respondent duly filed on April 18, 1983, a 

memorandum on the issues of back pay. That memorandum stated 

that respondent wished to submit additional evidence with respect to the back-pay issues. 

On May 19, 1983, I issued two orders. The first order 

denied respondent's motion to reopen the record to receive 

newly discovered evidence and the second order granted respondent's request for the convening of a supplemental hearing on 

the back-pay issues. Because of respondent's role as public 

defender and the possibility of conflicting prior commitments, 

I provided for the parties to notify me of a date which would 

be mutually convenient for holding the second hearing pertaining to back pay. After receiving replies to that request, I 

issued on June 6, 1983, a notice providing for the second backpay hearing to be held on July 12, 1983. 

The issues considered at the hearing held on July 12, 1983, 

were broadened beyond the scope of the first back-pay hearing 

by the fact that respondent's counsel raised for the first time 

in this proceeding the issues of the amount which I had awarded 

for attorneys' fees in my original decision issued March 31, 

1981, 3 FMSHRC 746. An additional issue was raised with respect 

to whether respondent properly refused to reinstate complainant 

to his original position as a dozer operator when he reported 

for work about 11 a.m. on February 8, 1983, instead of the designated day of February 7, 1983, because complainant's counsel 

failed to notify him of the of fer of reinstatement until February 8, 1983. 

After returning from the second back-pay hearing held on 

July 12, 1983, I realized that if I ruled that respondent had 

improperly refused to reinstate respondent because he was a day 

638 
late in reporting for work, I would have. to order respondent to 

pay wages for a period in 1983 which had not been considered 

when data were originally obtained for purposes of calculating 

back pay. Therefore, I issued an orde~ on August 18, 1983, providing for the parties to submit additional statements or arguments with respect to three questions posed in that order. Subsequently, I issued an order on Septemper 15, 1983, granting 

respondent's motion for an extension oft time to October 5, 1983, 

within which to reply to the order of ~ugust 18, 1983. Thereafter, I issued on September 27, 1983, '.an order granting complainant's alternative request for an extension of time within 

which to file a reply brief. Finally, on November 8, 1983, I 

issued an order requiring the parties to submit by December 2, 

1983, (1) evidence with respect to the number of hours to be 

used in calculating back pay for the period in 1983 during which 

complainant was not employed because of his having reported a 

day late for reinstatement and (2) information pertaining to any 

wages which complainant may have earned during the applicable 

period in 1983. 

Complainant's reply to the order of November 8, 1983, was 

mailed on December 7, 1983, which was 5 days after the date 

provided for the mailing of replies in my order of November 8. 

Therefore, on December 14, 1983, respondent's counsel filed a 

motion asking that I dismiss complainant's claim for compensation for the period in 1983 during which complainant was not 

reinstated. Complainant's counsel has filed no reply to respondent's motion. I shall. hereinafter rule upon respondent's 

mot,l.on of December 14, 1983, as a part of this decision. 

I shall not hereinafter again refer to respondent's motion 

for disqualification or motion for reopening the record because, 

as indicated above, I have disposed of all issues raised in 

those motions in my separate orders issued April 1, 1983, and 

May 19, 1983. I have acted upon the motions in separate orders 

apart from this decision because each of those matters has already been the subject of separate Commission orders and the 

record should clearly reflect the disposition which I have made 

as to each of those motions. 

DETERMINATION OF FIRST PERIOD FOR REIMBURSEMENT OF BACK PAY 

At the first back-pay hearing held on November 30, 1982, 

complainant testified that the only wages he had earned between 

the time of his discharge by respondent and the day of the hearing was an amount totaling $20,612.47 which had been paid to 

him by Four J Coal Company and B. c. Mccullah Bros., Inc., for 

work performed from June 15~ 1981, through May 25, 1982 (BPTr. 

21). Although two different employers appear to have employed 

complainant, the two names just indicate a change in a single 

employer's name (Exh. 2). Complainant stated that although he 

had tried to obtain work with other companies, he had been 

639 
unsuccessful in doing so and that the only other money he had 

received between the time of his discharge on July 3, 1979, and 

the date of the hearing held on November 30, 1982, had been in 

the form of unemployment compensation. Complainant was aware 

that, if he ultimately receives back pay from respondent, he 

will have to reimburse the agency which. paid him unemployment 

compensation (BPTr. 22). 

Respondent 1 s president, Pascual Wh;ite, testified that his 

sales contract with Atlantic City Electric Company had been cancelled and that he had been unable to find any alternative market 

for the coal he was producing (BPTr. 23-24). White said that he 

had been reducing his coal-producing activities ever since 1980 

and that if complainant had not been fired (BPTr. 51) on July 3, 

1979, he would have been laid off on March 8, 1980, as a part of 

the general reduction in his work force (BPTr. 28; 33). White 

said that, for all practical purposes, he had completely closed 

down his coal-producing business in 1982 and had laid off about 

49 miners in the process (BPTr. 49). White gave some dates on 

which he had laid off several miners. The first of those dates 

was March 8, 1980. Other dates were June 14, 1980, November 22, 

1980, February 28, 1981, and June 20, 1981 (BPTr. 32; 34-36). 

He said that the largest single reduction in the work force 

occurred in mid April 1982 when his entire production of coal 

from surface mines was discontinued (BPTr. 37). 

During White's cross-examination, it became very obvious 

that he did not have the detailed facts required to support a 

finding that complainant would have been laid off in 1980 if he 

had not been fired on July 3, 1979 (BPTr. 31; 34-36). Since 

White did not bring to the hearing any of his payroll records 

to support his allegations, counsel for the parties debated for 

several pages what could be done to determine just when complainant would have been laid off for economic reasons if he 

had not been discharged on July 3, 1979 (BPTr. 45-52). At that 

point in the discussion, I suggested that it might be best for 

me to go through the payroll records and report my findings to 

the parties, but it turned out that counsel for complainant 

could not attend a further discussion of the facts on Wednesday, 

December 1 (BPTr. 57), that White could not be present for a 

discussion on Thursday, December 2 (BPTr. 60), and that counsel 

for respondent could not attend a meeting on Friday, December 3 

(BPTr. 57-58). The only alternative offered to my suggestion 

that I examine all of respondent's payroll records was offered 

by counsel for respondent, but that consisted of Xeroxing all 

of the records and sending them to me at my off ice in Falls 

Church, Virginia (BPTr. 59), but that would still have involved 

my doing all of the parties' work for them and would have deprived me of the assistance of White's bookkeeper in case I 

needed to ask any questions about the way the payroll records 

were maintained (Tr. 60). 

640 
Because some of the parties, or t~eir counsel, were not 

free to meet on any day during the remainder of the week, it 

was agreed that I would issue a proposed decision after I had 

gone to respondent's office in Williamsburg, Kentucky, and had 

reviewed respondent's payroll records.' It was further agreed 

that the parties would be permitted to file objections to the 

proposed decision and would be provided with a further hearing 

if they believed one was necessary (BPTr. 63). I 

In keeping with my agreement to e~amine the payroll records, 

I drove to respondent's office in Willfamsburg on December 1, 

1982, and spent the entire day in making notes pertaining to 

respondent's employees who were either hired or laid off or 

voluntarily quit during 1979, 1980, 1981, and up to December 1, 

1982. Thereafter I prepared the appendices attached to this 

decision and those appendices contain all of the information I 

obtained as a result of examining respondent's payroll records. 

As I have indicated in the procedural background given 

above, the proposed decision was issued on January 20, 1983, 

and respondent's counsel filed objections to the proposed decision on April 18, 1983. I shall hereinafter explain what respondent's objections were and indicate the lack of merit to 

them, but a discussion of his objections to the proposed decision will be facilitated if I first proceed with the rationale 

originally used in my proposed decision for determining that 

complainant would have been laid off for economic reasons on 

June 12, 1982, if he had not been previously discharged on 

July 3, 1979. 

White testified that when a general reduction in force 

was required because of the loss of coal orders and the reduction of coal production, it was his policy to lay off first the 

employees who had been hired last (BPTr. 25). In other words, 

he followed the normal rule of laying off employees in accordance with their seniority. White's bookkeeper provided me with 

the two sheets which comprise Appendix G. I have added to 

those two sheets the actual dates on which those employees 

were laid off. While a few of the lay-off dates do not correspond exactly with seniority, or date of hiring, it is obvious that White did adhere somewhat closely to the principle 

that a person with considerable seniority would be discharged 

after a person with little seniority. 

Since White himself said that it was his intention to 

follow the general rule of laying off in accordance with the 

employees' seniority, I have applied that rule in trying to 

determine when complainant would have been laid off if he had 

not been dropped from the payroll at the end of June 1979. 

The discussion of the data which follows requires me to conclude 

that complainant would have been laid off on June 12, 1982, if 

he had not been dropped from the payroll at the end of June 1979. 

641 
Exhibit H in this proceeding is a 'copy of one of the 

sheets in respondent's payroll records.' Exhibit H pertains to 

complainant, but it shows the characteristics which are common 

for all of respondent's payroll record~. The caption at the 

top of the first column in Exhibit H reads "Week Ending". The 

hours worked on each of the 7 days of a given week are shown 

to the right of the column headed "Wee~ Ending". The dates 

used in all of the attached appendices,, except in Appendix G, 

are the dates. shown in the column head~d "Week Ending". The 

first two columns of Appendix G were prlepared by respondent's 

bookkeeper and Appendix G shows in the second column the exact 

date in a given week when a person was hired. If one will 

examine the first name, "Boyd Keith", in Appendix G with Boyd 

Keith's name in Appendix A, he will find that I show Boyd Keith 

in Appendix A as having been hired on 8/29/81, whereas respondent's bookkeeper shows in Appendix G that Boyd Keith was hired 

on 8/24/81. In other words, the facts given in my appendices 

are based on end-of-the-week dates, instead of exact dates. 

For purposes of determining the time when complainant would 

have been laid off for economic reasons, had he continued to 

work for respondent, there is no need to make a finding which 

is so prec,ise that it would make any difference whether an employee was hired on a Monday or a Friday or was discharged on 

a Wednesday instead of a Friday. Of course, that would not be 

true for computing back pay because a difference or mistake of 

even 1 day would cost respondent approximately $60. Since 

Exhibit H is a copy of the payroll record used to pay complainant, there is no lack of precise data for determining the 

amount of back pay which is due to complainant. 

Of the six persons, other than complainant, who either 

quit or were laid off in 1979, no two persons were laid off on 

the same day and only two persons were laid off in the same 

month, so there is no pattern to show that a general lay off 

occurred at all in 1979. Seven employees, excluding complainant, were hired on or after May 12, 1979, the date on which 

Moses was hired. Therefore, the work force remained very 

stable in 1979. 

Of the 17 persons who either quit or were laid off in 

1980, 3 left in January, 3 left in February, one left in March, 

3 left in April, none left in May, 2 left in June, none left 

in July, 1 left in August, 1 left in September, none left in 

October, 2 left in November, and 1 left in December. Those 

figures show that there was no general lay off at any time in 

1980. Moreover, since respondent hired 28 employees in 1980 

and lost only 17 employees, the work force increased by 11 

persons during 1980. Consequently, there is no evidence to 

show that Moses would have been laid off in 1980 because of 

an overall down turn in respondent's business. 

642 
Of the 41 employees who either quit or were laid off in 

1981, 1 left in January, 2 left in February, 5 left in March, 

4 left in April, 4 left in May, 10 left in June, 2 left in 

July, 3 left in August, 1 left in September, 3 left in October, 

2 left in November, and 4 left in December. The reduction of 

41 persons in respondent's work force supports a finding that 

something unusual occurred to cause such a large reduction in 

the work force within a period of 1 year. It is difficult, 

however, to make a finding that an extreme decline in respondent's production was occurring because the loss of 41 employees 

was offset by the fact that respondent hired 35 new employees 

in 1981. Consequently, the work force was less by only 6 employees at the end of 1981 than it was at the beginning of 1981. 

Therefore, the facts do not support a finding that Elias Moses 

would have been laid off in 1981 if he had not been discharged 

in 1979. 

The facts for 1982, however, support a finding that respondent's business was suffering a steady decline. Of the 

41 employees who either quit or were laid off in 1982, 1 left 

in January, 3 left in February, 3 left in March,' 22 left in 

Apr~l, 1 left in May, 9 left in June, 1 left in July, none left 

in~ugust or September, 1 left in October, and none left in 

No ember. Since the data here being analyzed were collected on 

De ember 1, 1982, no conclusion can be made. as to December, 

ex ept that it is a fact that on December 1, 1982, respondent's 

em loyees had shrunk to 8 if one excludes members of respondent's own family, a secretary, an airplane pilot, and an engineer who have been deliberately omitted from my consideration 

of the question of when Elias Moses would have been laid off 

if he had not been discharged in 1979. As opposed to the loss 

in respondent's work force of 41 employees in 1982, only 12 

new employees were hired. While the 12 new employees were all 

laid off in 1982, they have to be deducted from respondent's 

work force in order to arrive at a correct conclusion as to the 

net reduction of the work force in 1982. When the aforesaid 

calculation is made, the net loss to respondent's work force in 

1982 was 29 employees (41-12 = 29) • 

Elias Moses was· employed as an operator of a D-9 Caterpillar tractor which he operated most of the time, although he 

did act as a mechanic's helper, hauled powder, and worked in 

the repair shop on some days when dozers were not available 

(Tr. 5-6; 32; 41; 63; 252). Respondent supplied me with a list 

of 11 employees (Appendix G) who could operate dozers. All 

but two of those employees were hired after Moses and not one 

of them was discharged prior to April 1982 when five of them 

were laid off. Four more dozer operators were laid off on 

June 12, 1982, and only one of them is still employed and he 

was hired in 1974, or about 5 years before Elias Moses was 

hired. The aforesaid figures support a conclusion that Elias 

643 
Moses would have been discharged on Jutje 12, 1982, along with 

the four other dozer operators who were laid off on that day, 

if he had not already been discharged at the end of June 1979. 

The discussion above is easily understood if the facts 

are set forth in the tabulation hereinafter shown. Payroll 

data become important in the year 1979 '.because determining 

seniority for purposes of laying off employees must be based 

on those employees who were hired befoie and after May 12, 

1979, the day on which Elias Moses was :hired. 

1979 

38 Number of persons, excluding complainant, on 

payroll or hired in 19-79 (Appendix B) 

-6 Number of persons, excluding complainant, who 

left wdrk force in 1979 (Appendix I, page 1) 

32 Number of persons actively employed at end of 1979 

1980 

28 Number of new persons hired in 1980 (Appendix C) 

-17 Number of persons who left in 1980 (Appendix I, 

- page 1) 

11 Net gain in personnel during 1980 

32 Number of persons on payroll at end of 1979 

+11 Gain in employees during 1980 

43 Number of persons actively employed or on payroll 

at end of 1980 

1981 

41 Number of persons who left respondent's employment 

in 1981 (Appendix I, page 1) 

-35 Number of new employees hired during 1981 (Appendix D) 

6 Net loss in personnel during 1981 

43 Number of persons on payroll at end of 1980 

-6 Loss in employees during 1981 

37 Number of persons actively employed or on payroll 

at end of 1981 

1982 

41 Number of persons who left respondent's employment 

in 1982 (Appendix I, pages 1 and 2) 

-12 Number of new employees hired during 1982 (Appendix E) 

29 Net loss in personnel during 1982 

644 
37 Number of persons on payroll at end of 1981 

-29 Loss in employees during 1982 

-S- Number of persons actively employed or on payroll 

as of December 1, 1982 (Appendix F) 

The eight persons who were still employed or were on the 

payroll as of December 1, 1982, are set forth below as reflected 

in Appendix F: 

Employee 

1. McClure, Richard 

2. Meadors, Homer S. 

3. Moses, Arvil, Jr. 

4. Moses, Issac 

5. Perry, Leonidas Xerxes 

6. Trammel, Arnold 

7. Moses, Dwight Wayne 

8. Daugherty, David John 

Date Hired 

Before 5/12/79 

Before 5/12/79 

Before 5/12/79 

Before 5/12/79 

Before 5/12/79 

Before 5/12/79 

8/29/81 

9/12/81 

Type of Work 

or Status 

Foreman and 

loader operator 

Has been ill 

for months 

Truck driver and 

laborer 

Various jobs and 

dozer operator 

Shop mechanic 

Truck driver and 

laborer 

Tipple laborer 

and drill operator 

Shop mechanic 

The tabulation above showing the eight employees who were 

still on respondent's payroll as of December 1, 1982, indicates 

that two employees, Dwight Moses and David Daugherty, who were 

employed after complainant, are still working. It could be 

argued, therefore, that if complainant had not been unlawfully 

discharged in 1979, he would still be employed in one of the 

positions now held by Dwight Moses or David Daugherty. I do 

not believe that such an argument is valid because there is 

nothing in the record to show that complainant has any experience to qualify him for the position of either a tipple laborer 

or a drill operator, although he does apparently have some 

experience as a person who has filled explosive holes with 

powder and other materials after the holes have been drilled. 

Also, while the record does show that complainant has worked 

as a mechanic's helper and a "powder man" (Tr. 41; 234), there 

is nothing in the record to show that he could qualify as a shop 

mechanic. Consequently, I believe that my finding above to the 

effect that complainant would have been laid off on June 12, 

1982, when all but one of the other dozer operators were laid 

off, is correct and is supported by the preponderance of the 

evidence. Additionally, it should be noted that complainant 

was hired by White as a "dozer man" (Tr. 251) and it would be 

improper to hold that complainant should continue to be paid 

for working as a "dozer man" after all other dozer operators 

hired on or after the date of complainant's hiring have been 

laid off. 

645 
Respondent's counsel objected before. the Commission to 

my ordering complainant to be paid on the basis of a 40-hour 

week because the payroll records (Exhibit H) show that he only 

worked 40 or more hours for 3 of the 7 full weeks he was employed prior to his discharge. Respondent failed to introduce 

any evidence at the hearing held on November 30, 1982, to show 

that my use of a 40-hour week is wrong. On the other hand, if 

one adds the number of hours complainant worked during those 

7 weeks, the total is 260 hours. If 260 hours are divided by 

7, the average number of hours worked per week is 37.143 hours. 

The testimony received at the original hearing held on 

November 18, 1980, shows that respondent was unable to work an 

average of 40 hours each week because one or more dozers were 

out of order. Also, it is a fact that complainant was offered 

alternative work on the day of his discharge, but he refused 

to perform the.alternative work because he felt that it was 

assigned to him by the foreman in a degrading manner (Tr. 73; 

234). In the absence of any evidence to show that complainant 

would have worked more than an average of 37.143 hours per week 

if he had remained in respondent's work force up to June 12, 

1982, I shall base the calculation of back pay on a working 

week of 37.143 hours. When it comes to the question of paying 

complainant for holidays, complainant should be paid the same 

amount as other employees having equivalent seniority, as 

described by White at BP transcript pages 39 through 41 and 88 

through 93. 

Consideration of Respondent's Objections to Proposed Decision 

Alleged Failure To Allow for Loss of Work as Result of Inclement 

Weather and Repair of Caterpillar Tractors 

In my original decision issued March 31, 1981, 3 FMSHRC 

746, I noted, at 3 FMSHRC 761 and 762, that complainant had 

worked·mor.e-tlian 40 hours some weeks and less than 40 hours on 

other weeks, and concluded that a 40-hour week would be a reasonable accommodation to allow for the vagaries of operating 

surface mines, but respondent argued before the Commission that 

he wanted to present additional evidence as to the issue of 

back pay. Although respondent failed to present any evidence 

at the first back-pay hearing with respect to the number of 

hours per week complainant would have worked if he had continued 

to be employed after his discharge on July 3, 1979, I reexamined 

the 7 weeks during which complainant worked for respondent and 

found that the total number of hours worked for respondent were 

260. Dividing that total by 7 resulted in an average working 

week of 37.143 hours. That figure of 37.143 hours appeared on 

page 7 of my proposed decision issued January 20, 1983, and that 

was the figure which I used in the calculation of back pay which 

64G 
I mailed to respondent on February 28, 1983, and requested respondent to check the accuracy of the calculations and let me 

know by March 15, 1983, whether any errors in the calculations 

had been found. Respondent never did reply to my request that 

the back-pay calculations be checked and the comments by respondent's counsel at the hearing (BPTr. 85-88) show that he 

had never examined the calculation of back pay which I had 

mailed to him on February 28, 1983, because he incorrectly 

claimed that my back-pay calculations assumed that respondent 

had worked 5 days each week for 52 weeks of the year (BPTr. 83). 

Respondent further contended erroneously that my back-pay calculations had failed to take into consideration the time lost 

because of bad weather and down-machine time '(BPTr. 84). Respondent's counsel then stated that an examination of respondent's payroll records indicated that respondent's employees 

would lose 6 weeks of work each year because of bad weather and 

time required to repair equipment (BPTr. 84). Complainant's 

counsel agreed that respondent's estimate of 6 weeks lost because of bad weather and repair of equipment was a fair estimate 

(BPTr. 84). 

Thereafter, I asked that respondent's counsel look at the 

back-pay calculation which I had mailed to him on February 28, 

1983, and he recognized that I had used an average hourly working week of 37.143 hours and both respondent's and complainant's 

counsel agreed that my use of a figure of 37.143 hours was 

acceptable to them (BPTr. 100). Respondent's owner had testified at the original hearing that they worked 10 hours a day for 

5 days each week. (Tr. 248). If that were true, the working week 

would amount to 50 hours (10 x 5 = 50) per week, or 2,600 hours 

per year (SO x 52 = 2,600). Loss of 6 weeks of work as a result of bad weather and equipment repair would be 300 hours (6 

x 50 = 300). Deduction of 6 weeks or 300 hours would result in 

a working year of 2,300 hours which, when divided by 52, would 

result in an average working week of 44.2 hours. 

Exhibit H, however, shows that complainant never worked 

more than 9 hours on any single day for.the 7 full weeks he was 

employed by respondent. Application of the above assumptions 

to a working week of 45· hours (9 x 5 = 45) and deduction of 6 

weeks results in an average working week of 39.8 hours, instead 

of the average working week of 37.143 hours used by me for calculating back pay in the letter mailed to the parties on February 28, 1983. Therefore the use of a 40-hour week in my 

original decision (3 FMSHRC at 762) for purposes of calculating 

back pay was nearer to respondent's claimed loss of 6 weeks of 

work each year as a result of bad we~ther and equipment repair 

than the 37.143-hour week which I obtained by dividing complainant's total hours worked by 7. Nevertheless, since both parties 

have agreed that an average working week of 37.143 hours is 

acceptable, I shall hereinafter use an average working week of 

647 
37.143 hours in calculating back pay for the period from the 

time of complainant's discharge to June 12, 1982, the day he 

would have been laid off for economic reasons if he had not 

been discharged on July 3, 1979. 

Holiday Pay 

In my calculations of back pay mailed to the parties on 

February 28, 1983, I excluded pay for all holidays because I 

did not have precise data for use in determining which holidays, 

if any, respondent's miners failed to work. At the second 

back-pay hearing, respondent's owner, White, testified that the 

miners are off for the entire week during which Christmas occurs. The miners are given a bonus for the Christmas week 

based on their seniority. If a miner has worked for less than 

a year for respondent, he is given $50 and a ham; if he has 

worked for 1 year, he is given a bonus of $100; if he has 

worked for respondent for more than a year, he receives a full 

week's pay (BPTr. 92). White valued a ham at $32 (BPTr. 93). 

Since complainant would have been working for respondent 

for less than a year by the time Christmas occurred in 1979, 

complainant will be paid $50 plus a ham or $82 for the Christmas week of 1979. Since complainant would have been working 

for respondent for over 1-1/2 years by Christmas of 1980, complainant will be paid a full week's salary for the Christmas 

week of 1980. Complainant was working for another company during the Christmas week of 1981. Since complainant would have 

been laid off for economic reasons by June 12, 1982, no amount 

is required to be paid for the Christmas week of 1982. No back 

pay will be awarded for other holidays on which White said he 

did. not work (BPTr. 39; 88-91; 99). 

Seniority Modified by Versatility 

White had testified at the first back-pay hearing held on 

November 30, 1982, that he had chosen the miners to be laid 

off for economic reasons on the basis of seniority (BPTr. 25). 

At the second hearing, respondent's cqunsel argued that the 

work force was steadily declining for economic reasons in 1982 

and that he believed complainant would have been laid off no 

later than March 1982 because only the employees with more 

seniority than complainant were kept to June 12, 1982, which 

was the economic discharge date determined by me in my proposed 

decision of January 20, 1983 (BPTr. 106). That claim cannot be 

sustained because Appendices G, I, and J show that the three 

miners (Rick Ball, Dellmar Sergent, and Richard Towe) who were 

laid off in March 1982 were hired in 1981 and 1982, except for 

Dellmar Sergent who was hired before complainant, but neither 

Sergent nor the other two miners laid off in March 1982 were 

dozer operators (BPTr. 108-109). Respondent, therefore, has 

. 648 
shown no reason why complainant, a dozer operator, would have 

been laid off in March 1982 instead of one of the three nondozer operators who were actually laid off in March 1982. 

Respondent's counsel also argued that complainant would 

have been discharged in April 1982, when 22 employees were laid 

off, rather than in June 1982, when the last group of dozer operators were laid off, because some of the operators who were 

discharged on June 12, 1982, had greater versatility to perform 

a variety of tasks than complainant has and that respondent kept 

them on the payroll longer than respondent wculd have kept complainant because they had a greater value to respondent than complainant had (BPTr. 107; 120-121). Respondent's owner, White, 

was unable, however, to give any facts to support his counsel's 

argument. When White was asked why he had waited until June 12, 

1982, to lay off the dozer operators listed on Appendices G and 

I, page 2, he gave no reason other than seniority for retaining 

Anderson and Baird until June 12, 1982, even though they were 

hired after complainant. White also claimed that Daugherty, 

another employee hired after complainant, is still working as 

chief mechanic for the entire company and that Daugherty is 

qualified to do things which complainant could not even attempt 

to do (BPTr. 115). The argument pertaining to Daugherty is incorrect because the dozer operator laid off on June 12, 1982, 

is named Jimmy Lee Daugherty, whereas the chief mechanic is 

named David John Daugherty (Appendix A, Item 22) • 

White was then asked to explain why Horner Walker was laid 

off in April even though he had more seniority than Otis Anderson who was laid off in June. White explained that Walker was 

laid off before Anderson because Walker had a dozer of his own 

and wanted to get some contract work doing custom jobs like 

constructing f arrn ponds and that Walker asked to be laid off 

(BPTr. 118). White was also asked why Chester Tackett, who had 

more seniority than Anderson, was laid off in April before 

Anderson. White explained that Tackett was laid off before 

Anderson because Tackett had been a reclamation dozer man for 

Long Pit Coal Company in Tennessee and that they recalled him 

to complete some reclamation work which had not been finished 

(BPTr. 119). It is obvious from White's testimony that neither 

Walker nor Tackett were laid off because of a lack of versatility. 

The final argument given by respondent in support of its 

contention that complainant would have been laid off before 

June 12, 1982, when the final group of dozer operators were 

laid off, was that complainant, during the 7 weeks when he did 

work for respondent, had declined to fill explosives holes on 

the day of his discharge and had refused to operate a back dump 

on a previous occasion (BPTr. 120). Respondent's argument that 

complainant would have been laid off prior to June 1982 because 

of his refusal to perform work other than that of a dozer operator is not supported by the preponderance of the evidence. 

649 
Complainant testified that he worked as a mechanic's helper 

the first day of his employment by respondent (Tr. 5), that he 

worked as a mechanic on other occasions, that he worked in respondent's shop and hauled powder (Tr. 32), that he helped install a tra.ck on a D-6 dozer, changed oil, and did other work 

on dozers, such as replacing a muffler (Tr. 42; 63-64). White 

himself testified that he assigned complainant various kinds 

of work other than operating a dozer, including just cleaning 

up in the shop, and that he always paid complainant the wages 

of a dozer operator even when he was only doing the work of an 

ordinary laborer (Tr. 252; 279). 

Complainant agreed that he did refuse to operate a back 

dump on one occasion because the work to be performed was very 

close to a steep bank and complainant did not believe that he 

had the expertise required for operating the back dump in that 

situation (Tr. 79). Complainant said that no argument developed 

when he declined to operate the back dump (Tr. 71). Complainant 

also declined to fill explosives holes on Juiy 3, 1979, the day 

of his discharge, because the foreman offered the job in what 

complainant believed to be a degrading manner (Tr. 72-73). Although White claimed that none of the dozer operators laid off 

on June 12, 1982, had ever refused to perform any kind of ~ork 

they were asked to do (BPTr. 115; 120), he did not give any 

examples of the kinds of work which any of them were qualified 

to do in addition to operating dozers; therefore, the record 

contains no facts which would support a finding that the dozer 

operators laid off on June 12, 1982, had any more ability to 

perform a variety of tasks than complainant possessed. 

I pointed out at the hearing that I was not certain that 

it was even appropriate to consider versatility in addition to 

seniority in trying to determine the date on which complainant 

would have been discharged for economic reasons if he had not 

been unlawfully discharged on July 3, 1979, and respondent's 

counsel was given a period of 30 days within which to file a 

brief in support of his argument that I should take into consideration complainant's alleged lack of versatility in making 

a determination as to the date when he would have been laid 

off for economic reaso.ns (BPTr. 126). At the end of the 30-day 

period, respondent's counsel filed on August 15, 1983, a letter 

in which he stated that he had been unable to find any cases 

directly in point on the issue of whether versatility shou],d be 

given any weight over seniority in making a determination as to 

when employees should be laid off when a company is reducing 

its work force. I have not been able to find any cases which 

discuss that point either. Even if I had found some cases 

which show that versatility should be considered in addition 

to seniority, I still believe that it would be improper to give 

weight to versatility in the absence of any evidence to support 

such a contention. As I have demonstrated above, there is no 

evidence in this record to show that complainant would have 

650 
been laid off any earlier than June 12, 1982, if he had not been 

discharged on July 3, 1979. 

ATTORNEY'S FEES 

In my original decision issued on March 31, 1981, I ordered 

respondent to pay complainant's counsel an amount of $2,500. 

Respondent did not object to my award of attorney's fees in its 

arguments before the Commission, but did raise the issue of attorney's fees when it filed its answer to my proposed decision 

issued January 20, 1983. The primary ground used by respondent 

in support of its objection to my awarding attorney's fees in 

the amount of $2,500 was that complainapt's counsel did not send 

respondent's counsel a copy of the letter in which he asked for 

payment of 30 hours of work at a rate of $100 per hour. My 

decision reduced the number of hours to 25 because of the failure by complainant's counsel to provide a breakdown of the time 

spent in conferences as compared with representing complainant 

at the hearing (3 FMSHRC at 762). 

Complainant was represented by two attorneys at the first 

back-pay hearing held on November 30, 1982. In a letter to the 

parties dated February 28, 1983, I ruled that nothing had occurred at the hearing held on November 30, 1982, which warranted 

complainant's being represented by two attorneys and that I 

would not entertain a bill for attorney's fees which reflected 

more hours for attending that hearing than the time which would 

have been expended by one attorney. 

At the second back-pay hearing held on July 12, 1983, complainant's counsel stated that he would forego any additional 

compensation for work done in connection with the back-pay issues 

if respondent's counsel would agree to the prior award of $2,500 

which I had provided for in my original decision. Respondent's 

counsel agreed to accept the of fer of settlement of the issue of 

attorney's fees (BPTr. 103-104). The settlement of the issue of 

attorney's fees was thereafter mentioned ·(BPTr. 128) in connection with the possibility of complainant's counsel having to 

write a brief in reply to any brief which respondent's counsel 

might submit with respect to use of versatility in determining 

the date of complainant's being laid off for economic reasons. 

It was agreed at that time that complainant's counsel would submit an additional claim for attorney's fees if he believed that 

an additional amount should be awarded (BPTr. 128). Inasmuch 

as no additional request for attorney's fees has been submitted 

by complainant's counsel, no additional amount for attorney's 

fees needs to be awarded as a part of this back-pay decision. 

651 
DETERMINATION OF SECOND PERIOD FOR REIMBURSEMENT OF BACK PAY 

Stipulation of Facts Regarding Complainant's Failure to be 

Reinstated 

Respondent's counsel wrote a letter dated February 2, 1983, 

to complainant's counsel advising him "* * * we are now offering Mr. Moses a position with Whitley Development Corporation 

and he is to report to work on Monday, February 7, 1983, at the 

hour of 8:30 a.m., at the main office of the corporation." The 

letter was sent by certified mail and post office personnel 

placed a notice in the post office box of· complainant's counsel 

on Friday, February 4, 1983, to the effect that a certified 

letter had been received by the post office. Complainant's 

counsel did not go to the post office until Monday, February 7, 

1983, at which time he signed the return receipt showing that 

complainant's counsel actually received on February 7 the letter 

offering complainant a job at 8:30 a.m. on February 7, 1983 

(BPTr. 69-74). 

Complainant's counsel called another attorney who lives 

closer to complainant than the attorney who represents complainant in this proceeding. That attorney did not advise complainant that he had been offered a job until the following day, 

February 8, 1983. Complainant's counsel also called respondent's 

counsel to advise him that the letter of February 2, 1983, had 

not been received until February 7, 1983, but respondent's 

counsel was unavailable. Although respondent's attorney attempted to return the call from complainant's counsel on t~e 

next day, February 8, 1983, complainant's counsel did not know 

that respondent's counsel had called because he received no 

message to the effect that his call had been returned. Respondent's counsel submitted a telephone bill to prove that he had 

tried to return the call from complainant's counsel on February 8, 1983 (BPTr. 74-80). 

As previously indicated above, complainant was advised on 

February 8, 1983, that he had been off~red a position by respondent and complainant did report fo_r work about 11: 30 a.m. 

on February 8, 1983, but respondent's owner, White, advised 

complainant that his failure to report on the day the position 

was offered, that is, February 7, 1983', had caused respondent 

to call another dozer operator to work in complainant's place 

and, for that reason, respondent did not any longer have a 

position to offer complainant. 

White's testimony shows that complainant had been recalled 

to the position of a dozer operator primarily to perform some 

reclamation work which was completed on March 31, 1983 (BPTr. 

131). Therefore, if complainant had been given a job on February 7, 1983, it would have lasted only for the period from 

February 7 through March 31, 1983. 

652 
Consideration of Parties' Arguments as to Reinstatement 

An order was issued on August 18, 1983, providing the 

parties with an opportunity to file briefs on the following 

three issues: 

(1) Was complainant properly denied reinstatement for appearing 1-1/2 days after the designated 

time of reinstatement, taking into consideration 

that he appeared for reinstatement as soon as he 

learned of the offer of reinstatement? 

(2) If it is held that complainant is still entitled to be reinstated to his job as a dozer operator, should he receive back pay for the period from 

February 8 through March 31, 1983, which is the 

period of time worked by the dozer operators recalled 

at the same time complainant was recalled? 

(3) Assuming that complainant is entitled to 

back pay for the [37-1/2]-day period involved, is 

there any reason why the calculation should not be 

made on the basis of the 37.143-hour work week previously established for computing back pay? 

The Issue of Reinstatement 

Respondent argues that complainant was properly denied 

reinstatement for his failure to report at the time designated 

in the letter of February 2, 1983, which had been sent to complainant's counsel in plenty of time for complainant to have 

been on notice that the job offer required complainant to report for work at 8:30 a.m. on February 7, 1983. Respondent 

states that complainant's contention that he could not be 

reached on February 7,·when the offer of reinstatement was required to be fulfilled, because of the need for complainant's 

counsel to provide notice through another attorney in the 

State of Tennessee, is not a valid argument because it would 

have been unethical for respondent or respondent's counsel to 

have contacted complainant directly, rather than through the 

attorney who is representing complainant in this proceeding. 

Respondent's brief also contends that his business was in 

need of inunediate income and that he could not be expected to 

delay the work which he expected to do on February 7, 1983, because respondent needed the inunediate income to be derived from 

that work. Respondent claims that it would have been a simple 

matter for complainant's co~nsel to have telephonically advised 

respondent's counsel, or respondent directly, that he had not 

been able to reach his client so that respondent could have 

held the position open for an additional period of time. 

653 
Complainant's brief argues that respondent failed to provide complainant with sufficient time prior to the date given 

for reporting for work. Complainant contends that respondent 

should have mailed a copy of the lette~ offering reinstatement 

to complainant as well as to his attorney of record in this 

proceeding. It is argued that such dual notification would 

have allowed for any possible failure qf communication between 

complainant and his counsel and would have enabled complainant 

to report for work at the designated t~me. ; 

Section 2700.7(d) of the Commission's rules of procedure, 

29 C.F.R. § 2700.7(d), provides as follows: 

(d) Service upon representative only. Whenever 

a party is represented by an attorney or other authorized representative who has signed any document filed 

on behalf of such party, or otherwise entered an appearance on behalf of such party, service thereafter 

shall be made upon the attorney or other authorized 

representative. · 

Since complainant has an attorney who has entered an appearance 

on his behalf and who has signed numerous documents on his behalf in this proceeding, there can be no doubt but that respondent's counsel fulfilled his legal obligation as to providing 

complainant with notice of the offer of reinstatement when he 

mailed the letter offering reinstatement to complainant's 

counsel. 

It is interesting to note, however, that each attorney's 

brief condemns the other attorney for failure to get in touch 

with his client directly if the attorney of record was unavailable. Specifically, respondent's counsel argues that complainant's counsel should have called his client directly if complainant's counsel tried to get in touch with him personally 

on February 7, 1983, but could not do so. Likewise, complainant's counsel argues that respondent's counsel should have 

mailed a copy of the offer of reinstatement directly to complainant to assure that complainant would receive notice of 

the offer in sufficient time to report for work at the designated time. While it is true that when two parties in a proceeding are both represented by attorneys, each attorney is 

required to communicate with the other party's attorney, some 

common sense must prevail when the communication pertains to 

a matter of vital importance to an attorney's client. Therefore, when complainant's counsel received respondent's offer 

of reinstatement after 9 a.m. on February 7, 1983 (BPTr. 71), 

offering complainant a job ~nd asking him to report for work 

at 8:30 a.m. on February 7, complainant's counsel had to realize that there was no way he could notify his client of the 

offer of reinstatement in sufficient time to permit his client 

to report for work at the appointed hour. Therefore, if an 

\ 

654 \ 
immediate call to the office of responqent's attorney failed to 

result in a personal communication.with respondent's attorney, 

then, at that point, complainant's attorney would have been 

acting in his client's interest by cal~ing respondent's office 

directly to explain why his client would be unable to report 

for work at 8:30.a.m. Therefore, respondent's offer of reinstatement mailed on February 2, 1983, offering complainant a 

job on February 7, 1983, cannot be said to be at fault. 

On the other hand, it is a fact that complainant did report to work about 11:30 a.m. on February 8, 1983, which was 

as soon as complainant could do so after he was finally advised 

of the offer of reinstatement by his attorney. The reason 

given by respondent for refusing to allow complainant to commence working on February 8, 1983, is given on page 2 of respondent's brief which states that respondent could not be expected "* * * to delay the entire operation of its business 

which has been doing very poorly and which was in need of immediate income in order to satisfy the needs of one particular 

Petitioner in this matter." 

The reason given by respondent for refusi:ng to reinstate 

complainant is not supported by the preponderance of the evidence. Respondent's owner, White, testified at the hearing 

that the primary work for which six or seven dozer operators 

had been recalled was reclamation work. Although his statement is somewhat confusing, he described the kind of work which 

the dozer operators were performing as follows (BPTr. 131}: 

THE WITNESS: We're mining some coal -- and 

reclamation work. They're not working -- they're 

working, doing -- for the bonding company -- and 

the reclamation work on the jobs. All we're doing 

is the reclamation right now. 

White subsequently explained that Whitley Development Corporation, the respondent in this proceeding, was the entity which 

recalled complainant and the other dozer operators, that Whitley 

employed them through March 31, 1983, and that Whitley was 

dissolved as a corporation at that time. In such circumstances, 

it does not appear that the work which complainant was recalled 

to do was of such an urgent nature that respondent would have 

been unduly prejudiced in its business activities if it had 

hired at least one of the dozer. operators with the understanding that he might not be retained if complainant should appear 

a day or so late because respondent's job offer was delayed in 

reaching complainant. 

Another reason for conc.luding that respondent would not 

have been prejudiced by allowing complainant to resume his 

previous job as a dozer operator is that White testified that 

65~i 
he had recalled seven dozer operators, :but that two of them 

(Anderson and Walker) found other work and either declined to 

accept White's offer of a job or left after working only a 

short time (BPTr. 131). Therefore, White did not actually 

have the full complement of dozer operators he had recalled 

and his reinstatement of complainant as a dozer operator would 

not have overly enlarged White's work force. 

For the foregoing reasons, I find;that respondent failed 

to justify its refusal to reinstate co~plainant to the position 

of a dozer operator simply because he reported 1-1/2 days late 

to accept the position. 

Even if respondent had shown a good reason for refusing 

to reinstate complainant to his former position as a dozer operator, or to an equivalent position, he would still have been 

obligated to reinstate complainant. The Commission and the 

courts have held that a respondent who has violated section 

lOS(c) (1) of the Act is obligated to reinstate the miner who 

has been illegally discharged. That obligation continues to 

exist until the discharged miner specifically declines to accept the offer of reinstatement (Glenn Munsey, 2 FMSHRC 3463 

(1980); and Heinrich Motors, Inc. v. N. L. R. B., 403 F.2d 145 

(2d· Cir. 1968)). Therefore, I find that respondent was obligated to reinstate complainant to his former job as a dozer 

operator when he appeared about 11:30 a.m. on February 8, 1983, 

after having received notice of reinstatement on that same day. 

Period of Time for Which Complainant is Entitled to Receive 

Back Pay 

Respondent's brief (p. 3) argues that complainant is not 

entitled to any back pay for any period after February 8, 1983, 

because complainant failed to accept the off er of reinstatement 

in a timely manner. Respondent also notes that if I award complainant any back pay for the period after February 8, 1983, I 

should obtain evidence to show that complainant did not, during 

that period, have any income which should be offset against any 

back pay awarded by me. 

Complainant's brief argues that respondent's offer of reinstatement was deliberately intended to give complainant such 

a short time period between the making of the of fer and the 

date complainant was required to report for work, that respondent would be able to refuse to employ complainant on the ground 

that he had failed to accept the offer in a timely fashion. 

Complainant contends, therefore, that since the offer was not 

made in good faith, complainant is entitled to be awarded back 

pay for the entire period from February 8, 1983, through 

March 31, 1983. 

656 
I have already held in the previo~s topic above that respondent is obligated to reinstate complainant to his previous 

job, or an equivalent job, until such time as complainant 

specifically declines to accept reinstatement. Therefore, it 

is unnecessary for me to rule on complainant's argument that 

respondent failed to make the of fer of reinstatement in good 

faith. 

Determination of Average Hourly Week for Second Back-Pay Period 

Respondent properly stated in its brief that I would have 

to determine for the second back-pay period whether respondent 

was shut down at times between February 8, 1983, and March 31, 

1983, so as to produce a different hourly working week' for calculation of back pay for the second period as compared with 

the 37.143 hourly week previously determined for the first backpay period. Therefore, I issued an order on November 8, 1983, 

providing for respondent to submit information pertaining to 

determining the average hourly working week for the second backpay period. The order also provided for complainant to submit 

an affidavit specifying what additional income, if any, he had 

earned during the period from February 8 through March 31, 1983. 

In reply to the order of November 8, 1983, respondent submitted an affidavit stating that a review of the payroll records 

during the applicable period of time shows that the dozer operators employed during that period of time worked an average 

hourly week of 36.8 hours. Therefore, I shall hereinafter use 

the aforesaid average hourly week for computing back pay for 

the period from February 8 through March 31, 1983. 

In reply to the order of November 8, 1983, complainant submitted an affidavit stating that he has not worked for any employer since May 24, 1982. Therefore, no additional offset of 

wages will be required to be made in computing back pay for the 

period from February 8 through March 31, 1983, other than the 

wages which were paid to complainant by B. c. Mccullah Bros. 

and which have already been discussed on page 4 of this decision, supra. 

Respondent's Motion to Dismiss Complainant's Right to Back Pay 

for Second Period 

My order of November 8, 1983, required complainant's 

counsel to mail by December 2, 1983, an affidavit advising me 

of any income which complainant may have earned for the period 

from February 8 through March 31, 1983. The affidavit was not 

prepared until December 5 and was not mailed until December 7, 

1983. Therefore, on December 14, 1983, respondent's counsel 

filed a motion asking that I dismiss complainant's right to 

back pay for the period from February 8 through March 31, 1983, 

for complainant's failure to comply with the time limitations 

in my order of November 8, 1983. 

657 
I 

There would have been more merit to respondent's motion 

than there is if the sanction requested had been against complainant's counsel instead of against complainant personally. 

My order was mailed to complainant's counsel and the return 

receipt shows that complainant's counsel received the order on 

November 10, 1983. Although the affidavit was prepared by 

another attorney who appears to live iri Tennessee, complainant's 

attorney still had a period of 22 days '.within which to prepare 

what turned out to be a two-line affid~vit and mail it by December 2, 1983. The record shows that complainant only completed 

the first grade and that he cannot read very well {Tr. 101). 

Therefore, complainant could not have prepared an affidavit 

without the assistance of counsel and it is probably safe to 

conclude that complainant was unaware of the fact that his attorney had failed to prepare the affidavit in a timely fashion. 

For the foregoing reasons, I believe that any sanctions 

for complainant's failure to submit the affidavit in a timely 

manner should be against complainant's counsel, rather than 

against complainant, who is not responsible for the lack of 

diligence on the part of his attorney. If complainant's counsel 

were asking for any attorney's fees at all for his work done in 

connection with the remanded back-pay issues, I would be inclined to deduct some amount from any fees which he might be 

requesting. As I have indicated under the heading of "Attorney's Fees", page 16, supra, complainant's counsel has waived 

any claim for attorney's fees in connection with the back-pay 

issues. Therefore, I find that the grant of respondent's motion would unduly penalize complainant because of his attorney's lack of diligence and that the motion to dismiss complainant's right to back pay for the period from February 8 through 

March 31, 1983, should be denied. 

It should be noted that respondent is hardly in a position 

to be filing a motion for imposition of sanctions for failure 

of complainant to timely comply with my order of November 8, 

1983, in view of the fact that respondent never did comply with 

the request in my letter of February 28, 1983, that he check my 

back-pay calculations submitted to him for examination. Respondent's refusal to comply with my request hereinafter forces 

me to make extensive back-pay and interest calculations which 

the Commission held was not a judge's obligation in its decision in Secretary of Labor on behalf of Milton Bailey v. 

Arkansas-Carbona Co., 5 FMSHRC 2042, 2054, issued December 12, 

1983, in Docket No. CENT 81-13-D. It would be most unfair for 

me to impose sanctions on complainant for mailing an affidavit 

5 days late and ignore respondent's outright refusal to make 

a reply of any kind to my request that it check the back-pay 

calculations which were submitted to it on February 28, 1983. 

658 
CALCULATION OF BACK-PAY Al.~D INTEREST 

In its decision issued December 12, 1983, in Secretary of 

Labor on behalf of Milton Bailey v. Arkansas-Carbona Company, 

5 FMSHRC 2042, Docket No. CENT 81-13-D~ the Commission adopted 

for back-pay awards "* * * the interest formula used by the 

National Labor Relations Board--that i~, interest set at the 

'adjusted prime rate' announced semi-a*nually by the Internal 

Revenue Service for the underpayment a~d overpayment of taxes" 

(5 FMSHRC at.2042). The Commission stated that the interest 

rates adopted in its Bailey decision should be applied to all 

"* * * discrirninatfon cases pending before our judges as of the 

date of this decision" (5 FMSHRC at 2054). The Commission also 

stated on page 2054 of its decision that "* * * [t)he burden of 

computation of interest on back pay awards should be placed 

primarily on the parties to the case, not the judge, in order 

to comport with the adversarial system." 

I am fairly certain that I understand how to calculate the 

interest, because of the Commission's well-presented example 

given in footnote 15 of its Bailey decision. In any event, I 

believe that I shall have to assume the burden of calculating 

the principal amount of back pay due to complainant, as well as 

the interest, because, as indicated above, respondent has already declined to reply to my prior request that it review my 

previous back-pay calculations and I have no reason to assume 

that respondent would reply to a second request that it calculate 

the amount of back pay and interest which I have found are due 

to complainant. An additional reason for me to believe that I 

must assume the burden of making the calculations is that the 

Commission's Bailey decision, also at page 2054, indicates that 

both parties should work together in making the back-pay and 

interest calculations. I have found in this proceeding that 

there is so much hostility between respondent and complainant 

that there is no likelihood that I could get the parties to 

prepare a joint calculation of back-pay and interest. In such 

circumstances, I believe that it is incumbent upon me to calculate the back pay and interest as a part of this decision. 

I. shall include with the copies· of my decision mailed to 

the parties a copy of the Commission's decision in the Bailey 

case. Providing each party with a copy of the Bailey decision 

will enable the parties to review my calculations, if they are 

inclined to do so, and correct any errors I may have made prior 

to the time that any back-pay amount has to be paid to complainant. 

As I explained in my letter to the parties dated February 28, 1983, I am beginning my computations of back pay on 

July 12, 1979. The reason for starting with the date of July 12 

is that the foreman testified that the dozer was not returned 

659 
from the repair shop until July 11 (Tr. 240). Inasmuch as complainant had declined the foreman's offer of an alternate type 

of work on July 3, 1979, the record supports a finding that, 

even if complainant had not been discharged on July 3, he would 

not have been able to operate a dozer until after the dozer had 

been returned from the repair shop on July 11, 1979. Therefore, 

the calculation of the number of days for which complainant is 

entitled to back pay for the first period begins with July 12, 

1979, and extends to June 12, 1982, when complainant would have 

been laid off for economic reasons. 

There must, of course, be deducted from comolainant's back 

pay the wages he was paid by B. c. Mccullah Bros., Inc., for 

the period from June 15, 1981, through May 25, 1982 (Exh. l; 

BPTr. 21). Since complainant worked for no employer other than 

Mccullah, it is relatively easy to make the required offsets 

for the wages paid to complainant by Mccullah, as hereinafter 

shown. 

Calculation of Principal Amount for First Period extending from 

July 12, 1979, through June 12, 1982 

1979 

Third Quarter 

July 12 through July 31 = 

August 1 through August 31 = 

September 1 through September 30, excluding Labor 

Day (BPTr. 90) = 

56 = total number of days worked in third quarter 

14 days 

23 days 

19 days 

As I have previously explained in my decision, respondent 

was operating surf ace mines which were closed on some days because of bad weather. At other times, complainant was unable 

to work because the Caterpillar tractors, or dozers, which he 

normally operated were in the shop for repairs. Therefore, the 

average number of hours worked each we~k has been adjusted to 

37.143 hours to allow for the time fo~ which complainant would 

not have been paid even if he had continued to be an employee 

up to June 12, 1982, when he would.have been laid off for 

economic reasons. 

In order to determine the hours for which complainant 

should be paid on a daily basis, it is necessary to divide the 

average number of hours per.week of 37.143 by 5 which results 

in a daily average number of hours of 7.429. It should be 

borne in mind, that respondent normally worked either a 9-hour 

or a 10-hour day. Therefore, a reduction of the daily hours 

to 7.429 is a larger allowance for bad weather and equipment 

repair than it would appear to be i.f one thinks of a normal 

8-hour working day which is used in underground coal mines. 

660 
The next step in the calculation is multiplying the number 

of days in the quarter (56) by the average number of hours 

worked (7.429) to produce a total of 416.02 hours worked in the 

third quarter. Multiplying 416.02 hours by $7.50 produces 

$3,120.15 which is the total back pay owed to complainant for 

the third quarter. The procedure here explained will be employed 

for calculating the back pay due for the remainin9 quarters. 

Fourth Quarter 

October 1 through October 31 = 

November 1 through November 30, excluding 2 days 

for Thanksgiving (BPTr. 98) = 

December 1 through December 31, excluding Christmas 

week (BPTr. 98) = 

59 = number of days in fourth quarter 

23 days 

20 days 

16 days 

438.31 = hours worked in fourth quarter (59 days x 7.429 hours) 

$3,287.32 =back pay for fourth quarter (438.31 hours x $7.50) 

82.00 =plus amount due for Christmas week ($50 +ham 

or $32) (BPTr. 98) 

$3,369.32 = total amount of back pay due for fourth quarter 

1980 

First Quarter 

January 1 through January 31, excluding New Year's 

Day = 

February 1 through February 29 = 

March 1 through March 31 = 

64 = number of days in the first quarter 

22 days 

21 days 

21 days 

475.46 = hours worked in first quarter (64 x 7.429 hours) 

$3,565.95 = total back pay due for first quarter (475.46 

hours x $7.50) 

Second Quarter 

April 1 through April 30 = 

May 1 through May 31, excluding Memorial Day 

(BPTr. 39) = 

June 1 through June 30 = 

64 = number of days in the second quarter 

22 days 

21 days 

21 days 

475.46 = hours worked in secpnd quarter (64 x 7.429 hours) 

$3,565.95 = total back pay due for second quarter (475.46 

hours x $7.50) 

661 
1980 (Continued) 

Third Quarter 

July 1 through July 31, excluding July 4 (BPTr. 90) = 

August 1 thro.ugh August 31 = . 

September 1 through September 30, excluding Labor 

Day = . 

64 = number of days in the third quarter 

22 days 

21 days 

21 days 

475.46 = hours worked in third quarter (64 x 7.429 hours) 

$3,565.95 =total back pay for the third.quarter (475.46 

hours x $7~50) 

Fourth Quarter 

October 1 through October 31 = 23 

November 1 through November 30, excluding 2 days 

for Thanksgiving = 18 

December 1 through December 31, excluding Christmas 

week = 18 

59 = number of days in the fourth quarter 

days 

days 

days 

438.31 = hours worked in the fourth quarter (59 x 7.429 hours) 

$3,287.32 =back pay for fourth quarter (438.31 hours x $7.50) 

278.57 =plus amount due for Christmas wee~ (1 week's salary 

for employees who have worked for respondent for 

over 1-1/2 years (BPTr. 92)) 

$3,565.89 = total amount of back pay due for fourth quarter 

1981 

First Quarter 

January 1 through January 31, excluding. New Year's 

Day = 

February 1 through February 28 = 

March 1 through March 31 = 

63 = number of days in the first quarter 

21 days 

20 days 

22 days 

468.03 = hours worked in first quarter (63 x 7.429 hours) 

$3,510.22 = total ba9k pay due for first quarter (468.03 

hours x $7.50) 

662 
1981 (Continued) 

Second Quarter 

April 1 through April 30 = 

May 1 through May 31, excluding Memorial Day = 

June 1 through June 14 (since complainant began 

working for B. c. Mccullah Bros., Inc., on 

June 15, 1981, and worked for Mccullah Bros. 

through Dece:ritber 31, 1981 (during which period, 

he earned a gross amount of $11,790.59), complainant is not entitled to any back pay from June 15 

through December 31, 1981, because his earnings 

from Mccullah Bros. were greater than the amount 

he would have earned if he had continued to work 

for respondent at $7.50 per hour for a working 

week of 37.143 hours) = 

52 = nu:ritber of days in the second quarter 

22 days 

20 days 

10 days 

386.31 = hours worked in the second quarter (52 x 7.429 hours) 

$2,897.32 = total amount of back pay due for second quarter 

(386.31 hours x $7.50) 

Third and Fourth Quarters 

As explained above, complainant was working for Mccullah 

Bros. during the third and fourth quarters of 1981. Although 

Mccullah Bros. paid the same basic rate of $7.50 per hour which 

was paid by respondent, complainant worked more hours per day 

for Mccullah Bros. than the 7.429 hours used for calculating 

back pay in this proceeding. Since complainant earned more by 

working for Mccullah Bros. than he would have received if he 

had continued to work for respondent, it is not necessary to 

award any back pay for the third and fourth quarters of 1981. 

1982 

First Quarter 

Since complainant worked for Mccullah Bros. from January 1, 

1982, through May 25, 1982, during which time he earned $8,821.88, 

complainant is not entitled to any back pay for that period because he worked more hours per day than the 7.429 hours being 

used to calculate back pay in this proceeding. Therefore, his 

actual earnings were greater than the amount he would have received had he continued to work for respondent. 

Second Quarter 

As explained above, complainant was working for Mccullah 

Bros. through May 25, 1982. Since complainant did not have a 

663 
1982 (Continued) 

Second Quarter (Continued) 

job after May 25, 1982, he would have been entitled to receive 

back pay for the remaining days in the second quarter, except 

that I have hereinbefore found that complainant would have been 

laid off on June 12, 1982, for economic reasons even if he had 

not been unlawfully discharged and had continued to work for respondent. Consequently, complainant is entitled to be paid only 

for the period from May 26 through June 12, 1982, or for a 

period of 13 days, as follows: 

13 = number of days in the second quarter (May 26 through June 12, 

1982) 

96.58 = hours worked in the second quarter (13 x 7.429 hours) 

$724.35 = total back pay due for second quarter (96.58 hours x 

$7.50) 

Calculation of Principal Amount for Second Period Extending 

from February 8, 1983, through March 31, 1983 

Inasmuch as I found on pages 17-23 of this decision, supra, 

that complainant is entitled to back pay for the period he would 

have worked if respondent had not declined to reinstate him to 

his former position as a dozer operator when he reported for 

work about 11:30 a.m. on February 8, 1983, it is necessary to 

compute the amount of back pay complainant would have received 

if he had been permitted to work as long as the other dozer operators who were recalled at that time. Since the period of 

employment extended only from February 8 through March 31, 1983, 

it is necessary to compute back pay only for the first quarter 

of 1983. Also, since complainant did not report for work until 

about noon on February 8, he is entitled to be paid for only a 

half day on February 8. 

1983 

First Quarter 

January 1 through January 31 is not applicable because respondent did not produce coal during that 

period. 

February 8 through February 28 = 

March 1 through March 31 = 

37-1/2 = number of days in t~e first quarter 

14-1/2 days 

23 days 

Since the average hourly week applicable for the first 

quarter of 1983 is 36.8 hours, as hereinbefore explained on 

page 22, supra, of this decision, it is necessary to divide 

664 
36.8 by 5 to determine the average number of hours worked each 

day. That calculation produces an average daily number of hours 

of 7.36 hours. 

276.0 =hours worked in the first quarter (37.5 days x 7.36 hours) 

$2,070.00 = total back pay due complainant during the year 1983 

(276 hours x $7.50) 

Since complainant was unemployed during the period from 

February 8 through March 31, 1983, it is not necessary to deduct 

any earnings from other employers in computing back pay for the 

second period for which complainant is entitled to back pay. 

Interest Calculations for Back Pay Due Complainant for 1979, 

1980, 1981, 1982, and 1983 

The Commission's Bailey decision, supra, explains on pages 

2051 and 2052 that interest is to be calculated on a quarterly 

basis and that the interest is to run from the last day of each 

quarter for which back pay is due through the date of payment. 

I am calculating the interest through the first quarter of 

1984, or March 31, 1984, because I have no way to determine 

when the back-pay reimbursement will actually be made. 

The interest rates are given on page 2051 of the Bailey 

decision as follows: 

January 1, 1978 to December 31, 1979 6% per year 

(.0001666% 

January 1, 1980 to December 31, 1981 12% per year 

(.0003333% 

January 1, 1982 to December 31, 1982 20% per year 

(.0005555% 

January 1, 1983 to June 30, 1983 . . . . . . . 16% per year 

(.0004444% 

July 1, 1983 to December 31, 1983 ...... 11% per year 

(. 0003055 % 

January 1, 1984 to June 30, 1984 . . . . . . . 11% per year 

(.0003055% 

I have hereinbefore determined that complainant is entitled 

to the following amounts of back pay during the quarters 

listed below: 

1979 

Third quarter: 

Fourth quarter: 

$3,120.15 

$3,369 •. 32 

665 

per 

per 

per 

per 

per 

per 

day) 

day) 

day) 

day) 

day) 

day) 
1980 

First quarter: 

Second quarter: 

Third quarter: 

·Fourth quarter: 

1981 

First quarter: 

Second quarter: 

1982 

$3,565.95 

$3,565.95 

$3,565.95 

$3,565.89 

$3,510.22 

$2,897.32 

Second quarter: $ 724.35 

1983 

First quarter: $2,070.00 

Total Principal Amount of Back Pay: $29,955.10 

Employing the calculation method explained by the 

Commission in Footnote 15 on page 2053 of the Bailey decision, 

~' the interest for each quarter of back pay should be calcul¢tted as follows: 

Third Quarter of 1979 through March 31, 1984 

$3,120.15 x 91 days x .0001666% = $ 47.30 which is 6% interest 

from last day of September 1979 through 

December 31, 1979. 

$3,120.15 x 720 days x .0003333% = 748.76 which is 12% interest 

from January 1, 1980, 

through December 31, 

1981. 

$3,120.15 x 360 days x· .000555~% = 623~96 which is 20% interest 

from January 1, 1982, 

through December 31, 

1982. 

$3,120.15 x 180 days x .0004444% = 249.58 which is 16% interest 

from January 1, 1983, 

through June 30, 1983. 

$3,120.15 x 270 days x .0003055% = 257.36 which is 11% interest 

from July 1, 1983, 

through March 31, 1984. 

666 
Total interest due on third 

quarter of 1979 back pay •••• $1,926.~6 

Fourth Quarter of 1979 through March 31, 1984 

$3,369.32 x 1 day x .0001666% = $ .56 which is 6% interest on 

last day of fourth 

quarter of 1979. 

$3,369.32 x 720 days x .0003333% = 808.55 which is 12% interest 

from January 1, 1980, 

through December 31, 

1981. 

$3,369.32 x 360 days x .0005555% = 673.79 which is 20% interest 

from January 1, 1982, 

through December 31, 

1982. 

$3,369.32 x 180 days x .0004444% = 269.51 which is 16% interest 

from January 1, 1983, 

to June 30, 1983. 

$3,369.32 x 270 days x .0003055% = 277.91 which is 11% interest 

from July 1, 1983, 

through March 31, 1984. 

Total interest due on fourth 

quarter of 1979 back pay •••• $2,030.32 

First Quarter of 1980 through March 31, 1984 

$3,565.95 x 631 days x .0003333% = $749.96 which is 12% interest 

from last day of March 

1980 through December 31, 

1981. 

$3,565.95 x 360 days x .0005555% = 713.11 which is 20% interest 

from January 1, 1982, 

through December 31, 

1982. 

$3,565.95 x 180 days x .0004444% = 285.24 which is 16% interest 

from January 1, 1983, 

through June 30, 1983. 

$3,565.95 x 270 days x .0003055% = 294.13 which is 11% interest 

from July 1, 1983, 

through March 31, 1984. 

Total interest due on first 

quarter of 1980 back pay •••• $2,042.44 

667 
Second Quarter of 1980 through March 31, 1984 

$3,565.95 x 541 days x .0003333% = $642.99 which is 12% interest 

on last day of June 1980 

through December 31, 

1981. 

$3,565.95 x 360 days x .0005555% = 713.11 which is 20% interest 

from January 1, lg82, 

through December 31, 

1982. 

$3,565.95 x 180 days x .0004444% = 285.24 which is 16% interest 

from January 1, 1983, 

through June 30, 1983. 

$3,565.95 x 270 days x .0003055% = 294.13 which is 11% interest 

from July 1, 1983, 

through March 31, 1984. 

Total interest due on second 

quarter of 1980 back pay ••••• $1,935.47 

Third Quarter of 1980 through March 31, 1984 

$3,565.95 x 451 days x .0003333% = $536.02 which is 12% interest 

on last day of September 1980 through December 31, 1981. 

$3,565.95 x 360 days x .0005555% = $713.11 which is 20% interest 

from January 1, 1982, 

through December 31, 

1982. 

$3,565.95 x 180 days x .0004444% = 285.24 which is 16% interest 

from January 1, 1983, 

through June 30, 1983. 

$3,565.95 x 270 days x· .0003055% = 294.13 which is 11% interest 

from July 1, 1983, 

through March 31, 1984. 

Total interest due on third 

quarter of 1980 back pay ••••• $1,828.50 

Fourth Quarter of 1980 through March 31, 1984 

$3,565.89 x 361 days x .0003333% = $429.05 which is 12% interest 

on last day of December 1980 through December 31, 1981. 

668 
Fourth Quarter of 1980 through March 31( 1984 (Continued) I 

$3,565.89 x 360 days x .0005555% = 713.10 which is 20% interest 

from January 1, 1982, 

through December 31, 

1982. 

$3,565.89 x 180 days x .0004444% = 285~24 which is 16% interest 

from January 1, 1983, 

through June 30, 1983. 

$3,565.89 x 270 days x .0003055% = 294.13 which is 11% interest 

from July 1, 1983, 

through March 31, 1984. 

Total interest due on fourth 

quarter of 1980 back pay ••••• $1,721.52 

First Quarter of 1981 through March 31, 1984 

$3,510.22 x 271 days x .0003333% = $317.05 which is 12% interest 

on last day of March 

1981 through December 31, 1981. 

$3.510.22 x 360 days x .b005555% = 701.97 which is 20% interest 

from January 1, 1982, 

through December 31, 

1982. 

$3,510.22 x 180 days x .0004444% = $280.78 which is 16% interest 

from January 1, 1983, 

through June 30, 1983. 

$3,510.22 x 270 days x .0003055% = 289.54 which is 11% interest 

from July 1, 1983, 

through March 31, 1984. 

Total interest due on first 

quarter of 1981.back pay ••••.. :$1,589.34 

Second Quarter of 1981 through March 31, 1984 

$2,897.22 x 181 days x .0003333% = $174.78 which is 12% interest 

$2,897.22 x 360 days x .0005555% = 

669 

on last day of June 1981 

through December 31, 1981. 

579.38 which is 20% interest 

from January 1, 1982, 

through December 31, 

1982. 
Second Quarter of 1981 through March 31', 1984 (Continued) 

$2,897.22 x 180 days x .0004444% = $231.75 which is 16% interest • from January 1, 1983, 

through June 30, 1983. 

$2,897.22 x 270 days x .0003055% = 238~97 which is 11% interest 

from July 1, 1983, 

through March 31, 1984. 

Total interest due on second 

quarter of 1981 back pay •••• $ 1,224.88 

Second Quarter of 1982 through March 31, 1984 

$724~35 x 91 days x .0005555% = $ 36.61 which is 20% interest on 

last day of June 1982 

through December 31, 1982. 

$724.35 x 180 days x .0004444% = 57.94 which is 16% interest 

from January 1, 1983, 

through June 30, 1983. 

$724.35 x 270 days x .0003055% = 59.74 which is 11% interest 

Total interest due on second 

quarter of 1982 back pay •••• $ 154.29 

from July 1, 1983, 

through March 31, 1984. 

First Quarter of 1983 through March 31, 1984 

$2,070.00 x 91 days x .0004444% = $ 83.71 which is 16% interest on 

last day of March 1983 

through June 30, 1983. 

$2,070.00 x 270 days x .0003055% = 170.74 which is 11% interest 

Total interest due on first 

quarter of 1983 back pay ••••. $ 

Total interest due on all 

back pay from July 12, 

1979, through March 31, 

254.45 

1984 •••••••••••••••••••••••• $14,708.17 

670 

from July 1, 1983, 

through March 31, 1984. 
Total back pay prior to I . 

interest calculation •••••••• $29,955.10 

Total back pay, including 

interest to March 31, 1984 $44,663.27 l 

Reinstatement Obligation Continues To Exist 

Toward the end of the second day of the back-pay hearings, 

respondent's owner testified that he was still doing some reclamation work under a different corporate name inasmuch as Whitley 

Development Corporation was dissolved as of March 31, 1983. Respondent's owner may be under the impression that he may continue 

to mine coal under a different corporate name and thereby extinguish his obligation to reinstate complainant to his former 

position. Respondent's owner is still obligated to reinstate 

complainant to his former position as a dozer operator if respondent's owner continues to have an interest in another corporate entity which continues to mine coal in the circumstances 

described by respondent's owner (BPTr. 136; Glenn Munsey v. 

Smitty Baker Coal Co., Inc., 2 FMSHRC 3463 (1980)). 

WHEREFORE, it is ordered: 

: (A) Pursuant to the Commission's remand of the back-pay 

issues, respondent, or respondent's owners, within 30 days from 

the date of this decision, shall provide complainant with the 

following relief: 

(1) Pay complainant back wages totaling $29,955.10 

plus interest in the amount of $14,708.17, such interest 

to be modified in accordance with the method for calculating interest as explained by the Commission in its 

Bailey decision, sulra, if payment is made before or 

after March 31, 198 • 

(2) Provide the additional relief, including payment of attorney's fees, as set forth in my original 

decision at 3 FMSHRC 763 to the ~xtent that such relief 

has not already been awarded. 

(B) Respondent's motion to dismiss complainant's right to 

back pay for the period from February 8, 1983, through March 31, 

1983, is denied. 

Bil 

~a. gfZif#t Richard c. Steffey~ Administrative Law Judge 
Distribution: 

William E. Hensley, Esq., Attorney for Elias Moses, P. o. Box 

1263, Corbin, KY 40701 (Certified Mail). 

t 

David Patrick, P.s.c., 319 South Main S~reet, P. o. Box 9, 

Harrodsburg, KY 40330 (Certified Mail) :: 

672 
i I / / I j J \ i I I I I I \ Pjge 1

1 

If 1 I I · I I I j j '1· I tPPjnd~ 4 I k.i.,P:::RSONS EMPLOYED BEFOREIAND AFTER ELIAS MOSES EXCEPT FOR OwNERIAND MEMBERS.OF HIS FAMILY I 

t. dklns! DlnnJ, r. hitedl4/!/8t ti! atte~ 3ldaJs .o let rn to Pr~viJusljoJ I l

. dkinsj D*ni~l, !Jr , ~ired l/21182; laid o:tf 6/Ul8i I . I • t;sip,\Jameslhiied 3/i/80; ~aid off tl/~2/80; :worke 0 b th da and ig t shi~ts • derson, !Ottis hired 11)7/Sl;llaid off/6/12/82 i $. rcherj J+fftey!Ke~t ~ired ~/3181j i4id!of 10/3fi81 

~.Baird, IGary ~em\. hlred ll3/~l; laid offi6/ 2/82 ! . 

f. Bali, ton*iejhifed 9/4/80; iai off ill~/8~ i I 

8. *all, 11.i.; c~ L~yn~ h red l/il6~82, lJid!off 3A27/i82 

9. Bolton; D<in liired l/9/82j l~id1off 4l24A82! I 

10. ~rown, JGregoiiy ~ir4d i/11/8i; joi~edJArmy 8/lS/8~ 

11. Bryant, F~anklin h~red 2)16i.8o; laid\off 3)i21J80; w.rked ,ay an, n~ghe shifts 

12. ~unch, jGedrg~ wj h~red 8All/,79' 14id!off 1~12/i80/Wo~ked only daY, sliifc I l~. qampbell, jTom h;red 8A22Ji81; llft!af~er\3 qay~ beca~selofjba k jrojlett 

14. qanada~ L~st~r qari hired 8A29/,81; laid!ofB 4/i3/&2 I 

15. ~arr, Ga~ hired l~/lS/80; 4uiu 3jl4181 1toto:i:k forjhi f th r- ·n-]aw 

l~. ash, ~an~y ~us~el h~red 4Al2ii80 J I I J j / 

11,. hambe~s, IGranv~ll h~red ld/2~/8]\; ui 1 /2]/8~ ( oo fa t d ive.) 

18. Cheek, ;Curtis L~e tjired ~/9A82~ ldid .ofif 4 17/82 \ I I 

19. qhirin, iHonier :R. ,hi:i:ed :beforfj 5~12~79~ l~id 1off 4/i4/ 1 

20. Cornett, ijarald hired:before 5~12A19; l~id loff 9Al5 ,79 

21. tjox; Edmon Alonzo ~.ired l:ief~re l5/:li2/7,9; :.laild ~ff j8/~2/ .1 (Wo11ke: day lhi~t) 22. I!augherty,! David J~hn ;hired 19/112/81; :sti!ll :Working as Jhop lllE!Chanitj I 

23. ~augherty~ J~1mn~ Lee hired 7if41!81~ laid !offl 6/il2/i82 I / J I I . . 2li. Davis, ;James •Ronald hired beifore ~/12/79; ~aid off 2/2 /80 ( ,orked lday, shift! only)I 

25. D'avis, ;Ralph 'Hi~ed !3/S/80; ~.aid of'f G/9~80 i' G\Jorked n~ghti s*f~ only)! I ' ' 

26. I:1ouglas, Robert Jhilied 1before 5~12/179;:. quit '4/Zl/7i9 Jo Jake b~tter j,ob 27. nuncan,i Edwin hijre4 lq/3/i8l;J 1 id !off 4/il7/!82 j I I j I 

28. Durham,i BobbYi h~red bE!fo:Ce ~/l /79,; quid 4/;5/80 

29. Ellis, Ralph· ·hir!ed !2/!6/~0; ilaild off !2/2,5/~0 (Woz:ke n ghti s if on:ly) 

31. Ellison, R;ichard R. h~red 3/16/!l,2; !lafd o:ff ,4/24/82 ! 

3Z. Elswick, James iward hired ff l/8~; ~aid orlf J.:O/l0/82 

30. ~llison, Don~ld iR.

1 

h. i~ed j5/~0/~2; Jst~ll Jwo~king as Compan~. e gineel' 

33. ~oley. ,cl~de [H· i~ed lbefprei 5'11-21\79 ~I lalidlf~ 6/t2fi82 

34!. Foley, Clyde i.Je 1frey h,ired brf~e i5/~2/7j9; aid o•ff l4/'l/+/ 

35i. ~ff, Wendelll hi;'re~ bdo~ 5Vl /79!; llaid: 0 ' */3l/sii I i ilot 

361. Griffith, iro1*1 ~rl,~ *re,~ l'o/ /791; ilaid) o~ a:s emplpyee, but still worksi Onl oc asion(Airplimei I 

~~: =::1 ~l~!! ;~=~ V~~n:~• / !~/!~/~V~~ ~/~0 f N~h s~f oly) , 391. Haw, JJ. Bj. hfl-red ~17 8~ 1 i off 4V24 82 I ~ 4a. Kinkle,\ James1 A./ h e beifor 5 12V79; 1 i~ off 4 4/ 1 

41). 1*ickabyJ, W'fl.11~~ C 1 iid /4 811; q t 1~24V81. to dr ve c 

42i. Hildson,I Bo)>by[ Lnm ir~d efore 5/,2/ 9;J q t e/l'fJ/8 

43'. Hi-Idson,j Ga:zy jlir~d before 5/ 2/ 9; la d pff 4/ 4/82 

44•. Jones, ~ydheyl hi~e~ 4/P,/8 ; or ed1 3 ayiJ a d asl re al ed to pr vious jo • 

45'. Keith, ~oyd hirefi 8V.29~811; 1 id off 6 12V82I I I ~6:. Kilby, pa~d hirf!d ~/4 81; w rk d ~ d ys ank q~it. to re urn t p ioF j b.i 

~8;. ~9 • L~y,J King: 

Labsfpri 

Georg11- L1 

hi~ed h~re·r 5/~2/ 1V91'2; 9; 

la 

la~. d d 

p££ 

pf£/ 4/~3f8g 12ll/~9 I I. 

l 

30;. Lawson,1 Bobby1 R.~hi edj16/ /8~; ~ai~ off ~/2p/82 31~ L~vitt,iDo~ni~ h re~ 2(7/ l; qutt ~/l~/8~ -1. I 

52~ McClurel G~ryjLe n hir~d /1 /80; lai~ off ~/11/8 33~. McClure:, Lli.ndl! J ne\ hired. 8/, 6/BO; J still\ workihg ~s , ff. ce cl rk or, secreta 

34~ McClure~ Richardjhi~ed!be~or~ 5Vl2/79i asj fo~eman;j st~lllwo~kirg I I I I 

35'. McKee, t'arionl hi[' ed~befor~ 5Yl2Y,79!; l~idl off 12/20/80 I ?6~ Magee, yerhonlw. hi edlbefor~ 5Y,12/79; l~id!of~ 9(8/~9' I ; 17~ McNeil,; Kathy! L. hi ed\ before 5Vl2/79; q~it! 11/3/79 (Worked ail c~erk or s!!cretary 

;8. Meadors• Jlunes h, red 12/13/80; faid off 4/2~/82 / I I I / I I I I ,. I 

;g. Meadors; K~lly hirell 8{16(80; 18.idi off 6/20181! I . I I I · ! 

iO~ Meadors, Homer Sr hired before S/12/79; hasibeen sic~ fbr monfhs: i I IL J 

il; Meadors;. Ora Lyle hlred ll/29/80: laid off 6/20/81 ~ : I 1 I I I . -

673 

I 

ln office) I 

I I I I I~ 
62 

i~~ 66t 

67~ 

68~ 

~~tL 72 

73 

74~ 

75L 

76L 

77~ 78. 

79~ 

80~ 

811. 

821• 

83'. 

54;, 

85!. 

86!. 

87!. 

881. 

89~ 

90~ 

911. 

921· 93,. 

94. 

95. 

96. 

97. 

98. 

99. 

.001'· 

~01. 

L02,. 

L03!. 

~041. 

~o5I. 

·.06!. 

.07!. 

.osi. 

. 09'. 

"10'. 

.ui. 

.12~. 

~u . . 141. 

151

• 

'.16'. 

17'. 

18. 

.19. 

20. 

,21'. 

I , I I I l I I I i Ii I I jPa~e ~ ~ 2 j I i I / l I ; j Appendix A j .' 

L EMPLOYEES B FORE AND AFtER,ELIASiMOSES!EXCEPT OWNER Ako kEMBERS OF HIS FA.~ILY' (CONTINUED)' 

R be~t b. hir~d ~/l~/Sp; ~uib 9~19~81! toi taker: ob cltse~ t~ h~s hom~ •. I or~, n ld!E.lhi~edl 6/~7/~l;! la~d ~ffl4/3/82 ! I I I I I I i or~, og~r !-1-l~n hirbd 6/6181; laidloft 8(29/81• 1 I rr~s, Al~enihi~edl 4/25/Bl;!worked 2~1/~ daysjand qμit : l 

se6, ~l,IJr~, hired peforei 5/~2/79:1 sti11;workipg ~s tru. k ~river, and laborer; 

seF• enhy hired ~/23/80; ~aid off ~/24/80 (~orkedlday s~ift ohly) i 1· 

se. , li!a.s hired 5/12/79; discharged 6~28n9! i I I I , 

sec, ightlWayneihiredi 8/29/Bl;I stilliworking at ~ipplel as[' laborer ! 

sea, saac hired before: 5/12/79;! stilll working at var~ous j bs I 

ses, icky hired before; 5/12/79;1 discharged 6/6V811 I I I 

111s,'! Earl E. hired 4/25/81; laid off 6/13/81 I 

11!1.s,1 Williilm R. ,: Jrl, hired 11/29/80; laid off 6/l~/81 

lson,i Danny• Michael hired before! 5/12/79;; laid offi 4/r4/B2 ., 

lson,; Robert Ernest hired 2/7/811; quit: 12/19/81. I ,. N~wport•, Eldon hired 4/3/82;1 worked 11 dar,' I I I I 

P trick:, Charles1 DaYid: hired! l/t)/81; ~till working as attomey 

P trick!, RDger hired 4:/3/Sl;i la!i.d bffj 4/~/82 ! I I I 11 P~trick:, W'illiam; Albert h~red 7Vl8i/811; lli.idi of~ 6r12vs21 I 

Payne, David hired 3/22/80; retired 6V28V801 I I I 

Pennington·, James hired 12/20/80; ~ai~ o~f br ~ischarged 2V7 /~O , 1 Perry, Leonidas Xerxes: hired1 before 51/12'/791; still w0rking1 as shop mechanic 

1

. : 

P~trey,; Gregory Wayne hired 10/4/80; iaikl. off ~/13/81 I I I !' i i I : 

Rains, Andy hired before 5/12/79; laid off 3/28/8~ I j I ! ; ; ! 

Rpse•, Benjamin hired 3/8/80;: laid pffj 2/~8/81 I ~ I , , . I I · 1 ! ' 

Sams,, Billy Ray hired '7./2~ /82; ~ischargep 3Y2t/82: (Represented hl.maelfl to; be! an engineer) 

S!ergent:, Dellinar: hi;redi before 5!/12'/79; l:aid! off 3/27'/82, 1 

S~rgent:, Jii.DiDLY M. hire~ biefore S/12/79; ~aid off :12/;Jl/81 

Sergent!, ICermit Dalb hj:Lre~ b~fo!re 5/1!2./79; ~uit 7'/21'/79i 

S~ith, ~illiain Morr~s ~ir~d ~/10/82; ~ai~ off 7/3'/82: 1 

S~ephens, ~rty Al'* }#.rep 1Vl7r· 811; *idJ of~ 6(12f82! I i 

Sfephens, ;it. ~· ~ired :J_l/~9/~0; qu;Lt ~/l~/8;1 I I I !! 

Strunk,! Flf>Ydi Jrl. hilrel:i ~2/F.l; qulit~·121e11131 , ·' 

f~idge,i Ch~. r~s, Jr!. reii 6Vl4rs ; 1 idl of!f ll/2

1

11s1 !!.· 

S lfridge, Dafle ?· irkd 10/~l/~O; q t /7~s1! . 1 ,, 

s lf~id;ge, n;vidJ h e 11 29 SOI; l~i of 5V2/~ll I I 

S lf:rid'ge, Gary );ii d /1 /8 ; ~ai o f /l~/8il . 1

1 

rlectrici )!.J S lfiridge, Joel , h re 8 161 80; 1 i of 5 23/811 1 

0/ 0/ 9 .(Ti ple o erator d . 

c~ttl, ¥.lly Rj. h!ire 7 11vs1!; 1 i~of 5~22l/821 I ' : I 

ckl!tti, c,bes~e~ hi!re 8/15/~l ;I' l~d ff 4/ 9/~2 ,

1 

ylbr ,I Stianley ;A. hi d 11V791; 1 i of 6V5/'82 

ackerl, nlallas hi+d /21/SP.; ilai o f /31/ao! . 

'q:lacke~. ~oienn~s μr. 1 h e be~ore 5 12V79; l~idi oft o[ quit: 21 11r2 I 

t

ackerJ, ti!l.l hi~d /11/811; ~ail:! olff /ljl/Sil I I I l I I 

ackeri, ohnny !Rayj h}e 1/,10/Bl ;~ltd f~- 1/9/82 1

w~, Rlichkr~ hire~ 2/ 5/ l; l:~d ff 3/ 7/~2 ! I , I 1 

aD111el1, A!rnold hi~d /l~/7'9; ti 1 or ing a8 true driwr nl 1 oTr . I ' 

no;verj, DOnald hi~d 10/!3/8!1; ail:! o!f f ~/2~/82 I I I I I I I i . Vanover:, rli.gar hire~ . 23V8o/; 1. idj o~' lb/3'1/81 J I / ! I : 

V,anoven, Rick.y hlred 51/9/~l ;I la!Ld pff 6/~0/81 ! I 1 I ! ; ' 

Walker .. Ho~er1 D.i hi;'redl ll!/22:180'; llai ofif 6!/6/81 ;: called back! S/!15/81 ;; laid off 4/24/82 

W:alker,j Ed~ard hired b~fore p/llJ./7'); ;taid off 6/27/81 (Worked; day afid μight shifts) 

Walker ,1 Ra:.:ymond hired befprel 5/jl2/'79 ;I laid off 3/28/81 ; i I I I I ! ! 

W'alker,i Tony Gene h'1red l'/31:1s11; laid! oH 5/~0/81. ; : : 1 1 ; ; : 

Weaver,: Charles hired befbre• 5/12/;79;: laid otf 4/29/80 (Day shift only.) ' 

West;, Dennis hired before; 5/ 12/79 ;' lali.d off'. 1/20/80 ' ; I 1 j j i 

W'est" Puul• D.: hired. before 5/12'/79; 11'lid: off 5/23/81 · : ! i · 

W'illiford,: Lester hired 3/8/80;! laid off' 8/10/80 (Worked day and. night shift) 

W'ilson, Donald hired afteT 5/12'/79' or 7/14/79: laid off 6/27/81 

~oung, Lloyd, Jr. hired 4/3/82; la~d off 4/17/82 

! ! 

674 
Appendix B 

EMPLOYEES HIRED BEFORE 5/12/79 OR IN 1979 

Em:elox:ee Hired Laid Off 

1. Chinn, Homer R. Before 5/12/79 4/4/81 

2. Cornett, Harold Before " 9/15/79 

3. Cox, Edmon Alonzo Before " 8/22/81 

4. Davis, James Ronald Before " 2/26/80 

5. Douglas, Robert Before " Quit 4/21/79 

6. Durham, Bobby Before " Quit 4/5/80 

7. Foley, ClydeH. Before II 6/12/82 

8. Foley, Clyde Jeffrey Before " 4/24/82 

9. Goff, Wendell Before " 12/31/81 

10. Hinkle, James A. Before " 4/4/81 

11. Hudson, Bobby Lynn Before " Quit 1/19/80 

12. Hudson, Gary Before " 4/24/82 

13. McClure, Richard Before " Still Working 

14. McKee, Marion Before " 12/20/80 

15. Magee, Vernon W. Before " 9/8/79 

16. Meadors, Homer S. Before " Sick for months 

17. Moses, Arvil, Jr. Before " Still Working 

18. Moses, Isaac Before II Still Working 

19. Moses, Ricky Before " 6/6/81 

20. Nelson, Danny Michael Before " 4/24/82 

21. Perry, Leonidas Xerxes Before " Still Working 

22. Rains, Andy Before " 3/28/81 

23. Sergent, Dellmar Before II 3/27/82 

24. Sergent, Jimmy M. Before " 12/31/81 

25. Sergent, Kermit Dale Before " Quit 7/21/79 

26. Thacker, Dennis, Jr. Before II Quit 2/27/82 

27. Trammel, Arnold Before II Still Working 

28. Walker, Edward Before II 6/27/81 

29. Walker, Raymond Before II 3/28/81 

30. Weaver, Charles Before " 4/29/80 

31. West, Dennis Before " 1/20/80 

32. West, Paul D. Before II 5/23/81 

33. Lay, Lansford 5/12/79 12/1/79 

34. Hamlin, Arnold 5/26/79 2/6/82 

35. Wilson, Donald 7/14/79 6/27/81 

36. Bunch, George W. 8/11/79 1/12/80 

37. Taylor, Stanley A. 9/1/79 6/5/82 

38. Sutton, George Alex 9/22/79 10/20/79 

'675 
Appendix C 

EMPLOYEES HIRED IN 1980 

Employee Hired Laid Off 

1. Bryant, Franklin 2/16/80 5/16/80 

2. Ellis, Ralph 2/16/80 2/25/80 

3. Moses, Benny 2/23/80 4/24/80 

4. Vanover, Edgar 2/23/80 10/31/81 

5. Alsip, James 3/8/80 11/22/80 

6. Davis, Ralph 3/8/80 6/9/80 

7. Rose, Benjamin 3/8/80 2/28/81 

8. Williford, Lester 3/8/80 8/30/80 

9. Meadors, Robert E. 3/15/80 Quit 9/19/81 

10. Payne, David 3/22/80 Retired 6/28/80 

11. Lawson, Bobby R. 6/7/80 2/20/82 

12. Sulfridge, Charles, Jr. 6/14/80 11/21/81 

13. Thacker, Dallas 6/21/80 9/3/80 

14. Meadors, Kelly 8/16/80 6/20/81 

15. Sulfridge, Joel Lynn 8/16/80 5/23/81 

16. Ball, Lonnie 9/6/80 1/17/81 

17. McClure, Gary Leon 9/13/80 4/17/82 

18. Petrey, Gregory Wayne 10/4/80 6/13/81 

19. Hamlin, Eugene 10/11/80 11/22/80 

20. Sulfric;Ige, Dale W. 10/11/80 Quit 2/7/81 

21. Carr, Gary 11/15/80 Quit 3/14/81 

22. Walker, Homer D. 11/22/80 4/24/82 

23. Meadors, Ora Lyle 11/29/80 6/20/81 

24. Mullis, William R., Jr. 11/29/80 6/13/81 

25. Stephens, R. L. 11/29/80 3/14/81 

26. Sulfridge, David 11/29/80 5/2/81 

27. Meadors, James 12/13/80 4/24/82 

28. Pennington, James 12/20/80 2/7/80 

67G 
Appendix D 

EMPLOYEES HIRED IN 1981 

Employees Hired Laid Off up to 12-1-82 

1. Archer, Jeffrey Kent 1/3/81 10/3/81 

2. Baird, Gary Dean 1/3/81 6/12/82 

3. Elswick, James Edward 1/3/81 10/30/82 

4. Thacker, Johnny Ray 1/10/81 1/9/82 

5. Stephens, Marty Alan 1/17/81 6/12/82 

6. Walker, Tony Gene 1/31/81 5/30/81 

7. Lovitt, Donnie 2/7/81 Quit 3/14/81 

8. Nelson, Robert E. 2/7/81 Quit 12/19/81 

9. Towe, Richard 2/25/81 3/27/82 

10. Sulfridge, Gary 3/14/81 7/18/81 

11. Patrick, Roger 4/3/81 4/3/82 

12. Kilby, David 4/4/81 Quit after 2 days 

13. King, Francis Asbury 4/11/81 Quit 4/3/82 (Foreman) 

14. Thacker, Estill 4/11/81 7/11/81 

15. Morris, Allen 4/25/81 Quit after 2-1/2 days 

16. Mullis, Earl E. 4/25/81 6/13/81 

17. Strunk, Floyd Jr. 5/2/81 Quit 12/31/81 

18. Vanover, Ricky 5/9/81 6/20/81 

19. Moore, Roger Allen 6/6/81 8/29/81 

20. Moore, Donald E. 6/27/81 4/3/82 

21. Daugherty, Jimmy Lee 7/4/81 6/12/82 

22. Huckaby, William Carl 7/4/81 10/24/81 

23. Brown, Gregory 7/11/81 Quit 8/15/81 

24. Tackett, Billy R. 7/11/81 5/22/82 

25. Patrick, William Albert 7/18/81 6/12/82 

26. Tackett, Chester 8/15/81 4/19/82 

27. Campbell, Tom 8/22/81 Quit after 3 days 

28. Canada, Lester Carl 8/29/81 4/3/82 

29. Keith, Boyd 8/29/81 6/12/82 laborer) 

30. Moses, Dwight Wayne 8/29/81 Still working at tipple as I 

31. Daugherty, David John 9/12/81 Still working as shop mechani1 

32. Duncan, Edwin 10/3/81 4/17/82 

33. Vanover, Donald 10/3/81 4/24/82 

34. Chambers, Granville 10/24/81 Quit 11/21/81 

35. Anderson, Ottis 11/7/81 6/12/81 
EMPLOYEES HIRED IN 1982 

Employees 

1. Bolton, Don 

2. Cheek, Curtis Lee 

3. King, George L. 

4. Ball, Rick Layne 

5. Ellison, Richard R. 

6. Adkins, Daniel, Jr. 

7. Adkins, Danny, Sr •. · 

8. Jones, Sydney 

9. Newport, Eldon 

10. Young, Lloyd, Jr. 

11. Smith, William Morris 

12. Hawn, J. B. 

Hired 

1/9/82 

1/9/82 

1/9/82 

1/16/82 

3/6/82 

3/27 /82 

4/3/82 

4/3/82 

4/3/82 

4/3/82 

4/10/82 

4/17/82 

678 

Laid Off 

4/24/82 

4/17/82 

4/3/82 .· 

3/27/82 

4/24/82 

6/12/82 

Appendix E 

Quit after 3 days 

Quit after 3 days 

Quit after 1 day 

4/17/82 

7/3/82 

4/24/82 
Appendix F 

EMPLOYEES STILL WORKING FOR WHITLEY DEVELOPMENT CORPORATION AS OF 

DECEMBER 1, 1982 

Employee 

1. McClure, Richard 

2. Moses, Arvil, Jr. 

3. Moses, Isaac 

4. Perry, Leonidas Xerxes 

5. Trammel, Arnold 

6. Moses, Dwight Wayne 

7. Daugherty, David John 

8. Meadors, Homer S. 

·Hired 

Before 5/12/79 

Before 5/12/79 

Before 5/12/79 

Before 5/ 12/79 

Before 5/12/79 

8/29/81 

9/1·2/81 

Before 5/12/79 

679 

Type of Work 

Forema,n and Loader operator 

Truck driver and laborer 

Variou~ jobs and dozer 

operator 

Shop mechanic 

Truck driver and laborer 

Tipple laborer and drill 

operator 

Shop mechanic 

Has been ill for months 
OILER 

Boyd Keith 

Danny Adkins, J.r. 

LABORER 

Richard Ellison 

DOZER 

Clyde H. Foley 

Isaac Moses 

Gary Baird 

Jinnny Daugherty 

Homer Walker 

Chester Tackett 

Roger Patrick 

Edwin Duncan 

Ottis Anderson 

Don L. C. Bolton 

Curtis Cheek 

George King 

Gary Hudson 

TRUCK 

Arvil Moses 

De+lmar Sergent 

Arnold Trammel 

James Meadors 

Gary McClure 

Donald Moore 

Lester Canada 

Donald Vanover 

Rick Ball 

Lloyd Young 

Page 1 of 2 

Before 

8-24-81 

3-25-82 

3-03-82 

3-09-74 

3-30-74 

12-·29-.SO 

7-01-81 

8-09-81 

8-13-81 

8-31-81 

9-28-81 

11-04-81 

1-04-82 

1-04-82 

1-09-82 

5-12-79 

3-31-78 

10-23-78 

4-20-79 

12-11-80 

6-01-81 

6-24-81 

8-24-81 

10-01-81 

1-16-82 

3-31-82 

680 

Appendix G 

Laid off 6-12-82 

Laid off 6-12-82 

Laid off 4-24-82 

Laid off 6-12-82 

Still working as 

Laid off 6-12-82 

Laid off 6-12-82 

Laid off 4-24-82 

Laid off 4-19-82 

Laid off 6-12-82 

Laid off 4-17-82 

Laid off 6-12-82 

Laid off 4-24-82 

Laid off 4-17-82 

Laid off 4-03-82 

Laid off 4-24-82 

Still working as 

Laid off 3-27-82 

Still working as 

Laid off 4-24-82 

Laid off 4-17-82 

Laid off 4-03-82 

Laid off 4-03-82 

Laid off 4-24-82 

Laid off 3-27-82 

Laid off 4-17-82 

of 12/1/82 

of 12/1/82 

of 12/1/82 
LOADER 

Richard McClure 

Clyde Jeffrey Foley 

Danny Nelson 

Gary Hudson 

George King 

MECHANIC 

David Daugherty 

TIPPLE 

James Elswick 

Marty Stephens 

DRILL 

Albert Patrick 

Wayne Moses 

FOREMAN 

Stanley Taylor 

Billy Tackett 

Page 2 of 2 

7-02-75 

5-21-79 

2-02-81 

11-23-81 

1-04-82 

9-08-81 

12-22-80 

1-14-81 

2-15-82 

3-22-82 

8-28-79 

7-06-81 

681 

Appendix G 

Still working as of 12/1/82 

Laid off 4-24-82 

Laid off 4-24-82 

Laid off 4-24-82 

Laid off 4-03-82 

Still working as of 12/1/82 

Laid off 10-30-82 

Laid off 6-12-82 

Laid off 6-12-82 

Still working as of 12/1/82 

Laid off 6-12-82 

Laid off 5-22-82 
Page 1 of 4 Appendix H 

HIRED 1979 

Before 5-12-79 OCTOBER 

6 Griffith, John Earle - laid off 

Chinn, Homer R. 4-4-81 but works on occasion/pilot. 

Cornett, Harold 9-15-79 

Cox, Edmon Alonzo 8-22-81 

Davis, James Ronald 2-26-80 

Douglas, Robert quit 4-21-79 

Durham, Bobby quit 4-5-80 

Foley, Clyde H. 6-12-82 

Foley, Clyde Jeffrey 4-24-82 

Goff, Wendell 12-31-81 

Hinkle, James A. 4-4-81 

Hudson, Bobby Lynn quit 1-19-80 

Hudson, Gary 4-24-82 

McClure, Richard still working/foreman 

McKee, Marion 12-20-80 

Magee, Vernon W. 9-8-79 

McNeil, Kathy L. quit 11-3-79 

Meadors, Homer S. has been sick for months 

Moses, Arvil, Jr. still working/truck driver/laborer 

MAY 

Moses, Isaac still working/various jobs 

Moses, Ricky 6-6-81 

Nelson, Danny Michael 4-24-82 

Perry, Leonidas Xerxes still working/shop mechanic 

Rains, Andy 3-28-81 

Sergent, Dellmar 3-27-82 

Sergent, Jimmy 12-31-81 

Sergent, Kermit Dale quit 7-21-79 

Thacker, Dennis Jr. 2-27-82. 

Walker, Edward 6-27-81 

Walker, Raymond 3-28-81 

Weaver, Charles 4-29-80 

West, Dennis 1-20-80 

West, Paul D. 5-23-81 

12 Lay, Lansford 12-1-79 

Moses, Elias 

Trammel, Arnold still working/truck driver/laborer 

26 Hamlin, Arnold 2-6-82 

JULY 

14 Wilson, Donald 6-27-81 

AUGUST 

11 Bunch, George W. 1-12-80 

SEPTEMBER 

1 Taylor, Stanley A. 6-5-82 

22 Sutton, George Alex 10-20-79 

68~2 
Appendix H 

Page 2 of 4 · 

HIRED 1980 

FEBRUARY 

16 Bryant, Franklin 3-27-80 

Ellis, Ralph 2-25-80 

23 Moses, Benny 

Vanover, Edgar 

MARCH 

8 Alsip, James 

Davis, Ralph 

Rose, Benjamin 

Williford, Lester 

15 Meadors, Robert E. 

4-24-80 

10-31-81 

11-22-80 

6-9-80 

2-28-81 

8-30-80 

quit 9-19-81 

22 Payne, David retired 

APRIL 

12 Cash, Landy Russell 

JUNE 

7 Lawson, Bobby R. 2-20-82 

14 Sulfridge, Charles, Jr. 11-21-81 

21 Thacker, Dallas 9-3-80 

AUGUST 

16 McClure, Linda Jane still working/office 

Meadors, Kelly 6-20-81 

Sulfridge, Joel Lynn 5-23-81 

SEPTEMBER 

6 Ball, Lonnie 1-17-81 

13 McClure, Gary Leon 4-17-82 

OCTOBER 

4 Petrey, Gregory Wayne 6-13-81 

11 Hamlin, Eugene 

Sulfridge, Dale W. 

NOVEMBER 

11-22-80 

quit 2-7-81 

15 Carr, Gary quit 3-14-81 

22 

29 

Walker, Homer D. 

Meadors, Ora Lyle 

Mullis, William R. 

Stephens, R. L. 

Sulfridge, David 

4-24-82 . 

6-20-81 

6-13-81 

3-14-81 

5-2-81 

683 

DECEMBER 

13 Meadors, James 4-24-82 

20 Pennington, James 2-7-80 
Page 3 of 4 

HIRED 1981 

JANUARY 

3 Archer, Jeffrey Kent 10-3-81 

10 

17 

31 

Baird, Gary Dean 6-12-82 

Elswick, James Edward 10-30-82 

Patrick, Charles David still working 

-attorney 

Thacker, Johnny Ray 1-9-82 

Stephens, Marty Alan 6-12-82 

Walker, Tony Gene 5-30-81 

FEBRUARY 

7 Lovitt, Donnie quit 3-14-81 

Nelson, Robert Ernest quit 12-19-81 

25 Towe, Richard 3-27-82 

MARCH 

14 Sulfridge, Gary 7-18-81 

APRIL 

3 Patrick, Roger 4-3-82 

4 Kilby, David quit 

11 

25 

MAY 

2 

9 

JUNE 

6 

27 

JULY 

4 

11 

King, Francis Asbury 

Thacker, Estill 

quit 

7-11-81 

Morris, Allen 

Mullis, Earl E. 

Strunk, Floyd, Jr. 

Vanover, Ricky 

Moore, Roger Allen 

Moore, Donald E. 

quit 

6-13-81 

quit 

6-20-81 

8-29-81 

4-3-82 

Daugherty, Jimmy Lee 6-12-82 

Huckaby, William Carl quit 10-24-81 

Brown, Gregory 

Tackett, Billy R. 

quit 8-15-81 

5-22-82 

18 Patrick, William Albert 6-12-82 

Appendix H 

AUGUST 

15 Tackett, Chester 4-19-82 

22 Campbell, Tom quit 

' 29 Canada, Lester Carl 4-3-82 

Keith, Boyd 6-12-82 

Moses, Dwight Wayne still working 

laborer 

SEPTEMBER 

12 Daugherty, David 

OCTOBER 

still working 

shop mechanic 

3 nuncan, Edwin 4-17-82 

Vanover, Donald 4-24-82 

24 Chambers, Granville quit 11-21-81 

NOVEMBER 

7 Anderson, Ottis 6-12-82 
HIRED 1982 

JANUARY 

9 Bolton, Don 

Cheek, Curtis Lee 

King, George L. 

16 Ball, Rick Layne 

MARCH 

4-24-82 

4-17-82 

4- 3-82 

3-27-82 

Page 4 of 4 

6 Ellison, Richard R. 4-24-82 

27 Adkins, Daniel, Jr. 6-12-82 

APRIL 

3 Adkins, Danny, Sr. 

Jones, Sydney 

Newport, Eldon 

Young, Lloyd, Jr. 

quit 4-6-82 

quit 4-6-82 

quit 4-4-82 

4-17-82 

10 Smith, William Morris 7-3-82 

1 7 Hawn, J. B. 4-24-82 

685 

Appendix H 
Appendix I 

Page 1 of 2 

LAID·OFF - DISCHARGED 

1979 1981 (continued) 

April 21 Douglas, Robert April 4 Chinn, Homer R. 

Hinkle, James A. 

July 21 Sergent, Kermit Dale April 6 Kilby, David 

April 28 Morris, Allen 

Sept. 8 · Magee, Vernon W. 

Sept. 15 Cornett, Harold May 2 Sulfridge, David 

May 23 Sulfridge, Joel Lynn 

Oct. 20 Sutton, George Alex West, Paul D. 

May 30 Walker, Tony Gene 

Dec. 1 Lay, Lansford 

June 6 Moses, Ricky 

1980 Walker, Homer D. (called 

back 8/15/81 and laid 

Jan. 12 Bunch, George W. off again 4/24/82). 

Jan. 19 Hudson, Bobby Lynn June 13 Mullis, Earl E. 

Jan. 20 West, Dennis Mullis, William R., Jr. 

Petrey, Gregory Wayne 

Feb. 7 Pennington, James June 20 Meadors, Kelly 

Feb. 25 Ellis, Ralph Meadors, Ora Lyle 

Feb. 26 Davis, James Ronald Vanover, Ricky 

June 27 Walker, Edward 

March 27 Bryant, Franklin Wilson, Donald 

April 5 Durham, Bobby July 11 Thacker, Estill 

April 24 Moses, Benny July 18 Sulfridge, Gary 

April 29 Weaver, Charles 

Aug. 15 Brown, Gregory 

June 9 Davis, Ralph Aug. 22 Cox, Edmon Alonzo 

June 28 Payne, David Aug. 29 Moore, Roger Allen 

Aug. 30 Williford, Lester Sept. 19 Meadors, Robert E. 

Sept. 3 Thacker, Dallas Oct. 3 Archer, Jeffrey Kent 

Oct. 24 Huckaby, William Carl 

Nov. 22 Alsip, James Oct. 31 Vanover, Edgar 

Hamlin, Eugene 

Nov. 21 Chambers, Granville 

Dec. 20 McKee, Marion Sulfridge, Charles, Jr. 

1981 Dec. 19 Nelson, Robert Ernest 

Dec. 31 Goff, Wendell 

Jan. 17 Ball, Lonnie Sergent, Jimmy M. 

Strunk, Floyd, Jr. 

Feb. 7 Sulfridge, Dale W. 

Feb. 28 Rose, Benjamin 1982 

March 14 Carr, Gary Jan. 9 Thacker, Johnny Ray 

Lovitt, Donnie 

Stephens, R. L. 

March 28 Rains, Andy 

Walker, Raymond 

68tJ 
Appendix I 

Page 2 of 2 

LAID ·OFF - DISCHARGED 

1982 (continued) 

Feb. 6 Hamlin, Arnold 

Feb. 20 Lawson, Bobby R. 

Feb. 27 Thacker, Dennis, Jr. 

March 27 Ball, Rick Layne 

Sergent, Dellmar 

Towe, Richard 

April 3 Canada, Lester Carl 

King, Francis Asbury 

King, George L. 

Moore, Donald E. 

Patrick, Roger 

April 4 Newport, Eldon 

April 6 Adkins, Danny, Sr. 

Jones, Sydney 

April 17 Cheek, Curtis Lee 

Duncan, Edwin 

McClure, Gary Leon 

Young, Lloyd, Jr. 

April 19 Tackett, Chester 

April 24 Bolton, Don 

Ellison, Richard R. 

Foley, Clyde Jeffrey 

Hawn, J. B. 

Hudson, Gary 

Meadors, James 

Nelson, Danny Michael 

Vanover, Donald 

Walker, Homer D. 

May 22 Tackett, Billy R. 

June 5 Taylor, Stanley A. 

June 12 Adkins, Daniel, Jr. 

Anderson, Ottis 

Baird, Gary Deari 

Daugherty, Jimmy Lee 

Foley, Clyde H. 

Keith, Boyd 

Patrick, William Albert 

Stephens, Marty Alan 

July 3 Smith, William Morris 

Oct. 30 Elswick, James Edward 

687 
HIRED 1979 

Before 5-12-79 

MAY 

Chinn, Homer R. 

Cornett, Harold 

Cox, Edmon Alonzo 

Davis, James Ronald 

Douglas, Robert 

Durham, Bobby 

Foley, Clyde H. 

Foley, Clyde Jeffrey 

Goff, Wendell 

Hinkle, James A. 

Hudson, Bobby Lynn 

Hudson, Gary 

McClure, Richard 

McKee, Marion 

Magee, Vernon W. 

Meadors, Homer S. 

Moses, Arvil, Jr. 

Moses, Isaac 

Moses, Ricky 

Nelson, Danny Michael 

Perry, Leonidas Xerxes 

Rains, Andy 

Sergent, Dellma.r 

Sergent, Jitmny 

Sergent, Kermit Dale 

Thacker, Dennis, Jr. 

Walker, Edward 

Walker, Raymond 

Weaver, Charles 

West, Dennis 

West, Paul D. 

12 Lay, Lansford 

Tratmnel, Arnold 

26 Hamlin, Arnold 

JULY 

-v;-- Wilson, Donald 

AUGUST 

11 Bunch, George W. 

SEPTEMBER 

1 Taylor, Stanley A. 

22 Sutton, George Alex 

Page 1 of 4 

6-12-82 

4-24-82 

4-24-82 

4-24-82 

3-27-82 

2-27-82 

2- 6-82 

6- 5-82 

688 

Appendix J 
HIRED 1980 

FEBRUARY 

16 Bryant, Franklin 

Ellis, Ralph 

23 Moses, Benny 

Vanover, Edgar 

MARCH 

8 Alsip, James 

Davis, Ralph 

Rose, Benjamin 

Williford, Lester 

15 Meadors, Robert E. 

22 Payne, David 

JUNE 

7 Lawson, Bobby R. 

14 Sulfridge, Charles, 

21 Thacker, Dallas 

AUGUST 

16 Meadors, Kelly 

Sulfridge, Joel Lynn 

SEPTEMBER 

6 Ball, Lonnie 

13 McClure, Gary Leon 

OCTOBER 

Jr. 

4 Petrey, Gregory Wayne 

11 Hamlin, Eugene 

Sulfridge, Dale W. 

NOVEMBER 

15 Carr, Gary 

22 Walker, Homer D. 

29 Meadors, Ora Lyle 

Mullis, William R. 

Stephens, R. L. 

Sulfridge, David 

DECEMBER 

13 Meadors, James 

20 Pennington, James 

Appendix J 

Page 2 of 4 

2-20-82 

4-17-82 

4-24-82 

4-24-82 

ssn 
HIRED 1981 

JANUARY 

3 Archer, Jeffrey Kent 

Baird, Gary Dean 

Elswick, James Edward 

10 Thacker, Johnny Ray 

17 Stephens, Marty Alan 

31 Walker, Tony Gene 

FEBRUARY 

7 Lovitt, Donnie 

Nelson, Robert Ernest 

25 Towe, Richard 

MARCH 

14 Sulfridge, Gary 

APRIL 

3 Patrick, Roger 

4 Kilby, David 

11 King, Francis Asbury 

Thacker, Estill 

25 Morris, Allen 

Mullis, Earl E. 

MAY 

2 Strunk, Floyd, Jr. 

9 Vanover, Ricky 

JUNE 

~6~ Moore, Roger Allen 

27 

JULY 

4 

11 

18 

Moore, Donald E. 

Daugherty, Jinnny Lee 

Huckaby, William Carl 

Brown, Gregory 

Tackett, Billy R. 

Patrick, William Albert 

Page 3 of 4 

6-12-82 

10-30-82 

1- 9-82 

6-12-82 

3-27-82 

4- 3-82 

4- 3-82 

6-12-82 

5-22-82 

6-12-82 

6DO 

Appendix J 

I AUGUST 

15 Tackett, Chester 

'22 Campbell, Tom 

29 Canada, Lester Carl 

Keith, Boyd 

Moses, Dwight Wayne 

SEPTEMBER 

12 Daugherty, David 

OCTOBER 

3 Duncan, Edwin 

Vanover, Donald 

24 Chambers, Granville 

NOVEMBER 

7 Anderson, Ottis 

4-19-82 

4- 3-82 

6-12-82 

4-17-82 

4-24-82 

6-12-82 
HIRED 1982 

JANUARY 

9 Bolton,· Don 

Cheek, Curtis Lee 

King, George L. 

16 Ball, Rick Layne 

FEBRUARY 

27 Sams, Billy Ray 

MARCH 

Page 4 of 4 

4-24-82 

4-17-82 

4-3-82 

3-27-82 

3-27-82 

6 Ellison, Richard R. 4-24-82 

27 Adkins, Daniel, Jr. 6-12-82 

APRIL 

3 Adkins, Danny, Sr. 

Jones, Sydney 

Newport, Eldon 

Young, Lloyd, Jr. 4-17-82 

10 Smith, William Morris 7-3-82 

17 Hawn, J. B. 4-24-82 

MAY 

20 Ellison, Donald R. 

691 

Appendix J 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

1•l '"iti"' ~H1( i .... '319" ~ . 8" 'I 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

RAMAH MINES COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 83-22-M 

A.C. No. 05-03663-05501 

J Ramah Mine a/k/a Ramah Mill 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

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

for Petitioner 

(Respondent failed to appear) 

Before: Judge Carlson 

A hearing on the merits in this civil penalty proceeding was 

set for February 8, 1984 at 1:30 p.m. in the Conunission's hearing 

room in Denver, Colorado. The hearing was duly convened as 

scheduled, but no appearance was made on behalf of the respondent 

operator. At 2:05 p.m. the Secretary was permitted to put on his 

case through the person of Mr. Michael Lynham, a metal-nonmetal 

mine inspector. Lynham's testimony indicated that the Ramah Mine and 

Mill, at the time of his April 7, 1981 inspection, had no telephone 

or radio as a means of emergency communication, as required by the 

mandatory safety standard published at 30 C.F.R. § 55.18-13. He 

further testified that the mine no longer operates. The Secretary 

rested at 2:20 p.m., at which time counsel moved for the entry of 

a default judgment. The motion was taken under advisement and the 

hearing was adjourned. 

By order issued on February 9, 1984, respondent's representative was notified that a decision affirming the citation and 

assessing the $20.00 civil penalty proposed by the Secretary would 

be entered by default unless respondent showed good cause for its 

failure to appear. The time for response is now long past and 

nothing has been filed. 

692 
ORDER 

Accordingly, respondent is declared to be in default for 

failure to appear; citation number 574164 is affirmed; and 

respondent shall pay within 30 days of the date of this decision 

a civil penalty of $20.00. 

Distribution: 

James H. Barkley, Esq., Office of the Solicitor, 

U. s. Department of Labor, 1585'Federal Building, 

Judge 

1961 Stout Street, Denver, Colorado 80294 (Certified Mail) 

Guy c. Curtis, Esq., Curtis & Curtis 

Po Box 547, Imperial, Nebraska 89033 (Certified Mail) 

/ot 

693 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW: JUDGES 

2. SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE ' 

FALLS CHURCH, VIRGINIA 22041 

MAR 141984 

EDDIE LEE SHARP, 

Complainant . . DISCRIMINATION COMPLAINT 

v. 

Dock~t No: WEVA 82-399-D 

MSHA:case No: CD 82-27 

: Stan~ Run Mine No. 6 

MAGIC SEWELL COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION AWARDING BACK PAY, ETC. 

Eddie Lee Sharp, Elkins, West Virginia, 

Complainant: 

John L. Henning, Esq., Elkins, West Virginia, 

for Respondent: 

Judge Moore 

At the hearing in the above case respondent's safety 

director, who was neither an officer of the company nor an 

owner, testified that the company was out of business and 

had no assets. Although offered the opportunity to submit a 

financial statement subsequent to the hearing, the company 

did not do so. Nor has it responded to Mr. Sharp's postdecision claim for back wages and other expenses. Therefore, 

even though the judgement may turn out to be uncollectable, 

I am nevertheless issuing this decision requiring the payment 

of back pay and expenses. No reinstatement is possible 

inasmuch as the company is out of business. If the company 

maintains any records, it is ORDERED to purge those records 

of derogatory material concerning the illegal discharge of 

Mr. Sharp. 

Mr. Sharp is not entitled to all of the back pay claimed 

by him. He is entitled to back pay from the date he was 

discharged, August 6, 1982 to the date the company went out 

of business on January 7", 1983. This is a total of 22 weeks 

and one day. During the first 2 weeks Mr. Sharp would have 

received a salary of $525 for each week. During the remaining 

twenty weeks Mr. Sharp received $168 a week in unemployment 

benefits· which, subtracted from the sum of $525 leaves $357. 

$357 for twenty weeks is $7,140 and thi~, added to the 

$1,050 Mr. Sharp would have received during the first 2 

weeks amounts to $8,190 in back wages. Adding payment for 

August 6 (at $105 per day) brings this to $8,295. Mr. Sharp 

estimates that he drove 150 miles in connection with the 

preparation of this case and at the standard rate allowed by 

the United States government of 20.5 cents a mile the travel 

expenses would be $30.75. The total judgement is for $8,325.75 

plus interest. 

694 
The interest will be calculated i~ accordance with the 

formula set forth in the Commission's decision Secretary of 

Labor on behalf of Milton Bailey vs·. Arkansa·s Carbon 

Comeany, 5 FMSHRC 2042, 2051-2053 (December 12, 1983). 

Copies of the 3 cited pages from the decision are attached 

hereto and made a part hereof • .!_/. I do not personally 

understand the calculations but I am sure thc.t if there are 

assets in this case, that MSHA will assist Mr. Sharp in 

obtaining enforcement of the order. The services of an 

accountant can be secured and he should be able to calculate 

the proper interest with the aid of a Hewlett-Packard computer, 

an abacus, and if necessary a ouija board. In any event, the 

interest can not be computed until the date of payment is 

known. 

It is hereby ORDERED that respondent pay to Mr. Eddie 

Lee Sharp, within 30 days, the sums mentioned above with 

interest at the appropriate rate continuing until the day of 

payment. 

Distribution: 

Charles c. Moore, Jr. 

Administrative Law Judge 

Mr. Eddie Lee Sharp, Aero Trailer·Park, Rt. l,.Box 274-36, 

Elkins, W VA 26241 (Certified Mail) 

John L. Henning, Esq., 320 Randolph Avenue, P.O. Box 5, 

Elkins, W VA 26241 (Certified Mail) 

1 

In my opinion the Commission did not use the percent sign 

correctly in the Arkansas-Carbona case. I have circled the 

percent signs that I think should be eliminated. In attempting 

to duplicate the results set forth in footnote 15 of that 

opinion, I found that the percent signs caused my calculations 

to be off by 2 decimal places. For example, if the annual 

percentage rate is 16% and using a 360·day year that the 

Commission prescribed, the daily percentage rate is .04444%~ 

the figure used in multiplication,however, to obtain that 

percentage, is .0004444. 

Attachments 

/db 695 
The relevant adjusted prime rates, which we adopt as .the Commission's 

remedial interest rates, are: 

January 

January 

January 

January 

July 1, 

January 

1, 1978 to December 31, 1979 ••• 6% per year (.000166~per day) 

1, 1980 to December 31, 1981. •• :12% per year ( .00033331per day) 

1, 1982 to December 31, 1982 ••• 20% per year (.000555 • per day) 

1, 1983 to June 30, 1983 ••••••• 16% per year (.0004444 per day) 

1983 to December 31, 1983 •••••• ,11~~ per year (. 000305~ per day) 

1, 1984 to June 30, 1984 ••••••• 11% per year (.000305~per day) 

Because the IRS rates of interest are annou~ced as annual rates, it is 

necessary, as explained below, to convert t~em to daily rates to calculate interest on periods of less than one year. 13/ I -

There must also be a uniform method of computing the interest on 

back pay awards under the Mine Act. We have considered a number of 

possible computational approaches. We are mindful of the NLRB's extensive administrative and legal experience in this area. The NLRB's 

general back pay methodology is sound and has met with judicial approval. 

The labor bar is familiar with this system. We conclude that rather 

than expending administrative resources in attempting to devise a new 

system, we will best, and most efficiently, effectuate the remedial 

goals of section 105(c) of the Hine Act by adopting the major features 

of the NLRB computational system. We are satisfied that this system 

will do justice to the miner, avoid unnecessary penalization of the 

operator, and not prove unduly burdensome for our judges and bar to 

apply. 

We therefore announce the following general rules for the computation of interest on back pay. 

Back pay and interest shall be computed by the "quarterly" method. 

See Florida Steel Corp., 231 NLRB at 652; F.W. Woolworth Co., 90 NLRB 289 

(1950), approved NLRB v. Seven-Up BottlinR Co., 344 U.S. 344 (1953). J!!.I 

13/ Prior to the passage of the Tax Equity and Fiscal Resoonsibility 

Act of 1982, the IRS announced the adjusted prime rate in October 

of the appropriate year to take effect the following February. For ease 

of administration under the Mine Act, however, we have bounded certain 

interest periods at December 31 and January 1 rather than at January ~l 

and February 1. (The NLRB's General Counsel has followed the same 

simplifying approach. NLRB Memo·randum GC 83_:17, August 8, 1983.) 

14/ Back pay is the amount equal to the gross pay the miner would have 

earned from the operator but for the discrimination, less his actual 

interim earnings. Bradley v. Belva Coal Co., 4 FMSHRC gs2, 994-95 (June 

1982). The first figure, the gross pay the miner would have earned, i.$ • 

termed "gross back pay." The third figure, the difference resul tin·g ~rcr.: 

subtraction of actual interim earning from gross back pay, is "net back 

pay"--the amount actually owing the discriminatee. Interest is awarded 

on net back pay only. 

In a discrimination case where, as here, there has been an illegal 

dischar~e, the back pay period normally extends from the date of the 

discri~ination to the date a bona fide of fer of reinstatement is made. 

(As we conclude below, the period may also be tolled when the discrirninatee waives the right to reinstatement.) 

696 
Under this method (referred to as the "Woolworth formula," after the 

NLRB's decision in the case of the same na~e, supra), computations are 

made on a basis corresponding to the four uarters of the 

ca endar year. Separate computations o ac pay are ma e for~ of 

the calendar quarters involved in the back pay period. Thus, in each 

quarter, the gross back pay, the actual interim earnings, if any, and 

the net back pay are determined. See n. 14. 

' Interest on the net back pay of each quarte~ is assessed at the 

adjusted prime interest rate or rates in effect, .:as explained below. 

Like the NLRB, we will assess only simple intere~t in order to avoid 

the additional complexity of compounding interest. Interest on the 

amount of net back pay due and owing for each quarter involved in the 

back pay period accrues beginning with the-Ia'st day of that quarter 

and continuing until the date of payment. See Florida Steel Corp., 231 

~LRB at 652. In calculating the amount of interest on any given quarter's 

net back pay, the adjusted prime interest rates may vary between the last 

day of the quarter and the date of payment. If so, the respective rates 

in effect for any quarter or combination of quarters must be applied for 

:he period in which they were operative. The interest amounts thus accrued 

for each quarter's net back pay are then summed to yield the total interest 

award. 

For administrative convenience, we will compute interest on the basis 

af a 360-day year, 90-day quarter, and 30-day month. Using these simplified 

values, the amount of interest to be assessed on each quarter's net back pay 

is calculated according to the following formula: 

Amount of interest "' The quarter's net back pay x 

number of accrued days of interest (from the last 

day of that quarter to the date of payment) x daily 

adjusted prime rate interest factor. 

The "daily adjusted prime rate interest factor" is derived by dividing 

the annual adjusted prime rate in effect by 360 days. For example, the 

daily interest factor for the present adjusted prime rate of 11% is 
.000305~(.ll/360). The daily interest factors are shown in the list of 

adjusted prime rates above. A computational example is provided in the 

accompanyin.g note •. 1:2./ 

15/ The mechanics of the quarterly computation system may be illustrated 

bY the following hypothetical example, in which:a miner is discriminatorily 

discharged on January 1, 1983, and offered reinstatement on September 30, 

1983. Payment of back pay and interest is tendered on October 15, 1983. 

After subtraction of the relevant interim earnings, the net back pay of 

each quarter involved in the back pay period is as follows: 

The 

First quarter (beginning January 1, 1983) 

Second quarter (beginning April 1, 1983) 

Third quarter (beginning July 1, 1983) 

Total net back pay 

adjusted prime interest rates in effect in 1983 

$1,DOO 

§1,000 

$1,000 

$3,000 

are: 

16% per year (.000444~per day) from January 1, 1983, to 

June 30, 1983; · 

11% per year (.000305~£'\per day) from July 1, 1983, to 

December 31, 1983.\;/ 

The interest award on the net back pay of each of these quarters is as follows: 

(1) First Quarter: 

(a) At 16% interest until end of second quarter of 1983: 

$1,000 net back pay x 91 accrued days of interest 

(last day of first quarter plus the entire second 

quarter) x .0004444 = $40.44 

Plus, 

(b) At 11% interest for entire third quarter throu~h the 

date of pavment: 

$1,000 net back pay x 105 accrued days of interest (the 

third quarter plus 15 days) x .0003055 = $32.07 

(c) Total interest award on first quarter: 

$40.44 + $32.07 = $72.51 

(2) Second Quarter 

(a) At 16% interest for the last day of the second quarter 

$1,000 x 1 accrued day of interest x .0004444 = $.44 

Plus, 

(b) At 11% interest for the entire third quarter through dc~r 

of payment: 

$1,000 x 105 accrued days of interest x .0003055 = $32.07 

(c) Total = $.44 + $32.07 = $32.51 

(3) Third Quarter: 

At 11% interest for the last day of the third quarter 

through date of paym.ent: 

$1,000 x 16 accrued days of interest x .0003055 = $4.88 total 

(4) Total Interest Award: 

$72.51 + 32.51 + 4.88 = $109.90 

This amount is added to trre total amount of back pay ($3,000), for a total 

back pay award of $3,109.90. 

698 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW :JUDGES 

2 SKYLINE, 10th FLOOR 

5203. LEESBURG PIKE I 

I 

FALLS CHURCH, VIRGINIA 22041 

. . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

. . 

. . Dock~t No.· SE 83-44 

A.C. ~o. 01-00340-03536 

v. 

. . Gorgas America No. 7 Mine I 

ALABAMA BY-PRODUCTS 

Respondent 

. . 

. . 

DECISION 

DENYING MOTION TO 

WITHDRAW PLEADINGS BUT 

APPROVING SETTLEMENT 

Before: Judge Fauver 

The parties have moved to withdraw their pleadings on the 

ground that Respondent has tendered payment of the full civil_,---

penalty petitioned by the Secretary. 

Sufficient grounds have not been shown for a withdrawal of 

the pleadings. Accordingly, the motion to withdraw is DENIED. 

The parties' motion is, in effect, and will be considered as 

a motion to approve settlement by payment of the civil penalty 

petitioned by the secretary. ' 

This case involves a single charge of a violation under 

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

§ 801, et ~ Respondent is cited for a violation of 30 CFR 

§ 75.400 because of loose coal and. coal dust accumulations in 

the No. 3 miner section. The Secretary's Narrative Findings 

for a Special Assessment state that the accumulations extended 

about 180 feet in the heading entry and.in the Nos. 1 and 2 

left entries, that they were 4 to 10 inphes deep in the entries 

and connecting crosscuts, that they.constituted~- serious 

violation because of a risk of fire·-or explosion, and that 

the violation was due to negligence because the condition was 

readily observable and should have been detected by the mine 

examiner, reported and cleaned up. Respondent demonstrated 

a good faith effort to achieve rapid abatement of the cited 

condition. In the 24-month period preceding the date of the 

charge Respondent had a total of 316 charges of violations in 

670 inspection days. 

699 
I find that the amount of penalty proposed, $750, is 

consistent with the statutory criteria for c_ivil penalties 

and is supported by the record. Accordingly, the 

settlement will be approved. 

ORDER 

WHEREUPON IT IS ORDERED that Respondent shall pay a c·ivil 

penalty of $750 within 30 days of the Decision, and upon such 

payment this proceeding is DISMISSED. 

Distribution: 

r);_f/.:._ -7"-AA-tv~ William Fauver 

Administrative Law Judge 

George Palmer, Esq. , ()ff ice-'of· the Solicitor, u. s. Department 

of -Labor, 1929 South Ninth Avenue, Birmingham, AL 35205 

(Certified Mail) 

J. F:re~~- :Mbnl'.iff ,-· E.sq. -~ · .Aiai:>ama .. By-Products corporation, P. o. 

Box 10246, Birmingham, AL 35202 (Certified Mail) 

/kg 

700 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW: JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 1 

FALLS CHURCH, VIRGINIA 22041 

MAR i 91984 

SECRETARY OF LABOR, CIVIi PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. KENT 84-24 

A.C. No. 15-11065-03518 

v. 

No. 10 Mine 

SHAMROCK COAL COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Carole M. Fernandez, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for Petitioner; 

Neville Smith, Esq., Manchester, Kentucky, 

for Respondent. 

Judge Melick 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to section 105(d) of 

the F~deral Mine Safety and Health Act of 1977, 30 u.s.c. § 801, 

et seq., the "Act" for one violation of the regulatory standard 

at 3Crc.F.R. § 75.302(a). The general issue before me is 

whether Shamrock Coal Company, Inc. (Shamrock) has violated the 

cited regulation as alleged and if so what is the appropriate 

penalty to be assessed. 

The one citation at bar, No. 2193845, alleges inadequate 

ventilation in the numbers 1, 2, and 3 working places on the 

004 section of Shamrock's No. 10 Mine.· In particular, it 

alleges as follows: 

Line brattice were not installed adequately to 

provide perceptible air movement to the faces of 

such places. The brattices were installed but 

they ended forty to seventy feet outby the faces 

and did not extend out into the last open crosscut 

to deflect any air into t~e places. 

701 
I 

The cited standard reads as followsc 

Properly installed and adequately maintained 

line brattice or other approved devices shall be 

continuously used from the last open crosscut of 

an entry or room of each working section to provide 

adequate ventilation to the working: faces for the 

miners, and to remove flammable, explosive, and 

noxious gasses, dust, and explosiveifurnes, unless 

the Secretary or his authorized representative 

permits an exception to this requirement, where 

such exception will not pose a hazard to the 

miners. When damaged by falls or otherwise, such 

line brattice or other devices shall be repaired 

immediately. 

Shamrock appears to argue that the so-called Nos. 1, 2 and 

3 "working places" were not "working faces" within the meaning 

of the regulations and therefore there was no violation. 

"Working face" is defined in the regulations as "any place in 

a coal mine in which work of extracting coal from its natural 

deposit in the earth is performed during the mining cycle." 

30 C.F.R. § 75.2(g) (1). 

The mining cycle at Shamrock's No. 10 Mine includes the 

sequential preparation and extraction of coal in six entrie.s 

numbered 1-6. The actual extraction and loading is performed 

with a continuous miner. The newly mined area is then 

immediately bolted and other work such as cleaning up, erecting 

brattice, testing for methane and taking site lines may then 

take place before the cycle is repeated in each of the six 

entries. The continuous miner usually performs its phase of 

the cycle in 20 to 30 minutes and a complete cycle in all 

six entries will usually take between 2 and 4 hours. 

Within this framework it is apparent that although the 

continuous miner was not operating in working places Nos. 1-3 

and no other work was then being performed in any of those 

places when the citation was issued those places were nevertheless places in which work of extracting coal was performed 

during the mining cycle. Those places were accordingly 

"working faces." 

Shamrock next appears to argue that even if the cited 

areas were indeed "working faces" there was sufficient line 

brattice in place at the Nos. 1, 2 and 3 places to provide 

adequate ventilation to remove "flammable, explosive or noxious 

gasses, dust or explosive fumes." The credible evidence does 

702 . 
I. 

not, however, support the argument. MSH2\ Inspector James Brashear 

testified without contradiction that there was no perceptible 

movement of air when he cited the working places. While he 

acknowledged there had not been a history of methane at the 

subject mine and that there was generally "good air" in the 

working sections, it is apparent that th~re was then insufficient ventilation to have removed coal dμst or other gases and 

fumes from the face areas. It appears to be the intent of the 

standard to provide continuing ventilatibn of lingering coal 

dust, methane and other flammable and/or· noxious gases in areas 

in which miners may continue to be working throughout the mining 

cycle. Accordingly, I find that the violation is proven as 

charged. 

I accept the testimony of MSHA Inspector Brashear that the 

hazard in this particular case was minimal in that there has 

been no history of dangerous methane levels at this mine, that 

there was minimal dust at the faces, and that there is customarily "good air" in the cited section. I note that while the 

operator has been previously cited for the same violation the 

citations have all been contested for the purpose of having the 

issue presented for determination by an administrative law judge. 

The citation at bar is apparently the first to reach hearing. 

Under the circumstances, I find low negligence. The operator is 

of medium size and has a moderate history of violations. 

Accordingly, I find that a penalty of $50 is appropriate. 

ORDER 

Shamrock Coal Company, Ihc., is ordered to pay a civil 

penalty of $50 within~\ days·~ the date ~·.,this decision. 

}\ ·, ~\J\ "''-p.,_~-- Gar ·Melick \ 

Ass,stant Chief .Administrative Law Judge 

Distribution: ) ~. 

Carole M. Fernandez, Esq., Office ~J the Solicitor, U.S. 

Department of Labor, 280 U.S. Courthouse, 801 Broadway, 

Nashville, TN 37203 (Certified Mail) 

.J 

Neville Smith, Esq., P.O. Box 447, Manchester, KY 40962 

(Certified Mail) 

/fb 

703 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KENNETH DENSON, 

Respondent 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 Mi~R 20 1984 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 82-191-M 

A.C. No. 04-04521-05002 F 

Denson Mine 

Appearances: Marshall P. Salzman, Esq., Office of the Solicitor, 

u. s. Department of Labor, San Francisco, California, 

for Petitioner; 

(Respondent failed to appear) . 

Before: Judge Vail 

STATEMENT OF THE CASE 

This civil penalty proceeding was filed by the Secretary of 

Labor (Secretary) against Kenneth Denson (Denson) pursuant to 

section llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 820(a), seeking civil penalty assessments for two 

alleged violations of certain mandatory safety standards. Pursuant to an Order to Show Cause dated December 2, 1982, Denson 

sent a letter dated December 19, 1982, which letter has been 

accepted as his answer to the Secretary's petition. In this 

answer, Denson stated that he thought the proposed penalties 

were considerabl~ and that payment would cause him financial 

distress. 

Notice of Hearing was mailed to the parties on March 3, 1983 

setting the hearing for July 7, 1983. The Secretary filed a 

motion requesting that the hearing be continued to a later date. 

An order rescheduling the hearing was issued on May 23, 1983, 

setting the matter for July 20, 1983 in Sacramento, California. 

The Counsel for the Secretary appeared at the hearing on the 

day and at the time set. Denson failed to appear. Prior to 

the hearing date, numerous unsuccessful attempts were made to 

contact Denson by telephone. Also, Denson had refused to accept 

certified letters mailed to him with a return receipt attached. 

The last Notice of Hearing was sent by both certified mail and·· 

regular mail. 
After waiting a period of time, Counsel for the Secretary 

advised the Judge that he had two witnesses present and wished 

to proceed with the hearing and present his evidence. This was 

granted. 

On July 28, 1983, an order was sent to Denson to show cause 

why he should not be held in default for his failure to appear 

at the hearing and have penalties assessed against him. Denson 

replied by letter received in my office on September 1, 1983 and 

stated that his wife had marked the wrong date for the hearing 

on his calendar. He included the July page of a 1983 calendar 

showing the date of July 26, 1983 as the date for the hearing. 

Denson further stated that he did not wish to have everybody 

go to the expense of another hearing and again stated his argument 

that high penalty assessments in this case would cause him extreme 

financial hardship. I accept his reply to the Order as consent 

on his part to have a determination made on the record in this 

case without the need for a second hearing. A copy of the above 

letter and attachments were forwarded to the Secretary for his 

comments but none were forthcoming. 

ISSUES 

The issues presented in this proceeding are: (1) whether 

respondent has violated the provisions of the Act and implementing 

regulations as alleged in the proposal for assessment of civil 

penalties filed in this proceeding; and, if so, (2) the appropriate civil penalty that should be assessed against the respondent 

for the alleged violations based upon the criteria set forth in 

section llO(i} of the Act. 

In determining the amount of a civil penalty assessment, 

section llO(i} of the Act requires consideration of the following 

criteria: (1) The operator's history of previous violations, 

(2) the appropriateness of such penalty to the size of the 

business of the operator, (3) whether the operator was negligent, 

(4) the effect on the operator's ability to continue in business, 

(5) the gravity of the violation, and (6) the demonstrated good 

faith of the operator in attempting to achieve rapid compliance 

after notification of the violation. 

DISCUSSION 

On June 30, 1981, an accident occurred at the Denson Mine. 

located approximately 12 miles north of Nevada City, Nevada. A 

1964 Hough Model 120C, serial No. 1210383, front-end loader 

driven by Gary Gray went over the edge of an elevated roadway 

falling into the pit at the mine. Gray suffered severe injuries, 

including the loss of one leg. A second employee, Edward Grebel, 

who was riding on the loader, was killed. 

(Q[j 
During an investigation of this accident on July 7, 1981, 

MSHA Inspector Thomas Hubbard issued to Denson, as owner and 

operator of the Denson Mine, a 107(a) order.No. 601630 charging 

a violation of 30 C.F.R. § 55.9-3. 1/ This order removed the 

Hough front-end loader involved in the accident from service due 

to defective brakes. On the same day, citation no. 601631 was 

issued alleging a violation of 30 C.F.R. § 55.9-22 2/ for failure 

to have a berm on the elevated roadway into the pit~ 

The evidence shows that Gray and Gerber were new employees 

of Denson at his gold mine. On June 3, 1981, Gray was driving 

the front-e.nd loader and showing Gerber how it operated. They . had driven to the refueling area, filled the tank and were pro- . ceeding down the elevated road into the pit when the engine quit. 

This caused a loss of the hydraulic steering power. The loader 

went over the side of the elevated road and fell 15 feet into 

the pit. Both Gray and Gerber were pinned under the machine. 

During a conversation between MSHA Inspectors Hubbard and 

George W. Constanich, testified to at the hearing, .Denson admitted 

the brakes on the front-end loader were very poor (Transcript 

at 10 and 21). Also, Constanich observed the repairs made to 

the brakes of the Hough front-end loader which involved replacement 

of a grease seal on the right front wheel, replacement of a brake 

fluid line, and adding fluid to the brake system (Exhibit P33). 

Both inspector Hubbard and Constanich testified that the 

elevated roadway into the pit at the Denson Mine lacked any type 

or semblance of a berm. The roadway was 10 to 18 feet wide, 

200 yards in length, and had approximately a 4 percent grade 

from the top to the pit floor. At the point where the loader 

went over the side, it was approximately 15 feet from the edge 

of the roadway to the pit floor (Tr. at 9, 28). 

I find that the evidence establishes the two violations, 

the one contained in citation No. 601630 for defective brakes and 

that described in 601631 as to the lack of a berm on the elevated 

roadway. Denson never denied these charges in either his letter 

of December 2, 1982 treated as an answer, or in the one received 

by me on September 1, 1983. Denson did allege in the latter 

letter that the State of California's penalties for the same 

violation was "about $170.00" based on lack of evidence to prove 

the charge of defective brakes on the loader. However, I have 

l/ 55.9-3 Mandatory. Powered mobile equipment shall be provided 

with adequate brakes. 

2/ 55.9-22 Mandatory. Berms or guards should be provided on the 

outer bank of elevated roadways. 

70G 
found that the evidence does prove the brakes were defective 

on the Hough front-end loader from the testimony of the two MSHA 

inspectors. 

PENALTIES 

I find that the evidence establishes that the Denson Mine is · 

a small gold mine employing two miners to work with the owneroperator. There is no history of prior violations as this was 

a·new mine listing.with MSHA. 

As to negligence, I find that Denson was negligent in allowing 

two new men to operate the Hough front-end loader without adequate 

brakes. The testimony of the inspectors proves Denson knew the 

brakes were as he stated "very poor." 

The lack of a berm on the elevated roadway is evidence also 

that Denson was negligent, as this would be obvious to him as he 

was working at the pit with the employees. 

The gravity of the violations is s·erious as evidenced by the 

resulting injuries to Gray and death of Grebel. Either effective 

brakes or a berm on the elevated roadway could have prevented this 

accident. Both factors contributed to the result. 

The Secretary proposed a penalty of $4,000.00 be assessed 

for the violation of § 55.9-3 and a penalty of $2,500.00 for a 

violation of § 55.9-22. Denson contends that penalties of this 

size would cause him extreme financial hardship. At the hearing, 

the Secretary recognized that this was Denson's main defense and 

agreed to the receipt in the hearing record of Denson's income tax 

returns for 1981 and 1982. These returns show that Denson suffered 

a financial loss during both .years. Also, presented as evidence 

was the fact that Denson had a large trust deed (loan) against 

the land on which the mine was located and that these payments 

were a financial hardship. 

There is sufficient evidence 

and collection of large penalties 

ability to continue in business. 

Denson did demonstrate good faith 

Act. 

in this case that the imposition 

against Denson would affect his 

Also, the evidence shows that 

in achieving compliance with the 

For the above two reasons and the fact that this is a small 

mining operation, a reduction in the amount of the penalties proposed by the Secretary is warranted. However, the degree of 

negligence and the gravity of these violations cry out for penalties 

that would be effective in securing the cooperation of this operator 
in following the Act in the future. The fact that it is a small 

operation with only two employees and in financial trouble does 

not alone warrant small penalties. The Act is designed to protect 

the health and safety of miners working in small mines as well as 

those in the larger ones, and probably is needed more than the 

larger more responsible mine operators do. I find that a penalty 

of $200.00 for the violation in citation No. 601630 and $200.00 

for the violation in citation No. 601631 is reasonable and appropriate in each instance. 

ORDER 

The respondent is ORDERED to pay civil penalties in the total 

amount of $400.00 within 40 days of the date of this decision and 

order, and upon receipt by MSHA, this case is dismissed. 

Virgip~. 

'z?~¥-t£~ Vail 

Administrative Law Judge 

Distribution: 

Marshall P. Salzman, Esq., Office of the Solicitor, u. S. Department 

of Labor, 11071 Federal Building, 450 Golden Gate Avenue, San Francisco, 

California 94102 (Certified Mail) 

Mr. Kenneth Denson, 17815 Champion Road, Nevada City, California 95959 

(Certified Mail) 

/ot 

708 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 · 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

HOMESTAKE MINING COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

DECISION 

Docket No. CENT 81-42-M 

A.C. No. 39-00055-05039 

Docket No. CENT 81-43-M 

A.C. No. 39-00055-05041 

Docket No. CENT 81-84-M 

A.C. No. 39-00055-05044 

Docket No. CENT 81-85-M 

A.C. No. 39-00055-05045 

Docket No. CENT 81-207-M 

A.C. No. 39-00055-05054 I 

Docket No. CENT 81-251-M 

A.C. No. 39-00055-05055 

Docket No. CENT 81-278-M 

A.C. No. 39-0D055-05056 

Homestake Mine 

Appearances: Eliehue c. Brunson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Kansas City, Missouri, 

for Petitioner; 

Before: 

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

Lead, South Dakota, 

for Respondent. 

Judge Vail 

STATEMENT OF THE CASE 

These consolidated seven cases arise under the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. ·s 801 et seq. In each 

case, the Secretary seeks to have a civil penalty assessed for an 

alleged violation of mandatory safety standard. An evidentiary 

hearing was held in Lead, South Dakota. 

At the commencement of the hearing, the parties advised the 

Judge that they had entered into an agreement to settle a number 

of citations in the above cases. It was agreed that a written 

stipulation would be submitted following the hearing presenting , the settlement agreement and the reasoning and rationale therefore. On February 13, 1984, the parties submitted a joint motion 

to dismiss and approve settlement of designated citations in most 

of the above cases. The provisions of this settlement agreement 

are discussed further in this decision. 

709 
In spite of the settlement of many of the contested 

citations, several remained to be tried and the hearing proceeded. 

Based upon the entire record and considering all of the arguments 

of the parties, I make the following decision. To the extent 

that the contentions of the parties are not incorporated in this 

decision, they are rejected. 

ISSUES 

·The principal issues presented are: Cl) whether respondent 

has violated the provisions of the Act and implementing 

regulations as alleged in the proposals for assessment of the 

filed civil penalties; and, if so, (2) the appropriate civil 

penalties that should be assessed against the respondent for the 

alleged violations based upon the criteria as set forth in 

section llOCi) of the Act. Additional issues raised by the 

parties are identified and disposed of in the course of this 

decision. 

In determining the amount of a civil penalty assessment, 

section llOCi) of the Act requires consideration of the following 

criteria: Cl) the operator's history of previous violations, (2) 

the appropriateness of such penalty to the size of the business 

of the operator, (3) whether the operator was negligent, (4) the 

effect on the operator's ability to continue in business, (5) the 

gravity of the violation, and (6) the demonstrated good faith of 

the operator in attempting to achieve rapid compliance after 

notification of the violation. 

STIPULATIONS 

The parties stipulated to the following: 

1. Homestake Mining Company operates a gold mine of 

substantial size in Lead, South Dakota. 

2. Petitioner has jurisdiction of these cases under the 

Federal Mine Safety and Health Act. 

3. Respondent received the citations, contested them and 

also received notice of time and place of hearing. 

4. The assessment and payment of penalties in these cases 

would not affect the ability of the operator to continue in 

business. 

Docket No. CENT 81-42-M 

The parties agreed to a settlement of two of the three 

citations contained in this case as follows: 

Citation No. 329587 was issued June 10, 1980 alleging a 

710 
violation of 30 C.F.R. § 57.6-1 and proposing the assessment of a 

penalty of· $170.00. This citation concerned an allegation that 

five cardboard boxes of electrical blasting caps were observed 

sitting on a bench on the rib of 29 crosscut at the 5600 level in 

respondent's mine. They were not stored in the day box. It is 

stipulated that the caps were stored in protective containers 

used when in transit and the caps were unlikely to explode. The 

settlement proposed that the penalty be reduced to $20.00 and 

given a non-significant and substantial designation. In light of 

the explanation, this settlement is approved. 

Citation No. 330473 was issued on June 11, 1980 for an 

alleged violation of 30 C.F.R. § 57.6-127 and a proposed penalty 

of $255.00. This concerned a blasting box which was not located 

in the area in which the blast would be set off but rather 

125-150 feet away. Since this box was not connected for blasting 

or in an area designated to have blasts set off, the parties 

stipulated that it should be classified as a non-significant 

and substantial violation and the penalty reduced to $20.00. 

Based upon the above explanation, this settlement is approved. 

Citation No. 330225 was not a part of the proposed settlement agreement and was 'tried at the hearing set for this day. 

Petitioner issued this citation alleging a violation of 30 C.F.R. 

§ 57.12-30 which provides as follows: 

Mandatory. When a potentially dangerous condition 

is found it shall be corrected before equipment or 

wiring is energized. 

MSHA Inspector Guy L. Carsten testified that on June 11, 1980, 

while inspecting 50-52 stope, 21 ledge off the 6200 level, he 

observed a slit in the outer jacket of the 110 volt electrical 

power cable to the slusher lights. The slusher lights were 

unplugged and hanging on a rockbolt. Carsten was of the opinion 

that they had been used or were going to be used (Transcript at 

150' 151) • 

Respondent argues that the petitioner failed to prove that 

the cited slusher lights had been recently used or were going to 

be used and therefore a violation of 57.12-30 had not occurred. 

James Baumann, respondent's shift boss, testified that he had 

been along on this inspection with Carsten. He stated that the 

cited lights had been removed from service and a new one was 

hanging on the opposite side of the slusher (Tr. at 164). 

The specific issue is whether the petitioner has carried his 

burden of proof in showing that the defective slusher lights had 

been used in its defective condition or were going to be used. 

Carstens testified that the lights were unplugged and hanging on 

the wall. When asked if he remembered seeing other slusher 

711 
lights in this particular area, he answered that he was not sure 

but that one of the stopes had two sets of slusher lights in it 

(Tr. at 154). Baumann testified that the defective lights being 

in the stope was a housekeeping problem as a new set hanging on 

the opposite wall of the slusher was facing out in the stope and 

were the lights that had been used (Tr. 164). 

I find no violation occurred here. The petitioner's 

evidence did not prove that respondent had used the defective 

lights or was going to use them in their defective condition and 

therefore did not violate the standard. I find that respondent's 

witness Baumann's testimony credible as to the other replacement 

lights being in the stope and that Carsten's memory on this point 

vague. Citation No. 330225 is vacated. 

Docket No. 81-43-M 

The parties agreed to a settlement of all six citations 

listed in this case as follows: 

Citation No. 329591 was issued on June 12, 1980 alleging a 

violation of standard 30 C.F.R. § 57.19-106 witn an original 

assessed penalty of $255.00. It is proposed that it be settled 

for $20.00 and considered a non-significant and substantial 

violation. This citation involved maintenance work that had been 

in progress for an extended period of time and little ch~nce of 

injury to miners. It is approved. 

Citation No. 329593 was issued June 17, 1980 alleging a 

violation· of 30 C.F.R. § 57.11-1 with an original assessed 

penalty of $150.00. It is now proposed that it be settled for 

$20.00 and considered a non-significant and substantial violation. 

This involved safe access to a stope which actually had been 

abated by the shift boss with installation of the required 

barrier prior to issuance of the citation. This is approved. 

Citation No. 330476 was issued June 18, 1980 for an alleged 

violation of 30 C.F.R. § 57.11-4 and a proposed penalty 

assessment of $140.00. It was proposed that this citation be 

vacated due to the MSHA inspector who issued the citation being 

unavailable to testify. This citation is vacated. 

Citation Nos. 567053 and 567056 involve alleged violations 

of the same standard, 30 C.F.R. § 57.12-2 and proposed 

assessments of a penalty of $114.00 respectively. In the settlement agreement, the parties represent that the electrical fuse 

boxes cited in these instances as not being bolted to the wall of 

the stope were in fact wired firmly thereto. The standard is 

silent as to the method required to fasten fuse boxes and 

probability of injury was extremely low so it is proposed that 

both citations be settled for $20.00 each and amended to be a 

non-significant and substantial violation. This settlement is 

approved. 

Citation No. 566924 was issued on June 27, 1980 for an 

712 
alleged violation of 30 C.F.R. § 57.12-30 and a proposed penalty 

of $160. 00·. The disconnect switch on number 9 ledge, 4250 level, 

had a damaged door preventing the box from being either opened or 

closed. It was agreed that respondent pay the full amount of the 

original proposed penalty of $160.00 in settlement of this citation with no change in the original citation language. This is 

approved. 

Docket No. CENT 81-84-M 

In Citation No. 329842, issued March 16, 1980, the petitioner 

alleges a violation of 30 C.F.R. § 57.9-2 which reads as follows: 

Mandatory. Equipment defects affecting safety 

shall be corrected before the equipment is used. 

MSHA Inspector Jeran Sprague testified that while riding on top 

of the counter-balance in the Ross Shaft of respondent's mine, he 

observed several loose guides and bolts between the 1700 and 2600 

levels (Tr. at 178, 179). In the condition part of the citation, 

Sprague stated there were other guides and bolts loose from 2600 

to 3550 level (Exhibit P-17). Several bolts were exhibiting 

evidence of having rubbed against the counter-balance as they 

were shiny (Tr. at 186). Sprague contended that this created a 

hazard as the counter-balance could catch on the protruding bolts 

and tear out hundreds of feet of guides causing material to fall 

down the shaft onto the mancage and possibly causing injuries to 

miriers. 

Respondent contends that if a violation of safety standard 

§ 57.9-22 had occurred, the equipment defect would have to be 

corrected before the equipment could be used. In this case, the 

inspection was conducted on Saturday, March 16, 1980, and 

respondent was given until March 23, 1980 for abatement. 

Further, that the citation was actually terminated on June 21, 

1980 (Exh. P-17). 

The most credible evidence in this case establishes that 

while conducting a shaft inspection of the counter-weight 

compartment in the Ross Shaft, the inspector observed loose 

guides in the area from 1700 to 2600 foot level and also 2600 to 

3550 level. I find that such condition, based upon the 

inspectors experience and expertise, warranted respondent to take 

corrective action and the issuance of citation No. 329842 for a 

violation of § 57.9-2. However, I do not find that the weight of 

the evidence supports the petitioner's contention that this 

violation was significant and substantial within the guide lines 

established by the Commission in Cement Division, National Gypsum 

Company, 3 FMSHRC 822 (April 1981). This test essentially 

involves two considerations, Cl) the probability of resulting 

injury, and (2) the seriousness of the resulting injury. I find 

the testimony of the inspector unpersuasive as to the probability 

713 
of a potential for injury in the immediate future resulting from 

the condition of the equipment cited. Further, William Stratton, 

respondent's shift foreman, testified that it is unlikely that a 

bolt used to hold the guides in place, and three-quarters of an 

inch thick, would impede the movement of a 40,000 to 60,000 pound 

counter-weight (Tr. at 217). Also, the guides were described as 

being tongue and grooved at the joints and unlikely to come loose 

even if a bolt were severed (Tr. at 216, 217). It is also 

respondent's policy to inspect the shafts at the Homestake mine 

every week and usually find thirty to fifty loose guide bolts 

during an inspection (Tr. at 219). From this testimony which was 

most credible, t find no evidence to support a contention that 

the violation was significant or substantial. I also find a low 

degree of negligence and gravity. I find that a penalty of 

$50.00 is appropriate in this case. 

Docket No. CENT 81-85-M 

There are four citations included in this case. 

Citation No. 329836, was issued on December. 9, 1979 for a 

violation of 30 C.F.R. § 57.11-12 and a proposed penalty of 

$195.00. The parties represented that this violation concerned 

whether or not an area cited was a travelway requiring a guard 

rail. Evidence established that the area was an emergency 

escapeway not used in three years and with little probability of 

a resulting injury as a result of this violation. The parties 

agreed to settle this citation for $20.00. This settlement, is 

approved. The remaining three citations, were tried at the 

hearing. 

Citation No. 330834 issued August 28, 1980 alleges a violation of 30 C.F.R. § 57.9-2 which states as follows: 

Mandatory. Equipment defects affecting safety 

shall be corrected before the equipment is used. 

MSHA inspector Iver A. Iverson testified that he observed what he 

considered was a defective plug on the cord that connects the 

Mancha battery motor No. 068 to the batteries. It was described 

in the citation as an electrical burn and shock hazard to miners 

operating the equipment due to damage in the internal grounding 

device within the quick lock connector. This could cause an 

arcing between the male and female connector shell (Exh. P-1). 

During the inspection, the motorman was requested to 

disconnect the plug which operation might occur several times 

during the day. Usually the motorman does this while standing in 

the cab. However, at this time, the operator could not perform 

this task from the cab and had to get outside and use considerable force to remove the plug. Iverson opined that when the 

battery is put on charge in the battery station, any arcing could 

cause a hazard in the dead-end drift where these stations are 

located (Tr. at 20). 

714 
Respondent argues that the petitioner failed to carry his 

burden of proof to show that the cited electrical connection was 

a defect affecting safety. In support thereof, Kermit Kidder, 

respondent's electrical maintenance engineer, testified that he 

was familiar with the equipment cited, and that the outside case 

of the two connecting brass parts is the part that grounds it to 

the motor (Tr. at 113). The pitting inside the connectors 

described by the inspector was considered by Kidder to indicate a 

bad connection in the past (Tr. at 113). 

I find that the evidence of record in this case fails to 

support the alleged violation of § 57.9-2 described in the 

citation. The specific issue is whether the defect described 

therein affected the safety of any miners. The evidence 

established that the connector was difficult to disconnect and 

according to inspector Iverson's testimony contained "several 

pi ts and scars,. which raise the • • • increase the surface." (Tr. 

at 29). The evidence is conflicting as to whether there was any 

electrical defect in this connector. Iverson admitted he did not 

test it for a leakage to ground (Tr. at 30). I~ his opinion 

there had been or was "arcing" but such an opinion was based on 

what he said was an oxidized, or possible arcing spot around the 

inner perimeter of the plug (Tr. at 29). He considered this 

would allow leakage through the internal grounding system into 

the frame or motor. Respondent's witness denied that the 

internal grounding system was as described by the inspector and 

based upon his electrical engineering degree and experience, I am 

persuaded that his knowledge was more credible. I find that at 

most the evidence shows the respondent had a maintenance problem 

through wear and use in this part. The equipment was not ordered 

removed from service. When the inspector was asked as to the 

probability of an occurrence or an incident leading to an 

accident from the condition he cited, he testified as follows: 

"The use that these motors are put to, and the probability of 

that happening, would probably be nil. I'd have to say that, in 

my experience. But if it did happen, it would destroy equipment 

and there's possible burn hazard to the operator." (Tr. at 40). 

I do not find a violation proven in this case and citation No. 

330834 is vacated. 

Citation No. 330835 issued August 28, 1980 alleges a violation of standard 30 C.F.R. § 57 .• 6-177 which reads as follows: 

Mandatory. Misfires shall be reported to the proper 

supervisor. The blast area shall be dangered-off 

until misfired holes are disposed of. Where explosives other than black powder have been used, misfired holes shall be disposed of as soon as possible 

715 
by one of the following methods: 

(a) Washing the stemming and charge from 

the borehole with water; 

(b) Reattempting to fire the holes if leg wires 

are exposed; or 

(c) Inserting new primers after the stemming has 

been washed out. 

Inspector Iverson testified that while inspecting 40-42 F 

stope, 11 ledge and 4850 stope at respondent's mine, he observed 

blue and yellow leg wires protruding from a hole in a recently 

blasted area. Further inquiries revealed that this area had been 

blasted on a previous night shift and that the misfire was not 

discovered until the next night shift. Two shifts had worked in 

the area during this time with evidence that miners had been 

slushing ore within 20 feet of the misfire. 

Petitioner argues that these miners should have seen the 

wires the inspector saw and reported it to their supervisor and 

removed the misfires. Respondent contends that .no one saw the 

misfire and therefore no violation occurred. Also, if it had 

been seen it would have been corrected immediately. 

I find the evidence of record establishes that a misfire 

occurred and that the operator did not correct this condition 

prior to the inspector observing it. The record does not contain 

any proof that the respondent or any of its employees in that 

area were aware of this condition existing in the stope. It is 

surprising that with the several shifts entering this stope 

following the blast, and the admission that miners look for these 

conditions, that it wasn't observed prior to the inspector 

arriving. Apparently it should have been observed as the 

inspector saw it shortly after entering the area. 

Regardless of respondent's argument that it was without 

notice, I find this is not a defense. First, I am convinced the 

wires should have been seen by the miners and supervisors working 

in that area and careful inspection of the area would have 

revealed the misfire. Also, the Commission has held that an 

operator may be held liable for a violation of a mandatory safety 

standard regardless of a showing of fault. Unless the standard 

so requires, a showing of negligence has no bearing in the issue 

of whether a violation occurred but is a factor to be considered 

in assessing a penalty. El Paso Rock Quarries, Inc., 3 FMSHRC 

38-39 (January 1981). 

I find that the violation of§ 57.6-177 stated in Citation 

No. 330835 did occur and that a penalty of $255.00 is appropriate 

in this case. 

71ti 
Citation No. 330861 was issued on September 10, 1980 for a 

violation of 30 C.F.R. § 57.14-7 which reads as follows: 

Mandatory. Guards shall be of substantial construction and properly maintained. 

Respondent was cited for not having a cable guard or other 

device on a tugger. 

Inspector Iverson testified he observed a miner operating 

the tugger by reaching across. the cable to move the handle to 

engage the motor. He states that a guard would prevent clothing 

or parts of the operator's body from becoming entangled in the 

rotating drum and winding cable~ Iverson believed that a guard, 

such as the guide which was observed laying near the tugger, 

would be adequate. 

Respondent contends that the cable guide was intended as a 

spooling device for the cable as it was rolled on the drum during 

operation.. Respondent further contends that there is no requirement that there be a guard on the tugger. 

I find that the most credible evidence in this case supports 

the arguments of the respondent. First, the tugger is not 

manufactured with guards installed as suggested by the inspector. 

The tugger is used as a source of power to pull objects by cable 

and is operated at a very slow speed. The handle located on one 

side is spring-loaded so that when pushed forward it causes the 

drum upon which the cable is wound to move in one direction. 

When the handle is pulled the other direction, it reverses the 

drum direction. When the lever is released, it returns to center 

and the tugger motor stops. The purpose of the guide which the 

inspector required be put on the tugger was designed to guide the 

cable onto the drum. It's purpose is not that of a guard at a 

pinch point. Based upon these facts, I find that there was not a 

violation of the standard cited in this instance and Citation No. 

330861 is vacated. 

Docket No. CENT 81-207-M 

The parties agreed to a settlement of the one Citation No. 

329331 in this case. This citation was issued for a violation of 

30 C.F.R. § 57.18-2 as a result of a build-up of water in a bore 

hole. The explanation for such occurrence was that an unknown 

and unexpected thaw occurred over the weekend. Petitioner agreed 

to reduce the original proposed penalty of $1,075.00 to $538.00 

as he felt the negligence was not as great as originally thought. 

That settlement is approved. 
Docket No. CENT 81-251-M 

Citation No. 330687 issued March 10, 1981 alleged a 

violation of 30 C.F.R. § 57.12-6 and proposed a penalty of $98.00. 

In the settlement agreement dated February 13, 1984, petitioner 

represents that the MSHA inspector had previously vacated the 

citation and respondent did not object. Therefore, Citation No. 

330687· is vacated. 

Docket No. CENT 81-278-M 

Three citations were included in this case and all were 

settled by the parties in the stipulation and joint motion to 

approve settlement dated February 13, 1984. 

Citation No. 329908 was issued on April 29, 1981 for a 

violation of 30 C.F.R. § 57.12-82 and a proposed penalty of 

$!22.00. Based upon recommendation of the MSHA inspector issuing 

the citation, it is vacated. 

Citation Nos. 330645 and 330646 issued on May 12, 1981 each 

allege violations of 30 C.F.R. § 57.12-25 which involved 

equipment not being grounded to provide protection for miners 

working in the area. Petitioner agreed in settlement of these 

two citations to reduce the penalties by 25% due to respondent's 

good faith and prompt action in abating the violations. Citation 

No. 330645 originally proposing a penalty of $170.00, is reduced 

to $127.00 and citation No. 330646 with a proposed penalty of 

$180.00 is reduced to a penalty of $130.00. These settlements 

are approved. 

CONCLUSIONS OF LAW 

Docket No. CENT 81-42-M 

Citation No. 

329587 

330225 

330473 

Date 

6/10/80 

6/11/80 

6/11/80 

Docket No. CENT 81-43-M 

Citation No. 

329591 

329593 

330476 

567053 

567056 

566924 

Date 

6/12/80 

6/17/80 

6/18/80 

6/24/80 

6/25/80 

6/27/80 

30 C.F.R. 

Section 

57.6-1 

57.12-30 

57.6-127 

30 C.F.R. 

Section· 

57.19-106 

57.11-1 

57.11-4 

57.12-2 

57.12-2 

57.12-30 

718 

Assessment 

$170 

84 

255 

Assessment 

$255 

150 

140 

114 

114 

160 

Settlement 

or 

Decision 

$20.00 

Vacated 

20.00 

$40.00 

Settlement 

or 

Decision 

$ 20.00 

20.00 

Vacated 

20.00 

20.00 

160.00 

$240.00 
Docket No •. CENT 81-84-M 

Citation No. Date 

329842 3/16/80 

Docket No. CENT 81-85-M 

Citation No. Date 

329836 12/09/79 

330834 8/28/80 

330835 8/28/80 

330861 9/10/80 

Docket No. CENT 81-207-M 

Citation No. Date 

329331 12/24/80 

Docket No. CENT 81-251-M 

Citation No. 

330687 

Date 

3/10/81 

Docket No. CENT 81-278-M 

Citation No. 

329908 

330645 

330646 

Date 

4/29/81 

5/12/81 

5/12/81 

30 C.F.R. 

Section 

57. 9-2 

30 C.F.R. 

Section 

57.11-12 

57.9-2 

57.6-177 

57.14-7 

30 C.F.R. 

Section 

57 .18-2 

30 C.F.R. 

Section 

57.12-6 

30 C.F.R. 

Section 

57.12-82 

57.12-25 

57.12-25 

ORDER 

Assessment 

$305 

Assessment 

$195 

106 

255 

98 

Assessment 

$1,075 

Assessment 

$98 

Assessment 

$122 

170 

180 

Decision 

$50.00 

Settlement 

or 

Decision 

$ 20.00 

Vacated 

255.00 

vacated 

$275.00 

Settlement 

or 

Decision 

$538.00 

Settlement 

or 

Decision 

Vacated 

Settlement 

or 

Decision 

Vacated 

$127.00 

130.00 

$257.00 

It is ORDERED that the citations so listed above are vacated. 

Respondent is ORDERED to pay civil penalties for the remaining 

citations in the amounts shown above in satisfaction thereof. 

Payment in the total amount of $1,400.00 is to be made within 

forty (40) days of this decision and order. Upon receipt of 

payment by the petitioner, these proceedings are dismissed. 

/"""' 

~/iJ!~-~ £c~' VirgiVE. Vail 

Administrative Law Judge 

7lfJ 
Distribution: 

Eliehue c. Brunson, Esq., Office of the Solicitor 

U.S. Department of Labor, 911 Walnut Street, Room 2106 

Kansas City, Missouri 64106 (Certified Mail) 

Robert A. Amundson, Esq., Amundson & Fuller, 215 West Main 

P.O. Box 898, Lead, South Dakota 57754 (Certified Mail) 

/blc 

720 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 83-9 

A.C. No. 34-01317-03502 

v. 

TURNER BROTHERS, INC., 

Respondent 

Docket No. CENT 83-13 

A.C. No. 34-01317-03503 

. . Heavener No. 1 Mine 

ORDER AMENDING DECISION 

Appearances: Allen Reid Tilson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for 

Petitioner; 

Robert J. Petrick, Esq., Turner Brothers, Inc., 

Muskogee, Oklahoma, for Respondent. 

Before: Judge Melick 

The final decision issued in these proceedings on 

December 12, 1983, is hereby amended to correct a clerical 

mistake, Commission Rule 65(c), 29 C.F.R. § 2700.65(c). 

Accordingly, the Order on page 8 is corrected to read as 

follows: 

"In accordance with the Decision in this 

case, Turner Brothers, Inc., is hereby ordered 

to pay civil penalties of $1 070 within 30 days 

of the date of this decision." 

Distribution: 

Allen Reid Tilson, Esq., Offi e oft 

of Labor, 555 Griffin Square Buildin 

75202 (Certified Mail) 

Law Judge 

Solicitor, U.S. Department 

Suite 501, Dallas, TX 

Robert J. Petrick, Esq., Turner Brothers, Inc., P.O. Box 447, 

Muskogee, OK 74401 (Certified Mail) 

/fb 

721 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MAR 22 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

U.S. STEEL MINING CO. INC., 

Respondent 

. . 

. . 

. . Docket No. PENN 82-311 

A.C. No. 36-03425-03502 

: Maple Creek No. 2 Mine . . 

DECISION 

Appearances: Howard K. Agran, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Before: 

Louise Q. Symons, Esq., United States Steel 

Corporation, Pittsburgh, Pennsylvania, for 

Respondent. 

Judge Melick 

This case is before me upon the petition for assessment 

of civil penalty filed by the Secretary of Labor pursuant to 

section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801, et seq., the "Act", for nine alleged 

violations of regulatory standards. The general issues 

before me are whether the U.S. Steel Mining Company, Inc. 

(U.S. Steel) has violated the cited regulatory standards and, 

if so, whether those violations are "significant and substantial" as defined in the Act and as interpreted by the 

Commission in Secretary v. Cement Division, National Gypsum 

Company, 3 FMSHRC 822 (1981). If it is determined that violations have occurred, it will also be necessary to determine 

the appropriate penalty to be assessed for those violations. 

Evidentiary hearings were held in this case in Washington, 

Pennsylvania. 

Citation Nos. 1145289, 1249704~ and 1249705 allege violations of the regulatory standard at 30 C.F.R. § 75.200. That 

standard provides in part that the "roof and ribs of all 

active underground roadways, travelways, and working places 

shall be supported or otherwise controlled adequately to protect persons from falls of the roof or ribs." The standard 

also requires the operator to adopt a roof control plan and 

violations of the plan have been held to be violations of the 

standard. See e.g. Secretary v. Southern Ohio Coal Co., 

4 FMSHRC 1459 (1982). 
Citation No. 1145289 more particularly charges as 

follows: 

There was a dislodged roof bolt in the 

No. 16 split in No. 15 room of the eight flat 

five RM section MMV 011. The area of 

unsupported· mine roof was approximately 6 1/2 

feet by 7 1/2 feet of mine roof. The roof 

was loose and drummy at this location. 

According to the Secretary, the manner in which the roof 

was inadequately supported also vtolated the following 

specific provisions of the operator's roof control plan:l 

All resin-grouted rods shall be used 

with bear:ing plates approved for use at the 

mine. Bearing plates shall be installed 

tight against the roof, header blocks, 

crossbars, or other bearing surface material 

after resin is cured. Tight against the roof 

means that the plate cannot be rotated 360 

degrees using normal hand pressure. (Exhibit 

P-12, page nine, paragraph 2b). 

MSHA Inspector Francis Wehr testified that on April 6, 

1982, during the course of a regular inspection of the Maple 

Creek No. 2 Mine, he observed a dislodged roof bolt hanging 

1 Respondent argues in its posthearing brief that the citation did not allege a violation of its roof control plan. It 

did not, however, contend at hearing that it did not receive 

sufficient notice of the violation to prepare its defense and 

did not request a continuance for such purpose. Moreover, 

the citation does allege facts which if true could constitute 

a violation of the operator's roof control plan and refers on 

its face to the standard alleged to have been violated. The 

citation herein accordingly comports with section 104(a) of 

the Act, which requires that "each citation shall be in writing and shall describe with particularity the nature of the 

violation, including a reference to the provision of the Act, 

standard, rule, regulation, or order alleged to have been 

violated." I find, moreover, that adequate notice was provided within the framework of Constitutional due process. 

See S.S. Kresge Company v. NLRB, 416 F.2d l225 (6th Cir. 

1969); NLRB v. United Aircraft Corporation, 490 F.2d 1105 

(2nd Cir. 1973). Finally, the evidence herein supports a 

violation of the cited standard for inadequate roof support 

independent of the roof control plan. 

723 
from the roof in the cited area. As he later clarified, the 

bolt itself was intact but its 6 inch square bearing plate 

was loose and could be turned a full 3600. The roof surrounding the dislodged bearing plate was admittedly "loose and 

drummy" thus indicating to Wehr that an unsafe condition 

existed. Although the mine was not then in production, supervisory personnel were working in the immediate vicinity of 

the dislodged bearing plate. Wehr opined that it was reasonably likely that material would fall from the roof surrounding the loose bearing plate, thereby injuring and possibly 

killing mine personnel. 

Samuel Cortis, Respondent's district chief mine inspector, disagreed about the hazard associated with the loose 

bearing plate. According to Cortis, the bearing plate holds 

only the loose material around the plate itself and provides 

no additional support for the roof bolt. Even assuming that 

Cortis is correct, it is undisputed that the bearing plate 

does protect from debris falling from the area in close proximity to it. Accordingly, I find that a violation of the 

roof control plan and the general provisions of 30 C.F.R. 

§ 75.200 has occurred as charged and that it was "significant 

and substantial" and a serious hazard. National Gypsum, supra~ Secretary v. Consolidation Coal Co., 6 FMSHRC , (January 13, 1984). 

According to Wehr, the bearing plate had been dislodged 

by a nearby continuous mining machine.2 He reasoned 

that since the mine had been in a nonproducing status for 

several days, the condition had existed for that period of 

time and should have been discovered during interim preshift 

examinations. This analysis is not disputed and accordingly 

supports a finding of negligence. 

Citation No. 1249704 also alleges a violation of the 

standard at 30 C.F.R. § 75.200 and states as follows: "There 

was a violation of the approved roof control plan in the 

No. 47 RM just inby split 39 of the two flat 47 room section 

2 Respondent also argues in its brief that since the bearing 

plate became dislodged sometime after.it was installed, the 

evidence does not show a violation of that part of the roof 

control plan requiring that bearing plates be installed tight 

against the roof. The suggeste~ construction is, however, 

too narrow. It is implicit in the language of the plan that 

the bearing plates must continue to be tight against the roof 

even after the initial installation. There was in any event 

as previously noted a violation of section 75.200 for inadequate roof support independent of the roof control plan. 

724 
MMD004 in that two of the three temporary supports (roof 

jacks) were more than four feet from the first row of temporary supports. The left jack was five feet eight inches and 

second jack on right side was five feet away from .the first 

temporary support installed in the working place. This condition was left from 12:00 a.m. to 8:00 a.m. shift." More 

specifically, it was alleged at hearing that the cited conditions violated the roof control plan at Page 14, Drawing No. 

2. (Ex. P-12). 

The evidence supporting this violation is undisputed. 

According to Paul Gaydos, assistant mine foreman, two of the 

temporary jacks were admittedly out of compliance. Gaydos 

disagreed, however, with the probability .assessment of a roof 

fall under the circumstances. He opined that you could not 

determine that a violation was "significant and substantial" 

where two of the jacks were placed only about a foot out of 

position. · 

Inspector Wehr did not appear to disagree that the 

temporary supports were misplaced by only 6 inches to a foot 

but he nevertheless maintained that because of the existence 

of a slip in a clay vein in the nearby roof, additional 

support should have been provided. The credibility of this 

position suffers, however, by the fact that Wehr did not 

require such additional support for the abatement of the 

violation. He required only that the temporary support be 

repositioned. Under the circumstances, I find that the 

Secretary has failed in his burden of proving that the violation was "significant and substantial". I further must conclude that the hazard was only of moderate gravity. The 

facts in Secretary v. Consolidation Coal Company, supra., are 

clearly distinguishable. I agree with Inspector Wehr, however, that the preshift examiner should have seen the cited 

condition and corrected it. Under the circumstances, the 

operator was negligent. 

Citation No. 1249705 also alleges a violation of the 

roof control plan charging in particular that "in the sixth 

flat right straight section MMV012 * * * the diagonal 

distance of three intersections Cl) at four room 33 split 

exceeded 32 feet for one diagonal distance C33 feet 9 inches) 

(2) at 32 split in a track entry exceeded 32 feet for one 

diagonal distance (34 feet) (3) at split 30 in C entry 

exceeded 32 feet for one diagonal distance (34 feet 6 inches) 

and posts or cribs were not installed to reduce the one 

diagonal distance to 32 feet or less as required by the plan." 

725 
Inspector Wehr observed that slips, weakened strata, and 

a cavity with cracks or separations also appeared in the roof 

within the cited areas. The hazard was serious in his 

opinion because of the existence in each of the cited intersections of these weakened roof conditions and based on his 

experience that roof falls tend to occur more frequently in 

intersections. It is undisputed that the intersections were 

frequently travelled by miners. 

According to Samuel Cortis, the operator's distriGt chief 

mine inspector, there is no "magical formula" for establishing the maximum safe diagonal distance in intersections. 

Cortis observed that the roof control plans at this mine were 

originally approved by MSHA to allow a sum-of-the-diagonals 

at 64 foot but there had been some intersection failures at 

that length and MSHA required a shortening of the distance to 

58 feet. He claims that based on his experience there has 

been no difference in intersection failures between 58 foot 

and 64 feet sum-of-the-diagonal distances. This testimony 

does not, however, address the situation faced in this case. 

These violations concern excess distances on one leg of the 

diagonal. The testimony of Inspector Wehr regarding the 

hazards associated with the excess diagonal distance accordingly remains unrebutted. Under the circumstances, I find 

that a serious hazard existed herein and that the violation 

was "significant and substantial". I also find that the 

operator was negligent in failing to detect and correct what 

was an easily discoverable violation. The condition was 

abated in a timely manner when posts and cribs were installed 

in all the cited locations thereby reducing the diagonals in 

the cited intersections to within the prescribed distance. 

Citation No. 1249706 alleges a violation of the standard 

at 30 C.F.R. § 75.514 and specifically charges as follows: 

"suitable connectors were not used in the power wiring going 

to the off and on switch for the stammer coal feeder crusher 

in the six flat right straight section MMV012. There were 

two places where the wires were cut in [two] and the wires 

were just twisted together and taped up." 

The standard at 30 C.F.R. § 75.514 provides as follows: 

"All electrical connections or splices in conductors shall be 

mechanically and electrically efficient, and suitable connectors shall be used. All electrical connections or splices in 

insulated wires shall be reinsulated at least to the same 

degree of protection as the remainder of the wire." 

There is no dispute that the wires were twisted together 

as charged and that no connectors were used. According to 

72G 
Inspector Wehr, the cable was continually subject to being 

pulled apart and was located in a busy area. Wires could 

heat up in the case of a defective connection and because of 

the dampness of the area, miners could be expected to suffer 

electrical shock in the vicinity of the splice. Wehr pointed 

out that "stakon" connectors are regularly used at the cited 

mine and are considered to be "suitable" connectors. 

While not disputing the factual testimony of Inspector 

Wehr, Assistant Mine Foreman Joseph Stout opined that the 

splice was nevertheless "nice looking". He testified, 

moreover, that all employees are told not to touch are.as of 

the wire not properly insulated and that the wire here cited 

was hanging about 6 feet above the mine floor. I find that 

the testimony of Inspector Wehr is not rebutted in material 

respects and that indeed the hazard of electrical shock was 

reasonably likely under the circumstances. I accordingly 

find that the violation was serious and "significant and 

substantial". I also find that the operator was negligent in 

allowing splices to be made without connectors. The condition was abated in a timely manner when the wire was 

respliced with connectors. 

Citation No. 1249710 charges a violation of the standard 

at 30 C.F.R. § 75.515 and specifically charges that "the 

power cable entering the metal frame to the junction box of 

the No. 122 sump pump located at 44 chute on B track Cherokee 

was not passing through a proper fitting". It was further 

alleged that the pump was then energized. The cited standard 

requires that: "cable shall enter metal frames of motors, 

splice boxes, and electrical compartments only through proper 

fittings [and that] when insulated wires other than cables 

pass through metal. frames, the hole shall be substantially 

bushed with insulated bushing." 

The facts as alleged in the citation are not 1 in dispute. 

According to Wehr, the cable entering the hole in the metal 

junction box had nothing to prevent its wires from being 

pulled from the box. While Wehr conceded that the insulation 

on the wire was intact where it passed through the box, he 

nevertheless observed that a sharp edge on the metal box 

could readily break the insulation, thereby creating a potential short circuit. Wehr pointed out that if the circuit 

breaker or pump fuse also failed, then a serious electrical 

shock hazard existed. I accept Inspector Wehr's assessment 

that electrical shock would be reasonably likely to occur 

under the circumstances. The hazard was therefore serious 

and "significant and substantial". Because the violation 

also existed in an area of high visibility, I also find the 
operator negligent for failing to locate and correct it. The 

violation was corrected in a timely manner after it was 

cited. 

Citation No. 1249711 also alleges a violation of the 

standard at 30 C.F.R. § 75.514, specifically charging as 

follows: "The No. 10 cable serving power to the No. 122 sump 

pump located at Chute 44 on 1 B 1 track haulage on Cherokee 

had been cut into and suitable connectors were not used to 

make connection of the severed wires. The wires were twisted 

together." 

The cited allegations are not in dispute. Wehr observed 

that the outer insulation was taped over the wires that had 

been twisted together without a connector. The splice was 

therefore subject to being separated in a wet environment. 

The 550 volt direct current system would be sufficient to 

kill a person exposed to the shock hazard. Accordingly, I 

find that the violation was "significant and substantial" and 

a serious hazard. The failure of the operator to use suitable splice connectors under the circumstances shows a clear 

lack of supervision over its electrical work and this constitutes negligence. The record shows that the condition was 

abated in a timely manner after it was cited. 

Citation No. 1249717 was withdrawn by the Secretary at 

hearing on the basis that the evidence admittedly did not 

support a violation of the cited standard. The undersigned 

agrees with the Secretary's assessment and approves of the 

withdrawal. The citation is accordingly vacated. Commission 

Rule 11, 29 C.F.R. § 2700.11. 

Citation No. 1250082 also alleges a violation of the 

standard at 30 C.F.R. § 75.515 and specifically charges as 

follows: "The power cable entering metal frame to battery 

charger located in the No. 13 room between 10 to 11 crosscut 

in the eight flat five room section MMVOll was not passing 

through a proper fitting. The cable was rubbing the metal 

and the charger was energized at the time." According to 

Inspector Wehr, the clamp that had been in position had 

pulled out and slid down the cable. He observed that the 

cable had already been pulled out a few inches and that if 

the ground wire had pulled all the way out, there was a 

potential for shock. Wehr conceded that the insulation on 

the wires entering the charger was intact and that the 

circuit breaker would ordinarily cut power to the charging 

unit to prevent shock, however, if the breaker should fail, a 

miner coming in contact with the charging unit could suffer 

electrical shock and indeed could be electrocuted or 

728 
severely burned. The violation was therefore "significant 

and substantial" and serious. The condition of the wires was 

obvious and therefore should have been observed during the 

course of preshift examinations. The operator was accordingly negligent. The condition was abated in a timely 

fashion. 

Citation No. 1249383 alleges a violation of the standard 

at 30 C.F.R. § 75.503 and more particularly by reference to 

30 C.F.R. § 18.46(b). Section 18.46Cb> requires that headlights "shall be protected from damage by guarding or location." The ci ta ti on here specifically charges as follows·: 

"The No. 39 shuttle car serial No. 1802 approval No. 2Fl490A43 

in six flat eleven room section was not maintained in permissible condition as the headlight opposite the operator was not 

securely fastened to frame of shuttle car." 

It is not disputed that the headlight was loose and only 

one bolt was holding it in position. Under the circumstances, 

I find that the light was not adequately protected from damage 

and the violation is proven as charged. According to MSHA 

Inspector Alvin Shade, there also existed the reasonable likelihood that the bouncing light might break or tear out its 

wiring, thereby causing an arc. If methane were present under 

the circumstances, there existed a hazard of an explosion. 

Although it is undisputed that at the time the violation was 

discovered, methane levels were within permissible nonexplosive limits, there is always the danger, according to Shade, 

of a sudden inundation of methane. According to Shade, there 

have been in the past explosive accumulations and ignitions of 

methane at the subject mine. Within this framework, I conclude that the violation was indeed "significant and substantial" and of high gravity. I further find that the headlight 

in the condition cited should have been discovered by the 

operator and that accordingly it was negligent in failing to 

discover and correct the condition. The violation was abated 

in a timely manner. 

In assessing the violations noted below, I have also 

taken into consideration that the operator is large in size 

and that a significant history of violations exists. 

ORDER 

Citation No. 1249717 is vacated. U.S. Steel Mining Company, Inc., is ordered to pay the following penalties within 

30 days of the date of this decision: 

729 
Citation 

Citation 

Citation 

Citation 

Citation 

Citation 

Citation 

Citation 

Distribution: 

No. 1249383 

No. 1145289 

No. 1249704 

No. 1249705 

No. 1249706 

No. 1249710 

No. 1249711 

NO. 1250082 

Gary Melick 

Assistant Chi 

Howard K. Agran, Esq., Office. 

Department of Labor, 3535 Mark 

19104 (Certified Mail) 

$150 

170 

170 

200 

140 

12 

12 

13 

the Solicitor, U.S. 

Street, Philadelphia, PA 

Louise Q. Symons, Esq., United States Steel Corporation, 600 

Grant Street, Pittsburgh, PA 15230 (Certified Mail) 

/fb 

730 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MA!'\ q •·. " (.,· ,) 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RIVERWAY NORTH, INC., 

Respondent 

Docket No. KENT 83-132 

A. C. No. 15-11450-03501 

Riverway North Dock 

ORDER OF DISMISSAL 

Before: Judge Steffey 

A prehearing order was issued on May 23, 1983, in the 

above-entitled proceeding requesting, among other things, that 

the parties advise me by June 20, 1983, whether a settlement 

of the issues had been achieved. Although return receipts in 

the official file show that both parties received the prehearing order 2 days after it was mailed, neither party submitted· 

a reply to the prehearing order. Thereafter, an order to show 

cause was issued on August 2, 1983, pursuant to the provisions 

of 29 C.F.R. § 2700.63(a), requesting the parties to show cause, 

by August 30, 1983, why they should not be held in default for 

failure to reply to the prehearing order. Return receipts in 

the official file show that both parties received the show-cause 

order within 2 days after it was mailed but, again, neither 

party has responded to the show-cause order, although nearly 7 

months have elapsed since replies to the show-cause order were 

due. 

Since neither party replied to the show-cause order, each 

party could be held in default for its inaction. The show-cause 

order provided that if respondent were held in default, it would 

be ordered to pay the penalty of $20 proposed by the Assessment 

Office, and that if the Secretary were held in default, the proposal for assessment of civil penalty would be dismissed for 

lack of prosecution. While respondent did not reply to the prehearing order or to the show-cause order, it did request a hearing with respect to the alleged violation of 30 C.F.R. § 71.802, 

and it also filed an answer in which it fully stated its position. Since the Secretary has the burden of proving that a 

violation occurred, I believe that the Secretary should be held 

to be primarily at fault for failure to reply to two different 

procedural orders and that the proper action for the Secretary's 

apparent indifference about the disposition of this case should 

be a dismissal of the action. Therefore, I find that the Secretary of Labor is in default for failure to reply to the prehearing and show-cause orders issued May 23, 1983, and August 2, 

1983, respectively. 

731 
WHEREFORE, for the reason given above, it is ordered: 

The proposal for assessment of civil penalty filed on 

March 21, 1983, in Docket No. KENT 83-132 is dismissed. 

Distribution: 

~ a. oin/Hl~_u Richard c. Steffel/T7 

Administrative Law Judge 

Mary Sue Ray, Esq., Office of the Solicitor, u. s. Department 

of Labor, Room 280, u. s. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

Riverway North, Inc., Attention: Mr. Worley Charles, Route 3, 

Box 21, Ashland, KY 41101 (Certified Mail) 

732 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

KENTUCKY BLUE COAL COMPANY, 

INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 83-244 

A. C. No. 15-11436-03502 

Fariston Tipple 

ORDER OF DISMISSAL 

Before: Judge Steffey 

The proposal for assessment of civil penalty filed in the 

.above-entitled proceeding seeks to have a penalty assessed for 

a single violation of 30 C.F.R. § 48.28 alleged in Citation No. 

2005380 dated November 3, 1982. The condition or practice 

stated in the citation is that "[t]he employees at this tipple 

have not received the required 8 hrs. annual refresher training." When respondent failed to file a reply to the proposal 

for assessment of civil penalty, a show cause order was issued 

on January 11, 1984, requiring respondent to explain within 30 

days why it had failed to file an answer to the proposal for 

assessment of civil penalty. Respondent promptly filed an 

answer on January 16, 1984, stating that respondent has always 

received a waiver for shower facilities and that respondent 

has had the use of bathroom facilities through the kindness of 

one of respondent's employees who lives not more than 25 feet 

from respondent's property. There is nothing in respondent's 

answer to the show-cause order to explain what a waiver as to 

providing shower facilities or the use of a nearby bathroom 

has to do with the sole violation at issue in this proceeding, 

namely, respondent's alleged failure to provide 8 hours of 

annual refresher training. 

Section 2700.28 of the Commission's rules, 29 C.F.R. § 

2700.28, provides as follows: 

A party against whom a penalty is sought shall 

file and serve an answer within 30 days after service 

of a copy of the proposal on the party. An answer 

shall include a short and plain statement of the 

reasons why each of the violations cited in the proposal is contested, including a statement as to 

whether a violation occurred and whether a hearing 

is requested. 

733 
As I have explained in the first paragraph of this order, resporident' s answer filed on January 16, 1984, failed to comply 

with section 2700.28 of the Commission's rules. Therefore, a 

second order to show cause was issued on January 25, 1984. The 

last paragraph of that order provided as follows: 

Respondent.shall, by February 28, 1984, file an 

answer to the proposal for assessment of civil penalty 

in Docket No. KENT 83-244 specifically explaining why 

a hearing is desired with respect to the violation of 

section 48.28 alleged in Citation No. 2005380 issued 

November 3, 1982. Failure of respondent to reply to 

this second show-cause order will result in my concluding that respondent no longer wants a hearing with 

respect to the alleged violation of section 48.28. I 

shall thereafter find respondent to be in default and 

respondent will be ordered to pay the full penalty of 

$20.00 proposed by MSHA. 

The return receipt in the official file shows that respondent received the second show-cause order on January 26, 1984, 

but I have received no reply to that order. Consequently, I find 

respondent in default for failure to file an answer to the showcause order issued January 25, 1984. Section 2700.63(b) of the 

Commission's rules provides: 

(b) Penalti proceedin~s. When the Judge finds 

the respondent in default in a civil penalty proceeding, the Judge shall also enter a summary order assessing the proposed penalties as final, and directing that such penalties be paid. 

WHEREFORE, it is ordered: 

Respondent, having been found in default, is ordered to pay 

a civil penalty of $20.00 within 30 days from the date of this 

order for the single violation of section 48.28 alleged in Citation No. 2005380 dated November 3, 1982. 

Richard ~a.rl. C. Steffe~~ ~ 

Administrative Law Judge 

Distribution: 

Mary Sue Ray, Esq., Office of the Solicitor, u. s. Department of 

Labor, Room 280, u. s. Courthouse, 801 Broadway, Nashville, ~N 

37203 (Certified Mail) 

Mr. Bill Wilder, Kentucky Blue Coal Company, Inc., P. o. Box 750, 

Corbin, KY 40701 (Certified Mail) 

734 
.~EDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS. CHURCH, VIRGINIA 22041 HAR 23 1984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

LITTLE-J COAL COMPANY, INC., 

Respondent 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 81-498 

A. C. No. 46-06158-03011 H 

Docke't No. WEVA 81-508 

A. C. No. 46-06158-03007 V 

Docket No. WEVA 81-509 

A. C. No. 46-06158-03008 

Docket No. WEVA 81~510 

A. C. No. 46-06158-03009 V 

Docket No. WEVA '82-86 

A. C. No. 46-06158-03014 

No. 1 Mine 

DECISION 

Appearances: David T. Bush, Esq., Office of the Solicitor, 

u. s. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Philip A. LaCaria, Esq., Tutwiler, LaCaria & 

Murensky, Welch, West Virginia, for Respondent. 

Before: Judge Steffey 

A hearing in the above-entitled consolidated proceeding 

was held on January 17, 1984, in Bluefield, West Virginia, pursuant to section 105(d), 30 u.s.c. § 815(d), of the Federal 

Mine Safety and Health Act of 1977. The parties presented evidence with respect to the petition for assessment of civil penalty filed by the Secretary of Labor in Docket No. WEVA 82-86. 

At the conclusion of the presentation of evidence, I rendered a 

bench decision assessing penalties for the nine violations alleged in that proceeding. Thereafter, the parties orally moved 

that I accept a motion for approval of settlement with respect 

to the remaining four cases. Under the parties' settlement 

agreement, respondent would pay penalties totaling $2,790 instead of the penalties totaling $8,370 proposed by the Assessment Office with respect to the remaining four cases. The substance of my bench decision is first set forth below followed 

by a discussion of the reasons for granting the parties' settlement agreement. · 

735 
Docket No. WEVA 82-86 

The issues in a civil penalty case are whether a violation 

of the Act or the mandatory health and safety standards occurred 

and, if so, what penalties should be assessed, based on the six 

criteria set forth in section llO(i) of the Act. The petition 

for assessment of civil penalty filed in Docket No. WEVA 82-86 

seeks to have penalties assessed for nine violations of the mandatory health and safety standards based on nine violations alleged in Order and Citation No. 897273 issued January 19, 1981, 

pursuant to sections 107(a) and 104(a) of the Act. The citation 

portion of the order alleges five different violations of 30 

C.F.R. § 75.900 which provides as follows: 

Low- and medium-voltage power circuits serving 

three-phase alternating current equipment shall be 

protected by suitable circuit breakers of adequate 

interrupting capacity which are properly tested and 

maintained as prescribed by the Secretary. Such 

breakers shall be equipped with devices to provide 

protection against undervoltage, grounded phase, 

short circuit, and overcurrent. 

The condition or practice given as the basis for each of 

the five violations of section 75.900 was identical, that is, 

the inspector stated that "* * * the grounded phase protective 

device for the 400 ampere circuit breaker" was inoperative with 

respect to five different types of equipment, namely, the cable 

to the belt feeder, the trailing cable to the coal-cutting 

machine, the trailing cables for the standard and off-standard 

shuttle cars, the cable for the belt conveyor, and the trailing 

cable for the coal drill. 

Before penalties can be assessed, it is necessary to determine whether the alleged violations actually occurred. One of 

respondent's owners testified in this c~se and he agreed with 

the inspector that the protective devices in the power center 

were inoperative. In such circumstances, I think that there is 

no question but that the violations of section 75.900 occurred. 

The Act requires that penalties be assessed on the basis of the 

six criteria listed in section llO(i) of the Act. 

I shall first consider two criteria of general applicability and my findings as to those two criteria will be applicable 

for determining all penalties in this proceeding. The first 

criterion pertains to the size of respondent's business. The 

operator first testified that he had two mines, each of which 

produced 400 tons of coal per day, but later he stated that the 

second mine became operative after 1981 when the violations 

alleged in this case occurred. 

73G 
There was introduced as Exhibit 3 a cover page for the 

assessments proposed by MSHA in Docket No. WEVA 82-86, and that 

exhibit shows that the total company had a production of 79,042 

tons on an annual basis in 1981. Those tonnage figures, together with the fact that the mine employed only 24 persons in 1981 

on one maintenance and two production shifts, support a finding 

that a small company is involved in this proceeding and that, 

insofar as the criterion of the size of respondent's business 

is concerned, only small penalties should be assessed. 

The second criterion to be considered is whether the payment of penalties would cause the operator to discontinue in 

business. There has been submitted as Exhibit A a copy of respondent's Federal income tax return for 1980 and that shows 

that respondent made a taxable income of a little over $26,000 

in 1980. There was submitted as Exhibit B a Federal income tax 

return for 1981 and that indicates that respondent lost $22,748 

in that year. The operator testified that respondent's financial condition became worse in 1982, and that at the present 

time, respondent is operating only one mine with a total of 10 

employees. There are also some unaudited income and loss statements in Exhibit B, but I have found from past experience that 

it is not desirable to rely upon unaudited figures. Therefore, 

I am basing my findings solely on the Federal income tax returns 

and the operator's testimony which support a finding that respondent is not in good financial condition. I believe that 

the evidence supports a finding that assessment of large penalties would have an adverse effect on respondent's ability to 

continue in business. 

The third criterion is respondent's history of previous 

violations. Normally, the Secretary's counsel introduces a 

printout from a computer showing how many previous violations 

there have been, but I did not receive such a printout in this 

case. Sometimes the official files have an indication of respondent's history of previous violatiOns, but in this proceeding, there is nothing in the official files pertaining to respondent's history of previous violations. Since there is no 

evidence to support findings with respect to respondent's history 

of previous violations, that particular criterion cannot be 

evaluated in this proceeding. 

The fourth criterion is the question of whether the operator demonstrated a good-faith effort to achieve rapid compliance 

once a violation was cited. In this instance, the operator did 

show a good-faith effort to achieve rapid compliance because all 

of the violations were corrected by the next morning and the inspector terminated the order at that time. Therefore, I find 

in this instance that respondent made a good-faith effort to 

achieve rapid compliance. 

73'7 
The two criteria which have the most to do with assessing 

large or small penalties in most cases are gravity and negligence. Since gravity or seriousness has been addressed more 

than any other criterion, it is the one to which primary attention should be directed. Counsel for the Secretary, in his summation, appropriately stressed that criterion because the order 

was issued under imminent-danger section 107(a) of the Act. 

Counsel for the Secretary discussed the meaning of imminent 

danger. Section 3(g) of the Act defines an imminent danger as 

"* * * the existence of any condition or practice in a coal or 

other mine which could reasonably be expected to cause death 

or serious physical harm before such condition or practice can 

be abated." 

The Commission has not written very many decisions with 

respect to the meaning of imminent danger. It did find that 

an imminent danger existed in Pittsburgh and Midway Coal Co., 

2 FMSHRC 787 (1980). In that case, the Commission commented 

that it was not certain that the "probable as not" gloss added 

to the definition of imminent danger by the former Board of 

Mine Operations Appeals was necessary and that the Commission 

would amplify its understanding of the meaning of imminent 

danger in future decisions. 

In several cases the Commission has, of course, pointed 

out that the validity of withdrawal orders is not an issue in 

civil penalty cases. In Pontiki Coal Corp., 1 FMSHRC 1476 

(1979) , the Commission stated that a judge should not vacate 

orders in civil penalty cases because the issues in civil penalty cases are whether violations occurred and what penalties 

should be assessed if it is found that they did occur. Consequently, it is not necessary in this proceeding to make a formal 

finding as to whether the inspector issued a valid or invalid 

order under section 107(a) of the Act. It is sufficient that I 

simply determine whether the alleged violations occurred and 

assess penalties if I find that they did. 

The evidence shows that the violations of section 75.900 

were serious because the witnesses agreed that if a fault occurred in the equipment which was being supplied with energy 

from the power center where the protective devices were inoperative, that energization of the frames of the shuttle cars 

and other equipment could occur, and that a serious shock or 

electrocution could follow if someone should touch the equipment in an energized condition. -The only witness who said that 

mitigating circumstances existed was the operator who stated 

that the mine was dry throughout and that there was less danger 

of electrocution than if the mine had been wet. The inspector 

was not asked about the wetness or dryness of the mine. Therefore, I find on the basis of the operator's testimony, that 

there was at least the ameliorating factor that the mine was 

dry. Nevertheless, the preponderance of the evidence supports 

a fin~ing that serious violations of section 75.900 occurred. 

738 
The sixth criterion is negligence. The record shows that 

the inspector went to the mine to make an inspection on the basis 

of a complaint from the union. That complaint is Exhibit No. 1 

in this proceeding. The existence of the complaint is some indication that respondent's management should have been aware that 

some problems in the electrical system were occurring. 

Respondent has introduced evidence, however, indicating that 

the individual who made the report to the union and requested 

that an inspection be made under section 103(g) of the Act was an 

individual who had a propensity for causing trouble for the mine 

owners. Respondent's witness said that at the time the inspection was requested, the person who requested the inspection was 

trying to get payment for some vacation and sick days and that he 

wanted to be paid in the first month of the year instead of being 

paid throughout the year at such times as the days are used for 

illness or other personal ~easons. 

The Secretary's counsel has emphasized that I should not 

consider the above-described type testimony because it is speculative. The Secretary's counsel contends that the violations 

did occur and that whether there was some sort of animosity on 

the part of one or more miners toward the operator on account of 

labor problems should not affect the outcome of this case in any 

way because the Act was properly working in this instance in that 

the miners did sense that something was wrong with the electrical 

system and did make a complaint to MSHA which was investigated 

with the result that the order here before me was issued. I 

agree with the Secretary's counsel that the aforesaid events did 

occur and that the inspector did make an appropriate inspection. 

In considering the criterion of the operator's negligence, however, I think that the above-described matters are relevant because the operator testified that someone had put paper in some 

of the protective devices to keep them from working. The inspector agreed that he found paper in at least. one of them, although 

the inspector did not think the paper made the protective device 

inoperative. The operator has also testified that it is easy to 

loosen the doors on the protective devices so that they will not 

work properly. The operator's testimony shows that it would be 

a very simple matter for a disgruntled employee to sabotage the 

power center and then make a complaint just to bring about 

harassment of the operator. 

The inspector himself indicated that he had not gone into 

a situation in which so many of these protective devices were 

out of o~der in a single power center, so there is circumstantial evidence to support the operator's claim that the violations 

of section 75.900 may have been brought about through no fault 

or knowledge of the operator. Moreover, the operator also testified without contradiction that he had not had any lost-time 

accidents in his mine and that he had had no other electrical 

13~ 
violations prior to this instance. In such circumstances, I 

find that the preponderance of the evidence shows that the violations of section 75.900 were associated with a low degree of 

negligence. · 

If a large operator in sound financial condition were involved, I might find that the gravity of the violations warrants 

a penalty of $5-00 for each violation, but in view of the fact 

that respondent is a small operator in a very poor financial condition at this time, I believe that a penalty of $50 for each of 

the violations is appropriate, or $250 for all five violations 

of section 75.900. 

The citation portion of Order No. 897273 also alleges a 

violation of section 75.601 in that the trailing cable disconnecting devices to the belt feeder, the roof-bolting machine, 

and the belt conveyor "* * *were not marked for identification". 

The inspector testified that he did not consider the violation 

of section 75.601 to be as serious a violation as the inoperative protective devices discussed above. The operator testified 

that he did have chains hooked to the cables so that they could 

not be plugged into the wrong circuit breakers, but he agreed 

that he did not have the required identification on them. He 

also thought that it might be remotely possible that a shuttle 

car other than the one desired might be energized in some unusual 

circumstances. Ordinary negligence was associated with the violation of section 75.601 because it is highly improbable that the 

miner who asked for the inspection would have gone around taking 

labels off of the various connecting devices if they had been on 

the devices in the first place. The facts discussed above support assessment of a penalty of $25 for the violation of section 

75.601. 

The citation portion of Order No. 897273 also alleged occurrence of two violations of section 75.512 which requires that 

electrical equipment be maintained in a safe operating condition 

and also requires that a record of electrical examinations be 

kept. The first violation of section 75.512 was that the power 

center itself was not being maintained in a safe operating condition and the second violation of section 75.512 was that a 

record of weekly electrical examinations had not been made for 

a period of about 2 weeks. 

The operator did not contest the fact that the violations 

of section 75.512 occurred. Therefore, I find that two violations of section 75.512 did occur. The inspector did not specifically discuss the violation of section 75.512 with respect 

to the failure to maintain the electrical center in a safe condition because the lack of safety as to the power center related entirely to the five violations of section 75.900 which 

have previously been discussed above. The same findings as to 

negligence and gravity made above with respect to the inoperative 

740 
protective devices are equally applicable to the failure of the 

power center to be maintained in a safe operating condition. 

Since I have, in effect, assessed a penalty for the failure to 

maintain the power center in a safe operating condition by 

assessing total penalties of $250 for the inoperative protective devices, it is duplicative to assess a sixth penalty of $50 

for the same condition which brought about the $50 penalties for 

the five inoperative protective devices. Consequently, I shall 

assess a penalty of $20 for· the failure of the power center to 

be maintained in a safe operating condition. 

The second violation of section 75.512 with respect to the 

failure to record the weekly electrical examinations was associated with ordinary negligence and the inspector did not classify 

that violation as being particularly serious. Therefore, I shall 

assess a penalty of $20 for the second violation of section 

75.512. 

The final violation alleged in the citation portion of Order 

No. 897273 was a violation of section 75.515 which requires that 

cables enter metal frames through proper fittings. In this instance, there was no testimony controverting the inspector's allegation that the cable entering the metallic disconnecting 

device for the roof-bolting machine was not provided with a 

proper fitting. I find that the violation occurred, that it was 

associated with ordinary negligence, and that it was relatively 

nonserious because there was no testimony showing that the cable 

was worn in any way so as to constitute an immediate electrical 

hazard at the time the violation was cited. Therefore, a penalty 

of $20 will be assessed for the violation of section 75.515. 

The total penalties assessed above amount to $335 for the 

nine violations alleged in Citation and Order No. 897273. It 

should be noted that my bench decision, at transcript page 82, 

refers to a total amount of $320. That page of the bench decision inadvertently failed to assess a specific penalty for the 

violation of section 75.515. Therefore, the bench decision has 

been corrected above to include assessment of a penalty of $20 

for the violation of section 75.515. 

Consideration of the Parties' Settlement Agreement 

As previously indicated, the parties moved at the hearing 

that I accept a settlement under which respondent agreed to pay 

penalties totaling $2,790 instead of the penalties totaling 

$8,370 which had been proposed by the Assessment Office for the 

remaining four cases in this proceeding as to which no evidence 

was presented by either party. The primary reason given at the 

hearing for the settlement agreement is based on the evidence 

discussed above to the effect that respondent is in poor f inancial condition and presently is barely continuing to operate with 

production from a small mine which employs only 10 persons. 

741 
I believe that the two criteria of the size of respondent's 

business and the fact that payment of large penalties would adversely affect respondent's ability to continue in business warrant acceptance of the settlement agreement. It is my practice, 

however, to allocate specific penalties to each of the alleged 

violations. Therefore, I shall briefly discuss the violations 

alleged in each docket for the purpose of allocating specific 

penalties. 

Docket No. WEVA 81-498 

The petition for assessment of civil penalty in Docket No. 

WEVA 81-498 is based on Order No. 886972 issued on February 2, 

1981, pursuant to section 107(a) of the Act. Although the order 

states that the roof-control plan was not being followed because 

the roof-bolting machine operator and his helper were observed 

working inby permanent supports, the order appears to be somewhat 

defective in failing to state specifically that a violation of 

the roof-control plan is a violation of section 75.200. Additionally, although the order purports to cite a violation, the 

order does not show that the violation is being cited under section 104(a) of the Act. While it is possible that the order was 

modified by the inspector at a subsequent time to show that the 

citation was issued under section 104(a) and that a violation of 

section 75.200 was intended to be cited, the official file contains no copy of such modification. Moreover, the order claims 

that all working places are closed as a part of the order, yet 

the only hazard cited in the order is that the roof-bolting 

machine operator and his helper were working beyond permanent 

roof supports in a crosscut to the left of the No. 4 entry. 

The official file contains neither narrative findings by 

the Assessment Office nor a proposed assessment sheet to show 

how the Assessment Office arrived at a proposed penalty of $2,000 

for the alleged violation of section 75.200. In view of the 

many infirmities in the order as it appears in the official file, 

I believe that a penalty of $200 is all that should be allocated 

to the violation of section 75.200 alleged in Order No. 886972. 

Docket No. WEVA 81-508 

The petition for assessment of civil penalty filed in Docket No. WEVA 81-508 seeks assessment of penalties for six alleged violations. The six violations are alleged in one citation and five orders written under the unwarrantable-failure 

provisions of section 104(d) (1) of the Act. The citation and 

two of the orders allege violations of section 75.400 because 

of the existence of loose coal and float coal dust accumulations 

in three different areas of the mine. The citation (No. 896226) 

avers that the accumulations existed along the belt conveyor and 

were from 1 inch to 14 inches in depth. The citation notes that 

the preshift reports had indicated that the belt entry needed 

742 
cleaning and rock dusting and that the mine superintendent had 

done some work toward cleaning up the accumulations and had, in 

fact, reported the condition as corrected. Since the citation. 

itself shows that a difference.of opinion existed between the 

superintendent and the inspector as to whether the accumulations 

had been .cleaned up, it is likely that the operator would have 

contested the inspector's allegations if a hearing had been held. 

The official file does not contain narrative statements or 

a proposed assessment sheet to show how the Assessment Off ice 

derived its proposed penalty of $800, but the penalty proposed 

for this alleged violation of section 75.400 is less than was 

proposed for the other two violations of section 75.400. Therefore, I believe that the Assessment Office took into consideration the fact that the operator had made an effort to .clean up 

the accumulations before they were cited by the inspector. In 

the absence of any information to support a different evaluation, 

I believe the proposed penalty for the first alleged violation · 

of section 75.400 should be reduced to $200 because the equivocal nature of the allegations made in the citation make it difficult to find that the violation was associated with the high 

degree of negligence which should accompany a.violation cited 

under the unwarrantable-failure provisions of the Act. 

The next two alleged violations of section 75.400 are based 

on accumulations in all seven entries inby the loading point 

where the depths are said to have ranged from 1 to 14 inches. 

The other accumulations were said to exist in the intake entries 

in depths of from 1/4 to 6 inches. The Assessment Office proposed penalties of $1,200 for each of the violations. The primary basis for the finding of unwarrantability seems to be that 

the accumulations had not been reported by the preshif t or onshif t examiners. Bearing in mind that in settlement cases, I 

must accept allegations in orders and citations as I find them, 

without consideration of any defenses which respondent may have, 

it appears that there is a basis for the.inspector's belief that 

a high degree of negligence existed in the fact that accumulations were found in practically all areas of the mine on January 20, 1981, the day when the citation and orders were written. 

I believe that the accumulations cited in the face area appear 

to be more hazardous than the ones cited in the intake entries. 

Therefore, I am allocating a penalty of $590 for the violation 

involving accumulations inby the dumping point and $500 for the 

accumulations in the intake entries. 

Both violations of the roof-control plan cited in Order Nos. 

896233 and 896234 consisted of an alleged failure to set a minimum of four temporary supports immediately after the loading 

cycle was completed. The inspector's orders do not say that 

roof conditions were unstable, but the Assessment Office proposed 

a penalty of $1,000 for each violation of section 75.200. Most 

743 
of the proposed penalty, therefore, must be associated with the 

inspector's having written the orders under the unwarrantable 

failure provisions of section 104(d) of the Act. Since there 

is no indication that anyone had gone under the unsupported roof, 

I believe that each of the proposed penalties of $1,000 should 

be reduced to $300. 

Order No. 896237 alleges the final violation to be considered i~ Docket No. WEVA 81-508. That order states that respondent violated section 75.303 by failing to make an adequate preshift examination. The inspector's belief that the preshift 

examination was inadequate is based on the fact that the conditions cited in the orders previously discussed were not reported 

by the preshift examiner. It is a fact, however, that the first 

unwarrantable-failure violation cited by the inspector on January 20, 1981, refers to the fact that the loose coal accumulations in the belt entry had been reported for several shifts and 

to the fact that the mine superintendent had had some work done 

on cleaning up the loose coal accumulations. Therefore, if a 

hearing had been held, it is likely that a difference of opinion 

would have developed as to the inspector's claim that an adequate 

preshift examination had not been made. The Assessment Office 

proposed a penalty of $500 for the alleged violation of section 

75.303. In view of the speculative nature of the alleged violation, I believe that a penalty of no more than $100 is warranted. 

Docket No. WEVA 81-509 

The petition for assessment of civil penalty filed in Docket No. WEVA 81-509 seeks assessment of a single penalty for a 

violation of section 75.200 based on Order No. 896232 issued 

January 20, 1981. The violation alleged is that miners were 

working inby permanent roof supports and the violation is based 

on the inspector's belief that the miners were using equipment 

whose controls were so close to the unsupported roof that the 

operator of the equipment would necessarily have had to have 

worked under unsupported roof. Here again, the inspector cited 

the violation of section 75.200 in an imminent-danger order 

written pursuant to section 107(a} of the Act without showing 

that the violation was being cited pursuant to section 104(a) of 

the Act. The inspector may have modified the order to state 

that the citation was made under section 104(a} of the Act, but 

no modification was submitted in support of the petition for 

assessment of civil penalty. There is no proposed assessment 

sheet in the official file, but despite the fact that the violation was cited in an imminent-danger order, the Assessment Office 

proposed a penalty of only $170. The infirmities in the order 

indicate that allocation of a penalty of $100 is adequate for 

the violation of section 75.200 alleged in Order No. 896232. 

744 
Docket No. WEVA 81-510 

The petition for assessment of civil penalty filed in Docket No. WEVA 81-510 seeks assessment of a civil penalty for a 

single violation of section 75.200 alleged in Order No. 896878 

issued February 2, 1981, under unwarrantable-failure section 

104(d) (2) of the Act. The violation alleged involves the same 

circumstances as the violation discussed under Docket No. WEVA 

81-508 above, that is, failure of the operator to set a minimum 

of four temporary supports immediately after the loading cycle 

was completed·. In this instance, the inspector• s order notes 

that the condition was reported by the preshift examiner, but 

the .inspector believes that a high degree of negligence existed 

because five violations of section 75.200 had been cited since 

January 20, 1981, the date on which the other violations of section 75.200 were cited, as previously described under Docket No. 

WEVA 81-508, supra. 

It appears that the inspector has given sound reasons in 

this instance for believing that the violation was associated 

with a high degree of negligence. The inspector does not claim 

that the roof conditions were particularly hazardous, but consistent failure to set temporary supports is a very bad practice 

which should be deterred and civil penalties were provided in 

the Act for that purpose. Therefore, I find that the Assessment 

Office's proposed penalty of $500 should be allowed in its entirety in this case. 

It should be borne in mind that all of the reductions of 

the penalties proposed by the Assessment Office have been greatly influenced by the fact that a small operator is involved and 

by the fact that I have found above that payment of penalties 

would have an adverse effect on respondent's ability to continue 

in business. For all of the reasons hereinbefore given, the 

parties' settlement agreement should be approved. 

WHEREFORE, it is ordered: 

(A) Respondent, within 30 days from the date of this decision, shall pay civil penalties totaling $335 with respect to 

the nine violations alleged in Docket No. WEVA 82-86. The penalties are allocated to the respective violations as follows: 

Citation and Order No. 897273 1/19/81 § 75.512 $ 20.00 

Citation and Order No. 897273 1/19/81 § 75.900 50.00 

Citation and Order No. 897273 1/19/81 § 75.900 50.00 

Citation and Order No. 897273 1/19/81 § 75.900 50.00 

Citation and Order No. 897273 1/19/81 § 75.900 50.00 

Citation and Order No. 897273 1/19/81 § 75.900 50.00 

Citation and Order No. 897273 1/19/81 § 75.601 25.00 

Citation and Order No. 897273 1/19/81 § 75.512 20.00 

Citation and Order No. 897273 1/19/81 § 75.515 20.00 

Total Penalties Assessed in Docket No. 

WEVA 82-86 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $335.00 

745 
(B) The parties' motion for approval of settlement is 

granted and the settlement agreement is approved. 

(C) Pursuant to the parties' settlement agreement, respondent, within 30 days from the date of this decision, shall pay 

civil penalties totaling $2,790.00 which are allocated to the respective alleged violations as follows: 

Docket No. WEVA 81-498 

Citation and Order No. 886972 2/2/81 

§ 75. 200 .•••••••••••••••••••••••••••••• $ 200. 00 

Total Settlement Penalties in Docket No. 

WEVA 81-498 •••••••••••••••••••••••••••• $ 200.00 

Docket No. WEVA 81-508 

Citation No. 896226 1/20/81 § 75.400 ••••• $ 

Order No. 896233 1/20/81 § 75.200 •••••••• 

Order No. 896234 1/20/81 § 75.200 •••••••• 

Order No. 896235 1/20/81 § 75.400 •••••••• 

Order No. 896236 1/20/81 § 75.400 •••••••• 

Order No. 896237 1/20/81 § 75.303 •••••••• 

Total Settlement Penalties in Docket No. 

200.00 

300.00 

300.00 

590.00 

500.00 

100.00 

WEVA 81-508 •••••••••••••••••••••••••••• $1,990.00 

Docket No. WEVA 81-509 

Citation and Order No. 896232 1/20/81 

§ 75.200 •..................•........... $ 100.00 

Total Settlement Penalties in Docket No. 

WEVA 81-5 0 9 • • • • • • • • • • • • • • • • • • • • • • • • • • • • $ 10 0 • 0 0 

Docket No. WEVA 81-510 

Order No. 896878 2/2/81 § 75.200 ••••••••• $ 500.00 

Total Settlement Penalties in Docket No. 

WEVA 81-510 • • • • • • • • • • • • • • • • • • • • • • • • • • • • $ 5 0 0 • 0 0 

Total Settlement Penalties in This 

Proceeding ••••••••••••••••••••••••••••• $2,790.00 

746 

~c_s;3~~ Richard c. Steffey~~ Administrative Law Judge 
Distribution: 

David T. Bush, Esq., Office of the Solicitor, u. s. Department 

of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Philip A. LaCaria, Esq., Attorney for Little-J Coal Company, 

Tutwiler, LaCaria & Murensky, 30 McDowell Street, P. o. Box 739, 

Welch, WV 24801 (Certified Mail) 

747 
FEDERAL MINE SAFETY AND HEALTH RIEYIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 23, 1984 

KITT ENERGY CORPORATION, 

Contestant 

CONTEST PROCEEDING 

v. Docket No. WEVA 84-60-R 

SECRETARY OF LABOR, Citation No. 2263047; 11/2/83 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Respondent . . Kitt No. 1 Mine 

Appearances: 

Before: 

DECISION 

Bronius K. Taoras, Esq., for Kitt Energy Corporation, Contestant; 

Leo J. McGinn, Esq., Office of the Solicitor, 

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

for Respondent. 

Judge Merlin. 

This case is a Notice of Contest filed on December 1, 

1983, by Kitt Energy Corporation under Section lOS(d) of the 

Act, 30 u.s.c. 815(d) to review a citation dated November 2, 

1983, issued by an inspector of the Mine Safety and Health 

Administration (hereinafter referred to as "MSHA") under 

Section 104(d) (1) of the Act, 30 U.S.C. 814(d) (1). By 

Notice of Hearing dated December 22, 1983, this case was set 

for hearing on February 8, 1984. The hearing was held as 

scheduled. 

At the hearing, the parties agreed to the following 

stipulations: 

(1) The applicant is the owner and operator of the 

subject mine. 

(2) The mine is subject to the jurisdiction of the 

Federal Mine Safety and Health Act of 1977. 

(3) The Administrative Law Judge has jurisdiction of 

this case pursuant to Section 105 of the 1977 

Act. 

(4) The inspector who issued the subject citation 

was a duly authorized representative of the 

Secretary of Labor. 

748 
(~) True and correct copies of the subject citation 

and termination were properly served upon the 

operator in accordance with the 1977 Act. 

(6) Copies of the subject citation and termination 

are authentic and may be admitted into evidence 

for the purpose of establishing their issuance, 

but not for the truthfulness or relevance of any 

statement asserted therein. The probative weight 

to which the citation is subject will be determined in light of all the evidence of record. 

(7) Inspector Tulanowski conducted an inspection of 

the Kitt Number 1 on November 2, 1983. The inspection that day began at approximately 11:45 

p.m. on November 1, and continued into the early 

morning of November 3, 1983. 

(8) In the course of his inspection, Mr. Tulanowski 

discovered four areas as described in the subject citation along the D-11 belt where float 

coal dust was present in the belt entry. 

(9) The float coal dust was present only on the floor, 

and not on the roof or ribs or on the equipment 

in the entry. 

(10) The float coal dust described in the citation 

constituted a violation of 30 C.F.R. 75.400. 

(11) The subject mine is classified as a gassy mine, 

liberating two million 400,000 cubic feet of 

methane per 24 hours. 

Section 304(a) of the Act, 30 U.S.C. 814(a), which also 

appears in 30 C.F.R. 75.400, provides as follows: 

Coal dust, including float coal dust deposited 

on rock dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be 

permitted to accumulate in active workings, or on 

electric equipment therein. 

The subject citation No. 2263047, describes the violative condition or practice as follows: 

Beginning on the left side of the D-11 coal conveyor 

belt, between No. 1 and No. 2 block (approximately 

50 feet) from No. 3 block to No. 4 block, (approximately 60 feet) from No. 8 + 80 block to No. 11 + 50 

749 
• 

block on both sides of the conveyor belt (approximately 300 feet) and from No. 13 + 50 block to 

No. 26 block, (approximately 1,000 feet) there was 

float coal dust (black in color) deposited on the 

rock-dusted surface of the mine floor. Rock-dust 

was not available on the D-11 section to dilute 

the float coal dust at the time the citation was 

issued. 

This condition was recorded in the preshift mine 

examiner's report since the 10-17-83, John Helms, 

mine foreman and his assistants ha~ [sic] countersigned the preshift mine examiner's report 

since the 10-17-83. 

One 107(a) ·order and 3 citations has [sic] been 

issued on float coal dust on belt conveyors at 

this mine since 10-28-83. · 

At the hearing the inspector described the violative 

areas the same way he had in the citation. He testified 

that walking inby along the belt entry, he cited four areas. 

The first area was fifty feet long with black float dust on 

the tight side of the entry but well rock-dusted on the 

clearance side (Tr. 26-30) {D-E on Jt. Exh. No. 1). The 

second was 60 feet long with float dust again on the tight 

side {Tr. 30-31) (F-G on Jt. Exh. No. ll. The third was 300 

feet long with black float coal dust present on both sides 

and underneath the conveyor belt (Tr. 31-32) {H-J on Jt. Exh. 

No. 1). There were footprints on the clearance side where 

people had walked and it was white underneath {Tr. 34). The 

final area cited was one thousand feet long with float coal 

dust on both sides and underneath the belt (Tr. 35-37) (K-L 

on Jt. Exh. No. 1). Footprints again were visible on the 

wide side {Tr. 37). The operator's mine examiner who had 

accompanied the inspector specifically stated that he did 

not disagree with the inspector's description of the areas 

with float coal dust {Tr. 195). I accept the descriptions 

given by the inspector in the citation and testimony. 

As set forth in Stipulation No. 10, it is agreed that a 

violation existed. The issues presented are therefore, 

whether the violation was significant and substantial and 

whether it resulted from an unwarrantable failure on the 

part of the operator. 

In National Gypsum Company, 3 FMSHRC 822 {April 1981), 

the Commission first considered what would constitute a 

violation which "could significantly and substantially 

contribute to the cause and effect of a coal or other mine 

750 
safety or health hazard." The Commission held that a violation was of such a nature as could significantly and 

substantially contribute to the cause and effect of a mine 

safety or health hazard if, based upon the particular facts 

surrounding that violation, there existed a reasonable likelihood that the hazard contributed to would result in an 

injury or illness of a reasonably serious nature. 3 FMSHRC 

at 825. In addition, the Commission expressed its understanding that the word "hazard" denoted a measure of danger 

to safety or health and that a violation significantly and 

substantially contributed to the cause and effect.of a hazard if the violation could be a major cause of a danger to 

safety or health. 3 FMSHRC at 827. 

More recently, in Mathies Coal Company, FMSHRC Docket 

No. PENN 82-3-R etc., Slip Op. (January 6, 1984), the Commission stated: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying 

violation of a mandatory safety standard; (2) 

a discrete safety hazard - that is, a measure 

of danger to safety -- contributed to by the 

violation; (3) a reasonable likelihood that 

the hazard contributed to will result in an 

injury; (4) a reasonable likelihood that the 

injury in question will be of a reasonably 

serious nature. As a practical matter, the 

last two elements will often be combined in 

a single showing. 

See also Consolidation Coal Company, FMSHRC Docket No. WEVA 

80-116-R etc., Slip Op. (January 13, 1984), and Consolidation Coal Company, FMSHRC Docket No. PENN 82-203-R etc., 

Slip Op. (February 21, 1984). 

The record demonstrates that the admitted violation 

presented a discrete safety hazard, that of explosion and 

fire. I accept the inspector's testimony that float coal 

dust is light, easily put into suspension, and has a high 

burning rate (Tr. 77). According to the inspector, a rock 

falling on and smashing a power cable could provide the 

spark which would ignite the float coal dust and cause an 

explosion (Tr. 77-78). In addition, the running of the belt 

itself could start a fire if there were a stuck or frozen 

roller creating heat to ignite the float coal dust which is • 

easily combustible (Tr. 80-82, 126-127). The operator's 

shift foreman also stated that belt rollers running in float 

coal dust could ignite if they got hot enough and he agreed 

that float coal dust would intensify and magnify the danqcr 

from ignition or heat in a conveyor belt entry (Tr. 247- ---.. 

751 
248). The Commission has recognized the explosive character 

of float coal dust. Old Ben Coal Company, 1 FMSHRC 1954, 

1956 - 1957 (1979). 

I further find there was a reasonable likehood that the 

hazard of fire or explosion would result in an injury. As 

set forth above, the inspector testified that an ignition 

could result if a falling rock broke a cable, thereby creating a spark to ignite the float coal dust. The record shows 

that the roof was very bad in this area (Tr. 129, 207). The 

inspector stated that although the area was adequately 

posted, rocks could fall in between the posts (~r. 129). He 

believed it would not be unlikely for a large rock to fall 

(Tr. 129). The operator's shift foreman also described the 

roof as really bad and fractured, saying that it fell as it 

was cut and that the unit could advance only ten feet at a 

time (Tr. 251-252). At one point, the foreman stated that 

it was very unlikely a rock would rupture a cable but he 

agreed that it depended on how the rock fell (Tr. 219-221). 

The foreman knew of instances in the belt entry of this mine 

where rocks had fallen on power cables (Tr. 218). In addition, with respect to the belt power cable which ran to the 

center of the entry at one hundred foot intervals, he agreed 

there was certainly a likelihood the cable would be ruptured 

or cause an arc or spark from a falling rock (Tr. 249). The 

operator's mine examiner expressed the view that the chances 

of a rock hitting a cable were not reasonably likely but he 

also stated it depended upon the size of the rock (Tr. 193). 

He admitted the roof was scaling and chipping because it was 

winter (Tr. 200J-200K). After reviewing all the evidence, I 

conclude that because of the very bad nature of the roof, 

the weight of the evidence indicates that there was a reasonable likelihood of a fire or an explosion due to an arc 

from a ruptured cable igniting the float coal dust. 

The record provides an additional basis for demonstrating the reasonable likelihood that the hazard involved would 

result in an injury. As set forth above, the belt itself 

could be an ignition source. The inspector testified that 

although the belt was not actually running, the belt starter 

box was energized, preparations were being made to run coal, 

and then the belt would be started (Tr. 72-73, 79-80). The 

inspector's testimony that this was a production shift is 

persuasive. The operator's witnesses appeared somewhat 

evasive on the point, either saying it might have been a 

production shift or they were not sure (Tr. 200J, 237). I 

accept the inspector's opinion that friction or heat from a 

belt in motion is a fairly common occurrence as a cause of 

ignition and I therefore credit his view that some type of 

ignition from the float coal dust he saw under the belt was 

likely. It is not necessary that the belt be in motion 

because as the inspector stated, this might be considered an 
imminent danger. I reject the shift foreman's opinion that 

there was no reasonable likelihood of belt rollers causing 

an ignition of float coal dust because his opinion was based 

only upon the fact that he did not receive any information 

of rollers actually running in spillage or float dust (~r. 

226-227). The foreman did not see the condition. 

Finally, I conclude that there was a reasonable likelihood that the injury which would result would be of a reasonably serious nature. The inspector explained that the 

belt entry was an escapeway, belt air was vented directly to 

the return, and a fire in the belt entry could contaminate 

all the entries with smoke (Tr. 82-83, 132-133). There was 

a danger of injury or illness from smoke inhalation (Tr. 84-

86). Moreover, if escapeway entries were filled with smoke, 

there was a hazard from falling or tripping due to lack of 

visibility (Tr. 86-87). 

In light of the foregoing, I decide that this violation 

was significant and substantial in accordance with the tests 

adopted by the Commission. 

There remains for consideration the issue of unwarrantable failure. The inspector testified that before he 

went underground, he looked at the pre-shift and on-shift 

book for the period October 27 to November 13 (Tr. 15-17, 

43-47). A photocopy of this book was accepted into the 

record as Joint Exhibit No. 2. The inspector testified that 

he looked at the on-shift report for the afternoon of November 1 which stated that the belt need to be cleaned and 

dusted and for "Action Taken" listed only "Reported" (Tr. 

65) . The inspector did not remember how far back he went 

into the book before he went underground (Tr. 15-17). 

However when he came above ground, he went through the 

entire book (Tr. 96). As the inspector testified, from the 

beginning of the book starting with the 6:15 A.M. pre-shift 

on October 27, there are repeated reports that the belt 

needed cleaning and dusting (Tr. 58-65). The inspector 

looked at the prior book and found such reports beginning on 

October 17 (Tr. 67). The books indicated that no action was 

taken until the 6:30 A.M. pre-shift for November 1 and the 

10:00 A.M. on-shift on November 1 reports listed "Work in 

Progress" under "Action Taken" (Tr. 64). Until then, the 

only action taken was listed as "none" or "reported" (Tr. 

58-65). It appears therefore that for two weeks beginning 

on October 17, the operator did nothing to correct this 

condition. On October 31, the union conducted its quarterly 

inspection and Item No. 17 of its report dated October 31, 

1981, reported "The entire D-11 belt conveyor line needs the 

spillage removed underneath of several (12) rollers, float 

dust removed from the tight side, clearance side and underneath of the beltline" (Tr. 55). As a result of the union's 

report, the operator began to clean up the spillage (Tr. 

753 
161). However, as the inspector's uncontradicted description demonstrates, the belt still needed to be cleaned and 

dusted in extensive areas. 

The inspector testified that he relied upon the preshif t and on-shift books in finding unwarrantable failure 

(Tr. 106). After returning above ground, he also examined 

the pre-shift and on-shift book for the period October 8 

through October 26 (Tr. 65-67). Based upon them, he concluded that for a period of two weeks, the operator knew or 

should have known of the violative condition cited by the 

inspector. This was more than enough time to completely 

correct the violation. 

The operator's safety supervisor and section foreman 

testified that the books were inaccurate because work was 

done to clean up the belt on October 31 and on the afternoon 

shift of November 1 (Tr. 279-281). Even if this testimony 

is accepted as correct, it cannot change the result. First, 

the operator has the responsibility to make sure its preshift and on-shift books are correct and if they are not, 

the operator must bear the consequences. That the operator 

recognizes this is demonstrated by the testimony of its 

safety supervisor to the effect that after the issuance of 

this citation, it improved its books because they were what 

the inspector had to rely upon (Tr. 280). Secondly, the 

operator's witnesses indicated that after the union's quarterly inspection, men were assigned to clean up the belt for 

a few more shifts than the books show. However, there is no 

dispute that the cited condition had existed since October 17, nor is there any dispute as to what the inspector 

saw or his description of it. The operator's witnesses said 

only that the men had cleaned up the spillage and had done 

some cleaning and rock dusting (Tr. 294-296). This does not 

detract from the inspector's actions because he made it 

clear that he saw no spillage (Tr. 112-113). What is crucial is that although some float coal dust may have been 

taken care of, it remained present for a long time over very 

extensive areas of the belt entry. It is this essential 

circumstance relied upon by the inspector which is not contradicted by anything offered by the operator. Similarly, 

the operator's evidence confirms that although some rock 

dust had been used on the section, it was not enough to do 

the job and there was no rock dust available on the section 

when the inspector issued the citation (Tr. 187-189). The 

existence of unwarrantable failure was confirmed by the 

inspector and the operator's witnesses who explained how 

easy it would have been to bring adequate rock dust onto the 

section (Tr. 122-123, 190-191). Finally, the operator's 

754 
shift foreman explained that he took two men from the six 

man crew of the idle 2A section and that the remaining four 

men were setting up a longwall (Tr. 255). The shift foreman 

could have quickly cleaned up all the cited float coal dust 

if he had taken additional men from the 2A section. So too, 

he could have used additional men from the D-11 section 

itself, instead of having them continue to advance that 

section. Accordingly, I conclude that the operator's evidence not only fails to cast any doubt upon the inspector's 

finding of unwarrantable failure, but rather lends it further support. 

The parties were ordered to file post hearing briefs. 

On March 19, 1984, the Solicitor filed his brief, which was 

most helpful. Counsel for the operator requested an extension until March 20, 1984, which was granted, but has filed 

no brief. 

In light of the foregoing, Citation No. 2263047 is 

Affirmed. 

The Notice of Contest is Dismissed. 

\ 

\ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Bronius K. Taoras, Esq., Kitt Energy Corporation, 455 Race 

Track Road, P. O~ Box 500, Meadow Lands, PA 15347 (~ertif ied Mail) 

Leo J. McGinn, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

/nw 

75G 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 tlAR 271984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 81-236-M 

A.C. No. 02-00024-05013 H 

v. 

PHELPS DODGE CORPORATION, 

Respondent . . 

Morenci Mine Mill & 

Trailing Dam or Disposal 

and 

UNITED STEELWORKERS UNION, 

Authorized Miner 

Represen ta ti ve 

Appearances: 

Before: 

DECISION 

Linda Bytof, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, 

California, 

for Petitioner; 

James Speer, Esq., and Stephen Pogson, Esq., 

Evans, Kitchel & Jencks, Phoenix, Arizona, 

for Respondent; 

Angel Rodriguez, President, Morenci Miners 

Union, Local 616, United Steelworkers, 

Clifton, Arizona, 

for the Authorized Miner Representative. 

Judge Morris 

This case, heard under the provisions of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et~' (the 

"Act") arose from a January 8, 1981 inspection of respondent's 

Link Belt crane. The Secretary of Labor seeks to impose two 

civil penalties because respondent used the allegedly defective 

crane. It is asserted that such use violated the mandatory 

standard published at 30 C.F.R. § 55.9-2 which provides: 

Equipment defects affecting safety shall be 

corrected before the equipment is used. 

Respondent denies that a violation occurred. 

The parties offered extensive evidence on the issues. The 

hearing commenced on March 25, 1982, was adjourned, and later 

concluded on December 8, 1982 in Phoenix, Arizona. 

75f> 
The Secretary and the respondent submitted post trial briefs. 

The Union did not file a brief but it concurs in the position 

urged by the Secretary. 

Issues 

The issues are whether respondent violated the mandatory 

standard cited above. The thrust of the case focuses on the 

condition of the crane boom and the auxiliary transmission. 

In the event a violation occurred then a secondary issue is 

presented as to what civil penalty should be assessed. 

Stipulation 

At the commencement of the hearing the parties stipulated as 

follows: respondent is the owner and operator of the Morenci 

mine, mill and tailings dam; respondent is subject to the Act; 

the administrative law judge has jurisdiction of this case; 

authentic copies of the citation were properly served on the 

operator; respondent is a large operator. The Morenci mine 

employs approximately 904 employees on three eight-hour shifts 

seven days per week; in the two year period prior to 1980 the 

mine had 52 assessed violations of which 50 were paid; imposition 

of a penalty will not affect the operator's ability to stay in 

business (Tr. 4-5). 

Summary of the evidence 

MSHA's evidence: On January 8, 1981 Eugene Pesqueira and Ron 

Barre, both MSHA inspectors, conducted a complaint inspection of 

respondent's Link Belt crane No. 2, (hereafter "MC2"). The 

complaint was that the crane had a faulty transmission as well as 

a defective boom (Tr. 11, 12, 40, 41, 45). Upon arriving at the 

worksite the inspector met company officials and miner representatives. They then proceeded to Silver Basin where MC2 was 

located. The crane was not then operating. (Tr. 12, 13, 34). 

The 90 foot boom on MC2, a 45 ton cranel/, consists of four 

different sections. The inspector observed that 13 lattices of 

the boom had been painted with an orange fluorscent paint. 

Laney, the crane operator, said the defective lattices had been 

1/ The 45 ton designation refers to lift capacity. It means the 

crane has a capacity to lift 45 tons if the boom is at its 

minimum length, and it is on level ground with the outriggers set 

(Tr. 15, 107) • 

75'7 
painted at his supervisor's direction (Tr. 13-15). The inspector 

showed Laney six other faulty lattices that hadn't been painted 

(Tr. 14). The lattices were bent, bowed, and improperly welded. 

One was missing (Tr. 14, 19). 

While inspecting the boom the inspectors learned from the 

operator and driver (Laney and Cisneros) that the auxiliary 

transmission had a tendency to slip when in 2nd gear. The crane 

would then become free wheeling. (Tr. 28, 36, 37, 80). The 

hazard is that the crane could roll either direction when picking 

up weight (Tr. 28-29). After viewing the crane the inspector 

told the crane operator to discontinue using it and drive it to 

the shop (Tr. 29, 20). 

There were seven B.O. (bad order> lattices in the top 

section of the crane boom, six in the two center sections, and 

four in one of the center pieces closest to the butt (Tr. 17-26, 

Exhibits Pl-Pl2). One of the lattices had two welds on it. The 

defect of this sleeve was that an odd piece of pipe was serving 

as a lattice (Tr. 21, 22, P8). One lattice was missing (Tr. 23, 

Exhibit PlO). The bowing and denting of the lactices is caused 

by mistreatment. Lattices have a tendency to bow if the crane 

picks up excessive weight (Tr. 26). 

In the inspector's opinion a bad hazard exists if there are 

over two bowed lattices in any section of a boom. A missing, or 

bowed, lattice can weaken a boom and cause it to collapse. A 

boom will collapse at its weakest point (Tr. 26-28). 

In checking on the safety of the crane MSHA contacted Duke 

Brown of Marco Crane and Rigging Company of Tucson, Arizona. 

Brown advised MSHA that the boom is unsafe if there are two or 

more lattices that should be replaced <Tr. SO, 51, 54). In 

addition, according to Brown, reinforcing a lattice by welding 

it with a pipe is not permissible (Tr. 54). 

William D. Laney has operated various cranes since 1961. 

The rated capacities of such cranes have been 25, 35, 45, 82 and 

140 ton vehicles (Tr. 56). Laney operated MC2 and others in 1980 

and 1981. Respondent had obtained MC2 from the Sterns Rogers 

Company (Tr. ·62-64). Laney had received and reviewed a copy of 

the operator's manual for MC2. (Tr. 65, 66). The maximum lifting 

capacity is contained in the manual. Incline, lifting capacity 

and side pull affect the lifting capacity of a crane (Tr. 66-69). 

Damaged lattices reduce the strength in a boom column (Tr. 

69, 70). Damaged lattices could cause the boom to collapse (Tr. 

70). 

758 
Before the MSHA inspection Laney had been instructed by 

Baughman, his supervisor, to lower the boom to a horizontal 

position and paint anything he thought was defective and in need 

of repairs CTr. 65, 71, 72). Laney had previously marked some 

safety defects on his pink card (vehicle inspection report). 

Further, he had expressed some concern over the safety of MC2 to 

his supervisors or at safety meetings CTr. 73-75). He had been· 

told that it was not necessary to repeat his complaints (Tr. 75). 

On the day of the inspection Laney was operating MC2 at the 

tailings dam. He was preparing to lay Driscoll pipe CTr. 75, 76). 

Between December 1980 and the January 8th inspection Laney had 

been primarily involved in the Driscoll pipe project (Tr. 76). 

The day before the inspection they had been working on the decant 

·tank in the same general area (Tr. 77). 

Driscoll pipe is small and fairly heavy. It measures 36 

inches by approximately 31 feet CTr. 76, 77). The total weight 

of the pi~e being lifted can vary because of the residual 

tailings _/ in the pipe C Tr. 77-79) •. 

Laney discussed using the crane with supervisor Baughman. A 

combination of heavy pipes and muddy conditions at the worksite 

caused Laney to think the whole job was unsafe CTr. 87). 

After the lattices had been spray painted and inspected by 

company supervisors Laney re>ceived and posted a notice from the 

company C Exhibit Rl) stating that the capacity of the crane was 

being reduced by one third (Tr. 100, 101). 

On the day of the inspection Laney and Cisneros discussed 

the auxiliary transmission problems with the MSHA inspector. The 

problem would arise when the crane was backing down a steep ramp 

in reverse gear. It would then lunge down the hill as if the 

auxiliary transmission had disengaged CTr. 80, 84). Instead of 

moving at a crawl the crane would suddenly be airborne and free 

wheeling (Tr. 80-83). The auxiliary transmission had jumped 

out of gear the day before the inspection C Tr. 37, 81, 8.2) • The 

ramp at the worksite is 200 to 300 feet long; it is also quite 

steep (Tr. 81, 82). In order to drive the crane it is necessary 

to engage the four speed main transmission as well as the three 

speed auxiliary transmission CTr. 82, 83). Laney believed the 

transmission jumped out of gear when th'e main transmission was in 

reverse (Tr. 83). This sporatic problem existed for a year or 

2/ Tailings: the residual remaining after copper has been 

reclaimed from the basic ore CTr. 77-78). 

759 
two (Tr. 23, 90). If the auxiliary transmission disengages when 

carrying pipe two or three pipe fitters could be "wiped out" (Tr. 

84). The transmission had been repaired and replaced eight to 

nine months before the instant inspection. After the repair the 

problem was intermittent but it got progressively worse (Tr. 90). 

Laney reported this condition and the boom condition on his 

pink card more than once. The company's pink card system had 

been in effect six or seven months before the inspection. An 

equipment operator usually fills out a card each day before 

operating his machine. Occasionally he will fill it out after 

operating it (Tr. 90-93, 95i 96, 227). In any event the equipment operator should fill out one card each day (Tr. 95, 96). 

Exhibit R2, a pink card, was filled out by Laney; Exhibit R3 was 

filled out after Laney talked to the MSHA inspector (Tr. 104, 

222). 

After the MSHA inspection the transmission -was repaired in 

the company shop. After the repairs, in order to secure MSHA's 

clearance, Laney road tested MC2 for ·a distance of about 600 feet. 

It didn't jump out of gear in these tests (Tr. 228-233, Exhibit 

R4). 

Harold Moody, the district service manager for FMC 

Corporation, testified at length concerning the Link Belt crane 

(Tr. 117-173). The FMC operator's manual states that any bent, 

damaged, or missing lattices should be repaired prior to use. 

Such a defective condition causes the column effect of the boom 

to be drastically reduced (Tr. 127). This reduces and can 

destroy the load capacity of the boom (Tr. 127, 136-137). FMC 

furnishes and recommends that an operator use an FMC replacement 

lattice (Tr. 128, 134, Exhibits Pl, Pl4, Pl5, Pl6, Pl7). 

The length of the boom, its radius, and its angle determine 

the boom's maximum capacity under ideal circumstances (Tr. 

130-132). All FMC rated crane capacities are based on ideal 

conditions (Tr. 136-137, 139). The boom angle chart is bolted to 

the main chord of the boom (Tr. 133-134). 

Witness Moody had no opinion whether respondent's crane was 

safe or unsafe; further, he had no opinion whether it could be 

safely operated at a reduced capacity (Tr. 151, 167). 

Four main chords constitute the main section of the 

crane. Diagonal pieces, called lattices, connect the four chords 

together and provide rigidity. The resulting configuration is 

called a "picture frame" (Tr. 124, 168, 170). Chords, basically 

straight, will flex to some extent when the crane lifts a weight 

(Tr. 168). 

760 
The main chords can be checked with a stringline test. Such 

a test would be a means to determine if the chord is within 

acceptable tolerances contained in the factory specifications 

(Tr. 169, 170). 

When a given weight being lifted by a crane is reduced there 

is a likelihood of less deflection in the ~herds (Tr. 156, 157). 

FMC builds a safety .factor into its booms. All of its 

capacity charts are based on an 85 percent tipping capacity of 

the machine (Tr. 171). 

In December 1980 the Steelworkers' Safety and Health representative. Larry R. Parsons, handled a grievance concerning 

one of respondent's cranes. MC2 was not involved, but during the 

grievance hearing respondent's representative James Armstrong 

stated that one damaged strut tremendously reduces the lifting 

capacity of a crane boom (Tr. 179, 183, 184, 191, 193, 194). 

Before respondent had any knowledge that an MSHA inspection 

would occur, various company officials conducted their own inspection of the cranes. Their inspection disclosed some damaged 

lattices on MC2. The company then posted a notice stating that 

the capacity of MC2 would thereafter be reduced by one third CTr. 

195, 196, Exhibit Rl). 

In February, or March, 1980 respondent weighed one section 

of an Ameron 36 inch tailings pipe. The company sent the Union a 

copy of the weight slip. It indicated that the pipe, filled with 

tailings, weighed 45,680 pounds (Tr. 200, 201, Pl8, Pl9). The 

company felt the Ameren pipe load had been within the 17.5 ton 

limit of the crane CTr. 202). 

Amin Alameddin 3/, a registered professional engineer with 

an extensive engineering background, testified at length in the 

case (Tr. 691-818, Exhibit P24). A substantial portion of his 

employment with MSHA deals with the evaluation of safety hazards 

as well as the structural analysis of different types of 

equipment (Tr. 695-697). He has also calculated the structual 

integrity of similar structures (Tr. 781). 

The witness was familiar with the evidence in the case and 

he was knowledgeable concerning the structure of a .tubular boom 

and its design principle (Tr. 700). 

Each member of a boom has a specific function. Chords are 

designed to carry all of the actual bending movement. Lattices 

are designed to take the shear forces (Tr. 705, 706). 

3/ Respondent's objections to Alameddin testifying as a rebuttal 

witness are discussed, infra. 

761 
• .. 

Alameddin hadn't seen nor inspected MC2. But its lattice 

type tubular boom is based on a basic engineering design 

principle (Tr. 709-714, Exhibits Pl4, Pl5). 

When a load is lifted, forces are transferred to various 

members. Each member is designed to carry a certain amount of 

force or stress. The allowable stress must be below or equal to 

the yield point (Tr. 716-719). 

The stress limit of the member of a boom is based on the 

assumption that the member is perfectly straight. If a member, 

designed to carry two axial forces, starts to bow an amount of 

eccentricity is created (Tr. 719, 720, Exhibit P26). A bend or a 

bow is always a deformation that constitutes an irregularity in 

the member itself (Tr. 721, 723). Critical buckling stress is 

that stress where the material will buckle and fail (Tr. 718, 

719). The buckling stress usually .exceeds the allowable stress 

point (Tr. 718, 719). The elasticity limit is when a member, 

having been stressed, will not return to its original limit (Tr. 

725). 

Continual loading 

member. In time, with 

break (Tr. 727, 728). 

of the load (Tr. 728). 

continues the stresses on a deformed 

continual loading, a deformed member will 

This is also true if you reduce the amount 

Maximum crane load ratings are based on the boom angle, boom 

length, radius of the load and the center of rotation to the 

center of the load. Exhibit 14 (page 2) contains different 

tables for the crane's lifting capacities (Tr. 748, 749). The 

lifting capacity i~ limited by the strength of the boom. The 

tipping load is that point at which the crane will tip even if 

the outriggers are set (Tr. 750-751). Rated capacities are based 

on 85 percent of the tipping load (Tr. 750, 751). 

Witness Alameddin testified concerning the Secretary's 

photographs: Exhibit Pl shows a dent and a small bow. This 

member, as a result of continual loading, is between the 

elasticity point and the yield point. Continual stress will 

cause the member to break (Tr. 726). In Exhibit P6 the lattices 

are beyond the elasticity point. All five are bowed to the 

outside. These members were either overloaded or the crane was 

misused <Tr. 728, 729). The situation in Exhibit P6 involves 

additional stresses going into the chord irrespective of whether 

there is any measurable deflection in the chord (Tr. 729-730). 

If a lattice is missing (as in Exhibit PlO) it will take 75 

percent less stress to buckle the load (Tr. 731-733, Exhibit P27). 

Conversely, it will buckle with 25 percent of the allowable 

stress on the original (Tr. 732). A missing lattice causes other 

members to carry the load (Tr. 733). 

762 
Based on the yield point of materials manufacturers of booms 

set outside limits for permissible deflection. The limit is 

usually one inch in 36 inches CTr. 734). · Stresses still go into 

a chord. Even though there is no deflection in the chord in 

excess of 3/16 of an inch a boom could still buckle with continuous lifting and loading (Tr. 734, 735). 

In reply to counsel's hypothetical question witness 

Alameddin stated that it was not safe to operate MC2 at any load 

capacity (Tr. 764-765). The lattices, bowed to the outside 

(Exhibits 6 and 12), show the equipment is unsafe and damaging 

the chord. A person in the field could not visually and with a 

stringline test determine whether it was safe to operate the 

crane at any reduced capacity. A person in the field could not 

measure the additional stress CTr. 735, 737, 753-755, 765, 766). 

In order to measure the stress it is necessary to calculate, look 

at, and compute every single force on each member (Tr. 736). The 

only calculation done by Alameddin related to the missing lattice 

(Tr. 772). 

Magniflux, or a dye penetrant, can be used to inspect a boom. 

Witness Alameddin uses a straight edge rather than a stringline 

to measure deflection. A stringline has problems if you are 

measuring horizontally whereas a straight edge gives a more 

stable line of reference (Tr. 739-741). 

It is an established practice to discontinue using a boom 

and fix any members in the boom that may be damaged. In 

reviewing the literature the witness did not see any authority ~ 

indicating that damaged lattices did not have to be immediately 

fixed before further use of the crane (Tr. 747, 748). 

Witness Tony Cisneros also testified as a rebuttal witness. 

He stated that until his retirement he generally drove MC2, while 

Laney was its operator. Cisneros drove for about three years. 

For two years the auxiliary transmission would jump out of gear 

when it would go down hills in reverse (Tr. 680-683). This was 

reported to the company on every pink card (Tr. 685, 688). The 

company supervisors said they would fix the transmission CTr. 

687). 

Respondent's evidence . 

Jackie Cooper, the general foreman of respondent's 

mechanical department, supervises the department which includes 

MC2. As a result of an unrelated discipline of an employee and a 

later grievance involving the No. 6 crane Cooper ordered all 

booms lowered. He further directed the operators to mark all 

damage with orange paint. These orders were issued on December 

10, 1980. (Tr. 237-243, 283, 284). 

On December 26 Cooper asked Don Lunt, Can experienced boiler 

shop foreman), and Emmet Baughman to accompany him on a visual 

76J 
inspection of the cranes CTr. 243-244, 247). These individuals 

considered and discussed a one third reduction for MC2. Laney 

and Cooper's supervisor, Bill Horner, concurred in the proposal. 

The reduction was explained to the crews and a notice CRl), 

posted in the crane cab, explained the reduction CTr. 249, 256, 

Exhibit Rl). 

Respondent's foremen are expected to know the basic weights 

being lifted. After the one third reduction, assignments for MC2 

were within its capacity CTr. 255). 

After the MSHA inspection, the local FMC representative sent 

its employee Palmer to the mine. After a visual inspection 

Palmer stated the company was operating the crane within a safe 

range. Cooper was confident in this view CTr. 250, 264, 265, 

276, 277). A boom has never failed at this worksite due to the 

malfunction of a lattice CTr. 279, 280). The company had never 

received a complaint that MC2 was unable to safely lift pipe (Tr. 

280). 

In the course of its operations respondent maintains a daily 

schedule control form CR5). Among other data th"e form identifies 

the crew and the work order C Tr. 259 ,. 29 5, 298, 299, Exhibit RS) • 

The control schedule sheet is the only one identifying the work 

project for the motor cranes CTr. 298). This form is filled out 

in pencil when Cooper reviews it with his foreman before the 

start of a shift (Tr. 292, 293). The exhibit shows Laney was 

working on motor crane No. 3 on January 7, 1981 CTr. 263). 

All pink cards (vehicle safety inspection form) are turned 

into Cooper's office, although he doesn't receive a card each day 

for each crane CTr. 326-328). Cooper produced at the hearing all 

of the pink slips for MC2 subsequent to October, 1980 (Tr. 

328-330). Laney, who is responsible as the crane operator, 

signed 28 of the 30 pink slips (Tr. 331, 332). 

The pink cards reflect the following: one slip, dated 

December 15, 1980 and signed by Laney, refers to the lattice on 

boom (Tr. 349). On December 19, bad lattice is noted on the boom 

(Tr. 350). On December 22 Laney reported the boom lattice was 

bent. On December 29 and January 8, 1981 the lattice was marked 

B.O. (bad order). It was also noted on the cards under dates of 

December 28, 1980, December 29, 1980 and January 8, 1981, that 

the auxiliary transmission was jumping out of low range (Tr. 

349-350). The report dated December 28, 1980 was Laney's first 

written report indicating the transmission was defective (Tr~ 

245-266). On the following day Cooper became aware of the 

notation indicating there was a transmission problem. Bradford, 

at Cooper's direction, checked the problem and presented Cooper 
with a repair order (Exhibit R6). Work orders go through 

planning, .to scheduling, and then to the garage for the actual 

repairs (Tr. 266-269, 352). Before the repairs were undertaken 

the MSHA inspection intervened. The crane was not out of service 

until the MSHA withdrawal order CTr. 271, 275, 341, 342). 

Chappell, the repair shop general foreman, advised Cooper 

that they could find nothing wrong with the transmission. The 

repair order indicates the gear boxes were checked and found to 

be "okey." The shift control linkage was also "okey." The 

garage completed its repairs in four hours. The only repair 

noted on the form was an increase in the poppet ball spring 

tension. There were no other repairs to the transmission from 

January 12, 1981 to the time of the hearing (Tr. 271, 347, 348, 

Exhibit R6). 

After the work by the repair shop Cooper ordered road tests. 

In a road test on January 13, 1981 Tipton and DeLeon could not 

get MC2 to jump out of gear. The following day Laney and 

Cisneros had the same result CTr. 344, Exhibits R4, R7). 

William Horner, assistant mechanical superintendent and 

Cooper's supervisor, was familiar with the R.O. Saeny grievance 

of December 1980 involving a crane, not MC2 (Tr. 396-398). The 

grievance involved the failure of an employee to report damage to 

company equipment. The Steelworkers filed the grievance. As a 

result of the hearing on the grievance, in mid December, Cooper 

directed that all crane booms should be thoroughly inspected by 

their respective operators. The operators were to report any 

damage or improper conditions in the booms. Laney, as the 

operator, spray painted MC2. CTr. 400, 401). 

Approximately on January 4, 1981, before the MSHA 

inspection, the company asked Marco Equipment to estimate the 

repair costs and to proceed with the boom repairs (Tr. 403). In 

the interim Cooper, under Horner's supervision and involvement, ordered a one third reduction in all modes of operating 

MC2. (Tr. 403, 409). Laney completely agreed. One factor 

leading to the one third reduction evolved when Laney lifted, 

without incident, a 26 ton crusher main frame. On that lift the 

crane boom was extended at 80 feet (Tr. 406). The company's 

notice of the one third reduction was posted in the crane. From 

the time of the reduction until the MSHA inspection, the crane 

was operated at the reduced capacity. 

The Marco Company had been scheduled to inspect the boom on 

MC2 on January 13, 1981. But due to the MSHA inspection of 

January 8, 1981, the Marco representative accelerated his inspection (Tr. 410-412). 

Buck Palmer, Marco's field representative, arrived on 

765 
January 9. Repairs to the boom were made by Marco in accordance 

with Horne.r's instructions CTr. 413). After abatement of the 

citation MC2 was returned to service CTr. 416). 

Witness Horner was familiar with the vehicle safety 

inspection reports Cpink slips) on MC2. The claimed defects did 

not appear until after the operators painted the booms. (Tr. 406, 

408). In December 1980 some pink slips mentioned the transmission. The transmission report lead to a subsequent work order 

to repair it. From the time of the initial pink slip report on 

the transmission the crane was working on level ground in the 

Silver Basin tailings dam project CTr. 41, 419). The handwritten 

complaint on Exhibit P20 4/ stated that the auxiliary transmission was jumping out of low gear CTr. 420). 

The repair shop found nothing mechanically wrong with the 

transmission. A routine road test, which consisted of driving 

the crane up a long steep grade, failed to reveal a problem with 

either transmission <Tr. 420, 421, 425). The road test sought to 

simulate the conditions under which the problem had been reported 

CTr. 425, 426). 

Horner, a former mine master mechanic, is familiar with 

transmissions. He indicated that the poppet ball spring on the 

transmission was repaired. But that spring does not keep the 

transmission in gear. Further, it had no adverse effect on the 

operation of the transmission (Tr. 420, 429, 430). Nothing in 

the transmission was found to be in need of repair and the crane 

was returned to service (Tr. 431). A transmission will jump out 

of gear if it is not fully and properly engaged by the operator 

(Tr. 431). 

The hearing on the R.O. Saeny grievance focused on the 

failure of the crane operator to report damage to the equipment. 

At the hearing respondent's representative Armstrong stated that 

unreported damage could lead to a serious condition. He did not 

state that any specific number of damaged lattices would render a 

crane unsafe (Tr. 432, 433). 

According to witness Horner the auxiliary transmission of 

MC2 does not have a reverse gear CTr. 820). 

Gordon L. Palmer, a person experienced in booms, testified. 

He operates the boom repair service for the Marco Company CTr. 

525-527, 532). 

4/ Exhibit P20 consists of 29 separate vehicle safety inspection 

forms. They are also referred to as "pink slips." The initial 

form is dated October 25, 1980 and the last form is dated January 

8, 1981. 

766 
On January 9, 1981 Palmer inspected MC2. The inspection 

consisted of a visual walkdown over the entire boom, lacing by 

lacing. Stringline tests failed to establish any vertical or 

horizontal distortion. The chords were true- and there was no 

distortion to the picture frames (Tr. 530-531). 

Palmer, who is not a graduate engineer, relies on visual 

inspection and stringline tests to check the integrity of a boom. 

There are no calculations that can be made to determine whether a 

boom is unsaf~ (Tr. 533, 534). 

Palmer found that several spray painted lacings were outside 

the limits of the manufacturer's recommended tolerances. Most of 

the bowed lattices were located in the tip area which contains 

the greatest concentration of lattices. (Tr. 540-542). The 

damage indicated that the block may have been swinging into the 

lacings (Tr. 541). 

Lattices hold the chords and picture frames together. They 

maintain the integrity and alignment of the boom. The chords, 

acting as a column, carry the load when the boom is in the air. 

The lifting of an object causes a slight bowing or flexing of the 

chords. The chords return to their true position when the object 

being lifted is released (Tr. 543, 544). 

· The chords were not out of alignment. This indicates there 

was nothing outside the realm of specifications pulling against 

the boom or pushing the chords in and out (Tr. 544). The picture 

frames were within the manufacturer's specifications. On January 

9 Palmer did not do a structural load test but the 26 ton lift 

was within the manufacturer's load chart. The crane would have 

passed a load test before the lattices were replaced (Tr. 

544-548). Nothing suggested to Palmer that the crane was unsafe 

(Tr. 548). 

Horner instructed Palmer to bring the condition of the crane 

to one hundred percent of the factory specifications (Tr. 550). 

On January 9 the chords, the picture frames and all sections were 

within factory specifications. Half of the lattices th~t were 

painted should not have been CTr. 546, 550). If the lattices 

were not performing their function distortion would appear in the 

chords (Tr.551). Link Belt cranes have a safety factor of 15 

percent over the rated capacity (Tr. 552). 

Witness Palmer denies ever telling MSHA inspectors that MC2 

was unsafe. Likewise, he denies ever stating that a boom with 

two damaged lattices should go out of service (Tr. 553, 554). 

After the necessary repairs were made by Palmer an independent testing laboratory tested the boom and certified the 
crane back into service (Tr. 549). Certification is a standard 

procedure (Tr. 566). The company, known as Diversified Inspections, a testing laboratory, used a dye penetrant test, a 

magniflex on the lattices, and a 10 percent structural overload 

test (Tr. 566-568). These are accepted tests and more accurate 

than a visual test. Palmer did not do any of the three tests 

performed by Diversified (Tr. 568-570). Nor did Palmer do any 

sort of calculations to determine the stress placed on each boom 

member (Tr. 569-570). 

Palmer found that 17 or 18 lattices were deformed (Tr. 

577-578, 589, 592). Fifteen lattices were probably bowed less 

than an inch. Two or three were in excess of that figure (Tr. 

588). Three of the deformed lattices were in a 36 inch span; 14 

were within a one inch span (Tr. 592). 

The three deformed lattices with a deflection exceeding 

factory specifications were on the left side of a 20 foot section 

in one of the middle sections of the boom. One section had a 

missing lattice near the point section (Tr. 593, 594). 

In determining factory specifications witness Palmer relied 

on the manufacturer's servicegram appearing in Exhibit Pl5 on 

page 6, paragraph c. The servicegram states that lattices or 

diagonals with a uniformed curvature not in excess of the ratio 

of one inch in three feet may be straightened (Tr. 595-596). 

Palmer believes those lattices needing repairs are those kinked 

beyond their integrity (Tr. 600). A lattice bowed beyond the 

manufacturer's specifications will affect the integrity of the 

boom (Tr. 604). However, if a lattice is bowed less than one 

inch the integrity of the boom is not affected (Tr. 606). 

Palmer's opinion, supported by his three years of design engineering, is based on his 25 years of experience. He does not 

rely on any literature nor the procedures of any manufacturer 

(Tr. 608, 609). 

Discussion 

Certainly the evidence here does not want for credibility 

issues. 

In this case the gravamen of a violation of § 55.9-2 focuses 

on whether there is an equipment defect and whether that defect 

affected the safety of the equipment. 

At the outset I find there was an equipment defect in the 

crane boom. The uncontroverted evidence establishes that the 

crane boom had one missing lattice and an additional 17 or 18 

lattices were deformed in varying degrees. Having found that 

there was an equipment defect we will now consider the pivitol 

question of whether the defects affected the safety of the crane. 

On the issues concerning the boom I credit MSHA's evidence. 

The credibility issues of whether the boom defect affected its 

768 

\ 
safety principally clash in the testimony of MSHA's witness 

Alameddin and respondent's witness Palmer. I credit Alameddin's 

opinion, iri part due to his substantial educational background 

(Tr. 692, 693, Curriculum Vitae in P24), and his experience (Tr. 

695-697). He was familiar with the structure here, namely, a 

tubular boom and its design principle (Tr. 700). Witness 

Alameddin, as noted in the summary of the evidence, had reviewed 

the testimony in the case and he reached certain unequivocal 

opinions to the effect that it was unsafe to use MC2 with any 

weight attached to the boom (Tr. 453-455, 764-765). It was 

further unsafe to operate at any reduced lifting capacity such as 

the reduced one third capacity set by respondent (Tr. 765). 

Witness Alameddin also pointed out the inherent difficulties 

with Palmer's stringline test method (Tr. 739-741). Alameddin 

further reviewed the literature in the field and he found no 

literature indicating that damaged lattices did not have to be 

fixed before further use of the crane (Tr. 747). 

On the other hand, I am not persuaded by respondent's 

contrary evidence. It's principal witness, Palmer, has 

considerable field experience. But he basically relies on visual 

inspection and a stringline test. Palmer, as a certified welder, 

would no doubt be adept at repairing the boom. But as a high 

school graduate and lacking a degree in engineering he simply 

lacks the necessary expertise in this case (Tr. 539, 563). In 

addition, I believe that the boom on the 45 ton crane would be 

unsafe even under the conditions found by Palmer. 

Respondent's evidence: Witness Palmer found 17 deformed 

lattices and a missing lattice (Tr. 577-578). The service 

manuals received in evidence show the complexity of the HC-108B 

carrier mounted crane. The service manual states in part in 

Exhibit P-15, page 1 (3rd page in exhibit) as follows: 

Cc) It is very important to maintain the supporting 

lattice work on a tower, boom or jib section in good 

condition. Damaged lattice allow deflection of the 

main chord tubes under load so that they are no longer 

in line; this destroys the true column effect of the 

boom. The result is reduced boom strength and capacity. 

Further, the FMC service manual states, in part, in Exhibit 

Pl6, on page 2 of 6 as follows: 

Lattice, Diagonals, and Picture Frame Repair 

Lattice, picture frame angles, and diagonals must be 

kep~ in good condition to hold th~ chords in proper 

alignment. Bent lattice cause deflection of the main 

chord angles so they are no longer "in line", thus 

reducing and partially destroying the load capacity of 

the boom. · 

768 
A good percentage of damaged lattice can be 

straightened by conventional methods. If the damage to 

the lattice is beyond rep~ir by straightening, such as 

a severe twist or kink, it must be replaced. 

Further, the photographs (Exhibit Pl-Pl2) support Alameddin's 

testimony. 

In sum, I am persuaded by the Secretary's evidence and not 

persuaded by respondent's contrary evidence. 

Respondent, in its brief (pages 13, 14) initially urges that 

the historical facts support its case. These facts are that the 

crane proved itself in normal usage by lifting a crusher main 

frame. Further, crane operator Laney could muster no evidence 

indicating that the boom had a defect. 

In my view the lifting of the crusher mainframe was accomplished, fortunately, without any adverse effect. In its 

defective condition, the boom could have collapsed when it lifted 

the 26 ton weight. I agree that Laney failed to. establish 

(before he painted the boom) that there were any defects that 

affected its safety. However, I would not anticipate that a. 

crane operator would have the expertise to know whether or not 

the boom was defective. 

Respondent in its post trial brief, (page 12 et seq.) 

further states that 14 or 15 of the 19 lattices may have had a 

"ding" or slight "bend" but it is the condition of the boom and 

all 154 lattices as a whole t.hat controls. Respondent argues 

that since the chords, and picture frames in combination with the 

lattices were within factory tolerances then there was no defect 

"affecting safety" and hence no violation. 

I disagree. Witness Alameddin's testimony addresses these 

issues: each member has specific work to do, (Tr. 705), to carry 

its share (Tr. 716); each member is designed to carry axial 

forces (Tr. 706); if a member starts bowing an amount of eccentricity is created (Tr. 720, Exhibit P26); a bend or a bow is 

always a deformation that is an irregularity in the bow itself 

(Tr. 721-723); elasticity limit is where a member will not go 

back to its original shape (Tr. 725); the dent and bow in Pl, P2, 

P6, Pl2 will eventually break from continual stressing (Tr. 726); 

a break will occur when you have continued loading on a deformed 

member (Tr. 727-728), also this is true even though you reduce 

the amount of the load (Tr. 728); in P6 there are additional 

stresses going into the chord regardless of any measurable 

deflection CTr. 729-730, 734); even though there is no deflection 

in the chord in excess of 3/16 of an inch the boom could still 

buckle with continuous lifting and loading (Tr. 735); in P6 and 

Pl2 five lattices were all bowed to the outside, this was unsafe 

and damaging the chord though it is difficult to measure (Tr. 

735); the zone on P26 (illustrative drawing) between elasticity 

point and yield point will change because more. lifting will 

increase the stress, and ultimately the member will break (Tr. 

736); the missing lattice (PlO) increases the length of the free 
span; calculating this as 2L (L/R is slenderness ratio) it takes 

75 per less stress to buckle the load (Tr. 731-733). 

Respondent further attacks Alameddin's testimony for various 

reasons. These follow: 

Alameddin had not inspected the crane and he lacked 

firsthand knowledge of it. I agree. But an expert witness is 

not required to have first hand knowledge. Nanda v. Ford Motor 

Company, 509 F. 2d 213, 221 (7th Circuit). In fact, hypothetical 

questions as were used in this case, are no longer necessary. 

Rule 702, Federal Rules of Evidence. In any event it is clear 

that Alameddin reviewed all of the data including photographs and 

the prior testimony in the case. This is sufficient for him to 

form an intelligent opinion. 

Respondent asserts Alameddin's calculations did not address 

the boom as a whole but that he based his opinion on a hypothetical analysis as to the location of a single lattice but he 

didn't know where the lattice was located. 

I agree that Alameddin performed· a minimal amount 

of mathematical calculations. However, at issue is his ultimate 

opinion and its factual basis. That opinion is reflected in this 

decision. The verbatim testimony appears in the transcript at 

pages 735, 753-755, 759, 764-765. 

Respondent objects to Alameddin giving sweeping conclusions 

about the crane as a whole when he could not address the lifting 

capacity of the crane. 

In my view that the lifting capacity of the crane and 

whether the crane is unsafe due to its defects are totally 

different. In order to render an opinion on the lifting capacity 

of the crane the witness stated he would want to inspect the 

crane, measure everything on it, check for extra stresses such as 

from a bowed member (as in exhibit PG, if all members bowed there 

is strain on the chord). Also, he would want to know the tensil 

strength, yield point, configuration and angle of the boom, width 

of lattice metal, angle of the taper of the boom; further, he 

would want to know about the gantry and about the cable. 

Further, witness Alameddin disavowed any attempt to render an 

opinion on the lifting capacity of the crane (Tr. 795). In 

short, he was not testifying to the precise load the crane would 

carry before it buckled (Tr. 803). Further, he had analyzed 

other structures based on the same· design principle and he did 

not need to know the weight of a load to give an intelligent 

answer concerning whether the crane was safe to operate (Tr. 

807). 

771 
But the witness explains that he did not need all of the 

precise information, blueprints, etc. to render an opinion as to 

whether a crane is safe to operate. {Tr. 800). The additional 

detail is only necessary for a full structural analysis. Here, 

there were too many deflections. This rendered the crane unsafe 

for use {Tr. 800, 801). 

Respondent declares that in previous cases opinions rendered 

by Alameddin had only followed after he had made a personal 

inspection. I concur the evidence confirms respondent's 

statement. However, this argument addresses the weight to be 

given Alameddin's testimony. As,previously noted, I find his 

testimony credible. 

Respondent objects to Alameddin testifying that the lattices 

had an effect on the chords and that it was so small that Palmer 

would have found it "very difficult to measure." He claimed, 

however, he could see it from the photographs. At the same time 

respondent argues no basis in fact upon which to conclude that 

the chords were other than straight. 

This foregoing argument confuses· different aspects of the 

testimony. Not only Witness Alameddin but the judge can clearly 

see the bowed and kinked lattices. See Exhibits Pl, P2, P3, P6, 

P7, PB, PlO, Pll. The point is, given the circumstances here, 

there apparently was not any deflection in the chord. But not 

withstanding that fact the boom, in Alameddin's opinion, could 

still buckle {Tr. 734). I find that opinion to be credible. 

Respondent states that Alameddin never designed a boom and 

never worked on booms. True, the witness has not designed a boom. 

But he had done a number of evaluations on structural analysis 

for different components and different structures including head 

frames, drum construction, drum design, dragline boom collapse, 

stability problems, evaluation of a storage bin design, et 

cetera {Tr. 696). Also, in accordance with his training as an 

engineer, he was familiar with the structure of a tubular boom 

and with its engineering design {Tr. 700). Alameddin's testimony 

on the whole demonstrates his knowledge of the field. 

Respondent, in its brief, recasts its objection to 

Alameddin's lack of first hand knowledge of MC2. But I find that 

he demonstrated a thorough knowledge of the facts of the case. 

He had been present at the December 1982 hearing and had reviewed 

the transcripts of March 1982 hearing {Tr. 700). 

In sum, I find that Alameddin had an extensive factual 

foundation to render his opinion. 

Respondent claims that the legal test of whether the 

condition of the boom affected its safety is geared to the 

772 
judgment of the people whose experience in the industry put them 

in the best position to evaluate the situation (Brief, page 26). 

Therefore, ·respondent's evidence should prevail. In support of 

its position respondent cites the Commission decision of Alabama 

By Products Corporation, 4 FMSHRC 2128 (1982). The cited case 

involves, by analogy, a regulation similar to § 55.9-2. 

Respondent misconstrues the Commission decision. In 

Alabama By-Products the operator was arguing that a similar 

regulation, (30 C.F.R. 75.1725(a)), was unconstitutionally vague 

on its face. In disposing of this argument the Commission ruled 

that "the alleged violative condition is appropriately measured 

against the standard of whether a reasonably prudent person 

familiar with factual circumstances surrounding the allegedly 

hazardous condition including any facts peculiar to the mining 

industry, would recognize a hazard warranting corrective action 

within the purview of the applicable.regulation" Alabama By 

Products at 2129. Respondent's evidence is not entitled to any 

type of preferential consideration over the Secretary's evidence. 

It is the complete record that is to be evaluated. On that basis 

I conclude that a violation occurred. 

Further, various portions of respondent's evidence are at 

times contradictory. Respondent claims that since there was 

nothing unsafe about the crane at full capacity, and it 

necessarily followed there was nothing unsafe at two-thirds 

capacity (Brief, page 27). Respondent's position is contradicted 

by the fact that it voluntarily reduced the crane's capacity 

before the MSHA inspection. 

Respondent's contentions that the crane was safe at full 

capacity and necessarily at two-thirds capacity are rejected. 

The citation should be affirmed. 

Auxiliary Transmission 

The evidence on this issue is contained in the summary of 

the evidence. To briefly encapsulate it: 

When in low gear the auxiliary transmission on MC2 would 

periodically jump out of gear. The operator and driver 

complained to the MSHA inspectors in January 1981 and also 

advised the company by noting the defect on the vehicle safety 

inspection forms (pink slips). This hazardous condition existed 

for a year or two. 

Respondent's pink forms show Laney's first report was dated 

December 28, 1980. This was after the booms had been painted. 

The company began transmission repairs. The repair shop 

found no transmission defect and two road tests failed to 

reproduce the complained of condition. The vehicle was returned 

to service and no repairs were thereafter made to the 

transmission. 

773 
Discussion 

It is my view that if the auxiliary transmission unintentionally slipped out of gear while the crane was being 

operated there would be a violation of the regulation. But on 

the issues cocerning the auxiliary transmission I credit 

respondent's evidence. I reach this conclusion based on several 

factors: Laney and Cisneros both indicated the transmission 

problem had existed for sometime, certainly as long as a year. 

Also I agree that such a condition, if it existed, would be 

exceedingly hazardous to the crane operator, the crane driver and 

persons in the immediate vicinity. Such an unsafe condition 

would be one that would be quickly reported. Laney was never 

hesistant about reporting defective conditions on MC2. But the 

vehicle report forms do not contain a reference to the auxiliary 

transmission until December 28, 1980 when the following notation 

appears: "Aux. transmission jumping out of low range" Also 

appearing on the form is the notation of "W.O.CG." (Exhibit 

P20 ~/, 12/28/1980). . 

If a transmission defect existed, one would think it would 

appear on the report forms before December 28, 1980. 

I am further persuaded by witness Horner's testimony. As a 

former qualified master mechanic he was familiar with transmissions. The repairs in the shop (increasing tension on the 

poppet ball) did not affect the transmission. In addition, no 

defect was found in the transmission. 

5/ At this point an explanation of Exhibit P20 is in order: The 

exhibit is designated by a single number and it consists of 29 

separate report forms each bearing different dates. Each form 

contains a line for the operator to sign and a place to enter the 

date and type of equipment involved. The format also lists 13 

specific items to be checked under the "OK" or the "B.O." column. 

The exhibit received in evidence, contains reports for MC2 

beginning October 11, 1980. In 1980 are October 11, 22, 23, 24, 

25, 26, 27, 28, 29, 30. November 11, 14, 17, 18, 25, 30. 

December 1, 15, 16, 19, 22, 26, 27, 28, 29, 20, 31. Exhibits 20 

also contains vehicle inspection reports for January 2 and 8, 

1981. Exhibits R2 and R3 are two vehicle inspection forms 

submitted on the day of the inspection. Only one appears in 

Exhibit P20. Exhibit P20 is a record kept in the ordinary course 

of business. I further find it to be authentic and credible. 

774 
The Secretary's post trial brief (page 2) urges that a 

transmissi6n slipping out gear is a defect within the meaning of 

Section 57.9-2. In support of his position he cites the writer's 

decision in Allied Chemical Corporation, 4 FMSHRC 503 (1982). 

The cited case, pending on review, is not as broad as the 

Secretary claims. The view I expressed is necessarily limited by 

the facts •. In Allied Chemical a violation was found to to exist 

because large soft steel bolts in two different chocks were 

missing. Obviously, the manufacturer included steel bolts for a 

purpose. Hence, the statement appears in the decision that 

Allied violated the standard because the steel bolts were 

missing. 

In this case the evidence fails to show there were missing, 

worn, or damaged transmission parts. I am further persuaded by 

respondent's contrary evidence. In short, I do find that there 

was a defect. Accordingly, that portion of the citation relating 

to the auxiliary transmission should be vacated. 

Issues raised in the Hearing 

Respondent renewed its objections to the presentation of 

witness Alameddin as a rebuttal witness (Brief, page 22). It is 

asserted that Alameddin should properly have been presented in 

the Secretary's case in brief. Since he was not so presented the 

non-rebuttal testimony should be excluded (Tr. 701). 

The judge ruled that the complete testimony of witness 

Alameddin was generally admissible (Tr. 701-704). Further, the 

judge indicated he would grant respondent an opportunity to meet 

any issues raised in the rebuttal (Tr. 703, 704). No request was 

made. 

The Administrative Procedure Act CA.P.A.), 5 u.s.c. § 551 et 

seg. adopted by Commission Rule 1, 29 C.F.R. § 2700.1, sets forth 

the procedural rights of the parties under the Mine Safety Act. 

The A.P.A. provides, in part, at 5 u.s.c. 556 as follows: "A 

party is entitled to present his case or defense by oral or 

documentary evidence, to submit rebuttal evidence, and to conduct 

such cross examin·ation as may be required for a full and true 

disclosure of the facts." Hearings before administrative 

agencies do not require strictness in the observation of the 

rules of evidence if fundamental fairness is observed. Rosedale 

Coal Co., v. Director of U.S. Bureau of Mines, 247 F. 2d 299 

CC.A. 4, 1957). In the instant case respondent had the opportunity to present evidence to meet all issues raised by 

Alameddin's testimony. Respondent's objections are again overruled. 

At the hearing the judge received, subject to respondent's 

objections, the ~estimony of witness Alameddin as to findings 

developed from literature in the field pertaining to damaged 

crane booms (Tr. 742-748). 

775 
Under.Rule 703 of the Federal Rules of Evidence the 

pertinent inquiry is whether the facts are of a type reasonably 

relied on by experts in the particular field. Since the answer 

is affirmative the evidence was properly received and 

respondent's objections are overruled Bauman v. Centex Corp., 611 

F. 2d 1115, 1120 (5th Circuit>. 

Respondent's post trial brief renews its objection made at 

the trial that the testimony of witness Moody should be excluded. 

The basis of the objection was that the Secretary failed to 

disclose Moody as a witness in the case (Tr. 113-117). 

There may well have been discovery sought in other cases 

about the same time involving the parties (CENT 80-349-M and WEST 

81-296-M). But the judge permitted Moody to testify because 

there had been "No discovery sought or ordered by the Commission 

in this case" (Tr. 114). While there was a combined notice of 

hearing there was no order consolidating the cases. I adhere to 

my original ruling and permit the testimony of witness Moody. 

At the trial the judge refused certain of the Secretary's 

exhibits (Refused Exhibits P29, P30, P31). The ruling involved 

the scope of Rule 803.18, Federal Rules of Evidence. (Tr. 

815-818). Since the Secretary did not renew his objection in his 

post trial brief it is not unnecessary to review the ruling in 

this decision. 

Civil Penalty 

The six criteria for assessing a penalty are set forth in 30 

u.s.c. § 820(i). The parties stipulated that the operator had 52 

assessed violations in the two year period prior to 1980. A 

penalty would be appropriate and would not affect the operator's 

ability to continue in business. I consider the operator was 

negligent because it knew there was a boom problem about December 

10 when the boom was lowered and the fluorescent paint was 

applied. But no remedial action was taken for the boom repair 

until the MSHA inspection on January 8, 1981. The gravity is 

severe since a boom collapse would be an extreme hazard to 

employees operating the equipment and others in the vicinity. 

Respondent demonstrated extreme good faith in the situation. 

On balance I deem that a civil penalty of $1,000 is 

appropriate. 

Briefs 

The Solicitor and respondent's counsel have filed detailed 

briefs which have been most helpful in analyzing the record and 

defining the issues in the case. I have reviewed and considered 

these excellent briefs. However, to the extent they are 

inconsistent with this decision, they are rejected. 

776 
Conclusions of Law 

Consistent with the facts found true in the narrative 

portions of this decision, the following conclusions of law are 

made: 

1. The Commission has jurisdiction to hear and determine 

the issues raised in this case. 

2. Respondent violated the safety standard published at 30 

C.F.R. § 55.9-2 as it relates to the crane boom as alleged in 

Citation 379902. That portion of the citation should be affirmed 

and a civil penalty of $1,000 should be assessed. 

3. Respondent did not violate the safety standard published 

at 30 C.F.R. § 55.9-2 as it relates to the auxiliary transmission 

as alleged in Citation 379902. That portion of the citation 

should be vacated and all penalties proposed therefor should be 

vacated. 

Accordingly, I enter the following: 

ORDER 

1. Citation 379902 as it relates to the crane boom is 

affirmed. A penalty of $1,000 is assessed. 

2. Citation 379902 as it relates to the auxiliary 

transmission is vacated. All penalties therefor are vacated. 

Distribution: 

Linda Bytof, Esq., and Marshall P. Salzman, Esq. con the Brief) 

Office of the Solicitor, U.S. Department of Labor 

11071 Federal Building, Box 36017, 450 Golden Gate Avenue 

San Francisco, California 94102 (Certified Mail) 

James Speer, Esq., and Stephen Pogson, Esq. 

Evans, Kitchel & Jencks, 363 N. 1st Avenue 

Phoenix, Arizona 85003 (Certified Mail) 

Angel Rodriguez, President, Morenci Miners Union 

Local 616 United Steelworkers 

Clifton, Arizona 85533 (Certified Mail) 

/blc 

771 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 28, 1984 

DAVID ~. WILLIAMS, 

Complainant 

v. 

SOUTHERN UTAH FUEL COMPANY, 

Respondent 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEST 83-122-D 

MSHA Case No. DENV CD 

83-15 

ORDER OF DISMISSAL 

Before: Judge Merlin 

On September 27, 1983, Complainant filed with this Commission a complaint of discrimination under section 105(c) 

of the Federal Mine Safety and Health Act of 1977. An order 

was issued on November 22, 1983, to Complainant so that he 

might show cause why his complaint should not be dismissed 

for failure to provide certain information. This order was 

returned to the Commission as "unclaimed" on December 19, 

1983. 

On January 5, 1984, my law clerk attempted to telephone 

Complainant in this regard but found the phone was disconnected. A second order to show cause was issued on January 

6, 1984. This order was returned to the Commission on 

January 13, 1984, marked "moved, left no addr~ss." 

It must be assumed that Complainant has abandoned 

intent to pursue this discrimination claim. The period 

allowed for response has expired and no reply has been 

received from Complainant nor has he been able to be reached. 

Accordingly, the case is DISMISSED. 

c._....,,_: =----T~\---~ Paul Merlin 

Chief Administrative Law Judge 

778 
Distributi.on: 

Mr. David L. Williams, 169 East Orchard Street, #26, Odessa, 

MO 64076 (Certified and Regular Mail) 

Southern Utah Fuel Company, P.O. Box P, Salina, UT 84654 

(Certified Mail) 

/nw 

77ft 
FEDERAL MINE SAFETY AND HEAL TH REVIEW C()MMISSION 

RALPH W. FITZWATER, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 29 1984 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. YORK 83-3-D 

METTIKI COAL CORPORATION, 

Respondent 

MSHA Case No. MORG CD 83-11 

DECISION 

Before: Judge Kennedy 

This matter is before me on the parties' stipulation for 

settlement and motion to withdraw the captioned discrimination 

complaint. A review of the stipulation shows it is in accord 

with the purposes and policy of the Act and agreeable to the 

Complainant. 

Accordingly, it is ORDERED that the settlement be, and 

hereby is, APPROVED and made a part of the record of this 

proceeding. It is FURTHER ORDERE that the operator forthwith 

pay the sum of $22,000 to Ralph itzwater and that subject 

to payment the captioned matter ISMISSED. 

Distribution: 

Joseph B. Kennedy 

Administrative Law Judge 

Gorman E. Getty III, Esq., Attorney for Complainant, Carscaden, 

Gilchrist & Getty, 110 Washington Street, Cumberland, MD 21502 

(Certified Mail) 

Timothy M. Biddle, Esq., and Thomas c. Means, Esq., Attorneys 

for Mettiki Coal Corporation, Crowell & Moring, 1100 Connecticut 

Avenue, N.W., Washington, DC 20036 (Certified Mail) 

/fb 

'786 
FEDERAL MINE SAFEn AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

PONTIKI COAL CORPORATION, 

Contestant-Respondent 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent-Petitioner 

Before: Judge Kennedy 

MAR 30 1984 

CONTEST OF CITATION 

AND COMPANION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 83-181-R 

Citation No. 2052746: 3/1/83 

Docket No. KENT 83-262 

A.C. No. 15-09571-03527 

CONTEST OF ORDERS 

AND COMPANION 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 83-182-R 

Order No. 2052747: 3/1/83 

Docket No. KENT 83-183-R 

Order No. 2052748: 3/1/83 

: Docket No. KENT 83-184-R 

Order No. 2052750: 3/1/83 

: 

Docket No. KENT 83-256 

A.C. No. 15-09571-03526 

No. 2 Mine 

DECISION· 

For twenty-four (24) production shifts worked during the 

period February 3 through February 28, 1983, the operator, 

Pontiki Coal Corporation, failed to make or record preshift 

781 
and onshift examinations of its main belt entries in flagrant 

violation of section 303(d) (1), 30 C.F.R. ~ 75.303 of the Mine 

Safety Law. 1/ On February 28, 1983, five MSHA inspectors 

were sent to-inspect the mine for the existence of imminent 

dangers and other violations of the law. They noted the 

failure to report the results of preshift and onshift examinations on the beltlines. This should have alerted them to 

conduct a physical examination of these areas. Instead, they 

inspected only the area from the bottom of the slope entry to 

the main beltline outby for 100 feet and then proceeded to the 

track entry where they rode a personnel carrier to the end of 

the beltline and then inspected another 300 to 500 feet of the 

area inby the beltline. 

As a result of this dereliction, the inspectors failed to 

observe or cite the operator for what they later described as 

an "enormous" accumulation of float coal dust, much of it in 

suspension, amidst a chaotic scene of worn, stuck and damaged 

rollers, worn and broken suspension brackets and bottom belts 

lying on the floor in excessive accumulations of loose coal 

and coal dust. These conditions, which existed for some 

4,800 feet of the main beltline presented a condition of imminent danger of a disasterous fire or explosion in a mine 

described by the operator's counsel as "one of the gassiest in 

Eastern Kentucky." 

1/ On March 9, 1984, the United States Court of Appeals for 

the District of Columbia Circuit reversed the Commission's 

decision of July 15, 1983, upholding a clearly erroneous decision by Judge Laurenson that issued July 1, 1981. Jones & 

Laughlin Steel Corporation, 3 FMSHRC 1721 (ALJ, 1981), affirmed, 

5 FMSHRCql209 (Comm 1 n, 1983); (Commissioner Lawson dissenting), 

reversed at instance of United Mine Workers of America on 

March 9, 1984, F.2d (D.C. Cir). The action by the 

court of appeals, dispelled~ cloud of confusion cast over 

the enforcement of 75.303 by the ALJ's obviously inept understanding of the plain language of the standard. In finding "no 

basis for the Commission's senselessly narrow construction of 

the" standard, the court held that the statute and its congruent 

regulation require both preshift and onshift examinations of 

belt entries. The court was especially concerned over the 

hazards of fire and explosion to which miners are exposed when 

operators fail to make preshift and onshift examinations of belt 

entries "for several days." 

782 
The record strongly suggests that the reason the inspectors 

were "persuaded" to tour around the.main beltline and ignore· 

the "message" of the omitted preshift and onshift reports was 

to permit the operator to run coal for one more shift and 

management to "voluntarily" idle the mine and begin cleanup 

operations. Indeed, the record shows that in return for the 

"advance notice" of the "spot" inspection that did not begin in 

earnest until March 1, 1983, the operator idled its production 

at 3:30 p.m., on Monday, February 28 and began cleanup. The 

record also shows that in return for the operator's "cooperation" 

the inspectors expected to issue only 104(a) citations but were 

so appalled by the conditions actually encountered they felt 

compelled to issue unwarrantable failure citations and closure 

orders. 2/ 

It is undisputed that the conditions found.significantly 

and substantially contributed to the hazard of a mine fire or 

explosion that could have killed all 21 miners and the five 

inspectors in the mine on February 28 when the beltline was 

energized. Nevertheless, the operator's vice president for 

operations, Dennis Jackson, felt he had been double crossed or 

"doubled barrelled" as he put it. For this reason, he abruptly 

terminated the closeout conference and thereafter filed his 

notice of contest of the citation, orders, and proposed 

penalties. 3/ 

2/ Because of the stigma that attaches to the unwarrantable 

failure citation, management begged the inspectors to issue 

107(a) inuninent danger closure orders. In the response, the 

lead inspector said "I explained that the conditions I found 

were unwarrantable and significant and substantial, but did not 

constitute an inuninent danger because there is no inunediate 

source of ignition for the float dust. They offered to start 

the belt to create an inuninent danger to keep off the unwarrantable failure sequence. Mr. Adams stated 'We'll start the belts 

if that's what it takes to get a 107(a) imminent danger order 

issued.' I replied that the belts were already under closure 

orders" and therefore could not be started until the conditions 

were abated. It seems clear that by this time the MSHA inspectors were no longer willing to turn a blind eye to the conditions 

encountered. Apparently, there are limits beyond which inspectors 

will not go to honor the administration's pledge of "cooperative 

enforcement." 

3/ The record of the closeout conference of March 1, 1983 states: - "During this closeout conference, Dennis Jackson, stated that 

he felt we were being unfair to the company and that he felt we 

had 'doubled barrelled' them in reference to the citations on 

records of belt examinations and citations and orders written on 

the conditions found in the belt line. Dennis left the conference 

abruptly and we felt it was best to leave at this time." 

783 
Counsel for the operator readily admitted the conditions 

cited existed 4/ but raised in mitigation of gravity and culpability the fact that (1) MSHA had condoned the conditions when 

it inspected the mine on February 28 and (2) that the operator 

had "voluntarily" idled the mine and set the production crews 

to work cleaning up the mess. MSHA was sympathetic to these 

pleas. The Assessment Office declined to specially assess any 

of the violations choosing instead to treat them separately and 

in isolation rather than as an intertwined and interconnected 

whole. This meant that the matter did not have to be referred 

to the off ice of special investigation for a determination of 

whether responsible members of management should be prosecuted 

for "knowingly" authorizing.these imminently dangerous and 

hazardous conditions or criminally for "willfully" violating the 

law. In addition, the Assessment Office granted the operator a 

gratuituous 30 percent discount for prompt abatement of the most 

serious 75.400 violation. This mystified everyone since the 

conditions were so bad it took the operator-five working days to 

cleanup, repair and rock dust the belt entries. 

The record shows the MSHA inspectors expected the cleanup 

to be completed by March 3 but when they returned on Thursday, 

they found that while over 10 tons of highly combustible materials had been removed, the work was still only half done. The 

cleanup was not completed and the orders terminated until the 

following Monday, March 7, 1983. 

The Assessment Office proposed initial penalties of $2,294 

for the four violations charged or an average of $574 per violation. As a reward for the operator's challenge, the Solicitor 

offered to settle the four violations at a discount of some 

18 percent or a total of $1,900. ~ 

By the time this matter came on for a prehearing/settlement 

conference on February 7, 1984, MSHA knew or should have known 

that the operator had knowingly, if not willfully, created and 

maintained an imminently hazardous condition in this mine for 

over 2 weeks. Yet here is nothing in the record to suggest that 

anyone in authority in MSHA ever took note of the seriousness of 

4/ Indeed, while counsel said his client would not like it, he 

felt enforcement action was badly needed at this mine and that 

"it was the best thing that ever happened to this mine ••• 

because they were operating pretty lax." 

5/ Under MSHA's "cheaper by the dozen" policy, the thirty 

occurrences observed were lumped into just four violations. 

Thus, from the operator's standpoint, the one that counts, the 

Solicitor was offering to settle the over two dozen violations 

observed for $63.30 each, a bargain by any standard. 

784 
this case or sought to hold accountable those in positions of 

authority in the Pikeville or Paintville, Kentucky offices of 

MSHA for ignoring the conditions of wanton, if not criminal, 

endangerment that existed on February 28, 1983. It was this 

type of callous indifference and dereliction on the part of 

the Pikeville district that led to the Scotia disaster in 

which 26 miners and inspectors lost their lives on March 9 

and 11, 1976. 

Section 103(a) of the Mine Act prohibits giving advance 

notice of any enforcement inspection and section llO(e) provides that "any person who gives advance notice of any inspection to be conducted under this Act shall, upon conviction, be 

punished by a fine of not more than $1,000 or by imprisonment 

of not more than six months, or both." 

The true circumstances surrounding the truncated inspection 

of the beltline on February 28 cry out for investigation and 

explanation. The public is entitled to know what occurred on 

that date that later led the operator's vice president for 

operations to feel he had been "spun" or "double barrelled" by 

MSHA. Was there a hidden quid pro quo for the abbreviated 

inspection of the beltline""Oil"February 28, and, if so, what was 

it? Was the abbreviated inspection of the beltline designed to 

alert the operator to the real inspection that commenced the 

next day? Or was MSHA innocent to the point of naivete? And, 

if so, what is the public to conclude about MSHA's capacity to 

serve as a sophisticated enforcement agency? I believe these 

and other questions deserve an answer. I recommend, therefore, 

that this matter be referred to the inspector general of the 

Department of Labor for a full and true disclosure of the facts 

relating to MSHA's failure to inspect the beltlines in question 

on February 28, 1983. 

I also recommend that this case be referred to the MSHA's 

off ice of special investigations for a determination of liability on the part of the operator or any its employees under 

sections llO(c) and/or (d) of the Act. I do this because I have 

probable cause to believe the operator's vice president in 

charge of operations knew or was aware of facts relating to the 

existence and gravity of these violations on February 28, 1983, 

and for some indefinite time prior thereto. This, ironically, 

is the same individual whom counsel represented would take 

disciplinary action against the mine foreman allegedly responsible for these violations. While I assume counsel was not 

aware of the extent of Mr. Jackson's involvement at the time 

this proposal was made, I cannot help but observe that if 

Mr. Jackson took the disciplinary action claimed, it must have 

been done with tongue-in-cheek. 

785 
Suffice it to say that after reviewing this matter at some 

length, I refused the proffered basis for settlement, namely, 

$1,900, and suggested $10,500. At the request of counsel, I 

remitted $3,000 in return for a letter from the operator's 

vice president in charge of operations, setting forth the disciplinary action taken against those allegedly responsible for 

these violations. The letter was to be furnished in 10 days. 

When it was not forthcoming, I contacted counsel who said he 

would send it in immediately. After a further delay, all I 

received was the attached letter, not from Mr. Jackson, but 

from counsel. 

It is time I terminated my consideration of this matter 

and let it pass into the hands of those with the necessary 

investigatory manpower and resources to complete the enforcement action. I shall, however, follow the sequel with interest. 

Accordingly, it is ORDERED that the settlement approved at 

the prehearing/settlement conference of February 7, 1984, be, 

and hereby is CONFIRMED, and that the settlement amount agreed 

upon and paid, $7,500, be allocated equally among the four violations found. It is FURTHER ORDERED that upon expiration of 

the time for own motion or other review by the Commission, the 

Commission take such action as it deems appropriate to refer 

this matter to the Assistant Secretary for Mine Health and 

Safety, Department of Labor for h action as he deems 

appropriate to initiate the two estigations called for. 

Distribution: 

Nick Carter, Esq., Attorney at Law, Pontiki Coal Corporation, 

181 N. Mill Street, No. 9, Lexington, KY 40507 (Certified Mail) 

Darryl A. Stewart, Esq., Office of the Solicitor, U.S. 

Department of Labor, 280 U.S. courthouse, 801 Broadway, 

Nashville, TN 37203 (Certified Mail) 

/fb 

78G 
MAPC01NC. 

Hon. Joseph B. Kennedy 

Administrative Law Judge 

Federal Mine Safety and Health Review 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

Dear Judge Kennedy: 

,· Nick carter 

SENIOR ATTORNEY 

•• I .• I : ;:j I " l l. .:~ 11 : I 4 

I am writing this letter at the request of Dennis Jackson, Vice President 

of Operations of Pontiki Coal Corporation. 

Mr. Jackson and I personally conferenced with Ronnie Goble, Mine Foreman 

of Pontiki Coal Corporation, No. 2 Mine regarding the violations ori March 

1, 1983 concerning the beltline conditions and preshift-onshift inspections. 

At that conference Dennis Jackson expressed to Mr. Goble his extreme 

displeasure with those conditions. Additionally, Mr. Goble was made aware 

of the fact that if this situation reoccurs it may result in discipline 

under Pontiki's progressive disciplinary procedurewhich includes discharge. 

Additionally, as a result of your ruling in this matter our entire procedure 

for handling violations has been changed. Briefly, all S & S violations are 

conferenced between the safety department and legal staff and if the legal 

staff, which is independent of mine management, determines that an individual 

is responsible for the violationthey may conference with the individual and 

indicate that conference in that individuals personnel file. I think this will 

aid our safety efforts. It is because of the adoption of this policy and our 

desire to connnunicate it to.you that this letter is arriving late. 

I am having the draft in the amount of $7500.00 sent under seperate cover 

from Tulsa, Oklahoma. 

NC/jp 

cc: Ronnie Goble-Personnel File 

Dennis Jackson 

Sincerely, 

r~w~·~ Nick Carter 

2385 HARROOSBURG ROAD. SUITE 8410. LEXINGTON. KENTUCKY 40~4. (6061 223·5882 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

MAR 3O1984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

SCORIA PRODUCTS BPANCH, 

ULTRO I INC. I 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 80-293-M 

A.C. No. 02-00973-05003 

Summit Mine 

Appearances: Marshall P. Salzman, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, California, 

for Petitioner; 

{Respondent failed to appear). 

Before: Judge Vail 

STATEMENT OF THE.CASE 

This civil penalty proceeding was initiated by the Secretary 

of Labor ("Secretary") against Scoria Products Branch, Ultro, Inc., 

("Scoria"), pursuant to section llO(a) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. 820(a), seeking civil penalty 

assessments for 8 alleged violations of certain mandatory safety 

standards. After issuance on May 20, 1980, by the Secretary, of 

his proposal for assessment of civil penalties, Urban Harenberg 

answered by letter dated May 29, 1980 denying the Summit Mine 

facility is a mine subject to the Federal Mine Health and Safety 

Act in that its products do not enter into or affect commerce. 

The first Notice of Hearing issued in this case se~ the 

hearing date for February 22, 1982. 

request of the Secretary due to the 

porarily suspending expenditures of 

particular cases. No objection was 

continuance. Congress revoked this 

It was continued at the 

United States Congress temfunds in enforcement of these 

received from Scoria to this 

suspension. 

Pursuant to a ·second Notice of Hearing dated August 15, 1983, 

a hearing was convened on November 1, 1983, in Flagstaff, Arizona. 

The Secretary's Counsel appeared with his witnesses prepared to 

proceed. No one appeared on behalf of Scoria. Urban Harenberg 

had answered all prior correspondence and represented himself 

as owner and operator of Scoria. I attempted to locate a telephone number for Harenberg or Scoria in the Flagstaff telephone 

788 
directory and surrounding areas, but was unsuccessful. After a 

delay of thirty minutes, Counsel for the Secretary moved that he 

be allowed to present the evidence in his case, which was granted. 

On November 7, 1983, an Order to Respondent was sent to 

Urban Harenberg (Scoria) to show cause why he should not be held 

in default. A reply was received from Harenberg on November 25, 

1983, advising that he forgot the date of the hearing and stating 

that he was "74 years of age, the duration was too long, and I 

simply forgot." 

I find that Scoria is in default of the Notice of Hearing 

in this case for failing to appear. Harenberg's admission that 

he simply forgot does not warrant setting a new hearing date in 

this case. He admitted receiving the notice and being in the 

area on the date set. I did not rely on some other person to 

search for his telephone number that morning, but rather did it 

myself. That I was unsuccessful in locating a listing is unfortunate; however, the fact remains that an effort was made. 

Also, the Secretary's Counsel and witness appeared at the time 

and on the date set, at considerable expense and time, as did the 

Administrative Law Judge for the Federal Mine Safety and Health 

Review Commission. These considerations persuade me that the 

reason for respondent's failure to attend is unjustified. 

On July 11, 1979, MSHA inspector Virgil Wainscott inspected 

a mine called Harenberg Pit No. 1. It was a small cinder mining 

operation employing two men. One operated a front-end loader 

with the second employee working around a conveyor belt, screener, 

and hopper. This mine was located fourteen miles north of Flagstaff, 

Arizona. Inspector Wainscott issued the following citations in 

which he alleged eight violations of mandatory safety standards: 

Citation No. 383422 was issued for a violation of 30 C.F.R. 

§ 55.15-3 for failure by the miners to wear proper footwear. The 

proposed penalty in this case was $16.00. 

Citation No. 383423 was issued for a violation of 30 C.F.R. 

§ 55.15-2 for failure by the miners to wear suitable hard hats. 

The proposed penalty in this case was $18.00. 

Citation No. 383424 was issued for a violation of 30 C.F.R. 

§ 55.14-1 due to the return roller on the main stacker conveyor 

not being guarded. The proposed penalty in this case was $28.00. 

Citation No. 383425 was issued for a violation of 30 C.F.R. 

§ 55.14-1 due to the V belt drive on the roll crusher not being 

guarded. The proposed penalty in this case was $28.00. 

789 
Citation No. 383426 was issued for a violation of 30 C.F.R. 

§ 55.12-28 for failure to have tested and recorded resistance 

reading of the.plant ground system. The proposed penalty in this 

case was $32.00. 

Citation No. 383427 was issued for a violation of 30 C.F.R. 

§ 55.14-1 due to the tail pulley on the main stacker conveyor 

being unguarded. The proposed penalty in this case was $28.00. 

Citation No. 383428 was issued for a violation of 30 C.F.R. 

§ 55.14-1 due to the V belt on the generator being unguarded. 

The proposed penalty in this case was $28.00. 

Citation No. 383429 was issued for a violation of 30 C.F.R. 

§ 55.12-32 due to a lack of a cover plate .on the electric motor 

junction box for the return conveyor belt. The proposed penalty 

for this violation was $24.00. 

ISSUES 

The issues in this proceeding are: (1) whether respondent 

has violated the provisions of the Act and implementing regulations 

as alleged in the proposal for assessment of civil penalties filed 

in this proceeding; and, if so, (2) the appropriate civil penalties 

that should be assessed against the respondent for the alleged 

violations based upon the criteria set forth in section llO(i) of 

the Act. · 

In determining the amount of a civil penalty assessment, 

section llO(i) of the Act requires consideration of the following 

criteria: (1) the operator's history of previous violations, 

(2) the appropriateness of such penalty to the size of the business 

of the operator, (3) whether the operator was negligent, (4) the 

effect on the operator's ability to continue in business, (5) the 

gravity of the violation, and (6) the demonstrated good faith of 

the operator in attempting to achieve rapid compliance after 

notification of the violation. 

DISCUSSION 

The evidence in this case shows that the plant cited here 

had been in operation for over a year prior to the regular inspection on July 11, 1979. Inspector Wainscott testified that 

Inspector Rayes Bender had been there in 1978 to explain the new 

Mine Safety and Health Act of 1977 to the operator. Also, 

Wainscott and his supervisor stopped three weeks prior to this 

regular inspection and talked to Ray Harenberg, son of Urban 

Harenberg, who was in charge of the mine. Again, an explanation 

of the Act and guarding of equipment was given to Harenberg 

(Transcript at 27, 28). 

790 
Wainscott testified that the miners required the protection of 

hard hats and safety shoes when working around the plant as they 

would be exposed to hazards from maintenance work and clean-up in 

that area (Transcript at 22, 23). A hazard existed from the tail 

pulley being unguarded, even though it was only two feet above 

ground, to anyone cleaning up around that area (Transcript at 23). 

~o test had been made of the ground system at the plant as the 

operator had not obtained the equipment to do this. The obvious 

hazard here was from not knowing whether it worked and possible 

electrocution of a miner.. Similar electrical hazard existed with 

the missing cover plate to the junction box (Transcript at 18). 

I find from the testimony of Inspector Wainscott that the 

violations alleged in the 8 citations he issued did exist as 

described therein. 

I further find that any defense raised by Urban Harenberg to 

jurisdiction is misplaced. The evidence shows that the product 

from this mine was sold for a commercial use. Whether the product 

crossed the State of Arizona line is not controlling as this issue 

has been considered and resolved in numerous cases concluding 

that sale in intrastate still "affects commerce." Marshall v. 

Meridith Mining Co. Inc., 483 F. Supp. 737 (1980), W.D. Penn., 

Marshall v. Kilgore, 478 F. Supp. 4 (E.D. Tenn. 1979). 

Penalty 

In regard to the mine operator cited in these 8 citations, 

the Secretary has indicated that his evidence shows that this is 

a small mining operation employing two miners. There is no prior 

history of violations. However, on two earlier visits, the mine 

inspectors had explained to the operator what the Act required for 

the health and safety of the miners employed. 

It was also explained that the cited operator had sold the 

mine shortly after the inspection on July 11, 1979 and did not 

do the work to abate these citations. The new owner performed 

this work. · 

I find that the operator was negligent in allowing the violations contained in the above 8 citations to exist. Prior 

notice was given on two occasions relative to what the Act 

required. Apparently, these visits and explanations were ignored. 

As to the gravity, I do not find this to be serious in these 

8 citations. The evidence shows that the hazards described were 

not always present as described in the case of the front-end 

loader operator, not needing a hard hat or safety shoes until he 

was in the area of the plant and doing maintenance and clean-up. 

Also, the continuous ground system was found to be effective and not 

791 
a hazard. However, the requirement is that it must be tested and 

a record kept of this. 

On the basis of the foregoing findings and conclusions, I 

conclude that the following penalties are reasonable and appropriate for the citations which have been affirmed in this case. 

Citation No. 

383422 

383423 

383424 

383425 

383426 

383427 

383428 

383429 

Total 

ORDER 

Penalty 

$ 16.00 

18.00 

28.00 

28.00 

32.00 

28.00 

28.00 

24.00 

$ 202.00 

The respondent is ORDERED to pay civil penalties in the 

amounts shown above, totaling $ 202.00 within forty (40) days of 

the date of this decision and order, and upon receipt by MSHA, 

this case is DISMISSED. 

Distribution: 

. ~,;_t, / z-4,t _ _, 

Virg+,f ~. Vail 

Administrative Law Judge · 

Marshall P. Salzman, Esq., Office of the Solicitor, U.S. Department 

of Labor, 11071 Federal Building, P. O. Box 37017, San Francisco, 

California 94102 (Certified Mail) 

Mr. Urban Harenberg, Scoria Products, 2212 North East Street, 

Flagstaff, Arizona 86001 (Certified Mail) 

-trU.8. GOVERNMENT PRINTING OFFICE: l 9 8 i. i. 2 l 5 6 9 3 5 3 3 

792