MARCH 1988 

COMMISSION DECISIONS 

3-22-88 

3-25-88 

3-29-88 

3-29-88 

Rushton Mining Company 

Western Fuels-Utah, Inc. 

Emery Mining Corporation 

Utah Power & Light Company 

ADMINISTRATIVE LAW JUDGE DECISIONS 

3-03-88 

3-09-88 

3-14-88 

3-15-88 

3-15-88 

3-16-88 

3-21-88 

3-24-88 

3-24-88 

3-29-88 

3-29-88 

3-29-88 

3-29-88 

3-30-88 

3-30-88 

ALJ ORDER 

3-10-88 

Robert L. Tarvin v. Jim Walter Resources 

Emery Mining Corp./Utah Power & Light Co. 

Southern Ohio Coal Company 

Tennessee Chemical, Inc. 

Triple B Corporation 

Peabody Coal Company 

Jeff McQueen v. Felosi & Felosi Trucking 

Green River Coal Company, Inc. 

Mellott Trucking & Supply Co., Inc. 

Charles Conatser v. Red Flame Coal Co. 

Fife Coal Company, Inc. 

Sterling Energy, Inc. 

Energy Fuels Coal, Inc. 

Phelps Dodge Corporation 

Eureka Stone Quarry, Inc. 

Sec. of Labor for D. Robinette & Joey Hale 

v. Bill Branch Coal Co., Inc. I 

PENN 86-44-R 

WEST 86-108-R 

WEST 86-126-R 

WEST 86-131-R 

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85-63-M 

87-21 

87-263-R 

87-162-D 

87-167-R 

87-123-M 

87-168-D 

87-186 

87-205 

86-122 

87-102-RM 

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Pg. 489 
MARCH 1988 

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

Utah Power & Light Company v. Secretary of Labor, MSHA, Docket No. 

WEST 87-210-R, 211-R, 224-R. (Judge Morris, January 25, 1988) 

No cases were filed in which review was denied. 
COMMISSION DECISIONS 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

RUSHTON MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 22, 1988 

Docket Nos. PENN 86-44-R 

PENN 86-92 

BEFORE: Chairman Ford; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY THE COMMISSION: 

In this consolidated contest and civil penalty proceeding arising 

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

seq. (1982)("Mine Act"), the issues are whether Commission Administrative Law Judge James Broderick erred in finding that Rushton Mining 

Company ("Rushton") violated mandatory underground coal mine safety 

standard 30 C.F.R. § 75.1434(a)(2) and whether the violation was caused 

by Rushton's "unwarrantable failure" to comply with that standard. For 

the reasons that follow, we affirm the judge's finding of a violation of 

section 75.1434(a)(2), but reverse his finding of unwarrantable failure. 

The Rushton Mine is an underground coal mine located in Centre 

County, Pennsylvania. On the morning of November 5, 1985, Joe Colton, 

an inspector of the Department of Labor's Mine Safety and Health 

Administration, conducted an inspection of the mine's wire hoist rope. 

The hoist rope is used to lower and raise miners and materials into and 

out of the mine. The machinery that powers the hoist rope is located on 

the surface in the hoist house. The hoist rope is attached to a 4-foot 

diameter drum which lowers the rope into the mine when the drum is 

rotated clockwise and raises the rope when the drum is rotated counterclockwise. From the hoist house, the rope travels approximately 150 

feet, where it turns around a sheave wheel before running another 150 

feet to the entrance of the mine. At the mine portal, the rope is 

attached to mine cars that transport men and materials into the mine. 

As t~e drum rotates, the mine cars are lowered approximately 650 feet on 

a slope that is estimated at 17 degrees. Each fully loaded trip of cars 

transporting miners into the mine ("man trip") puts a load of approximately 5 tons on the rope. · 

249 
The hoist rope is one inch in diameter, 1100 feet long, and has a 

breaking strength of more than SO tons. It is composed of a fiber core 

surrounded by six wire strands, with each wire strand consisting of 19 

individual wires. The hoist rope in service on November S, 198S, had 

been in use since May 11, 198S. Under Rushton's policy of changing the 

hoist rope every six months, unless its condition requires earlier 

retirement, the rope was due to be replaced later that week. 

Before lowering the man trip on November S, Frank Petriskie, a 

hoist operator with more than six years of hoisting experience, visually 

examined the portion of the rope extending from the hoist house to the 

man trip. While a man trip with 34 miners aboard was lowered into the 

mine, he examined the remainder of the rope by inspecting it visually 

and by draping a rag over the rope as it was reeled so that broken wires 

could snag on the rag. Tr. 12 (November 18, 1986), Tr. SS (November 19, 

1986). Petriskie found no deficiencies in the rope and recorded the 

results of his examination in the hoist examination record book. 

Petriskie's notation was countersigned by his supervisor. 

Shortly thereafter, Inspector Colton arrived at the mine to 

inspect the hoist rope. By then the man trip had reached the bottom of 

the slope and the miners had left the mine cars. Colton went to the 

hoist house, took a piece of rag, wrapped it around the hoist rope, and 

instructed Petriskie to raise the hoist rope at the heist's slowest 

speed. As the rope was being reeled in, Colton observed a one-inch long 

gouge in one strand of the rope. Colton told Petriskie to stop the 

hoist so that the gouge could be examined more thoroughly. Colton 

testified that in this area he found at least seven broken wires in one 

lay length of one strand of the rope. ll Colton also testified that 

about two feet farther down the rope he found another gouge with at 

least five broken wires in one lay. 

Section 7S.1434(a)(2) requires that a wire rope be removed from 

service when the number of broken wires within a rope lay length exceeds 

fifteen percent of the total number of wires within any strand. 2/ 

lf A lay length is defined as "the distance parallel to the axis of 

the rope in which a strand makes one complete turn about the axis of the 

rope." Bureau of Mines, U.S. Department of the Interior, A Dictionary 

of Mining, Mineral, and Related Terms 629 (1968). 

~/ 30 C.F.R. § 7S.1434(a)(2) provides in pertinent part: 

Unless damage or deterioration is removed by 

cutoff, wire ropes shall be removed from service 

when any of the, following conditions occurs: 

(a) The number of broken wires within a rope lay 

length, excluding filler wires, exceeds 

* 

(2) Fifteen percent of the total number of wires 

250 

* 
Jince three broken wires represented 15.8 percent of the 19 wires in one 

strand of the rope and each of the two damaged areas contained at least 

three broken wires within a lay length, Colton determined that Rushton 

had violated section 75.1434(a)(2) and issued to Rushton an order of 

withdrawal pursuant to section 104(d)(l) of the Mine Act. 30 U.S.C. 

§ 814(d)(l). }/ The order indicated that the violation was the result 

of Rushton's unwarrantable failure, that the violation was of a 

significant and substantial nature and was due to Rushton's "moderate 

negligence." Exh. G-1. 

Rushton promptly abated the violation by replacing the hoist rope. 

Subsequently, Rushton initiated a new procedure to examine the rope, 

whereby Petriskie examines the rope at the hoist house and another miner 

examines the rope at the sheave wheel while the man trip is lowered into 

the mine. 

At the hearing, Rushton conceded that there were enough broken 

wires in the hoist rope to satisfy the retirement criteria of section 

within any strand; 

* 

}/ Section 104(d)(l) of the Mine Act states: 

If, upon any inspection of a coal or other mine, 

an authorized representative of the Secretary finds 

that there has been a violation of any mandatory 

health or safety standard, and if he also finds 

that, while the conditions created by such violation 

do not cause imminent danger, such violation is of 

such nature as could significantly and substantially 

contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds 

such violation to be caused by an unwarrantable 

failure of such operator to comply with such 

mandatory health or safety standards, he shall 

include such finding in any citation given to the 

operator under this [Act]. If, during the same 

inspection or any subsequent inspection of such mine 

within 90 days after the issuance of such citation, 

an authorized representative of the Secretary finds 

another violation of any mandatory health or safety 

standard and finds such violation to be also caused 

by an unwarrantable failure of such operator to so 

comply, he shall forthwith issue an order requiring 

the operator to cause all persons in the area 

affected by such violation, except those persons 

referred to in subseGtion (c) to be withdrawn from, 

and to be prohibited from entering, such area until 

an authorized representative of the Secretary 

determines that such violation has been abated. 

30 u.s.c. §814(d)(l). 

251 
75.1434(a}(2). However, Rushton argued that in order to prove a 

violation the Secretary of Labor also needs to establish that an 

operator knew or should have known of the presence of the broken wires. 

The administrative law judge rejected this argument and held that the 

existence of defects in the rope sufficient to require its retirement 

constituted a violation of the standard, regardless of whether Rushton 

knew or should have known of the existence of the defects. 9 FMSHRC 

613-614 (March 1987)(ALJ). 

In further concluding that the violation of section 75.1434(a)(2) 

was the result of Rushton's unwarrantable failure, the judge found that 

Petriskie was a conscientious employee and that because the defects in 

the wire rope were substantial and "clearly visible on careful 

examination," Petriskie's failure to detect the broken wires could be 

due only to a seriously inadequate method of examination requiring 

Petriskie to do too many tasks at one time. The judge stated that this 

inadequacy was recognized by Rushton when, after being issued the 

withdrawal order, it assigned another miner to help Petriskie perform 

the rope examination. The judge held that th~ flawed procedure for 

examining the hoist rope represented a serious lack of reasonable care 

on Rushton' s part. 9 FMSHRC at 615. 

Rushton's petition for discretionary review was granted, and we 

heard oral argument. On review Rushton reiterates its argument that the 

standard by its terms requires that an operator must know of the 

existence of defects before its obligation to retire the rope arises. 

Therefore, in Rushton's view, to establish a violation, the Secretary 

must prove the existence of the retirement criteria and that the 

operator knew that the rope met this criteria and nonetheless failed to 

retire it. 

We reject this argument. In interpreting section 75.1434 we look 

first to its language. Section 75.1434 states that "wire ropes shall be I 

removed from service when any of the following conditions occurs .... " 

(There is no dispute that the conditions set forth in subsection (a)(2) 

did in fact occur). "Occur" is defined as to "take place" or to 

"happen." Webster's Third New International Dictionary 1561 (1971). 

Thus, the standard expressly requires removal from service when any of 

the criteria for retirement take place or happen. The standard does not 

provide or imply any requirement that the operator must first have 

knowledge of the existence of the conditions causing retirement and then 

fail to retire it before liability for a violation attaches. 

Further, section 2(e) of the Mine Act declares that operators with 

the assistance of miners have the primary responsibility to prevent the 

existence of unsafe conditions in the nation's mines. 30 U.S.C. 

§, 801(e). Finding a requirement of operator knowledge would also run 

counter to an operator's general responsibility under section 2(e) to 

prevent unsafe conditions in the first instance. Therefore, given the 

undisputed fact that the rope met the retirement criteria and was not 

removed from service, we affirm the judge's finding of a violation of 

section 75.1434(a)(2). 

We now turn to the issue of unwarrantable failure. In Emery 

252 
Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), appeal dism'd per 

stip., No. 88-1019 (D.C. Cir. March 18, 1988), and Youghiogheny & Ohio 

Coal Co., 9 FMSHRC 2007, 2010 (December 1987), we held that "unwarrantable failure means aggravated conduct, constituting more than ordinary 

negligence, by a mine operator in relation to a violation of the Act." 

This conclusion was based on the ordinary meaning of the term 

"unwarrantable failure," the purpose of unwarrantable failure sanctions 

within the Mine Act, the Act's legislative history, and judicial 

precedent. We stated that whereas negligence is conduct that is 

"inadvertent," "thoughtless," or "inattentive," unwarrantable failure is 

conduct that is "not justifiable" or is "inexcusable." Only if 

unwarrantable failure by a mine operator is construed to mean aggravated 

conduct constituting more than ordinary negligence, can unwarrantable 

failure sanctions assume their distinct place as intended in the Act's 

enforcement scheme. See Emery, 9 FMSHRC at 2001. Applying these 

principles to the case at hand, we hold that substantial evidence does 

not support the judge's finding that the violation of section 

75.1434(a)(2) was the result of Rushton's unwarrantable failure. 

The judge's conclusion that Petriskie's failure to detect the 

broken wires was due to Rushton's seriously inadequate procedure for 

examining the rope is not supported by the record. Inspector Colton 

testified that requiring Petriskie to operate the hoist rope and inspect 

the rope at the same time established a lack of reasonable care on 

Rushton's part. Colton also based his finding of unwarrantable failure 

on the fact that he detected the violation shortly after Petriskie had 

completed his examination without detecting the condition, and because 

management had countersigned Petriskie's notation of his completed 

inspection. When Colton inspected the wire rope, however, he used the 

same examination procedures as Petriskie, using the rag technique and 

visually examining the hoist rope as it was being reeled. Also, there 

is no indication in Petriskie 1 s testimony that his duties interfered 

with his ability to adequately examine the rope. Indeed, Colton 

testified that "it is conceivable for one person to do both," Tr. 27 

(November 18, 1986), and this possibility was reiterated by the 

Secretary at oral argument before us. Oral Arg. Tr. at 26-27. Colton 

further conceded that the rope was difficult to examine and that it was 

possible to miss damaged portions of the rope no matter how carefully it 

was examined. Tr. 42 (November 18, 1986). 

Moreover, Rushton required that the rope be inspected on a daily 

basis even though the relevant standard (30 C.F.R. § 75.1433) requires 

inspection only once every 14 days. Rushton also retired its rope every 

6 months notwithstanding the absence of any of section 75.1434 1 s 

criteria r~quiring replacement. In light of the above, we cannot 

conclude based on this record that Petriskie 1 s failure to detect the 

damaged portions of the rope resulted from aggravated conduct exceeding 

ordinary negligence. The judge's finding that Petriskie was a 

conscientious employee actually supports a conclusion that at most the 

oversight resulted from no more than ordinary negligence. The fact that 

Petriskie's examination took place only shortly before Colton discovered 

the damage and that Petriskie's report had been countersigned would not 

253 
convert ordinary negligence into aggravated conduct. ~/ 

Accordingly, the judge's finding that Rushton violated section 

75.1434(a)(2) is affirmed, the judge's conclusion that the violation was 

caused by Rushton's unwarrantable failure to comply is reversed, and the 

proceeding is remanded for reconsideration of the civil penalty. The 

section 104(d)(l) order is modified to a citation issued pursuant to 

section 104(a). 30 U.S.C. § 814(a). 

Lastowkp, 

"-P /7 , '--71 /l 

~/~"-VJ 

L. Clair Nelson, Commissioner 

~/ In view of our disposition of the unwarrantable failure issue, we 

need not address Rushton's argument that the judge erred in considering 

Rushton's change in its rope examination procedure after issuance of the 

withdrawal order. 

254 
Distribution 

R. Henry Moore, Esq. 

Buchanan Ingersoll 

58th Floor, 600 Grant Street 

Pittsburgh, PA 15219 

Vicki Shteir-Dunn, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge James A. Broderick 

Federal Hine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22043 

255 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

WESTERN FUELS-UTAH, INC. 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WESTERN FUELS-UTAH, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 25, 1988 

Docket No·. WEST 86-108-R 

Docket No. WEST 86-245 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY: Backley, Doyle and Lastowka, Commissioners 

In. this proceeding arising under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act" or "Act"), 

Commission Administrative Law Judge Roy J.· Maurer concluded that a 

violation of 30 C.F.R. § 75.200 occurred when a miner employed by 

Western Fuels-Utah, Inc. ("Western Fuels"), proceeded under unsupported 

roof at a Western Fuels mine despite his supervisor's order not to do 

so. 9 FMSHRC 320 (February 1987)(ALJ). Western Fuels petition~d the 

Commission for review, contending that the judge's decision improperly 

subjected it to liability for an employee's violative conduct under 

circumstances in which it should not be held responsible. We adhere to 

the well-established principle that the Mine Act imposes liability upon 

operators, without regard to considerations of fault, for violations of 

the Act committed by their employees. Accordingly, we affirm. 

The facts are undisputed. On February 28, 1986, at 10:50 a.m., a 

fatal accident occurred at Western Fuels' Deserado underground coal mine 

in Colorado when an unsupported portion of the mine roof fell on Austin 

256 
Mullens; a 'ro'of bolting machine operator. On the day of the accident, 

Mullens was working with section foreman Carson Julius in the mine 1 s 

East Mains installing roof bolts. (Around 10:25 a.m., the foreman had 

temporarily relieved Mullens' regular partner, who went to lunch.) 

Mullens and Julius were using a double-boom, two-person Norse roof 

bolting machine equipped with an automatic temporary roof support device 

("ATRS"). In performing the bolting operation, the miners would place a 

metal roof mat or "pan" over the ATRS, tram the roof bolter towards the 

face, raise the ATRS against the roof, drill roof holes for the roof 

bolts, and install a row of bolts in the roof through the roof mat. 

Mullens was operating the left-hand boom of the machine installing bolts 

on the left side of the machine, and Julius was performing the same 

function with the right-hand boom on that side of the machine. 

The two miners set one roof mat and moved the machine forward to 

install a second. Julius encountered difficulties in drilling the first 

bolt hole through the mat adjacent to the right rib. The water flow 

used to control drilling dust was cut off when the water line to Julius' 

drill became kinked, and his drill stopped. Mullens was able to install 

one bolt on the left side of the roof mat. To loosen the taut water 

line to Julius' drill, the miners lowered the ATRS and backed up the 

roof bolter. When the ATRS was lowered, the right end of the roof mat, 

which Julius had not been able to bolt through, fell to the floor. 

Thus, the area of roof from which the mat fell was at that time 

unsupported. 

After straightening out the .. water line, the miners moved the 

bolting machine forward again. While standing under supported roof, 

Julius attempted to lift the fallen mat with a four-foot rod so that 

Mullens could advance the bolting machine and raise the ATRS under the 

mat. Julius was unsuccessful and decided to get a longer rod from the 

storage area in the middle of the roof bolting machine. Just before 

turning away, he warned Mullens not to go under the unsupported roof. 

As soon as Julius began walking away, however, Mullens went under 

the unsupported roof about seven feet from the last permanent support 

and attempted to lif.t the mat manually. Julius, who was near the middle 

of the roof bolter at that point, turned and twice shouted at Mullens to 

get back. Mullens did not respond and moments later a large piece of 

roof fell, killing him. 

An inspector of the Department of Labor's Mine Safety and Health 

Administration ("MSHA") subsequently issued Western Fuels a citation 

pursuant to section 104(a) of the Mine Act, 30 D.S.C. § 814(a), charging 

the operator with a significant and substantial violation of 30 C.F.R. 

§ 75.200 in that Mullens had proceeded under unsupported roof for 

reasons other than installation of temporary support. l/ 

lf Section 75.200, which restates section 302(a) of the Mine Act, 

30 U.S.C. § 862(a), provides in relevant part: 

No person shall proceed beyond the last permanent 

257 
The hearing in this proceeding was conducted before former 

Commission Administrative Law Judge John A. Carlson. Western Fuels 

contended.below that any violation of section 75.200 was wholly due to 

the negligence of Mullens, a rank-and-file miner, and that his negligent 

conduct should not subject it to derivative liability for a violation. 

Following Judge Carlson's death, Judge Maurer was substituted and, 

without objection, rendered his decision upon the existing record. 

In his decision, the judge concluded that Mullens had violated 

section 75.200 by proceeding under the unsupported roof. 9 FMSHRC at 

322. The judge rejected Western Fuels' challenge to the doctrine of 

liability without fault under the Mine Act. He stated: 

The Commission has consistently and frequently 

held that an operator is liable, without regard to 

fault, for violations of the Act or its regulations 

committed by its employees. An operator's 

negligence has no bearing on the issue of whether a 

violation occurred. Rather, it is a factor to be 

considered in assessing a civil penalty. 

Id. Among other authorities, the judge cited the Commission's decision 

in Asarco, Inc.- Northwestern Mining Dept., 8 FMSHRC 1632 (November 

1986), pet. for review filed, No. 86-2765 (10th Cir. December 3, 1986), 

in which the Commission reaffirmed the Mine Act principle of liability 

without fault. The judge thus held that Western Fuels was liable for 

the violation of section 75.200, and also affirmed MSHA's significant 

and substantial finding. In considering the statutory civil penalty 

criteria (30 U.S.C. § 820(i)), the judge found no· negligence on the part 

of the operator and assessed a civil penalty of $250. 9 FMSHRC at 323-

24. With respect to his finding of no negligence, the judge determined 

that Mullens had walked out under unsupported roof "contrary to the 

direct orders of his supervisor'·' ( 9 FMS~C at 323), Mullens' violation 

was not reasonably foreseeable, proper supervision of the employee was 

present, and "the operator's training program and its history of 

disciplining its employees for violations of the mandatory safety 

standard at issue ... [were] adequate." 9 FMSHRC at 324. 

There is no dispute in this case that Mullens' actions in 

proceeding under unsupported roof violated section 75.200. On review, 

Western Fuels challenges only the judge's application of the doctrine of 

liability without fault to impose upon it liability for Mullens' 

violative conduct. Western Fuels advances two interrelated arguments in 

support unless adequate temporary support is 

provided or unless such temporary support is not 

required under the approved roof control plan and 

the absence of such support will not pose a hazard 

to the miner. 

Western Fuels' approved roof control plan does not permit persons to 

proceed beyond the last row of permanent support before temporary 

support is installed unless they are engaged in installing temporary 

support. Exh. C-1, p. 9 (Item 2.c.). 

258 
support of its position: (1) When read together, sections 104 and 110 of 

the Mine Act do not permit liability to be placed on an operator unless 

the operator itself or one of its supervisory agents is actually 

responsible for a violation; and (2) the Act contemplates only "a kind 

of strict liability" (W.F. Br. 23), limited to situations in which a 

violation is attributable to the operator or supervisory agent or, if 

resulting from the conduct of a rank-and-file err.~loyee, also stems in 

part from the operator's own negligence or fault. Alternatively, 

Western Fuels asserts that notwithstanding the doctrine of liability 

without fault, the Commission should recognize an exception in the form 

of an affirmative defense of unforeseeable employee misconduct. In our 

opinion, none of Western Fuels' arguments can be reconciled with the 

basic principles of liability without fault. 

We addressed in detail the subject of liability without fault in 

our Asarco decision. As we noted in Asarco: 

The general principle that an operator is liable 

for the violations of the Act committed by its 

employees has been stated frequently. Sewell Coal 

Co. v. FMSHRC, 686 F.2d 1066, 1071 (4th Cir. 1982); 

Allied Products Co. v. FMSHRC, 666 F.2d 890, 893 

(5th Cir. 1982); Southern Ohio Coal Co., 4 FMSHRC 

1459, 1462 (August 1982); American Materials Corp., 

4 FMSHRC 415, 419 n. 8 (March 1982); Kerr-McGee 

Corp., 3 FMSHRC 2496, 2499 (November 1981); El Paso 

Rock Quarries, Inc., 3 FMSHRC 35, 38-39 (January 

1981). Cf. Ace Drilling Coal Co., Inc., 2 FMSHRC 

790-91 (April 1980), aff'd without opinion, 642 F.2d 

440 (3rd Cir. 198l)(construing 1969 Coal Act). 

8 FMSHRC at 1634-35. Accord Miller Mining Co. v. FMSHRC, 713 F.2d 487, 

491 (9th Cir. 1983). The Mine Act retains the liability without fault 

structure of its predecessor, the Coal Mine Health and Safety Act of 

1969, 30 U.S.C. § 801 et seg. (1976) (amended 1977)("Coal Act"), and the 

pertinent Mine Act legislative history shows this retention to have been 

a deliberate action by Congress. See Asarco, 8 FMSHRC at 1635-36, and 

authorities cited. As we held in Asarco, rather than being "a determinant of liability," the operator's fault or lack thereof "is a factor to 

be considered in assessing a civil penalty." 8 FMSHRC at 1636, and 

authorities cited. ;/ 

;! As recently stated by the United States Court of Appeals for the 

District of Columbia Circuit: 

The Act does permit consideration of fault in one 

context: section llO(i), 30 U.S.C. § 820(i), dire~ts 

the Commission (and implicitly the Secretary), in 

setting the level of civil penalties for violations 

of the Act, to consider, inter alia, "whether the 

operator was negligent." The presence of this 

consideration here on~y serves to underscore its 

259 
Citing section 104(a) of the Mine Act, Western Fuels first argues 

that an operator may be cited for a violation only when an MSHA 

inspector believes that "an operator ••. has violated [the Act], or any 

·mandatory health or safety standard •..• " 30 U.S.C. § 814(a) (emphasis 

added). Western Fuels contends that operators and miners are each 

separately responsible for complying with the Act and that, pu·rsuarit to 

the asserted directive of section 104(a), an operator may be cited only 

for its own violations. We rejected the identical argument in Asarco. 

8 FMSHRC at 1635. While we agree with Western Fuels that section 104(a) 

ar.d section llO(a), 30 U.S.C. § 820(a), must be read together, what 

emerges from such construction, as we held in Asarco, is the liability 

without fault framework of the Act: 

Section 104(a) sets forth the duties of mine 

inspectors in enforcing the Act. It does not define 

the scope of the operator's liability. The 

liability of an operator is governed by section 

llO(a), 30 U.S.C. § 820(a), which states: "The 

operator of a ... mine in which a violation occurs 

of a mandatory health or safety standard: .. shall 

be assessed a civil penalty .... " (Emphasis added). 

The occurrence of the violation is the predicate for 

the operator's liability. 

Id. Accord Miller Mining, supra, 713 F.2d at 491; Sewell Coal, supra, 

686 F.2d at 1071; Allied Products, supra, 666 F.2d at 893. We also 

demonstrated in Asarco that the legislative history of section llO(a) 

and its predecessor, section 109(a)(l) of the Coal Act, 30 U.S.C. 

§ 119(a)(l) (1976)(amended 1977), reflects a clear congressional intent 

to establish liability without fault in both Acts. 8 FMSHRC at 1635-36. 

Western Fuels next asserts that in the previous liability without 

fault decisions of the Commission and courts, operator fault was always 

present to some degree. Western Fuels argues that the existing case law 

is thus consistent with a rule that strict liability does not obtain in 

circumstances where, as here, operator fault is absent. We disagree. 

The general doctrine of liability without fault recognized in the 

referenced decisions has been drawn with sufficient breadth that, by its 

very terms, it applies to situations in which operators are blameless. 

The decisions further recognize that the blamelessness of operators in 

connection with a violation is considered in evaluating operator 

negligence in terms of the appropriate civil penalty assessment. 30 

U.S.C. § 820(i); see also n. 2 supra. For example, in Asarco, the 

operator was found liable for a violation even though the violation was 

attributable to an employee's "unforeseeable and idiosyncratic" conduct 

and the operator itself was not negligent in connection with the 

violation. 8 FMSHRC at 1634, 1636. Similarly, in Southern Ohio Coal, 

supra, it was stressed that an operator is liable for violations 

attributable to even the "idiosyncratic and unpredictable" acts of its 

absence in the other provisions of the Act. 

Int'l U., UMWA v. FMSHRC and Island Creek Coal Co., No. 87-1136, slip 

op. at 13 n. 13 (February 23, 198g). 

260 
rank-and-file employees (4 FMSHRC at 1462), that such rank-and-file 

employee negligence is not imputable to the operator for penalty 

assessment purposes (4 FMSHRC at 1463-64), and that the operator's 

negligence or lack thereof in such instances must be determined by an 

examination of the operator's own conduct (4 FMSHRC at 1464-65). The 

holdings of these decisions and the courts of appeals' decisions cited 

above cover the full range of liability/negligence circumstances, 

including those in which the operator is liable for an employee's 

violation but is without negligence in the context of civil penalty 

assessment. Accord A.H. Smith Stone Co., 5 FMSHRC 13, 15-16 (January 

1983). 

Alternatively, Western Fuels asks us to approve an unforeseeable 

employee misconduct exception to the principle of liability without 

fault. Such an exception, however, would vitiate the underlying 

principle. Simply stated, the principle of liability without fault 

requires a finding of liability even in instances where the violation 

resulted from unpreventable employee misconduct. As noted, Asarco 

presented precisely such a situation: the operator, although itself 

blamele~s, was held liable for a violation resulting from its employee's 

unforeseeable and disobedient conduct in failing to comply with 

supervisory directions to bar down loose ground. 8 FMSHRC at 1631-34, 

1636. 

Western Fuels' position in this regard is based upon a defense to 

liability recognized under the Occupational Safety and Health Act of 

1970; 29 U.S.C. § 651 et seg. (1982)( 11 0SHAct 11 ). See,~·· Horne 

Plumbing & Heating Co. v. OSHRC, 528 F.2d. 564, 567-71 (5th Cir. 1976). 

Courts have held that the OSHAct "neither authorizes nor intends" a 

strict liability standard (Horne, supra, 528 F.2d at 568), and both this 

Commission and the courts have previously emphasized that liability 

doctrines drawn from that statute may have no relevance under the Mine 

Act's scheme of liability without fault. North American Coal Co., 

3 FMSHRC 848, 850 n.5 (April 1981) (addressing predecessor scheme of 

liability without fault under Coal Act); Allied Products, 666 F.2d at 

894. 

In enacting the Mine Act, Congress formulated a national policy 

that mine operators were in the best position to further health and 

safety in the mining industry and that liability without fault would 

promote the highest degree of. operator care. As a key Senate report 

stated: 

Thus, while miners are required to comply with 

standards insofar as they are applicable to their 

own actions and conduct, .•. neither the bill, nor 

current law contemplates that citations and 

penalties be issued against miners. Operators have 

the final responsibilities for affording safe and 

healthful workplaces for miners, and therefore, have 

'the responsibility for developing and enforcing 

through appropriate disciplinary measures, effective 

safety programs that could prevent employees from 

engaging in unsafe and unhealthful activity. 

261 
S. Rep. No. 181, 95th Cong.~ 1st. Sess. 18 (1977), reprinted in 

Subcommittee on Labor, Senate Committee on Human Resources, 95th Cong., 

2d Sess. Legislative History of the Federal Mine Safety and Health Act 

of 1977, at 606 (1978) (emphasis added). Any appeal to change the Mine 

Act's principle of liability without fault must be directed not to the 

Commission but to Congress. Cf. Council of So. Mtns. v. Martin Co. Coal 

Co., 6 FMSHRC 206, 209 (Febru~y 1984), aff'd sub nom. Council of So. 

Mtns. v. FMSHRC, 751 F.2d 1418 (D.C. Cir. 1985). · 

For the foregoing reasons, there is no basis for distinguishing 

this case from prior decisions posing the same issue. The judge 

properly found from the uncontroverted evidence that a violation of 

section 75.200 was committed by a Western Fuels employee, and correctly 

held that Western Fuels was liable for the violation. In considering 

negligence for civil penalty purposes, the judge appropriately examined 

Western Fuels' actions in determining that the operator itself was not 

negligent in connection with the violation. See Asarco, supra. Thus, 

the judge's decision is consistent with controlling legal principles and 

is supported by substantial evidence. Accordingly, the judge's decision 

is affirmed. 

Do le, Corf:.si~ 

262 
Chairman Ford, dissenting: 

One would search in vain for a more compelling set of facts than 

those presented here against which to re-examine the issue of strict 

operator liability for all violations under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. 801 et seq. (1982)(the Mine Act). 

Yet the majority, in affirming the judge'"'S<fecision, continues to hold 

an absolutist view on the matter in accordance with Secretary of Labor v. 

ASARCO, 8 FMSHRC 1632 (November 1986).1/ Here, as in ASARCO, I continue 

to hold the view that the Mine Act does not preclude an otherwise blameless mine operator from raising a miner's unforeseeable and idiosyncratic 

misconduct as an affirmative defense when contesting the Secretary's 

enforcement actions. Accordingly, I respectfully dissent. 

My opinion in ASARCO can be briefly summarized as follows: 

(1) The Mine Act within its four corners need not be read to 

impose strict liability on mine operators; 

(2) The Mine Act can accommodate a strictly circumscribed 

affirmative defense based upon unforeseen, idiosyncratic 

misconduct by a non-managerial employee; 

(3) Courts have recognized such an affirmative defense under 

the analogous Occupational Safety and Health Act of 1970, 

29 U.S. C. 651 ~ seq.; 

(4) Recognition of such a defense best advances the fundamental 

purposes of the Mine Act. 

The rationales underlying these four propositions should not have to 

be fully rehearsed here. However, given the factual circumstances of this 

case, the persuasiveness of the legal and policy arguments advanced by 

the Petitioner, and the majority's continuing reluctance to address the 

adverse policy implications of its decisions both here and in ASARCO, some 

expansion of the points in my ASARCO dissent is warranted. 

I. The Strict Liability Doctrine 

Section llO(a) continues to be a thin reed on which to rest the 

liability without fault theory. If the Mine Act is to have any organic 

logic, section llO(a) must be woven into the context provided by sections 

104 and 105. The sense and purpose of section llO(a) is to establish 

mandatory rather than discretionary civil penalties for violations of 

the Mine Act or the mandatory standards promulgated thereto. Section 

llO(a) is not reached, however, until the prerequisites of sections 104 

(citing of the operator) and 105 (proving a violation) have been satisfied. 

Specifically, the entire enforcement scheme does not engage until the 

following initial condition is met: 

1/ It is encouraging that my colleague in dissent has departed from the 

ASARCO majority to the extent of his narrowly drawn exception to the 

strict liability doctrine. The factual circumstances of this case, in 

my'view, compel no other result. 

263 
If upon inspection or investigation, the Secretary or 

his aut~orized representative believes that an operator of 

a coal or other mine ••• has violated this Act, or any 

mandatory safety standard ••• he shall ••• issue a citation 

to the operator. 30 U.S.C. 814(a). [Emphasis added.] J;/ 

In short, a violative act of commission or omission by the operator 

is necessary before the sanctions of section llO(a) come into play. To 

hold that strict liability reposes in section llO(a) so that any and all 

violations can be charged against the operator would render section 104(a) 

a superfluous nullity. This, despite the fundamental principle that 

statutes must be read to give effect to every clause. United States v. 

Menasche, 348 U.S. 528, 538, 99 L.Ed. 615, 624 (1955). 

The traditional and immutable position with respect to strict operator 

liability has been strongly influenced by a single reference in the legislative history of the Federal Coal Mine Health and Safety Act of 1969, 

30 U.S.C. 801 et seq. (1970). Indeed the lone reference in question has 

assumed an almost talismanic power. It reads: 

Since the conference agreement provides for violation 

of the standards against the operator without regard 

to fault, the conference substitute also provides that 

the Secretary shall apply the more appropriate negligence test in determining the amount of the penalty, 

recognizing that the operator has a high degree of 

care to insure the health and safety of persons in 

the mine. 3/ 

2/ The case most often relied upon for the proposition that the Mine Act 

is unconditionally a strict operator liability statute is Allied Products 

Co. v. FMSHRC, 666 F.2d 890 (5th Cir., Unit B 1982). With all due respect, 

however, I question the premise upon which the 5th Circuit's ultimate 

holding is based. Although section 104(a) requires that an MSHA inspector 

believe that "an operator ... has violated" the Act or the standards, the 

Court paraphrased the section as follows: "any failure to comply with 

the regulations shall result in issuance of a citation to the operator." 

Id. at 893. The Court's restatement of section 104(a) appears to be 

fundamentally at odds with the text itself, but the discrepancy nevertheless explains the Court's arrival at its oft-quoted conclusion: "There 

are no exceptions for fault, only harsher penalties for willful violations." 

Id. 

3/ Senate Subcommittee on Labor, Committee on Labor and Public Welfare, 

94th Cong., 1st Sess., Legislative History of the Federal Coal Mine Health 

and'Safety Act of 1969, Part I at 1515 (1975). (Leg. Hist., 1969 Act). The 

statement is often cited to the "Conference Report" on the 1969 Act, but 

it is actually from the "Statement of the Managers on the Part of the House." 

It is reliable only as an indicator of what the House conferees thought the 

Conference agreement to provide and thought the Senate conferees' positions 

to be on the final version of the legislation. There is, in fact, no written 

"conference agreement" to which the Commission and the courts can refer to 

divine Congressional intent and consensus. 

264 
A search of the legislative history of the 1969 Act, however, reveals 

no basis or antecedent for the above statement. The terms "strict liability", 

"vicarious liability" or "liability without regard to fault" were simply not 

raised in the various committee reports or the extensive floor debates 

throughout the 94th Congress. Indeed, a review of the relevant history 

provides evidence of a contrary Congressional view. 

For instance, the original vehicle for reform of the 1952 Federal 

Coal Mine Safety Act was S.2917, introduced on September 17, 1969, by 

Senator Williams of New Jersey. Leg. Hist., 1969 Act, p. 3. The bill 

provided discretionary civil penalties for violations of the Act or 

the mandatory standa,rds. Id., p. 103. During floor debate oil the bill 

Senator Metcalf successfully introduced an amendment to make civil 

penalties mandatory. Id., p. 677. Later in the floor debate Senator 

Byrd of West Virginia offered a further amendment to the civil penalty 

section that, in effect, added as a criterion for assessing civil 

penalties "whether the operator was at fault." The colloquy surrounding 

the adoption of the Byrd amendment, however, indicates that Senators 

Byrd and Metcalf acknowledged circumstances when operators should not 

be held liable for the independent acts of rank-and-file miners: 

Mr. Byrd of West Virginia: Mr. President, under section 

308 [ultimately section 109 of the 1969 Act], an operator of a coal mine shall be penalized for violations 

occurring of a mandatory health and safety standard. 

I am not opposed to penalties being assessed against 

operators where the operators are clearly at fault. 

The language in my amendment would merely require 

that, before a penalty could be applied, there be 

a finding that the operator was indeed at fault. 

Senator Williams of New Jersey: Mr. President, we 

have thoroughly discussed this amendment with the 

Senator from West Virginia. It would require the 

Secretary to consider the fault of the operator, 

or his lack of fault, in determining the amount of 

the penalty. It is acceptable to us .•.. 

Senator Metcalf: Mr. President, I was the author 

of an amendment that required a mandatory penalty 

and, of course, I do not want a mandatory penalty 

to be placed upon a coal operator who is penalized 

for the inadvertent act of a coal employee. I 

want only a penalty for the coal operator who is 

responsible for his own actions. Many times it is 

the inadvertence of an employee which is responsihle 

for a violation, and I feel that the Sena.tor from 

West Virginia has made a contribution. _!i., pp. 

728-729. 4/ 

4/ Senator Williams' statement, while supporting the majority's view 

that lack of operator fault can only mitigate the size of the civil 

penalty, mischaracterizes Senator Byrd's intent. Indeed, in the context 

of the Byrd/Metcalf exchange it is a non sequitur. 

265 
Only after passage of S. 2917 (October 2, 1969) was a companion bill, 

H.R. 13950, reported to the floor of the House (October 13, 1969). H.R. 

13950 required mandatory civil penalties but did not contain Senator 

Byrd's language ("whether the operator was at fault") as adopted by the 

Senate. Thereafter, the legislative history is silent on the fault issue 

until the "Statement of the House Managers" quoted above. 2_/ 

In sum neither the Mine Act, its predecessor statute, nor the legislative history conclusively establishes strict operator liability without 

regard to fault. To the extent that Commission and court precedents hold 

otherwise, I respectfully contend they are mistaken. Furthermore, with the 

exception of ASARCO, those precedents involved issues that need not have 

been resolved by resort to a theory of strict liability. 

A careful review of the factual circumstances of prior cases reveals 

that the operator was liable for other related violations 6/; the violative 

conduct was committed by a managerial employee whose actions as an agent 

were directly attributable to the operator 7/; or clear evidence existed 

that the operator knew of the non-managerial employee's violation but 

acquiesced in it. 8/ In short, liability in these "strict liability" 

cases could have been found on the basis of demonstrable operator fault. 

5/ It should be noted, however, that on other occasions throughout the 

legislative history civil penalties are discussed in terms of being 

assessed against "violators" or "operators found in violation" rather 

than against operators within whose mines violations occur. See e.g., 

Leg. Hist. 1969 Act at 1108, 1110, and 1594. ----

6/ Allied Products Co. v. FMSHRC, 666 F.2d 890 (5th Cir., Unit B 1982) 

(faulty hydraulic system, lack of roll-over protection and inadequate 

berm were the fault of the operator and contributed to the accident 

involving an employee who disregarded orders not to use the equipment 

at issue); American Materials Corp., 4 FMSHRC 415 (March 1981)(duty to 

post or barricade areas over which high voltage lines pass is exclusively 

the operator's); Kerr-McGee Corp., 3 FMSHRC 2496 (November 198l)(failure 

of operator to distinguish between safety lines and other materials handling 

cables contributed to employee's unsafe use of inappropriate equipment). 

7/ Sewell Coal Co. v. FMSHRC, 686 F.2d 1066 (4th Cir. 1982)(all employees 

involved in the violations were management personnel); Southern Ohio Coal 

Co., 4 FMSHRC 1459 (August 1982)(foreman failed to supervise and monitor 

complicated pillar recovery procedure); Ace Drilling Coal Co., Inc., 2 

FMSHRC 790 (April 1980) aff'd without opinion, 642 F.2d 440 (3rd Cir. 

198l)(foreman's negligent and violative acts are attributable to the 

mine operator even if the foreman's conduct is arguably unforseeable). 

8/ El Paso Rock Quarries, Inc., 3 FMSHRC 35 (January 198l)(not strictly 

an employee misconduct case; nevertheless, operator liable for violations 

caused by customer's truck drivers since operator allowed trucks without 

back-up alarms on the property). 

266 
Missing from the usual recital of precedents is a Commission case that 

indicates a chink in the strict liability wall. In Secretary v. Southwestern 

Illinois Coal Corp., 5 FMSHRC 1672 (October 1983), the Commission held that 

the precise wording of a safety standard may preclude operator liability if 

failure to comply is attributed to an employee's "disobedience or negligence.,; 

Id. p. 1675. The standard in question provided inter alia that "Each 

employee ••. shall be required to wear ..• safety belts and lines where 

there is danger of falling." 30 C.F.R. 77.1710(g). The inspector cited 

the operator when he found an employee not wearing a safety belt and line 

even though the inspector believed there was a falling hazard. Determining 

that "shall be required to wear" did not mean that safety equipment "shall 

be worn" a majority of the Commission went on to hold that an operator could 

escape liability so long as he demonstrated that he had required the equipment to be worn through "sufficiently specific and diligent enforcement." 

Id. at p. 1676. 

Two dissenting members took the majority to task for what the dissentets considered a Commission-created exception to the liability without 

fault doctrine, particularly since the Secretary had argued for application 

of the doctrine to his own regulation. Id. pp. 1679-1684. The Southwestern 

Illinois decision is obviously sound but nevertheless inconsistent with the 

majority holding here. If, indeed, Congress established an absolute doctrine 

of strict operator liability then the doctrine applies equally to the Secretary as rulemaker and the Commission as adjudicator. If the Commission is 

constrained here from carving out an affirmative defense based on employee 

disobedience, then the Secretary is constrained from promulgating, and the 

Commission from interpreting standards so as to accomplish the same thing, 

to wit: 30 C.F.R. 77.1710(g). 

II. Affirmative Defense Based on Employee Misconduct 

As determined above, in spite of conventional but unexamined "wisdom", 

the Mine Act can accommodate an operator's affirmative defense against a 

citation based upon unforeseen or idiosyncratic misconduct on the part of 

a miner. To assure that such a defense is not seized upon by the operator 

as a means of shirking his responsibilities under the Act, there must be 

strictly circumscribed criteria by which the defense is to be judged: 

the adequacy of the· operator's general safety training 

program; 

the adequacy of the miner's specific job assignment safety 

training; 

the adequacy of the level of supervisory control; 

the operator's system of discipline and sanctions imposed 

.on miners who contravene the operator's safety rules; 

the consistency in applying those sanctions; and, 

where determinable, the miner's knowledge that he or she 

has deliberately and knowingly contravened the operator's 

safety requirements. 

267 
Obviously, operator culpability either with respect to related violations 

or acquiescence in the miner's violative conduct would preclude raising the 

defense. Furthermore, since the Commission has consistently and correctly 

attributed the negligent or violative conduct of managerial employees to the 

operator, the affirmative defense would only be appropriate in cases involving 

non-managerial employees. See Secretary v. Wilmot Mining Co., 9 FMSHRC 684 

(April 1987). 

Given these strictures, I do not see the establishment of the 

affirmative defense as opening the floodgates to spurious claims by mine 

operators that the violations charged were caused solely by unforeseeable 

employee misconduct. Secretary's brief p. 24. 9/ I do, however, see a 

means by which an otherwise blameless operator with a comprehensive safety 

and training program can defend against unwarranted enforcement actions such 

as have been taken in this case. 

Lastly, as to whether this Commission can judicially fashion an 

affirmative defense not specifically provided for in the Mine Act, there 

is persuasive precedent. In a firm line of cases beginning with 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. Marshall, 663 

F.2d 1211 (3rd Cir. 1981) and Secretary on behalf of Robinette v. United 

Castle Coal Co., 3 FMSHRC 803 (April 1981), the Commission has held that an 

operator can affirmatively defend against a prima f acia case of discrimination 

under section 105(c) of the Mine Act, 30 U.S.C. 115(c), by proving by a preponderance of the evidence that although the adverse action complained of was 

motivated in part by the miner's statutorily protected safety activities, the 

operator was also motivated by unprotected activities and that the adverse 

action would have been taken in any event for the unprotected activity alone. 

2 FMSHRC 27992800. This Commission-fashioned defense is not derived from 

section 105(c) nor from the legislative history of that section, but it is a 

thoroughly sound means of evaluating discrimination complaints in an equitable 

manner consistent with the Mine Act's purposes. Likewise, here, equally sound 

policy reasons exist for fashioning an affirmative defense to citations based 

on unfor~seeable misconduct by miners, provided, of course, that the defense 

is subjected to the strict scrutiny outlined above. I!}_/ 

III. Unforeseeable Employee Misconduct: The OSHA Model 

Established policy under the Occupational Safety and Health Act of 

1970, 29 U.S.C. 651 et seq. (1985 and Supp. 1987)(0SHAct) provides the most 

persuasive analogous-Context within which unforeseeable employee misconduct 

is recognized as an affirmative defense to Secretarial enforcement actions. 

Both the OSHA statute and the Mine Act require literal employer compliance 

9/ For instance, careful review of the precedents establishing the strict 

liability doctrine (discussed at p. 11, above) indicates that with the 

exception of ASARCO, the affirmative defense of unforeseeable or idiosyncratic employee misconduct would not.have been available. 

10/ It is puzzling that both the majority and the Secretary appear to 

acknowledge the merit of the affirmative defense of employee misconduct 

(Footnote continued) 

268 
with mandatory safety and health standards. _!l/ Both statutes emphasize preinspection rath.er than post-accident compliance as the means for protecting 

workers from safety and health hazards. Most significantly, both statutes 

impose compliance responsibilities on employees/miners. Compare: 29 U.S.C. 

654(b) and 30 U.S.C. 80l(g). As the Secretary points out, miners are not 

subject to civil penalties under the Mine Act (except as provided in section 

llO(g)). Secretary's brief, p. 20. As the Secretary might also have 

indicated, employees are not subject to civil penalties under the OSHAct 

either. 

Yet, even in the absence of an explicit statutory provision for the 

unforeseeable employee misconduct defense, the Occupational Safety and 

Health Review Commission and reviewing courts have uniformly adopted the 

Fn. 10/ continued 

in circumstances such as those presented here while still rejecting it as 

unauthorized by the Mine Act. "[I]t would be error to create an unforeseeable employee misconduct defense under the Act even if that defense could/ 

have a 'salutary impact on the degree of excellence of employer's training _, 

programs."' Secretary's brief in ASARCO v. Secretary pet. for review, No. 

86-2765 (10th Cir., December 3, 1986) at p. 23. Constrained by what it considers to be unequivocal precedents, the majority opines that Petitioner's 

sole recourse is to Congress. Majority slip opinion at p. 7. Under section 

113 of the Mine Act, 30 U.S.C. 823, however, this independent Commission is 

authorized - indeed expressly encouraged - to decide "substantial" or "novel" 

questions of policy. The principal author of the Senate version of the Mine 

Act stressed this policy-making role during the confirmation hearings for 

initial members of the Commission: "It is our hope that ••• the Commission .•• 

will develop a uniform and comprehensive interpretation of the law [and] will 

provide guidance to the Secretary in enforcing the act and to the mining 

industry and miners in appreciating their responsibilities under the law." 

Nomination Hearing, Members of the Federal Mine Safety and Health Review Commission, Before the Senate Committee on Human Resources, 95th Cong., 2d Sess., 

August 24, 1978, p. 1. 

It seems obvious that, without doing violence to the Mine Act, the 

Commission in its policy-making role can and should decide between a 

policy of questionable merit (liability without regard to fault) and 

one of salutary impact (the affirmative defense based upon proof of a 

rigorous safety program). 

11/ Indeed, the presence of the "general duty" clause in the OSHAct, 

29 U.S.C. 654(a)(l), and the lack of same in the Mine Act suggests an 

even stricter standard of accountability for OSHA-governed employers. 

By its terms the clause places employers "under a duty to the greatest 

extent possible, to provide a workplace free of hazards" even where those 

hazards are not addressed by sp~cific mandatory standards. Congress, 

however, explicity declined to incorporate a general duty clause in the 

Mine Act. Senate Committee on Labor, Committee on Human Resources, 

95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977 at 1316-17 (1978). 

269 
defense on firm policy and legal grounds. The most forceful expression 

of the need for and appropriateness of the defense was stated in the Ninth 

Circuit's opinion in Brennan v. OSHRC, 511 F.2d 1139, 1145 (1985): 

Fundamental fairness would require that one charged 

with and penalized for violation be shown to have 

caused, or at least to have knowingly acquiesced in, 

that violation. Under our legal system, to date at 

least, no man is held accountable, or subject to fine, 

for the totally independent act of another. l.J_/ 

In contrast, the Secretary's reliance by analogy on federal food and 

drug legislation is misplaced. First of all, such statutes are aimed at 

protecting an unsuspecting public from tainted or injurious food and drug 

products, whereas the Mine Act is aimed at protecting miners who are presumed to have been trained to recognize and avoid hazards by reason of 

the mandatory training requirements of section 115, 30 U.S.C. 825. J.2.I 

Secondly, the Secretary's citation to United States v. Park, 421 U.S. 

658, 95 S.Ct. 1903 (1975) proves too much. The ultimate issue in Park was 

whether a corporate officer of an admittedly guilty corporation could be 

held criminally liable for violations of sanitation standards at a food 

warehouse. Park had argued that the trial court's jury instructions 

erroneously suggested that he could be found criminally liable strictly 

by reason of his status as corporate president and even though he did not 

personally participate in the violations. The Supreme Court upheld the 

instructions on the basis that Park bore a "responsible relationship" to 

or had a "responsible share" in the violations. Id. at 672. The Court 

was no doubt strongly influenced by evidence that-Park had been previously 

advised by letter of similar violations at another warehouse in the same 

region. Id. at 661. In any event, the Court acknowledged that evidence of 

powerlessness to prevent or correct the violation could be raised defensively 

at trial. Id. at 673, citing United States v. Wiesenfeld Warehouse Co., 

376 U.S. 86~91 84 S.Ct. 559 (1964). 

Here, the Secretary seeks to hold Western Fuels-Utah liable strictly 

by reason of its status as operator even though Western Fuels has amply 

demonstrated that it took affirmative measures to conform its conduct to 

the level expected by the Supreme Court in Park. Furthermore, the record 

here clearly indicates that Petitioner was powerless to prevent the unforeseeable and aberrant conduct of the miner. 

12/ Accord: Penn Power and Light Co. v. OSHRC, 737 F.2d 350 (3d Cir. 

1984); Daniel Int'l Corp. v. OSHRC, 683 F.2d 361 (11th Cir. 1982); 

National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). 

13/ It should be emphasized that while the Mine Act mandates comprehensive 

miner training by operators, the OSHAct does not require that comparable 

training programs be established by employers. Compare: 30 U.S.C. 825 and 

29 U.S.C. 670. This distinction further underscores the appropriateness of 

the affirmative defense in the Mine Act context provided the operator can 

establish full compliance with section 115. 

270 
IV. Conclusion 

Applying the above principles to the circumstances of this case, I 

would vacate the citation at issue. In arriving at his decision within 

the constraints of ASARCO the judge below made the following pertinent 

findings of fact: 

• Western Fuels-Utah had established an adequate safety training 

program supplemented by a disciplinary program for employee violations of mandatory standards • 

• Mullins, decedent, "violated" standard 75.200 by walking out 

under unsupported roof on his own and in disobedience of three 

direct orders from his foreman • 

• Mullins' conduct was "unforeseeable" and motivated by "some 

reason perhaps known only to himself." 

The record further indicates that Mullins was an experienced miner, 

that he was familiar with the roof control plan and the prohibitions 

against going under unsupported roof, and that he participated in a 

safety meeting on roof hazards and control three hours before the fatal 

accident. 

Measured against the criteria set forth above at p. 12; Western 

Fuels-Utah has convincingly established an affirmative defense of unforeseeable idiosyncratic misconduct on the part of the miner. 

It remains to stress once again the fundamental policy imperative that 

justifies the adoption of the affirmative defense. In section 2 of the Act, 

Congress clearly acknowledged that health and safety in this nation's mines 

could only be achieved through rigorous attention to safety, health and 

training programs jointly supported and advanced by operators and miners: 

[T]he Committee recognizes that creation and maintenance 

of a safe and healthful working environment is not the 

task of the operator alone. If the purposes of this 

legislation are to be achieved, the effort must be a 

joint one, involving the miner and his representative 

as well as the operator. 

Leg. Hist. 1977 Act at p. 606. 

Recognizing that operators are ultimately responsible for maintaining 

safe and healthful mine conditions, for establishing and enforcing safe 

mining practices, and for ensuring that miners are adequately trained 

to recognize and avoid mine hazards, the Mine Act and its purposes can 

still accommodate the narrowly drawn affirmative defense of unforeseeable 

employee misconduct. In fact, adoption of the defense by this Commission 

would provide operators with a powerful incentive to evaluate and improve 

overall safety programs and would hasten the day when the fundamental purposes of section 2 are fully realized. 

271 
I would, therefore, reverse the judge's decision arid vacate the 

cita.tion. 

272 
Commissioner Nelson, dissenting: 

While I agree that the Mine Act generally provides for 

liability wtth6ut regard to fault, it is my view that this precept should 

not be stretched to cover the extraordinary facts of this case -- facts 

which clearly establish unpreventable employee misconduct. Accordingly, 

I take the position that my colleagues constituting the majority have 

erred in failing to recognize and accord proper weight to this narrow 

exception to the liability without regard to fault doctrine. 

The majority opinion correctly acknowledges that in Asarco 

Incorporated Northwest Mining Department, 8 FMSHRC 1632 (November 

1986), this Commission reaffirmed that under the Mine Act a mine operator 

may be held liable for a violation even though the operator was not at 

fault. I joined the majority in the Asarco opinion because I believed, 

and still do, that Congress enacted a liability without regard to fault 

scheme in the Mine Act as an incentive for mine operators to comply with 

the'Act's safety and health requirements. My position in this case is 

consistent with my position in Asarco as it is only in the present case 

that the issue of unpreventable employee misconduct is addressed squarely 

by the Commission. In that reg~rd, the majority misreads Asarco (to the 

extent it suggests that in Asarco the Commission rejected the 

unpreventable employee misconduct defense) in stating that there "the 

operator was found liable for a violation even though the violation was 

attributable to an employee's 'unforeseeable and idiosyncratic' conduct 

and the operator itself was not negligent in connection with the 

violation." Slip op. at 5. While the administrative law judge in Asarco 

found the miner's decision to begin drilling the unstable face to be 

unforeseeable and idiosyncratic, that finding was treated by the 

Commission as collateral background material. 8 FMSHRC at 1634. When 

the Commission got down to the business of deciding Asarco, our focus was 

upon the liability without regard to fault structure of the Mine Act and 

not upon whether there exists a narrow exception to that doctrine --

i.e., the unpreventable employee misconduct defense. See 8 FMSHRC at 

1634-36. In fact, other than one reference to the administrative law 

judge's use of "unforeseeable and idiosyncratic" conduct, that term is 

notably absent in our Asarco decision. The majority also cites Southern 

Ohio Coal Company, 4 FMS~RC at 1462, incorrectly for the proposition that 

the Commission "stressed" that an operator is liable for the 

"idiosyncratic and unpredictable" acts of its employees. Slip op. at 

5-6. Although the Commission rejected the operator's argument in 

Southern Ohio that such employee conduct relieves it of liability for 

Mine Act violations, the Commission did so noting only "It is 

well-settled that under the Mine Act, an operator is liable without fault 

for violations of the Act and mandatory standards committed by its 

employees." 4 FMSHRC at 1462. The unpreventable employee misconduct 

defense received no substantive treatment by the Commission in Southern 

Ohio and, to repeat, is faced squarely for the first time in this case. 

273 
Generally speaking, by making a mine operator responsible for a 

violation, regardless of fault, Congress sought to instill in the mine 

operators· a keen awareness not only for identifying hazards already 

present in the mine, but also for anticipating hazards which might occur 

sometime in the future. Congress, however, did not place the burden for 

mine safety and health upon the operators alone. In section 2(e) of the 

Mine Act, Congress provided that "operators ... with the assistance of 

miners have the primary responsibility to prevent the existence of 

[unsafe and unhealthful] conditions and practices in [the] mines." 30 

U.S.C. Sec. 80l(e) (emphasis added). 

Nev~rtheless, despite this safety and health partnership 

between the miners and the operators, given the circumstances in Asarco 

we noted again that Congress chose to place the ultimate responsibility 

for a violation on the mine operator, even if that operator appeared to 

be free of negligence. This assignment of responsibility makes good 

sense because it is the operator who controls the daily activities at the 

mine and it is the operator who is in the best position to correct 

existing hazards and to prevent the occurrence of future hazards. It 

does not make good sense, however, and I believe it was not intended by 

Congress, to extend the liability without regard to fault doctrine to a 

situation where the mine operator operated its mine in the safe and 

responsible manner expected by Congress and where but for an 

unpreventable and intentional act by a disobedient employee -- there 

would have been no violation. Such an inflexible extension of the 

liability without regard to fault doctrine serves no useful safety and 

health purpose. It serves only to punish the safety and health conscious 

operator who, no matter how encompassing its precautionary efforts may 

have been, could not have prevented the violative event caused by an 

employee unforeseeably. 

The facts of the present case illustrate this point well. 

Here, the administrative law judge found that "the evidence in this 

record is undisputed that the decedent, Mullens, walked out under the 

unsupported roof on this own, contrary to the direct orders of his 

supervisor." 9 FMSHRC at 323 (emphasis added). The judge also found that 

Mr. Mullens' actions in proceeding under the unsupported roof were not 

foreseeab'le and that Mullens was supervised properly. Id. In addition, 

the judge stated, "I have carefully examined the record concerning the 

operator's training program and its history of disciplining its employees 

for violations of the mandatory standard at issue herein and find both to 

be adequate." 9 FMSHRC at 324. The judge concluded that "it was Mr. 

Mullens' own negligence, not that of the operator, which caused his 

death." Id. 

In sum, it is undisputed that Mullens proceeded under the 

unsupported roof immediately after his supervisor ordered him not to do 

so. Mullens' actions were contrary not only to his supervisor's 

instructions, but they also were contrary to his general safety training 

and company policy as well. 

274 
Inasmuch as Western Fuels-Utah could not have prevented the 

violation that occurred in this case and inasmuch as section 2(e) of the 

Mine Act places· a part of the responsibility for safety and health on the 

shoulders of the miners, I am convinced that Congress did not intend for 

the liability without regard to fault doctrine to apply to this 

exceptional situation. Moreover, I find little comfort in the Commission 

majority's holding that Western Fuels-Utah's lack of negligence was a 

matter to be considered more appropriately at the penalty assessment 

stage. If a mine operator has done all that it reasonably could be 

expected to do to ensure the safety and health of its miners, and if a 

violation occurs only as the result of unpreventable employee misconduct, 

reducing the amount of the penalty to be levied upon an otherwise 

blameless operator does not undo the injustice of the operator's having 

been found liable for the violation in the first instance. 

Accordingly, for these reasons I respectfully dissent. 

Distribution 

Linda L. Leasure, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Karl F. Anuta, Esq. 

2120 13th Street 

P.O. Box 1001 

Boulder, Colorado 80306 

Admininstrative Law Judge Roy Maurer 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

275 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

EMERY MINING CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 29, 1988 

Docket No. WEST 86-126-R 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

I 

BY: Backley and Lastowka, Commissioners !/ 

This contest proceeding brought by Emery Mining Corporation 

("Emery") under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seg. (1982) ("Mine Act" or "Act"), raises issues 

involving the extent of the walkaround rights granted miners' 

!/ A majority of the Commission joins in resolution of each issue 

presented by this case. The Chairman and all Commissioners join in 

section II.A. of this decision (affirming the judge's holding that a 

nonemployee may accompany an inspector as a miners' representative 

during a physical inspection of a mine). Commissioners Backley, Doyle, 

Lastowka and Nelson join in section II.B. (affirming the judge's holding 

that the failure of a nonemployee miners' representative to file the 

identifying information required by 30 C.F.R. Part 40 does not by itself 

permit the mine operator to deny that representative entry to its mine); 

Chairman Ford files a dissenting opinion as to that issue. Chairman 

Ford and Commissioners Backley and Lastowka join in section II.C. 

(reversing the judge's holding that the mine operator could not require 

the nonemployee miners' representative to sign a waiver of liability as 

a condition of entry to its mines); Commissioners Doyle and Nelson file 

a dissenting opinion as to that issue. 

276 
representatives by section 103(f) of the Mine Act. ~/ Commission 

Administrative Law Judge John J. Morris held that: (1) under section 

103(f) of the Act a nonemployee representative of miners may accompany 

an inspector of the Department of Labor's Mine Safety and Health 

Administration ("MSHA") during a physical inspection of the mine, i.e., 

participate in walkaround; (2) failure of a nonemployee miners' 

representative to have filed the identifying information required by 30 

C.F.R. Part 40 ("Part 40") does not, by itself, permit the operator to 

refuse the representative entry to its mine for purposes of exercising 

section 103(f) walkaround rights; 11 and (3) Emery could not require 

~/ The term "walkaround" is used for the sake of convenience in 

reference to the rights granted miners' representatives under section 

103(f) of the Mine Act, which provides: 

[1] Subject to regulations issued by the 

Secretary, a representative of the operator and a 

representative authorized by his miners shall be 

given an opportunity to accompany the Secretary or 

his authorized representative during the physical 

inspection of any coal or other mine made pursuant 

to the provisions of subsection (a) of this section, 

for the purpose of aiding such inspection and to 

participate in pre- or post-inspection conferences 

held at the mine. [2] Where there is no authorized 

miner representative, the Secretary or his 

authorized representative shall consult with a 

reasonable number of miners concerning matters of 

health and safety in such mine. [3] Such 

representative of miners who is also an employee of 

the operator shall suffer no loss of pay during the 

period of his participation in the inspection made 

under this subsection. [4] To the extent that the 

Secretary or authorized representative of the 

Secretary determines that more than one 

representative from each party would further aid the 

inspection, he can permit each party to have an 

equal number of such additional representatives. 

[5] However, only one such representative of miners 

who is ari employee of the operator shall be entitled 

to suffer no loss of pay during the period of such 

participation under the provisions of this 

subsection. [6] Compliance with this subsection 

shall not be a jurisdictional prerequisite to the 

enforcement of any provision of this [Act]. 

30 U.S.C. § 813(f)(sentence numbers added). 

11 30 C.F.R. §§ 40.1-.3 provides in relevant part: 

§40.1 Definitions. As used in this Part 40: 

(b) "Representative of miners" means: (1) Any 

person or organization which represents two or more 

277 
miners at a coal or other mine for the purposes of 

the Act, and (2) "Representatives authorized by the 

miners", "miners or their representative", 

"authorized miner representative",· and other similar 

terms as they appear in the Act. 

§40.2 Requirements. (a) A representative of 

miners shall file with the Mine Safety and Health 

Administration District Manager for the district in 

which the mine is located the information required 

by §40.3 of this part. Concurrently, a copy of this 

inrormation shall be provided to the operator of the 

mine by the representative of miners. (b) Miners or 

their representative organization may appoint or 

designate different persons to represent them under 

various sections of the [A]ct relating to 

representatives of miners. (c) All information 

filed pursuant to this part shall be maintained by 

the appropriate Mine Safety and Health 

Administration District Off ice and shall be made 

available for public inspection. 

§ 40.3 Filing procedures. 

(a) The following information shall be filed by a 

representative of miners with the appropriate 

District Manager, with copies to the operators of 

the affected mines. This information shall be kept 

current: 

(1) The name, address, and telephone number of the 

representative of miners. If the representative is 

an organization, the name, address, and telephone 

number of the organization and the title of the 

official or position, who is to serve as the 

representative and his or her telephone number. 

(2) The name and address of the operator of the 

mine where the represented miners work and the name, 

address, and Mine Safety and Health Administration 

identification number, if known; of the mine. 

(3) A copy of the document evidencing the 

designation of the representative of miners. 

(4) A statement that the person or position named 

as the representative of miners is the 

representative for all purposes of the Act; or if 

the representative's authority is limited, a 

statement of the limitation. 

(5) The names, addresses, and telephone numbers, 

of any representative to serve in his absence. 

(6) A statement that copies of all information 

filed pursuant to this section have been delivered 

to the operator of the affected mine, prior to or 

concurrently with the filing of this statement. 

(7) A statement certifying that all information 
that a nonemployee miners' representative sign a waiver of liability as 

a precondition to entering mine property. 8 FMSHRC 1192 (August 1986) 

(ALJ). 

For the reasons explained below, we affirm the judge's conclusion 

that walkaround rights under section 103(f) extend to nonemployee 

representatives of miners. Adhering to the Commission's decision in 

Consolidation Coal Co., 3 FMSHRC 617 (March 1981), we also affirm the 

judge's determination that an operator may not refuse a miner's 

representative access to a mine for walkaround purposes solely because 

the representative has not filed identifying information under Part 40. 

However, in reversal of the judge, we hold that an operator may require 

a nonemployee representative to sign a nondiscriminatory waiver of 

liability required by the operator of all nonemployee visitors to its 

mine. !:_/ 

I. 

Facts and Procedural History 

The relevant events in this case occurred on April 15, 1986, at 

the Deer Creek Mine, an underground coal mine located in Utah. At the 

time, the mine was owned by Utah Power and Light Company ("UP&L") but 

was managed and operated by Emery. (Effective April 27, 1986, the 

operation of Deer Creek and all other UP&L mines managed by Emery 

·transferred to UP&L.) The International Union, United Mine Workers of 

America ( 11UMWA11 ), represented miners at Deer Creek and at the other UP&L 

mines operated by Emery. On April 15, 1986, Emery and the UMWA were 

parties to a collective bargaining agreement applicable to the Deer 

Creek Mine, the Bituminous Coal Wage Agreement of 1984 ("the Wage 

Agreement"). 

On the morning of April 15, 1986, Vern Boston, an MSHA Inspector, 

arrived at the mine to conduct a regular quarterly inspection. 30 

U.S.C. § 813(a). At the mine gate the inspector was met by Thomas 

filed is true and correct followed by the signature 

of the representative of miners. 

(b) The representative of miners shall be 

responsible for ensuring that the appropriate 

District Manager and operator have received all of 

the information required by this part and informing 

such District Manager and operator of any subsequent 

changes in the information. 

~/ This case is one of four related matters. The other three cases 

are all captioned as Utah Power & Light Company, substituted for Emery 

Mining Corp. v. Secretary of Labor, Mine Safety and Health 

Administration (MSHA), & UMWA (Docket Nos. WEST 86-131-R; 86-140-R; & 

86-141-R). The parties agreed that the ruling in this proceeding would 

control the disposition of the remaining three cases. 8 FMSHRC 1210, 

1212, 1214 (August 1987)(ALJ). Our consolidated summary opinion in 

those three cases, consistent with the present decision, is also issued 

this date. 

279 
Rabbitt, a UMWA International Health and Safety Representative. The 

issues before us center around Rabbitt's attempt that day to accompany 

Inspector Boston on walkaround as an additional miners' 

representative. 21 

Rabbitt testified that approximately one week before his visit to 

the Deer Creek mine, Frank Fitzek, chairman of the UMWA's local threeperson safety committee at Deer Creek, had asked him on behalf of the 

committee to look into allegations concerning "unwarrantable failure" 

citations and orders (30 U.S.C. § 814(d)) being issued by MSHA during 

its quarterly inspection at Deer Creek. Rabbitt had indicated that he 

would visit the mine within a few weeks to assist in the inspection 

process. Rabbitt further testified that he telephoned Fitzek on the 

evening of April 14 to inform him that he would visit the mine the next 

day. (Tr. 87-89, 125-26, 147-48.) 

Rabbitt arrived at the Deer Creek mine gate at approximately 

7:00 a.m. on April 15. According to Rabbitt, Fitzek appeared and told 

Rabbitt that he had informed Mine Manager White that Rabbitt was going 

to be at the mine that day but had stated to White that he "didn't know 

exactly for what reason ..•. " Tr. 89. Fitzek told Rabbitt that White 

was "quite disturbed" at the news of Rabbitt 1 s visit. Id. Fitzek then 

left to begin his work at the mine. £/ 

At approximately 7:45 a.m., Inspector Boston arrived at the mine 

gate, where Rabbitt was waiting. The inspector had not met Rabbitt 

before but was aware of his position with the UMWA. Mark Larsen, a Deer 

Creek employee and the third member of the local safety committee, was 

scheduled to accompany Boston that day on walkaround as the miners' 

21 Rabbitt's duties during his seven and one-half years employment as 

an International Health and Safety Representative consisted chiefly of 

investigating mine accidents. Since June 1985 he had been working in 

Utah on the investigation of the disaster at Emery's nearby Wilberg 

mine. Rabbitt testified that on two occasions, in January and late 

February 1986, he had participated with Earl White, mine manager of Deer 

Creek, ~nd with other Emery and UMWA representatives, in an underground 

investigation at Deer Creek in connection with a proposed petition for 

modification of a mandatory standard sought by Emery under section 

lOl(c) of the Mine Act. 30 U.S.C. § 81l(c). However, prior to April 

15, 1986, he had not participated in walkaround during an inspection at 

Deer Creek. 

6/ Fitzek did not testify at the hearing. Mine Manager White, 

Emery's witness, testified,that on the morning of April 15, Fitzek 

informed him of Rabbitt's visit but denied to him that the local safety 

committee had "invited" Rabbitt. Tr. 175. Rabbitt testified that 

employees are "[q]uite often" reluctant to indicate to management that 

they have requested the presence of an International representative. 

Tr. 148. Whatever the details surrounding Rabbitt's visit to Deer 

Creek, the record makes clear that all three members of the local safety 

committee were aware of Rabbitt's visit on April 15 and there is no 

indication that they objected to his presence. 

280 
representative. Rabbitt asked Boston if he could accompany him as an 

additional miners• representative. Boston replied that he had no 

problem with Rabbitt 1 s participation but would have to check with mine 

management concerning an additional management representative. (Under 

the fourth sentence of section 103(f) (n.2 supra), the Secretary's 

authorized representative may permit each party to have an equal number 

of additional representatives.) 

Inspector Boston proceeded to the mine 1 s safety office and spoke 

with Dixon Peacock, an Emery safety engineer and inspection 

representative. Peacock indicated that he had no objection to Rabbitt 1 s 

participation in the inspection. Inspector Boston was then joined by 

safety committeeman Larsen, who had just been informed by Fitzek of 

Rabbitt 1 s presence. Boston and Larsen returned to the gate and asked 

Rabbitt to join them. The three men then entered the mine premises 

together. 

While Boston was changing his clothes, Larsen and Rabbitt met with 

Mine Manager White in his office. White questioned Rabbitt 1 s authority 

to enter the mine pursuant to the Wage Agreement, asserting that Rabbitt 

had failed to provide mine management with the 24-hour advance notice of 

a visit required under the Wage Agreement. Zf Rabbitt responded that he 

sought access to the mine not under the Wage Agreement, but pursuant to 

section 103(f) of the Mine Act. The three then went to the safety 

office where, joined by Peacock and Terry Jordan, another Emery safety 

engineer, White began reading section 103(f) of the Mine Act. 

When Inspector Boston arrived in the room, a discussion ensued 

concerning the authority for Rabbitt 1 s presence. Boston stated that 

Rabbitt had a right to participate in the inspection under section 

103(f) of the Act because he was a UMWA International Representative. 

While agreeing that Rabbitt was an International Representative, White 

contended that under section 103(f) only a representative of miners who 

is also an employee of the operator is entitled to accompany the 

inspector. Tr. 32-33, 90-91, 180-82. At that point, and on that basis, 

White refused to permit Rabbitt to join in the inspection. 

Inspector Boston then began writing a section 104(a) citation, 30 

U.S.C. § 814(a), alleging a violation of section 103(f) of the Act. 

Boston told White that he would give him ten minutes to reconsider and, 

if Emery persisted in its refusal to permit Rabbitt 1 s participation, he 

would also issue Emery a section 104(b) order for failure to abate the 

cited violation. 30 U.S.C. § 814(b); Tr. 33, 182. White went to 

another office and telephoned Dave Lauriski, Emery's director of health 

and safety, informing him of his actions and of the issuance of the 

citation. Lauriski agreed with White's position but advised permitting 

Rabbitt to participate in the inspection rather than risk issuance of a 

section 104(b) withdrawal order. Tr. 183. White returned and told 

Boston that he would abate the.alleged violation by allowing Rabbitt to 

accompany the inspection party, and Boston terminated the citation. Tr. 

lf No issue concerning advance notice under the Wage Agreement is 

involved in this proceeding. 

281 
33, 39-40, 184. 

During White's telephone conversation with Lauriski, an additional 

subject arose concerning whether Rabbitt had signed Emery's waiver of 

liability form, a procedure that Emery required of nonemployee visitors 

to all of its mines, including Deer Creek. ~/ Before returning to the 

safety office, White telephoned the guard's shack at the mine entrance 

and learned that Rabbitt had not signed a waiver. After Boston 

terminated the initial citation, White stated that Rabbitt would have to 

sign a waiver before proceeding underground. Tr. 33, 39··41, 184-85. 

When a waiver form was produced, Rabbitt refused to sign it. Boston 

telephoned his supervisor for guidance, and was informed that Rabbitt 

could not be required to sign such a form. Following further 

discussion, White refused to allow Rabbitt to join the inspection party 

unless the form was signed. Boston then added a second alleged 

violation of section 103(f) to the original citation. White finally 

agreed to Rabbitt's participation and the citation was terminated. 

Emery's representatives raised no objection on that day to Rabbitt's 

participation based on the UMWA's failure to designate Rabbitt in its 

Part 40 filing that identified miners' representatives for the Deer 

Creek Mine. 

The inspection party, consisting of the inspector, miners' 

representatives Larsen and Rabbitt, and Emery representatives Jordan and 

Peacock proceeded underground. During the inspection Rabbitt brought to 

Inspector Boston's attention a condition that resulted in the issuance 

of a citation for an alleged violation of Emery's roof control plan. 

Tr. 94. ' 

~/ On March 21, 1986, Emery instttuted a waiver of liability policy 

requiring all nonemployee visitors to sign a waiver as a condition of 

entry to mine property. The Release and Waiver form, which includes a 

hazard check list, provides in pertinent part: 

The undersigned, in consideration of being allowed 

to come upon the mine property 

(insert name of mine), hereby forever releases, 

discharges and waives as to Emery Mining Corporation 

("Emery"), any and all claims, rights or causes of 

action that the undersigned now has or may hereafter 

acquire against Emery on account of any damages 

sustained or injuries suffered, presently or 

hereafter, while present upon or within the mine 

property. The undersigned further agrees to hold 

Emery harmless on account of any and all liability 

which may attach to Emery on account of damages 

sustained or injuries suffered by the undersigned 

while upon or within the mine property. All 

references to Emery shall include its officers 

directors, shareholders, employees and agents. 

Emery Exh. 3. 

282 
On April 17, 1986, Emery filed a notice of contest pursuant to 

section 105(d) of the Mine Act, 30 U.S.C. § 815(d), challenging the 

alleged violation of section 103(f). On April 24, 1986, Judge Morris 

granted the UMWA's motion to intervene, and the hearing was held on May 

14, 1986. 

During the hearing, a copy of the "Miners' Representation 

Notification" form submitted for the Deer Creek Mine to the MSHA 

District Manager, pursuant to Part 40, was received into evidence. 

Emery Exh. 7. Section A of the form lists Frank Fitzek, safety 

chairman, as the "Selected Representative of Miners," with his home 

address and telephone number. Section D lists thirteen miners with home 

addresses and telephone numbers as "Selected Multiple Representatives." 

Section E lists the UMWA as the "organization" with which the 

"Representative [Fitzek] is Associated." The form is signed by Fitzek, 

and a note identifies him as Safety Chairman of UMWA Local No. 1769. 

Neither Rabbitt nor any other official or health and safety 

representative of the UMWA International was listed on the form. Before 

the judge, Emery argued that the UMWA's failure to designate Rabbitt as 

a miners' representative on this Part 40 form also supported denial of 

access to Rabbitt on April 15, 1986. 

Relying on the language of section 103(f) of the Act, its 

legislative history, and on the definition of "representative of miners" 

contained in 30 C.F.R. 40.1 (n.3 supra), Judge Morris, in his decision, 

concluded that nonemployees may be representatives of miners and 

participate in walkaround. 8 FMSHRC at 1202-05. He determined that 

both the UMWA and Rabbitt met the Secretary's definition of a miners' 

representative. 8 FMSHRC at 1205. Noting that Emery knew that Rabbitt 

was a UMWA International Representative, he concluded that Rabbitt was 

permitted to participate in the April 15 inspection as a matter of 

statutory right under section 103(f). Id. Addressing the question of 

Rabbitt's refusal to sign Emery's waive~ the judge found that Emery's 

legitimate right to condition entry to its mines by nonemployee members 

of the general public did not extend to miners' representatives seeking 

access pursuant to section 103(f) of the Mine Act. 8 FMSHRC at 1206-07. 

Last, citing the Commission's decision in Consolidation Coal Company, 

supra, the judge held that the UMWA's failure to designate Rabbitt on 

the Part 40 miners' representatives designation form for Deer Creek did 

not, by itself, justify Emery's attempt to deny Rabbitt access. 

8 FMSHRC at 1208. 

We granted Emery's petition for discretionary review and heard 

oral argument in this matter. We now affirm in part and reverse in 

part. 

II. 

Disposition of Questions Presented 

A. Nonemployee Representatives of Miners 

We first address Emery's contention that the judge erred in 

holding that section 103(f) walkaround rights extend to nonemployee 

283 
representatives of miners. Emery does not dispute that nonemployees may 

serve as representatives of miners. E. Br. 12. Rather, Emery argues 

that nonemployee representatives may not accompany inspectors during 

physical inspections of mines as a matter of statutory right under 

section 103(f) of the Act but may participate in such inspections only 

through the consent of the operator or private contractual agreement. 

The Commission has emphasized repeatedly that the opportunity to 

engage in walkaround is a vitally important statutory right granted to 

miners and their representatives by the Act. See,~., Secretary on 

behalf of Richard Truex v. Consolidation Coal Co., 8 FMSHRC 1293, 1298 

(September 1986), and authorities cited. Although, as discussed below, 

this right is not unqualified, we find no authority for the broad 

participatory restriction based on employee status urged by Emery. 

We find the language of section 103(f) dispositive of the question 

presented. While the term "miners' representative" is not defined in 

the Act, we have no difficulty concluding that Congress granted miners a 

broad right to designate representatives of their choosing for walkaround and other Mine Act-related purposes. The first sentence of 

section 103(f) (n.2. supra) confers the walkaround right upon miners and 

their representatives in unambiguous terms: "Subject to regulations 

issued by the Secretary, a representative of the operator and a 

representative authorized by his miners shall be given an opportunity to 

accompany the Secretary['s] ... authorized representative during the 

physical inspection of any ... mine made pursuant to ... section [103(a) 

of the Act] ••.. " (Emphasis added.) This sentence not only confers upon 

miners the basic right to choose their own representatives for purposes 

under the Mine Act including participation in walkaround (Truex, supra, 

8 FMSHRC at 1298), but imposes no employee-status limitation as to whom 

they may choose. 

The third sentence of section 103(f), authorizing the payment of 

compensation to some miners' representatives for their walkaround 

participation, is also instructive: "Such representative of miners who 

is also an employee of the operator shall suffer no loss of pay during 

the period of his participation in the inspection .... " (Emphasis 

added.) "Also" means "in addition ... as well •.. besides, too" 

(Webster's Third New Int'l Dictionary (Unabridged) 62 (1971)), and its 

use in this provision evidences congressional awareness that some 

miners' representatives may be employees and others may not. The plain 

meaning of the third sentence is that only miners' representatives who 

are employees of an operator shall be paid compensation for the period 

of walkaround. By equally plain implication, this language indicates 

that nonemployee representatives of an operator's employees share in the 

statutory right to engage in walkaround, but are not entitled to 

compensation from the operator. The fifth sentence of section 103(f) 

also contains a reference, with similar intent and effect, to "such 

representative who is an employee of the operator •... " 

Thus, read together, the first and third sentences of section 

103(f) convince us that as a matter of statutory right a nonemployee may 

be chosen by the miners of a given mine as their representative and that 

such a representative may properly be afforded the opportunity to 

284 
participate in walkaround at that mine -- although without compensation 

from the operator. See also Conf. Rep. No. 461, 95th Cong., 1st Sess. 

45 (1977), reprinted~ Senate Subcommittee on Labor, Committee on Human 

Resources, Legislative History of the Federal Mine Safety and Health Act 

of 1977, at 1323 (1978)("Legis. Hist."): "[T]o encourage miner 

participation [the conference substitute bill] provide[s] that one such 

representative of miners, who is also an employee of the operator, be 

paid by the operator for his participation in the inspection •••• "'}_/ 

Further, the first sentence of section 103(f) states that the 

exercise of the walkaround right is "[s]ubject to regulations issued by 

the Secretary," and the Secretary's Part 40 regulations are fully 

consistent with the conclusion that we reach today. Section 40.1 (n.3 

supra) defines "representative of miners" as including "[a]ny person £!: 

organization which represents two or more miners at a .•. mine for the 

purposes of the Act. ..• " (Emphasis added.) As the Secretary has noted 

on review, this definition obviously includes nonemployees: 

This definition recognizes that there is no 

statutory limitation on the miners' right to choose 

their representatives. It is obvious that an 

"organization" cannot be an employee of the 

operator. This part of· the definition was included 

in recognition of miners' frequent practice of 

designating either their union, or other specialized 

organization as their representatives. 

S. Br. 9-10 (footnote omitted.) Congress specifically delegated to the 

Secretary the authority to issue implementing regulations under section 

103(f) and we find that the Secretary's broad definition of 

representative is in accord with the underlying statutory text discussed 

above. 

Finally, as we have stressed previously, section 103(f) and the 

Secretary's Part 40 regulations reserve to miners -- not mine operators 

-- the right to select their representatives for purposes under the Act, 

including the exercise of the walkaround right. Truex, supra, 8 FMSHRC 

at 1298. If adopted, Emery's position would impermissibly abridge that 

right of choice. 

'}_/ Emery has cited certain other portions of the legislative history 

in support of its contrary argument. For example, during Senate debate 

over a proposed amendment that would have deleted the compensation 

guaranty under section 103(f) for employee miners' representatives, 

Senators Javits and Helms used the words "workers," "employees" and 

"miners." Legis. Hist. at 812, 1053-56. Their debate, however, was 

concerned with the question of compensation for employee miner 

representatives. Contrary to Emery's arguments, the use of these words 

did not indicate a restrictive construction of "miners' representative," 

but rather related only to the question of whether such representatives 

who are employed by an operator should be compensated by that operator 

for participating in inspections at the operator's mine. 

285 
Accordingly, we affirm the judge's decision insofar as it held 

that nonemployee representatives are afforded a right under section 

103(f) tb accompany inspectors during physical inspections of mines. 10/ 

B. Part 40 Filing Requirements 

We turn to the question of whether the failure to name Rabbitt as 

a miners' representative in the Part 40 filing submitted for the Deer 

Creek Mine entitled Emery to deny him entry to the mine for walkaround 

purposes. Relying on Consolidation Coal, supra, the judge held that, on 

the facts presented, the failure to list Rabbitt did not, by itself, 

defeat his walkaround rights. 8 FMSHRC at 1207-08. Emery argues that 

Consolidation Coal is factually distinguishable from the present case 

and is not controlling. Alternatively, Emery argues that the holding of 

Consolidation Coal should be reexamined and declared incorrect as a 

matter of law. 

In Consolidation Coal the Commission held "that failure of a 

person to file as a representative of miners under Part 40 does not per 

se entitle an operator to deny that person walkaround participation 

under section 103(f)." 3 FMSHRC at 619. Like the present matter, that 

case involved an operator's objection to walkaround participation by 

UMWA International personnel whose names had not been listed in a Part 

40 filing for the mine in question although the UMWA was the undisputed 

organizational representative of the miners at the mine. The Commission 

noted that "[n]either the statute nor the legislative history indicates 

that prior identification of miners' representatives is a prerequisite 

to engaging in the section 103(f) walkaround right •••• " 3 FMSHRC at 

619. The Commission also observed that the Part 40 filing requirements 

were not promulgated merely to identify representatives for walkaround 

purposes but to facilitate secretari,al cooperation with representatives 

and to further their inclusion in the range of representative functions 

contemplated by the Act. 3 FMSHRC at 619 n. 3. 

In particular, the Commission emphasized that in promulgating the 

Part 40 regulations, the Secretary had noted that: "[M]iners and their 

representatives do not lose their statutory rights under section 103(f) 

by their failure to file as a representative of miners under this part." 

3 FMSHRC 'at 619, quoting 43 Fed. Reg. 29,508 (July 7, 1978) (Secretary's 

Part 40 Preamble). The Commission agreed with this position, but as a 

safeguard against abuse or fraud expressly recognized that "[i)n a 

10/ Emery's reliance on Council of So. Mtns. v. Martin County Coal 

Corp., 6 FMSHRC 206 (February 1984), aff'd sub nom. Council of s6. Mtns. 

v. FMSHRC, 751 F. 2d 1418 (DrC. Cir 1985), is misplaced. In that 

proceeding, the U.S. Court of Appeals for the District of Columbia 

Circuit affirmed the Commission's holding that the Mine Act does not 

grant nonemployee miners' representatives a general right of access to 

mine property for purposes of "monitoring" an operator's miner training 

program. However, both the Commission·and Court emphasized that the 

case did not involve participation in walkaround by an authorized 

miners' representative. 6 FMSHRC at 207; 751 F.2d at 1421 n.21 & 1423. 

Here, in contrast, we deal with that clearly conferred statutory right. 

286 
particular situation, absent filing, an operator may in good faith lack 

a reasonable basis for believing that a person is in fact an authorized 

representative of miners." 3 FMSHRC at 619. Thus, the Commission held 

that there may be "circumstances where an operator can legitimately 

refuse walkaround participation to a person who failed to comply with 

Part 40's filing requirements." Id. 

In light of Emery's arguments, we have carefully reexamined the 

reasoning and bases of Consolidation Coal. We find that decision to 

represent a sound interpretation of section 103(f) and to accurately 

reflect the Secretary's clearly expressed intent in promulgating his 

Part 40 regulations. We therefore reaffirm that decision and conclude 

that application of its principles to the present case dictates 

affirmance of the judge on this question. 

Here, as noted above, Rabbit's name was not listed on the 

representatives' notification form submitted for the Deer Creek Mine 

pursuant to the filing requirements of 30 C.F.R. §§ 40.2 & 40.3 (n.3 

supra). However, the UMWA was named on the form as the organization 

with which the local employee miners' representatives were affiliated. 

The record leaves no doubt that this affiliation and the UMWA's status 

as the organization representing miners at the Deer Creek Mine were well 

known to Emery. The record is devoid of any prior objection by Emery to 

the UMWA 1 s representative status. 

There is also no dispute that Rabbitt was a valid International 

Representative of the UMWA, and was recognized as such by Deer Creek's 

management. No one at the mine on April 15, 1986 -- miners, Emery 

management, o;;-Inspector Boston -- doubted Rabbitt 1 s credentials as a 

UMWA official. Indeed, the facts show that Rabbitt was well known in 

his official capacity by Mine Manager White and had previously visited 

the Deer Creek Mine in connection with the proposed modification of the 

application of certain mandatory standards. 

Part 40 permits both organizations and individuals to serve as 

miners' representatives. In light of the evidence developed in this 

case, the judge properly determined that the UMWA as an organization and 

Rabbitt as an official of that organization were miners 1 representatives 

of the Deer Creek miners. That same evidence defeats any assertion that 

Emery entertained a good faith doubt on April 15, 1986, as to Rabbitt 1 s 

status as a bona fide agent of the organization representing its miners. 

As was the case in Consolidation Coal, the operator "was aware of who 

[this] perso[n] [was] and why [he was] at its mine." 3 FMSHRC at 619. 

Emery's attempts to distinguish Consolidation Coal are 

unpersuasive. First, Emery has argued in its brief (E. Br. 31-32) and 

at oral argument before us (Tr. Oral Arg 1 t 70-71) that Rabbitt 1 s 

presence at Deer Creek on April 15 had not been sought by the local 

safety committee. Our reading ·of the record shows that all three 

members of the Deer Creek safety committee were aware of Rabbitt 1 s visit 

on April 15 and did not object to his presence. See n.6 supra. The 

only objection to Rabbitt's presence revealed in the record is that of 

Emery. Moreover, the judge found that the local members of that 

committee, including Fitzek, "wanted Rabbitt's expertise and 

287 
assistance." 9 FMSHRC at 1205. Rabbitt's previously described 

testimony concerning the safety committee's request that he visit the 

Deer Creek mine provides substantial evidence to support the judge's 

finding. Second, Emery asserts that the inspection in Consolidation 

Coal was conducted pursuant to a miner's request under section 103(g) of 

the Mine Act, 30 U.S.C. § 813(g)(l), while the April 15 inspection at 

Deer Creek was a regular, quarterly inspection conducted pursuant to 

section 103(a) of the Act. This case does not require us to detail the 

interrelationship between sections 103(a) and (g). The concise answer 

to this argument is that section 103(f), by its express terms, links 

walkaround rights to inspections made pursuant to section 103(a). 

In further challenging the rationale of Consolidation Coal, Emery 

relies on the principle that an agency must comply with its own 

regulations, which, in this instance, require the filing of information 

identifying miners' representatives. First, we note that here it is a 

failure of the miners' representative to file under Part 40 that is at 

issue, not a failure of the government to follow its regulations. 

Second, it is settled that an agency possesses' broad authority to 

delineate, explain, and interpret its regulations. See generally,~., 

Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533 (D.C. Cir. 

1986)(Scalia, J.) With respect to the Part 40 regulations, the 

Secretary did so in his promulgation of the rules and indicated clearly 

that a failure to file under Part 40, by itself, does not vitiate 

walkaround rights. 

For the above reasons, we agree with the judge that the failure to 

specifically name Rabbitt as a miners' representative in the Part 40 

filing did not defeat his right to accompany the MSHA inspector. 

Nevertheless, we are constrained to observe that this type of issue has 

arisen several times before us on review. Thus, we are aware that a 

level of uncertainty is pres~nt in the mining community concerning the 

purpose of and the need for adherenc~ to the Part 40 filing 

requirements. Clarity in the administration and enforcement of the Act 

is vital. In promulgating the Part 40 regulations, the Secretary 

expressly stated that he would monitor the experience of representation 

by organizations in order to address any problems encountered. 43 Fed. 

Reg. 29,508 (July 7, 1978). The interests of the mining community and 

the cause of cogent enforcement might be well served by instituting 

secretarial review of the Part 40 filing requirements with the object of 

clarifying the intent, implementation and need for compliance with 

filing requirements by miners' representatives. 

C. Waiver of Liability Policy 

We next turn to the issue of whether, in view of our conclusion 

that a nonemployee may be designated as a miners' representative 

authorized to accompany an MSHA inspector during an inspection, Emery 

could nonetheless require such nonemployee representative to sign a 

waiver of liability as a condition of entry into the mine. The 

administrative law judge concluded that Emery's insistence that Rabbitt 

sign a waiver before ·entering its mine was an impermissible interference 

with the exercise of the miners' walkaround rights under section 
103(f) . .!l/ For the reasons that follow, we reverse. 

The right given to miners to have a representative accompany an 

inspector is an important right. Congress concluded that miner 

participation in inspections "will enable miners to understand the 

safety and health requirements of the Act and will enhance mine safety 

and health awareness." S. Rep. No. 181, 95th Cong., 1st Sess. 28-29 

(1977), reprinted in Legis. Hist. 616-617. Nevertheless, the right to 

accompany an inspector is not an unqualified right. Certain 

qualifications on the exercise of the right are stated in section 103(f) 

itself. Section 103(f) begins by providing that the exercise of the 

right is 11 [s]ubject to regulations issued by the Secretary." 12/ 30 

U.S.C. § 813(f). Also, rather than mandating that a miners' 

representative be present during any inspection, the section simply 

requires that a representative "be given an opportunity to accompany" 

the inspector and it is expressly provided that "compliance with 

[section 103(f)] shall not be a jurisdictional prerequisite to the 

enforcement of ... this Act. 11 Id. Further, although more than one 

miners' representative may accompany the inspector if an inspector 

determines that such participation would aid the inspection, only one 

miners' representative employed by the operator is entitled to 

compensation from the operator for the time spent on the inspection. 

Id.; see also Magma Copper Co. v. Secretary of Labor, 645 F.2d 694 (9th 

Cir. 1981). Thus, Congress provided miners' representatives a carefully 

delineated right that, although important, is far from an absolute, 

unconditional right of accompaniment. 13/ 

.!lf The judge also addressed whether Emery's waiver of liability 

policy violated the laws of the State of Utah. The proper concern in 

this proceeding, however, is whether Emery violated the Mine Act. We 

express no opinion, therefore, on any question concerning state law. 

12/ The Secretary has not promulgated a regulation addressing the 

;;lationship between 103(f) rights of nonemployee representatives and 

waiver of liability policies. Rather, this theory of violation was 

enunciated by the Secretary for the first time in the enforcement 

proceeding presently before us. 

13/ The Secretary of Labor's Interpretative Bulletin addressing 

section 103(f) walkaround rights also recognizes that the exercise of 

walkaround rights of miners' representatives is subject to appropriate 

qualifications: 

Considerable discretion must be vested in inspectors 

in dealing with the different situations that can 

occur during an inspection. While every reasonable 

effort will be made in a given situation to provide 

opportunity for full participation in an inspection 

by a representative of miners, it must be borne in 

mind that the inspection itself always takes 

precedence. The inspector's primary duty is to 

carry out a thorough, detailed, and orderly 

inspection. The inspector cannot allow inordinate 

289 
In this case the operator asserts that its requirement'that a 

waiver of liability be executed was a good faith, reasonable condition 

of entry ·applicable to all nonemployee visitors, and that Rabbitt's 

refusal to sign the waiver justified Emery's denial of entry into its 

mine. In essence, Emery argues that its policy requiring waivers of 

liability as a condition of entry into its mine is proper because it 

protects a legitimate private property right of the operator without 

impermissibly interfering with the exercise of the statutory walkaround 

right granted to miners under section 103(f). 

The Supreme Court has recognized that in appropriate circumstances 

conflicts between statutory rights of employees and private property 

rights of employers must be resolved by seeking a proper and balanced 

accommodation between the two. See, ~·· Hudgens v. NLRB, 424 U.S. 

507, 521-22 (1976). Such accommodation between employees' statutory 

rights and employers' property rights "must be obtained with as little 

destruction of one as is consistent with the maintenance of the other. 11 

NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956). In striking 

these balances, the Court has approved restrictions upon organizational 

activity under the National Labor Relations Act, 29 U.S.C. § 151 et seg. 

(1982), carried on by nonemployees on employers' property(~., Babcock 

& Wilcox, supra, 351 U.S. at 112-14), and limitations of access to 

employers' business records by nonemployee bargaining representatives 

(Detroit Edison Co. v. NLRB, 440 U.S. 301, 318-19 (1979)). See also 

Marshall v. Barlow's, I~ 436 U.S. 307, 314-17 (1978)(in part applying 

the Babcock & Wilcox principles to strike down warrantless inspections 

under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et 

seg. (1982) ( 11 0SHAct 11 )); Council of So. Mtns., supra, (nonemployee 

miners' representative not entitled to monitor training classes on mine 

property.) The Court has emphasized that in fixing "the locus of 

accommodation," the difference between activities carried on by 

employees and by nonemployees may be, in a given context, "one of 

substance." Hudgens, supra, 424 U.S. at 521-22 & n.10. With these 

general principles in mind, we turn to a balancing of the competing 

interests at issue here. 

delays in commencing or conducting an inspection 

because of the unavailability of or confusion 

surrounding the identification or selection of a 

representative of miners. Where necessary in order 

to assure a proper inspection, the inspector may 

limit the number of representatives of the operator 

and miners participating in an inspection. The 

inspector can also require individuals asserting 

conflicting claims regarding their status as representatives of miners to reconcile their differences 

among themselves and to select a representative. If 

there is inordinate delay, or if the parties cannot 

resolve conflicting claims, the inspector is not 

required to resolve the conflict for the miners and 

may proceed with the inspection without the presence 

of a representative. 

43 Fed. Reg. 17546 (1978). 

290 
Emery's evidence concerning the adoption of its waiver of 

liability policy established that following the disaster at Emery's 

Wilberg Mine in December 1984 in which 27 miners died, large portions of 

Emery's liability insurance coverage were canceled and Emery was unable 

to replace the canceled coverage. As a result, Emery decided to attempt 

to limit its liability exposure. Accordingly, the challenged policy 

requiring nonemployees to sign the waiver of l;ability was implemented. 

8 FMSHRC at 1195-96. (State and federal mine inspectors were not asked 

to sign the waiver forms. 8 FMSHRC at 1196). The judge rejected 

Rabbitt's suggestion that tne waiver policy was adopted to restrict his 

activities at Emery's mines. 8 FMSHRC at 1206. Instead, the judge 

found the reasons set forth by Emery concerning its adoption of the 

policy to be credible. Id. In sum, it is clear from the record that 

the policy requiring nonemployee visitors to Emery's mines to execute 

liability waivers was adopted in response to Emery's serious 

difficulties in obtaining a satisfactory level of liability insurance 

coverage and was not targeted at nonemployee miners' representatives in 

an at~empt to hinder the exercise of their representational rights. 

Thus,' the record demonstrates that Emery's interest in obtaining 

liability waivers from nonemployees entering its mines was legitimate 

and substantial. 

The interests of the miners 'and of their nonemployee 

representative in having such representative accompany an MSHA inspector 

into Emery's mines without executing a waiver of liability must also be 

considered. On a basic level, their interest in being able to do so 

appears obvious. Most, if not all, individuals would prefer to 

participate in any undertaking or activity without having to sign a 

waiver of liability prior to such participation. Such personal desires 

alone, however, are insufficient to override legitimate private property 

interests of the party requesting a waiver. Of more importance is the 

effect that execution of such a waiver would have on the miners' right 

to have a nonemployee accompany an MSHA inspector as the miners' 

representative during an inspection. On this question, we find that the 

record is devoid of convincing evidence supporting the claim of 

interference or chilling effect raised by the Secretary and the UMWA. 

As the judge found, Rabbitt himself had signed a similar "Visitor 

Release" in visits to Emery's mines, including the Deer Creek Mine. 

8 FMSHRC at 1189 & n. 9. this release stated that the visitor "will not 

hold Emery ..• liable should [he or she] suffer injury or death while 

.•. in the mines." Emery Exh. 4. Further, at oral argument, counsel 

for the UMWA expressed uncertainty that requiring nonemployee miner 

representatives to sign such waivers would actually hinder their entry 

into the mines in their capacity as representatives of miners. Tr. Oral 

Arg't 65-67. (The same representatives participate in inspections and 

investigations under the applicable collective bargaining agreement and 

in this capacity are required to sign waivers. Tr. 268; 8 FMSHRC at 

1197.) . In sum, no specific evidence of an identifiable impairment of a 

nonemployee representative's entry into Emery's mines was presented. 

Nor has any other material impairment of rights granted to miners under 

section 103(f) been established in connection with the inspection at 

issue. Here, Rabbitt was serving as an additional miners' 

representative, the miners also being represented on the inspection by 

~l 
Mark Larsen, an employee of Emery and member'of the UMWA safety 

committee at the Deer Creek Mine. Although there is evidence that 

during the inspection Rabbitt pointed out a roof control violation to 

the inspector, there is no suggestion that the miners would not have·had 

effective walkaround representation if Rabbitt had not appeared to 

participate in the regular inspection taking place that morning. 

Balancing the competing interests at stake here, and based on the 

record before us, we conclude that Emery's reqμirement that Rabbitt, a 

nonemployee, as part of Emery's general policy' directed at nonemployees 

entering its mines, sign a waiver of liability as a condition of entry 

did not violate the Mine Act. Rather, we view this condition of entry 

as good faith, nondiscriminatory attempt to protect a legitimate and 

substantial private property interest. Cf. Hercules, Inc. v. NLRB, 833 

F.2d 426, 429 (2d Cir. 1987)(nonemployee~ndustrial hygienist granted 

access to plant upon condition that agreement not to divulge trade 

secrets was signed). Although the Mine Act grants nonemployees access 

to operators• mines when serving as miners• representatives, it does not 

address the economic question of who bears the cost of injuries that 

they might suffer while they are on the mine site in their 

representative capacity. Accordingly, based on the record before us, we 

find that the balance of legitimate competing interests tips in favor of 

Emery on the question of whether Emery's requirement that a nonemployee 

miners' representative sign a waiver of liability as a condition of 

entry into its mine violates the Mine Act. The judge's contrary 

conclusion is therefore reversed. 

III. 

Conclusion 

We have concluded that Emery's denial of entry to Rabbitt based on 

his status as a nonemployee cannot stand. The record shows that this 

was the initial objection raised by Emery on April 15, 1986. The 

evidence also demonstrates that even had Rabbitt agreed to sign the 

waiver, Emery would have interposed its nonemployee objection. Under 

these circumstances, we conclude that insofar as Emery denied Rabbitt 

access f9r walkaround purposes based on its nonemployee objection, its 

conduct violated the Act. The fact that Emery's insistence that Rabbitt 

sign the waiver did not violate the Mine Act will be taken into account 

in determining the appropriate civil penalty to be assessed, an issue 

not presented by this proceeding. 

292 
Accordingly, for the foregoing reasons, the judge's decision is 

affirmed insofar as it held that a nonemployee may serve as a miners' 

representative under section 103(f) and that the failure to specifically 

name Rabbitt in a Part 40 filing did not defeat his right to accompany 

the inspector. We reverse the decision insofar as it found that Emery's 

waiver of liability policy violates the Mine Act. 

Ladt//~c?~-/ Richard V. Backley, Commissioner 

293 
Chairman Ford, concurring in part and dissenting in part: 

Subject to the caveats discussed below, I agree with my colleagues 

in the majority that section 103(f) of the Mine Act, 30 U.S.C. 813(f), 

allows for walkaround participation in MSHA inspections by nonemployees. 

I further agree that walkaround participation in such circumstances can 

be made subject to reasonable nondiscriminatory preconditions such as 

signing the liability waiver at issue in this case. I part company 

with my colleagues, however, on their holding that walkaround participation by a nonemployee purporting to be a miner representative can 

not be made contingent upon his compliance with the filing requirements 

of 30 C.F.R. Part 40. Accordingly, I would hold that a mine operator 

does not violate the Mine Act by refusing access to a nonemployee who 

has not complied with Part 40. 

To begin with, walkaround rights are textually and effectually conditioned by the introductory language of section 103(f) itself: "Subject 

to regulations issued by the Secretary ••• a representative authorized by 

[the] miners shall be given an opportunity to acco~pany the Secretary or 

[her] authorized representative during the physical inspection of any coal 

or other mine ••. " The "regulations" referred to in section 103(f) are . 

obviously those set forth in Part 40. Thus, the "opportunity to accompany", 

i.e., the "walkaround right", is contingent upon the miner representative's 

compliance with the requirements of Part 40. 1/ 

The requirements of Part 40 are not burdensome. Briefly stated, the 

representative of miners "shall file" with the appropriate MSHA District 

Manager the following: (1) his or her name, address and telephone number, 

or in the case of an organization such as the UMWA, the "official or 

position" who is to serve as representative; (2) the name, address and 

identification number of the subject mine; (3) a copy of the document 

evidencing the designation of th~ representative; (4) a statement of 

those statutory functions the representative is authorized to perform; 

(5) names, addresses and telephone numbers of alternate representatives; 

(6) a statement that all information filed has been delivered to the 

affected mine operator; and (7) a signed certification that the information provided is true and correct. 30 C.F.R. 40.3. 

Of particular importance to this case are requirements (1), (3), 

(4) and (6). They not only establish the representative's bona fides, 

1/ The Secretary is correct in asserting that Part 40 is meant to 

identify miner representatives for other purposes in the Act as well. 

Inde~d, the authority headnote to Part 40 appears to cite every instance 

in the Mine Act where "representative of miners" or a variant thereof 

is used. I find it compelling, however, that section 103(f) is the only 

instance that directs the Secretary to issue regulations addressing the 

activities of miner representatives and the only instance where the term 

"authorized miner representative" is used. [Emphasis added]. 

294 
they also put the affected mine operator on notice as to the identity, 

authority, and scope of responsibilities of the nonemployee representative when he presents himself at the mine and asserts his right of access · 

for walkaround purposes. In such circumstances, the mine operator is in no 

position to question the representative's authority since section 30 C.F.R. 

40.4 requires the operator to post the information provided by the representative, pursuant to item (6) above, on the mine bulletin board. 

Had Mr. Rabbitt or his employer, the UMWA, complied with Part 40 -

particularly after having been denied access to another of Emery's mines 

on an earlier occasion - Emery's refusal to allow him to participate in 

the inspection would have been a violation of section 103(f). On the 

basis of the record here, however, Emery cannot be said to have denied 

access to an "authorized miner representative" as that term is used in 

section 103(f). Indeed, even absent the written filing and operator 

notice requirements of Part 40, the evidence that Mr. Rabbitt was specifically designated as a walkaround representative by two or more miners 

in the Deer Creek Mine is insufficient at worst, equivocal at best. 2/ 

It is well-established that an agency is bound by its own 

regulations. See e.g., United States v. Nixon, 418 U.S. 683 (1974); 

Vitareli v. Seatan--:--359 U.S. 535 (1959); and Accardi v. Shaughnessy, 

347 U.S. 260 (1954). Here the Secretary requires certain filings 

pursuant to Part 40 that would establish the credentials of a non 

employee as an authorized miner representative but then proceeds to 

ignore the lack of compliance. To be sure, the Secretary does not 

"authorize" miner representatives; the miners do. Her MSHA district 

offices, however, are meant to serve as repositories of all information 

documenting that individuals who purport to be miner representatives have 

indeed been authorized by the miners for purposes of walkaround participation under section 103(f). Had the Secretary insisted on compliance with 

Part 40 by both her own representatives and Mr. Rabbitt, the citation at 

issue would have had some credibility. 

Much has been made of a sentence in the preamble to Part 40 (not, 

incidentally, printed in the Code of Federal Regulations) which states, 

"[I]t should be noted that miners and their representatives do not lose 

their statutory rights under section 103(f) by their failure to file as 

a representative of miners under this part." 43 F.R. 29508 (July 7, 1978). 

See also Consolidation Coal Co. v. Secretary and UMWA, 3 FMSHRC 617 (1981). 

Read together with the mandatorily - styled ·provisions of Part 40, the 

Secretary appears to be saying, "This is what you must do in order to be considered an 'authorized miner representative' under section 103(f), but if 

2/ I am not persuaded, as my colleagues appear to be, that a lack of 

the safety committeemen's objections to Mr. Rabbitt's presence at the 

mine somehow translates to authorization for him to have served as the 

designated walkaround representative on April 15, 1986. (Majority Slip 

Opinion at pp. 5 and 12). Furthermore, only one of those committeemen 

was called to tesify. 

295 
you don't comply you may, nevertheless, be considered an 'authorized miner 

representative' under section 103(f)." I find that construction of Part 40 

to be illogical and absurd particularly when the walkaround right in section 

103(f) was intended by Congress to be "subject to" the very regulations that 

appear to be honored more in the breach than in the observance. 3/ The gloss 

placed on Part 40 by the Secretary's preamble directly contradicts the regulations themselves and, therefore, the Commission need not give it any weight. 

See Udall v. Tallman, 380 U.S. 1 (1965)(an agency's interpretation of an 

administrative regulation may not be set aside unless it is plainly erroneous 

or inconsistent with the regulation). Furthermore, the Secretary's position 

here with respect to the authority of a contemporaneous interpretative statement issued with a regulation is contrary to the Secretary's position taken 

in Brock v. Cathedral Bluffs Shale Oil Co., 796 F~2d 533 (D.C. Cir. 1986). 

At oral argument it was suggested that the Commission ought to recognize 

a presumption that a representative of a collective bargaining agent is also 

a representative of the miners for purposes of section 103(f). (Statements 

of UMWA Counsel, Oral Argument, July 30, 1987, at pp. 57-61). Such a 

presumption, it was argued, would eliminate the need to file under Part 40. 

That argument, while appealing to the majority (Slip opinion at p. 12), is 

unpersuasive on several counts. 

First, Part 40 delineates "representative of miners" to include 

"organizations", presumably labor organizations. As such, they too are 

subject to the filing requirements of Part 40. Second, absent the 

information required by a filing, neither the Secretary nor the operator 

is placed on notice as to what statutory functions the collective 

bargaining agent's representative is authorized to perform, including the 

walkaround function. 30 C.F.R. 40.3(a)(4). Third, and most importantly, 

as this Commission has often held, "the Mine Act is not an employment 

statute." United Mine Workers of America on behalf of James Rowe et al. v. 

Peabody Coal Co., 7 FMSHRC 1357, 1364 (1985) Aff'd 822 F.2d 1134 (D.C. Cir. 

1987). 

In affirming the Commission's holding in the above case, the D.C. 

Circuit explicitly rejected the Secretary's argument that "miner", as 

used in the Act, could be expanded to include persons on layoff status 

"contractually entitled to employment" by reason of the collective 

bargaining agreement's seniority provisions. "We certainly cannot infer 

from the Act that Congress intended privately-bargained contracts to 

determine who is or is not a miner entitled.to receive the section 115 

safety training," Id. at 1148. 

3/ As to any loss of statutory rights in this case, I note that Mr. Larsen, 

an employee of the Deer Creek mine, a mine safety committeeman, and an 

authorized miner representative who filed pursuant to Part 40, was a member 

of the inspection party and was not challenged by Emery. Furthermore, 

section 103(f) explicitly provides that where there is no authorized representative, the inspector is to consult with a reasonable number of miners 

on matters of safety and health as he moves through the mine. 

296 
Here, likewise~ the statusand authority of a purported "authoriZed' 

miner representa.tive" should be estabiished by the labor contract -

neutral indicia of Part 40 in d~tetmining who is entitled to accompany 

MSHA inspectors under section 103(f). 

In summary, I join with my colleagues in criticism of the Secretary''s 

lackadaisical attitude toward Part 40 compliance~ but fundamental fair-· 

ness dictates tha:tthe citation be vacated since Emery cannot be found 

to have denied access to an "authorized miner representative"·wheri it 

denied access to a nonemployee who did not comply with Part 40. 4/ 

Mine operators, of course, have the option of granting access to· 

anyone they choose including nonemployee "walkarounds" who have not 

complied with Part 40. My views address only those situations whe~e 

the operator challenges the credentials of, and'denies access to, a· 

nonemployee who purports to be an authorized miner representative· for 

purposes of section 103(f), but who has not complied with the Setretary'S, filirtg requirements. 

Accordingly, I would reverse the judge's decision. · 

4/ It is of little consequence that Emery did not question the lack of 

Part 40 compliance on the day Mr. Rabbitt sought access to the mine 

(April 15, 1986), since the issue was fully presented to the judge below 

as an alternative defense to the citation. 

297 
Commissioners Doyle and Nelson, concurring in part and dissenting in 

part: 

We join in the majority's decision to the extent that it affirms 

the administrative law judge's conclusions that walkaround rights under 

section 103(f) of the Mine Act extend to nonemployee representatives 

of miners and that an. operator may not deny such walkaround rights 

solely because the representative has not filed identifying information under 30 C.F.R. Part 40. We respectfully dissent, however, from 

the majority's decision to the extent that it reverses the judge and 

permits an operator to extract a release and waiver of liability from 

the nonemployee miners' representative before he is permitted to 

exercise his section 103(f) rights. 

Congress, in granting to the miners' authorized representative an 

opportunity to accompany the inspector for the purpose of aiding the 

inspection, placed no conditions or qualifications upon the representative's exercise of this statutory right, other than it being subject to 

regulations to be issued by the Secretary of Labor. While it is true, 

as the majority states, that the statute does not mandate the presence 

of a miners' representative during an inspection nor require the 

operator to pay more than one employee representative, the fact 

remains that the only condition placed by Congress on the exercise 

by the miners' representative of his statutory right to accompany 

the inspector is that the right is subject to regulations issued by 

the Secretary. 1/ 

We do not disagree with the majority that, under labor relations 

law, there must be a balanced accommodation between the rights granted 

to employees under the National Labor Relations Act ("NLRA") and the 

legitimate property rights of employers. 2/ "However, these [labor] 

cases arise under statutes whose very purpose is the governance of 

labor-management relations ••.. The entirely discrete purpose of the 

Mine Act •.• prevent[s] us from transferring this reasoning to the 

1/ The Commission has decided that those regulations do not operate 

to deprive Mr. Rabbitt of his right to accompany the inspector. 

2/ The decision in Council of So. Mtns., 751 F. 2d 1418 (D.C. Cir. 

l985) cited by the majority in support of this proposition rests not 

on a balancing of employers' property rights with employees' statutory 

rights but rather on a finding by the court that no statutory right to 

monitor training classes existed. 751 F.2d 1422. See also n. 10 of the 

majority's decision. 

It should be noted also that none of the cited cases go beyond 

accommodation of the rights granted.under the NLRA to deal with the 

question of liability or indemnification for injuries suffered while 

those rights are being exercised. 

298 
Mine Act." UMWA v. Peabody Coal Co., 7 FMSHRC 1357, 1365, aff'd sub nom. 

Brock v. Peabody Coal Co., 822 F. 2d 1134 (D.C.Cir. 1987). Accordingly, 

we do not find the labor relations cases, nor the balancing of interests 

test, to be dispositive of the issue at hand. 2.1 

Rather, we submit that the proper test for determining whether 

Emery may impose its waiver of liability policy is whether the imposition 

of this requirement upon the miners' representative interferes with his 

representational rights, Council of So. Mtns., v. FMSHRC, 751 F.2d 

1418, 1420, 1422 and n. 31 (D.C. Cir. 1985), or inhibits the miners 

or the representative from exercising those rights granted to them under 

the Mine Act. 

Section 105(c)(l) of the Mine Act provides, in part, as follows: 

No person shall interfere with the exercise 

of the statutory rights of any .•• representative of miners ..• because of the exercise by 

such ••. representative of miners ••• of any 

statutory right afforded by this Act. 

The legislative history of section 105(c)(l) states: 

The wording of section 10[5](c) is broader than 

the counterpart language in section 110 of the 

Coal Act and the Committee intends section 

10[5](c) to be construed expansively to 

assure that miners will not be inhibited in any 

way in exercising any rights afforded by the 

legislation. (Emphasis added.) 

s. Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate 

Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d 

Sess., Legislative History of the Federal Mine Safety and Health Act 

of 1977, at 624 (1978). 

Irrespective of whether Emery's Release and Waiver would be enforceable or would fail for lack of consideration, we believe that the very 

act of requiring the nonemployee miners' representative to sign it, 

before permitting him to exercise a right that the Commission has 

unanimously agreed was granted to him by the Mine Act, interferes with 

his statutory rights and is inhibiting· both to him and to the miners 

who might otherwise request his assistance. As the procedure advocated 

by Emery is contrary to Congress' intent as set forth in the legislative 

history of section 105(c)(l), we would affirm the administrative law 

3/ The majority also notes that Mr. Rabbitt was an "additional miners' 

representative" and that "there is no suggestion that the miners would 

not have had effective walkaround representation if Rabbitt had not 

appeared to participate ••• " (Emphasis added.) We find the distinction 

between one miners' representative and another to be without merit and the 

relative effectiveness of the representation to be an inappropriate 

consideration. 

299 
judge's conclusion that the operator may not require the representative 

to sign a release and waiver of liability in order to exercise his 

section 103(f) rights. !! . ./ 

~~ L. Clair Nelson, Commissioner 

4/ We intimate no view in this dissent as to the existence or extent 

of any liability on Emery's part in the event of injury to Mr. Rabbitt 

while underground nor as to the enforceability of the waiver. Those 

matters lie beyond the purview of the Mine Act. 

300 
Distribution 

John A. Macleod, Esq. 

Ellen B. Moran, Esq. 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge John Morris 

Federal Mine Safety & Health Review Commission 

333 West Colfax Avenue, Suite 400 

Denver, Colorado 80204 

301 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

UTAH POWER & LIGHT COMPANY, 

Substituted for 

EMERY MINING CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 29, 1988 

Docket Nos. WEST 86-131-R 

WEST 86-140-R 

WEST 86-141-R 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY THE COMMISSION: 

These proceedings arise under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq. (1982), and pose the same issues 

that are presented in Emery Mining Corp., 10 FMSHRC , Docket No. 

WEST 86-126-R (March 1988), issued this date. The parties stipulated 

that the decision in each of these three cases would be controlled by 

the disposition of Emery. Accordingly, we consolidate these three cases 

for purposes of decision. 

For the reasons expressed by the Commission in Emery, the 

administrative law judge's decisions in these cases are affirmed insofar 

as they hold that under section 103(f) of the Mine Act a nonemployee may 

accompany an inspector as a miners' representative during a physical 

inspection of a mine and that the failure of a nonemployee miners' 

representative to file the identifying information required under 30 

C.F.R. Part 40 does not by itself permit the mine operator to deny the 

miners' representative entry into its mines. Further, the- judge's 

decisions are reversed insofar as they hold that under the Mine Act the 

mine operator could not require the nonemployee miners' representative 

to sign a waiver of liability as a condition of entry into its mines. 

For the reasons stated in his separate opinion in Emery, 

incorporated herein by reference, Chairman Ford would reverse the judge 

as to the Part 40 issue. For the reasons stated in their separate 

302 
opinion in Emery, also incorporated herein by reference, Commissioners 

Doyle and Nelson would affirm the judge on the waiver of liability 

issue. 

Accordingly, consistent with the stipulations of the parties and 

the Commission's decision in Emery, the administrative law judge's 

decisions in these three cases are affirmed in part and reversed in 

part. 

~~!!.~ oyc~ Doy le, CommiSSiOile 
Distribution 

Joh~ A. Macleod, Esq. 

Ellen B. Moran, Esq. 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge John Morris 

Federal Mine Safety & Health Review Commission 

333 West Colfax Avenue, Suite 400 

Denver, Colorado 80204 

304 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 3 1988 

ROBERT L. TARVIN, DISCRIMINATION PROCEEDING 

Complainant 

v. Docket No. SE 87-90-D 

MSHA Case No. BARB CD 87-23 

JIM WALTER RESOURCES, INC., 

Respondent No. 5 Mi~e 

Appearances: 

Before: 

DECISION 

Patrick Nakamura, Esq., Birmingham, Alabama, 

for the Complainant~ 

R. Stanley Morrow and Harold Rice, Esqs., 

Jim Walter Resources, Inc., Birmingham, 

Alabama, for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a d1scrimination complaint filed 

with the Commission on May 21, 1987, by the complainant 

Robert L. Tarvin, pursuant to section 105(c) of the Federal 

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

Mr. Tarvin filed his initial complaint with the Secretary of 

Labor, Mine Safety and Health Administration (MSHA), and 

following an investigation of his complaint, MSHA made a determination that a violation of section 105(c) had not occurred, 

and informed Mr. Tarvin of this finding by letter of April 17, 

1987. Mr. Tarvin then filed a timely complaint with the 

Commission pro se, but subsequently retained counsel to represent him. 

. A hearing on the merits of the complaint was held in 

Bir.mingham, Alabama, and the parties appeared and participated 

fully therein. The parties waived the filing of posthearing 

briefs, but were permitted to present oral arguments on the 

record in support of their positions. I have considered these 

arguments in the course of my adjudication of this matter. 

In his complaint, Mr. Tarvin asserted that he was removed 

from his job as a shuttle car operator on a coal producing 

3os I 
section on February 18, 1987, and replaced by an inside 

laborer. He alleges that he was removed from the section 

because he had reported to his foreman 2 days earlier that a 

ventilation line curtain was 20 feet from the face and had not 

been advanced while coal was being cut. Mr. Tarvin also 

stated that some 3 weeks earlier, he told his foreman and his 

crew that they never checked for methane while mining and did 

not use their methane monitors, and that since this was the 

case, there was no need for them to bring their methane monitors if they were not going to use them. Mr. Tarvin also 

implied that he refused to continue to work because of what he 

reasonably believed to be a violation of the Act. 

Mr. Tarvin's requested relief includes a request for a 

finding that the respondent discriminated against him by 

removing him from the section, that he be put back on a coal 

producing section, and an order prohibiting the respondent 

from further discriminating against him or harassing him for 

refusing to do work which he believes to be in violation of 

the Act. 

The respondent filed a timely answer and denied that it 

has discriminated against Mr. Tarvin~ The respondent admitted 

that the ventilation curtain in question was not installed as 

required by mandatory safety standard 30 C.F.R. § 75.302-1, 

and stated that it was reinstalled as soon as it came to the 

attention of the foreman. Respondent admitted further that 

Mr. Tarvin was moved to another section of the mine, but contended that he was transferred because the area where he was 

working was "mined out," and that he was having problems 

coordinating his activities with those of the other equipment 

operators. 

The respondent further asserted that Mr. Tarvin suffered 

no loss in pay, or any change in his job classification as a 

shuttle car operator, and that no adverse action has been 

taken against him. Respondent also stated that the same facts 

and issues presented in this case were the subject of a 

grievance filed by Mr. Tarvin under the National Bituminous 

Coal Wage Agreement of 1984 (Contract), and that the grievance 

was dismissed when it was determined that the respondent 

followed correct procedure and was justified in transferring 

Mr. Tarvin. Respondent concludes that it has not violated 

section 105(c) of the Act, and contends that this dispute is a 

contractual matter which has been settled under the terms of 

the contract. 

Issues 

The crucial issue in this case is whether or not the 

complainant's transfer from a coal producing section to a rock 

306 
construction section was motivated in any way by his engaging 

in any protected safety activity, and whether the transfer was 

made in retaliation for that activity. Additional issues 

raised by the parties are disposed of in the course of my 

adjudication of this case. 

Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 301 et seq. 

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

Safety and Health Act of 1977, 30 u.s.c. § 815(c)(l), (2) and 

( 3) • 

3. Commission Rules, 29 C.F.R. § 2700.1, et seq. 

Stipulations 

The parties stipulated to the following (Tr. 17-18): 

1. Complainant is a miner and Respondent 

is an operator and Complainant's employer as 

defined by the Federal Mine Safety and Health 

Act of 1977 (Act). 

2. The Administrative Law Judge has jurisdiction to hear this case. 

3. Complainant, through his representative, and Respondent, are both signatories to 

the National Bituminous Coal Wage Agreement of 

1984 (Contract) and are bound by the terms and 

conditions therein. 

4. Article lA, Section (d) of the contract states, inter alia, "· •. the direction 

of the working force • • • is vested exclusively in the Employer." 

5. Article XXIII of the Contract provides 

for settlement of disputes. 

6. Complainant has suffered no loss in 

pay due to his transfer and is in the same 

classification as he was prior to this transfer. 

Complainant continues to work on the same 

shift. 

307 
7. Complainant filed a Discrimination 

Complaint with the Mine Safety and Health 

Administration (MSHA). MSHA found that no 

violation 0£ Section 105(c) of the Act existed. 

Bench Ruling Denying the Complainant's Motion for a 

Continuance 

Complainant's counsel telephoned me at my hotel on the 

afternoon of the day before the scheduled commencement of the 

hearing. He advised me that he had just been retained by 

Mr. Tarvin to represent him, and he requested a continuance in 

order to prepare his case. I advised counsel that his request 

was denied, but that he would be given an opportunity to 

re-new his motion on the record after the convening of the 

hearing, and that I would consider any further arguments after 

an opportunity to hear further as to why he was not retained 

by ~r. Tarvin earlier than a day before the hearing. 

At the hearing, Mr. Tarvin explained that his late retention of counsel was due to the fact that he had previously 

believed that his UMWA Union District 20 off ice would represent him in this matter. Mr. Tarvin confirmed that he contacted the union 3 weeks prior to the hearing, and spoke with 

one of its representatives. Union representative Thomas Ed 

Wilson, who was present in the courtroom, confirmed that he 

had spoken to Mr. Tarvin "about the court case coming up," but 

that he had not seen any further correspondence on the matter 

from July until the present. Mr. Wilson stated that he was 

under the impression that the Department of Labor's Solicitor's Office would represent Mr. Tarvin, and he came to that 

conclusion because he had not seen any correspondence between 

Mr. Tarvin and the respondent. Mr. Wilson was aware of the 

fact that MSHA advised Mr. Tarvin of the fact that it did not 

believe that a violation had occurred, and that Mr. Tarvin had 

written to the Commission for further relief. From that point 

on, Mr. Wilson stated "the next thing I know the case is 

coming to trial" (Tr. 6-9). 

Mr. Tarvin acknowledged that he was made aware of the 

fact that based on MSHA's investigation of his complaint, MSHA 

was of the opinion that the respondent did not discriminate 

against him and was not in violation of section 105(c) of the 

Act, through MSHA's letter of April 17, 1987, informing him of 

its decision. When asked whether it was his understanding at 

that time that when he filed his complaint with the Commission 

he would be proceeding on his own, Mr. Tarvin responded "I 

still thought the union lawyer was going to be representing 

me" (Tr. ·9). When asked whether he believed that MSHA would 

308 
be representing him, Mr. Tarvin responded "I really don't 

know" (Tr. 10). With regard to his belief that the union 

would represent him, Mr. Tarvin stated "Well, I thought they 

would have a lawyer here, you know. If I'd knowed that they 

wouldn't, I would have got a lawyer of my own, you know" (Tr. 

10). 

The parties were reminded of the fact that given the 

presence of counsel, the number of witnesses present, a court 

reporter, and the time and expense expended in convening the 

hearing upon more than timely notice to the parties, it was my 

view that Mr. Tarvin had more than ample time to retain 

counsel, and the request for a continuance was neither timely 

or justified, and it was denied (Tr. 10). 

I reviewed and discussed Mr. Tarvin's complaint with the 

parties, including the answer and the defense presented by the 

respondent. I pointed out that the facts did not appear to be 

complicated, and that the issue presented was rather basic and 

simple (Tr. 11-14). Mr. Tarvin's counsel was afforded an 

opportunity to review the proposed stipulations tendered by 

the respondent (Tr. 16-19), and he was afforded an opportunity 

to review the official record with respect to the complaint, 

and to speak with Mr. Tarvin and his witnesses, who were present, before the taking of any testimony. Counsel was also 

afforded an opportunity to review MSHA's report of investigation, which was made available by the respondent, and he made 

a copy of the report for his file (Tr. 82). 

In addition to the testimony of Mr. Tarvin, three 

witnesses were called to testify on his behalf. I take note 

of the fact that in the course of the hearing, Mr. Tarvin's 

counsel confirmed that while he has not previously been 

involved in discrimination cases, he has some knowledge about 

coal mining, and has been involved in two or three coal cases 

in the past. He also displayed a keen awareness of the issues 

presented in this case, and conducted a most effective direct 

examination of his witnesses, and cross-examination of his 

adversqry witnesses (Tr. 112-113~ Tr. 240-250). Although the 

parties waived the filing of posthearing briefs, they were 

afforded a full opportunity to state their positions and to 

give supporting arguments on the record (Tr. 239-251), and I 

have considered these arguments in the course of my decision 

of this case. Under all of these circumstances, I cannot 

conclude that Mr. Tarvin has been prejudiced by my denial of 

his request for a continuance of the hearing. " 

309 
Complainant's Testimony and Evidence 

Complainant Robert L. Tarvin testified that he has been 

employed by the respondent for 3 years, and is presently a 

shuttle car operator. He has never been disciplined for 

operating the machine dangerously, nor has he been criticized 

in any manner concerning the operation of the machine. He 

confirmed that he is a member of a ten-person crew who work 

together on a particular section. On the evening of · 

February 16, 1987, his crew was assigned to the No. 1 Section, 

and he was assigned to that crew approximately 6-months 

earlier (Tr. 19-24). 

Mr. Tarvin stated that on the evening of February 16, 

1987, while operating a shuttle car at the Number 2 place on 

the section, he pulled his car in behind a continuous-mining 

machine which had "gassed out." He explained that the miner 

automatically shuts down in any area where the methane level 

reaches 2 percent or more. The place was being cut, and as he 

looked over his 5huttle car, he observed that no ventilation 

curtain was installed to course the air around the face. He 

was positioned approximately 10 feet behind the miner machine, 

and when he observed that the curtain was not up, he backed 

his machine completely out of the area, informed the miner 

crew that "they needed to get the curtain up," and he left to 

suaunon the section foreman, Gary Allinson. After returning 

with the foreman, Mr. Allinson looked into the area and 

instructed the crew to put up some curtain, and Mr. Tarvin 

stated that he informed Mr. Allinson that no curtain had been 

up in the 20 foot cut, and that "there was one more shuttle 

car left on the clean up" (Tr. 27). Mr. Allinson sent the 

miner helper to obtain some curtain, and he returned with the 

curtain approximately 8 minutes later and put it up (Tr. 28). 

Mr. Tarvin confirmed that although ventilation curtain 

had been installed on the previous cut, when the miner machine 

proceeded to cut the next 20 feet, the curtain was not 

advanced or put up, and when asked why the curtain was not 

advanced, he responded "the miner crew was trying to cut--they 

was trying to break a record, you know, each one trying to 

outdo the other one (Tr. 28). 

Mr. Tarvin stated that after the curtain was put up, 

since it was the end of the work shift, he loaded out one more 

load of coal, finished cleaning up, and prepared to leave to 

go home. Before leaving, he informed Mr. Allinson that he 

would report the matter to the safety committee. Mr. Tarvin 

confirmed that before leaving the mine that evening, he 

reported ·the matter to safety committeeman Robert Glasgow. 

310 
Mr. Glasgow discussed the matter with Mr. Allinson, and "got 

on his case" about the curtain being down, and Mr. Allinson 

admitted that the curtain was not up. Mr. Tarvin had no 

knowledge about any violation being written, nor was he aware 

of any formal complaint being filed with MSHA over the accident. He simply reported it to the safety committeeman (Tr. 

30). 

Mr. Tarvin stated that he reported to work the next evening, February 17, but Mr. Allinson was not at work. The 

following evening, February 18, while in the bath house preparing for work, Mr~ Allinson informed him that he was needed on 

rock crew foreman Scott's crew, and that he was to go with 

Mr. Scott. Mr. Tarvin explained that rock crew work is done 

outby the face, and the work includes the construction of overcasts, cribs, loading out rock, and picking up trash, and does 

not involve coal production. Although he is still classified 

as a shuttle car operator, and is occasionally used in that 

capacity on the construction crew to load out rock, Mr. Tarvin 

preferred to be back on his coal producing crew doing the job 

that he bid for. When asked why, Mr. Tarvin responded "it 

just seems like I was taken off because I told them about the 

safety. I feel like I was discriminated against. I'd rather 

be in a producing section" (Tr. 35-36). 

Mr. Tarvin stated that he was aware of other miners who 

were transferred to the rock crew for making complaints, and 

he believed that he was transferred to punish him for making 

complaints. He confirmed that after he was transferred from 

the No. 1 Section, he was replaced as a shuttle car operator 

on that section by an inside laborer, Tommy "Dukey." As a 

result of this, Mr. Tarvin filed a grievance, and the job was 

placed for bid. The laborer was removed from the job, and 

Mr. Eldon Sides successfully bid on the job, and he presently 

occupies it (Tr. 36-41). 

Mr. Tarvin confirmed that prior to his transfer to the 

rock crew, he had been on Mr. Allinson's crew for approximately 6 months, and that he was originally placed there as a 

result of a grievance he filed against another foreman, John 

Kuzio. Mr. Tarvin stated that he was taken off Mr. Kuzio's 

section after complaining to him that the shuttle car he was 

operating had no brakes. Mr. Tarvin stated that he filed a 

grievance, as well as a complaint with MSHA, and that the 

grievance was arbitrated. However, the case was resolved at 

the third stage of the grievance, and he was awarded his job 

back, and placed on Mr. Allinson's crew. Mr. Tarvin claimed 

that MSHA investigated his complaint, but found no violation, 

and the rBspondent's counsel disputed this claim (Tr. 41-43). 

311 
Mr. Tarvin stated that Mr. Allinson was aware of his complaints while working with Mr. Kuzio, but that he had no prior 

trouble with Mr. Allinson until he was transferred to the rock 

crew (Tr. 44). 

Apart from running over cables "once in awhile"·while 

passing another shuttle car, which other operators also do, 

Mr. Tarvin denied that anyone had ever told·him that he was 

having problems with trailing cables, or that anyone complained about his operation of the shuttle car (Tr. 44-45). 

Mr. Tarvin confirmed that he had reminded his crew 2-weeks 

prior to his .transfer for the need to check for methane, but 

they just "laughed it off," and he filed no complaint. He 

also confirmed that prior to his complaint to Mr. Allinson 

about the curtain, he had never filed any safety complaints 

with the safety committee, or with MSHA or state inspectors 

(Tr. 46-49). 

Mr. Tarvin confirmed that he lost no status or pay as a 

result of his transfer, and is still working the same shift. 

Assuming he prevails on his complaint, he simply wishes to be 

put back with his prior crew on a coal producing section (Tr. 

50) • 

On cross-examination, Mr. Tarvin confirmed that while he 

did not complain to MSHA about the fact that members of his 

crew were not using their methane monitors to check for methane, he did inform Mr. Allinson about the matter, and after 

that, the crew used the monitors (Tr. 51-52). Mr. Tarvin conceded that no action was taken against him as a result of his 

complaint to Mr. Allinson (·rr. 54). 

Although Mr. Tarvin contended that the respondent was 

utilizing untrained and unskilled general laborers as shuttle 

car operators, he never complained, and he conceded that 

before becoming a shuttle car operator, he too was a general 

laborer and was trained as a shuttle car operator. Although 

he insisted that untrained laborers operate shuttle cars, he 

stated "I don't know whether they're test trained or not" (Tr. 

6 2) • 

Mr. Tarvin confirmed that someone classified as a shuttle 

car operator was working on the rock crew before he was transferred, and that after that person bid off that job, a vacancy 

resulted. However, he contended that after the vacancy was 

posted, it was removed, and the job was not awarded to anyone, 

and he denied that he was transferred to fill that vacancy 

(Tr. 64-65). He conceded that when he initially bid on a 

shuttle ear job, his bid was for that specific job, rather 

312 
than a bid for any particular place in the mine, because the 

places are always moving. He "guessed" that the respondent 

had the right to place him in any shuttle car operator's job 

in the mine, regardless of the working section, as long as he 

continued to operate a shuttle car. He conceded that the 

respondent may assign him as a shuttle car operator for "one 

night," and that the shifting of personnel and job bidding is 

a contract matter. When asked whether it was true that he 

does not have to necessarily operate a shuttle car as long as 

he is working and being paid in his job classification, he 

responded "I don't know that" (Tr. 66). 

Mr. Tarvin contended that although ten shuttle car loads 

of coal had been loaded OQt during the course of his shift on 

the evening of February 16, he first observed that the curtain 

was not up when he pulled in behind the gassed out mining 

machine. He explained that his position on the shuttle car 

placed him on the opposite side of the curtain and he could 

not see it (Tr. 76). Mr. Tarvin disputed any suggestion that 

the mine bottom was being graded as it was cut, or that the 

curtain was installed, but simply down, and he insisted that 

the curtain was not put up at all (Tr. 77-79). He conceded 

that since the miner was gassed out, his shuttle car could not 

have been loaded anyway, and that he did not stop production 

or refuse to work. He reaffirmed his belief that he was transferred because he complained to Mr. Allinson about the curtain, and that "I was ran off when I told the safety man about 

it" (Tr. 80). Mr. Tarvin admitted that while the committeeman 

advised him later in the bath house on February 16, that 

Mr. Allinson had admitted to him that the curtain was down, he 

could not remember telling the safety committeeman the next 

day that he was transferred because of his reporting the fact 

that coal was being mined without a curtain (Tr. 81). 

In response to further questions, Mr. Tarvin stated that 

he did not speak with committeeman Glasgow the day after he 

was transferred, could not recall speaking with him after 

that, and that he could' have asked why he was no longer with 

Mr. Allinson. Mr. Tarvin denied that Mr. Glasgow ever advised 

him that he was transferred because he had trouble running 

over cable (Tr. 85). 

Mr. Tarvin identified a copy of the grievance that he 

filed, and while it reflects that it was settled, Mr. Tarvin 

stated that he did not agree with the settlement disposition 

(exhibit R-3, Tr. 86). Mr. Tarvin's counsel explained that 

the union has the authority to settle a grievance which is not 

arbitrated, even though the miner does not agree with that 

decision -(Tr. 87). 

313 
Eldon Sides, shuttle car and ram car operator, testified 

that subsequent to Mr. Tarvin's transfer from the production 

section to the rock construction section, the vacancy created 

was put up for bid to replace Mr. Tarvin; and he bid on the 

job and got it. However, immediately after Mr. Tarvin's transfer, and before the job was posted for bid, a general inside 

laborer was assigned to the section. Mr. Sides stated that 

when he got the job, he continued to work on the No. 1. Section 

for a month or two until the entire crew was moved to the 

No. 4 Section and began mining there. No other crew replaced 

the crew that moved from the No. 1 Section, and it remained an 

idle evening shift, with only an electrician and a service 

crew there working to prepare the section for the day shift. 

Although the day shift worked the section, it remained idle 

during the evening (Tr. 97-101). 

Mr. Sides confirmed that prior to bidding on the vacancy 

created by Mr. Tarvin's transfer, he had bid on a shuttle car 

operator's job vacancy on the rock crew created approximately 

2 months before Mr. Tarvin's transfer. The vacancy came about 

when the rock crew shuttle car operator transferred to another 

job. However, the respondent withdrew the job bid, and stated 

that it was posted in error, and that there was no vacancy. 

As far as he knew, the job was never re-posted for bid, and he 

simply waited until he bid on Mr. Tarvin's former job on the 

No. 1 production section (Tr. 106). 

On cross-examination, although Mr. Sides contended that 

MSHA was "involved" in the incident concerning the ventilation 

curtain which Mr. Tarvin reported, he had no knowledge whether 

a citation was issued or whether any investigation was conducted (Tr. 107). With regar,d to the job biddings he testified about, he could furnish no specific details or dates. He 

confirmed that when anyone bids on a job, they bid the specific job, and not the location of the job, and stated that 

"you can go anywhere," and "wherever management wants to put 

you," including the rock project (Tr. 107-109). Mr. Sides 

confirmed that he has never filed any safety complaints (Tr. 

120).' 

Marteen Nichols, testified that he is employed by the 

respondent as a general inside laborer on the rock crew. He 

identified the individual who worked on the same rock crew, 

and who subsequently transferred from the job filled by 

Mr. Tarvin when he was transferred to the crew, as 

Ms. Elizabeth Hamner. He explained her duties as follows (Tr. 

122-123): 

314 
A. She was just basically like anyone else 

that was on the rock crew. If it was rock dusting, we all rock dusted. If it was picking up 

trash, we picked up trash. If we had rock to 

be hauled, we hauled rock, she was just like 

everybody else. The rock crew is just a crew 

more or less. 

Q. Did she operate a shuttle car? 

A. If there was a shuttle car that needed to 

be operated, she would run one -- not a shuttle 

car, but a ram car. 

Q. A ram car? 

A. Right. I think the reason she was on the 

section was because she didn't run a shuttle 

car. She just ran a ram car. 

Q. What's the difference? 

A. Well, the ram cars are battery operated. 

You've got a little more visibility out of them 

and they're a little bit simplier to operate. 

Q. Are there any shuttle car used on the rock 

crew? 

A. If we go to a section that needs rock work 

that has shuttle cars, we use shuttle cars. 

Q. Do you use ram cars more often than shuttle 

cars? 

A. Since they've done away with most of the 

ram cars we don't. You know, the section that 

we're on now has ram cars, but that's the first 

section we've had ram cars for awhile. 

Mr. Nichols stated that Ms. Hamner transferred from the 

rock crew when she bid on a job on the day shift, and he could 

not remember anyone replacing her immediately. Since there 

was no other ram car ooerators to ooerate the cars after she 

left, either he or oth~r crew membe~s would operate the ram 

and shuttle cars as needed. Mr. Nichols confirmed that work 

on the rock is such "that you might run a shuttle car one day 

and you might go months and you'll never run one for a month" 

(Tr. 124).. He confirmed that the rock crew is usually 

315 
short-handed, and that miners are sometimes borrowed from the 

rock section and sent elsewhere to work (Tr. 125). 

Mr. Nichols stated that several weeks or a month elapsed after 

Ms. Hamner left the rock crew before Mr. Tarvin arrived, and 

in the interim, other rock crew members, including laborers, 

would operate the shuttle cars. It was not unusual for 

laborers to run cars because they use this opportunity to 

train on the cars, and then bid for one of those jobs (Tr. 

126). 

Mr. Nichols could not recall what the rock crew was doing 

when Mr. Tarvin was first assigned there, and he confirmed 

that when he worked with Mr. Tarvin at another coal company 

prior to his present job, Mr. Tarvin never had any problems 

with his shuttle car cable. Mr. Nichols stated that he worked 

one night with Mr. Tarvin on Mr. ~llinson's production crew 

and had no problems coordinating the shuttle cars with 

Mr. Tarvin, nor has he heard of any su~h problems (Tr. 

128-129). 

On cross-examination, Mr. Nichols confirmed that he·could 

not recall the dates of Ms. Hamner's departure, and 

Mr. Tarvin's arrival on the rock crew, but it was possible 

that Ms. Hamner left on February 15, approximately 4 days 

prior to Mr. Tarvin's arrival (Tr. 132). Mr. Nichols recalled 

that when Ms. Hamner bid on the day shift job, she remained on 

the rock crew for awhile before leaving (Tr. 133). 

Michael Gaines, ram car/shuttle car operator, testified 

that he worked with Mr. Tarvin for 2 or 3 months on the No. 1 

production section in F~bruary, 1987. Mr. Gaines could recall 

no problems that Mr. Tarvin ev~r had with his car or cable 

during the time he worked with him, nor could he recall foreman Allinson or any other member of management complaining 

about Mr. Tarvin's operation of his shuttle car (Tr. 137). He 

could recall no crew members complaining or receiving complaints about the manner in which Mr. Tarvin operated his 

shuttle car, and he confirmed that cable problems occur when 

the cars are operating in the same entry and have to pass each 

other close together (Tr. 136-137). 

On cross-examination, with regard to the ventilation curtain, Mr. Gaines stated that he paid little attention to it, 

and after Mr. Tarvin advised him that it was 20 feet back from 

the face, Mr. Gaines told him that he would check it on his 

next trip. Mr. Gaines stated that when he went back, the curtain "may have been down," and "evidently, it was because when 

I went back, they were working on it" (Tr. 141-142). He estimated that a minute or two passed from the time Mr. Tarvin 

316 
advised him about the curtain, and the time he observed the 

curtain being put back up, and he could not recall whether the 

bottom was being graded at that time (Tr. 142). 

Mr. Tarvin was recalled, and confirmed that when he 

advised Mr. Allinson that the curtain was down, approximately 

8 minutes transpired before the matter was taken care of, and 

work resumed after this was done. When asked about the statement in his complaint that Mr. Allinson removed him from the 

section for "refusing to load a shuttle car while the line 

curtain was 20 feet outby the working face," Mr. Tarvin confirmed that he never said anything to Mr. Allinson that he 

would not work while the curtain was down, but simply went to 

find him and informed him that the curtain was down. 

Mr. Allinson. Mr. Tarvin stated that "I didn't tell him anything except the curtain needed to be up" (Tr. 150). 

Respondent's Testimony and Evidence 

Gary Allinson, section foreman, testified that on the 

evening of February 16, 1987, he was the foreman on the No. 1 

Section, and that at 10:00 p.m., he went into the section 

where the continuous-miner was mining and observed Mr. Tarvin 

sitting in his almost fully loaded shuttle car. Mr. Tarvin 

informed him that the ventilation curtain "was down and it was 

too far back." Mr. Allinson then spoke with the miner operator and helper and they installed a curtain. The miner operator informed him that he was grading some bottom and needed 

additional clearance which he had forgotten to take earlier. 

Mr. Allinson stated that no coal production was lost and that 

"I didn't think it is a very substantial complaint." He 

denied that he transferred Mr. Tarvin because of the complaint 

because "I don't have the right to do that," and he also 

denied that he discussed the incident with management, or that 

he asked that Mr. Tarvin be transferred or discipline because 

of the incident (Tr. 151-153). 

On cross-examination, Mr. Allinson stated that Mr. Tarvin 

worked for him for less than 6 months, and when asked why he 

was transferred, he stated as follows (Tr. 155-157): 

A. I don't know exactly why. I have a good 

idea why. I think it was just because of his 

track record, as far as his ability to run the 

317 
car and the amount of down time we had on him~ 

He was just not that good of a car operator. 

* * * * * * * 

THE WITNESS: He would run over his cable. He 

had a lot of problems with his cable. He was 

slow. Other members of the section, other 

union representatives would come to me -- this 

was on the crew of nine men, and they had complaints about him. Things that I never seen 

Mr. Tarvin do, the union people coming to me 

and telling me things that he had done. 

Mr. Allinson confirmed that he had never "written up" 

Mr. Tarvin, and when asked to document his assertion that 

Mr. Tarvin had problems with his shuttle car cables, he 

alluded to the daily foreman's production report CP&D report) 

(Exhibit R-2). He explained that the reports simply show the 

shuttle car "down time," but do not reflect the name of the 

shuttle car operator, nor do they provide any details concerning any problems with cables (Tr. 157-158). 

Mr. Allinson stated that in some instances, if a shuttle 

car operator runs over his cable, this would be grounds for 

disciplinary action against the operator. He confirmed that 

he has never disciplined Mr. Tarvin in this regard, and confirmed that Mr. Tarvin continue~ to operate a shuttle car for 

him after he had cut cables. He could not provide any specific dates or details concerning the cutting of cables by 

Mr. Tarvin, and confirmed that in the interest of "team work," 

he is lenient with his crew, and conceded that he ignored 

Mr. Tarvin's running over cables (Tr. 160). 

Mr. Allinson identified exhibit R-2 as a production 

report filled out by foreman James Hilliard, on the evening 

shift of February 17, 1987, and it reflects that shuttle car 

No. 60 was down four times that day, and that shuttle car 

No. 59 had a "cable in two," but he could not state which car 

was operated by Mr. Tarvin because "I wasn't there that day" 

(Tr. 16l). He believed that Mr. Gaines operated the No. 59 

car, and stated that "Mr. Gaines seldom ever cut a cable" (Tr. 

162) . 

Mr. Allinson stated that Mr. Tarvin "may have" been transferred when the No. 1 Section "mined out," and that "I don't 

handle that part of it." He confirmed that he was later told 

by mine foreman Frank Blake that Mr. Tarvin was transferred 

because the section had "mined out," and that the transfer 

318 
took place "a couple of days" after the curtain incident. He 

explained that the section was "mined out" in that after 

advancing at six entries, mining stopped, and the area was 

cleaned up and turned in another direction. All ventilation 

was being established, four new entries were started, grading 

work was taking place, and "we stopped the section going." 

However, they were still in section 1, and the crew continued 

in that section, Mr. Gaines continued as a shuttle car operator on the section, but Mr. Tarvin was replaced by Wilmer 

Smith, who is knowri as "Dukey," a general inside laborer (Tr. 

165) . 

Mr. Allinson confirmed that while he may have informed 

Mr. Tarvin that he would be going with foreman Scott's rock 

crew on February 18, he could not recall any conversation with 

Mr. Tarvin, and he did not discuss it with Mr. Scott. 

Mr. Allinson explained that he has 15 minutes to "line up" his 

available crew and has no time to discuss or "bicker" over 

over who will work on his crew. He further explained that 

Mr. Blake designates the crew members with "no questions 

asked," and that at the time of Mr. Tarvin's transfer, he did 

not discuss the matter with· Mr. Blake, that "it happens all 

the time," and "I can have a different person on my crew every 

night" (Tr. 167). 

Mr. Allinson confirmed that he has nothing to do with the 

job bidding process, and that his duties do not include posting jobs for bid (Tr. 167). He denied that he was ever disciplined over the curtain incident, and stated that he did not 

come to work on February 17, the day after that incident, 

because he had to take his wife to the hospital (Tr. 168). 

Mr. Allinson recalled one occasion prior to Mr. Tarvin's 

transfer when he spoke to him about not bringing his shuttle 

car up to the continuous miner for loading, and that he told 

Mr. Tarvin that "he needed to do better," and that Mr. Tarvin 

responded "I am doing better, I'm doing the best I can" (Tr. 

175). Mr. Allinson also stated that Mr. Tarvin frequently cut 

his car cable, and that it is reported on the production 

records. Respondent's counsel produced several copies of the 

production reports for January to March, 1987, and reviewed 

them. The reports, which were not offered for the record, 

alluded to the No. 59 and No. 60 shuttle cars, and Mr. Tarvin 

confirmed that he operated the No. 60 car (Tr. 176). 

Mr. Allinson stated that Mr. Tarvin ran over and cut the 

shuttle car cable "approximately every night or every other 

night in the three or four months that he worked for me" (Tr. 

178-179). In one instance, or possibly three or four times, 

he personally observed Mr. Tarvin cut his cable (Tr. 179, 181). 

319 
When asked whether or not the cutting of cables by Mr. Tarvin 

is reflected on the reports in question, Mr. Allinson 

responded "whether it was 59 car or 60 car, I don't know" (Tr. 

180). He confirmed that accidents do happen, and that the 

cable cutting was probably unintentional (Tr. 181). He also 

confirmed that he never "wrote up" or gave Mr. Tarvin a "work 

slip" for cutting cable, because he does not make it a 

practice to write up the crew (Tr. 182). Mr. Allinson agreed 

that one could not conclude that the shuttle car "down time" 

as reflected in the reports were attributable to Mr. Tarvin 

(Tr. 188). 

Mr. Allinson stated that he never discussed Mr. Tarvin's 

work performance with Mr. Blake, and he confirmed that since 

his transfer, Mr. Tarvin has worked for him as a shuttle car 

operator on the Number 8 producing section filling in during 

the regular operator's absence, and that this has occurred 

three or four times (Tr. 184-185). With regard to 

Mr. Tarvin's work performance on these occasions, Mr. Allinson 

stated (Tr. 185): 

Q. And you say you are still having problems 

with him? 

A. Oh, worse now than ever. Worse now than 

ever. 

Q. Why worse now than ever. 

A. Cables, running over cables, and like I 

said, I've tried to reason with Mr. Tarvin. 

I've tried to take him as slow as I can and 

explain to him what I want him to do, to get 

off, walk his roadway, look for rocks, look for 

things, and stay off that cable, but it hasn't 

worked. 

Q. Why don't you just tell Mr. Blake 

that -- are you required to take a shuttle car 

operator that you feel is incompetent. 

A. I've got no choice in the matter. That's 

Mr. Blake. Mr. Blake directs the work force 

and says who goes where. I have no say so 

about that. 

Mr. Allinson stated that Mr. Blake knew nothing about the 

curtain incident, and did not discuss it with him. 

Mr. Allinson confirmed that he did discuss the incident with 

320 
the safety committeeman the following morning by telephone and 

informed him that "we have a problem, let's work it out," but 

that by the next day, the matter "had ballooned," and 

Mr. Allinson believed that Mr. Tarvin filed a safety grievance 

over the curtain being down" (Tr. 190). Mr. Allinson again 

denied seeking Mr. Tarvin's transfer, and he believed that the 

safety grievance was probably filed after the transfer, but 

Mr. Allinson did not know whether it was a safety grievance, 

or a grievance connected with his transfer (Tr. 191). · 

Mr. Allinson stated that he tried to work the matter out 

"one-on-one" with the safety committeeman, because "there was 

not really a big deal about it," and that Mr. Tarvin "wasn't 

happy with us doing that" (Tr. 191). Mr. Allinson again 

denied that "he had it in for Mr. Tarvin" and had him transferred for complaining or "making life miserable for him" (Tr. 

19 2}. 

Henry F. Blake, III, evening shift mine foreman, testified that his duties include all decisions concerning the 

assignment of miners on his shift, and he confirmed that he 

made the decision to transfer Mr. Tarvin from the No. 1 section to the rock project. He explained his reasons for the 

transfer as follows CTr. 195-196): 

Q. Could you tell us why you made that 

decision? 

A. Like I said, I have to go around and 

observe the different sections. I observed 

Mr. Tarvin on many occasions on different sections and his manner of work, and I had also 

been told by several different section foremen 

that his work wasn't up to par in that he hit 

other cables. I observed a lot of down time on 

his equipment. 

One of the main reasons I moved him to 

another project was I had a ram car/shuttle car 

operator that had bid from the evening shift to 

the day shift, leaving a vacancy. This person 

I held for approximately 30 days, which I can 

hold a person for 30 days before assigning them 

or releasing them to go to their new job or n~w 

shift. In this case, I think her name was Liz 

Hamner and she went to the day shift. 

Mr. Blake could not recall the date that Ms. Hamner left 

the rock project, but confirmed that it would have been on a 

Friday, a-nd that Mr. Tarvin would have been transferred the 

321 
next Monday or Tuesday, and within a week. He confirmed that 

Mr. Tarvin's section reached a point where it was temporarily 

mined outi and since the section was "turning directions" and 

ventilation changes needed to be made, the crew was "broken up 

for a couple of days," and Mr. Scott needed a shuttle car operator. Mr. Blake confirmed that under the contract, he has the 

authority to move anyone in the mine, and that he moved 

Mr. Tarvin to fill a vacancy on the rock prQject. He decided 

to select Mr. Tarvin because he was aware through his own 

observations and from the maintenance foreman that Mr. Tarvin 

was having problems. Since the rock project moves at a slower 

pace than the producing section, and there are two cars on 

that project for use by one individual in the event one 

machine breaks down, he does not have to worry about a machine 

being down because someone runs over a cable (Tr. 198). 

Mr. Blake stated that he was not aware of the ventilation 

curtain incident which occurred on February 16, and that he 

first became aware of it the following Wednesday or Thursday, 

after Mr. Tarvin was transferred. Since he had no knowledge 

about the incident, Mr. Blake denied that it had anything·to 

do with Mr. Tarvin's transfer (Tr. 200). 

On cross-examination, Mr. Blake confirmed that he meets 

with his section foremen at least once a week to discuss the 

mining qperations, and possible personnel problems. He confirmed that at some point in time he has discussed with 

Mr. Allinson "everybody on his crew and everybody with everybody at one point in time" (Tr. 204). He was certain that he 

has discussed shuttle car operations and "down time" with 

Mr. Allinson, as well as with his maintenance foreman. He 

confirmed that he did no~ advise Mr. Allinson that he was 

transferring Mr. Tarvin from his crew, and did not believe 

that Mr. Allinson was at work when the crew was moved (Tr. 

205). He could not recall specifically discussing with 

Mr. Allinson the reasons for Mr. Tarvin's transfer. 

Mr. Blake confirmed that he reviews and signs the foremen's production reports, and that based on these reviews and 

his own ,observations, he made the personnel decision concerning Mr. Tarvin (Tr. 207). Although he did not consider 

Mr. Tarvin to be "a bad guy at all" or that he was "deficient" 

or a "bad operator," he stated that "my job is to place the 

man where I can get the best production with the least amount 

of hassle from everybody concerned" (Tr. 211). Since he has 

been in the mine 14 to 15 years, Mr. Blake stated that he was 

aware of the section "down time" by the reports and his own 

observations, and that he was aware of this when he decided to 

move Mr. Tarvin (Tr. 211). With regard to his prior knowledge 

322 
of the ventilation curtain incident, Mr. Blake stated as 

follows (Tr. 216-217): 

THE WITNESS: You -- the bottom line is, did I 

move Tarvin because of the line curtain? 

That's what I hear y'all asking me. No, I did 

not. I moved Mr. Tarvin because I felt 

like -- and I've stated my reasons. I had no 

knowledge of the line curtain_ being back or him 

reporting it to anyone. I think Gary or either 

Bob Glasgow, who is a safety committeeman, told 

me something about it and I cannot be honest in 

telling you exactly how long it was, but we're 

going to say three or four days later. That's 

being as honest as I can be because I can't 

pinpoint it. Your Honor, that is as honest as 

I can be. I mean, I can't give you a specific 

date, but I know it was after the fact of me 

moving him. That's being as honest as I know 

how to be with all of you. 

When asked why he did not transfer Mr. Tarvin earlier if 

he were not considered a good shuttle car operator, Mr. Blake 

stated that he became mine foreman in January, 1987, and had 

no power to transfer anyone prior to that time (Tr. 219). He 

reiterated that his opinion of Mr. Tarvin's work is based on 

his personal knowledge and observations, and that he recently 

observed Mr. Tarvin run over a miner cable 2 weeks ago because 

he got too close to the rib with his shuttle car (Tr. 221). 

Mr. Blake conceded that one cannot conclude from simply reviewing production reports that Mr. Tarvin was specifically 

responsible for the shuttle car down time noted in the reports 

(Tr. 221-223). He reiterated that Mr. Allinson had nothing to 

do with the transfer of Mr. Tarvin (Tr. 224). Mr. Blake 

stated that the only complaint he was aware of by Mr. Tarvin 

was a grievance that he filed a year ago because he was transferred by foreman Rick Nichols, but that he was unaware of the 

details (Tr. 225). 

With regard to the grievance filed by Mr. ~arvin after 

his transfer, (exhibit R-3), Mr. Blake confirmed that although 

he became aware of it later, he took no part in the grievance 

(Tr. 228). He explained his knowledge of the grievance as 

follows at (Tr. 226-227): 

A. I'll tell you, the only thing I know, I was 

on the rock project later on and Mr. Tarvin 

approached me and I dug this note out of some 

of my old notes, and he said I would like to 

323 
speak with you, and I said okay, and he was 

running the shuttle car. He said "what am I 

doing here?" I said "running the shuttle car." 

He said "you mean to you've got a GIL on a coal 

running section and I'm up here." I said 

"well, what are you doing?" He said "I'm 

running a shuttle car." I said, "well, you 

know" -- he said "you're not going to put me 

back on a section." I said, "no, I don't have 

any intentions," to the best of my knowledge. 

I wrote it down after I walked away, and his 

voice got very high, about three octaves, four 

octaves, I don't know. He said "you'll see, 

you'll see, you'll see," and that was work for 

George Scott running a shuttle car. If he 

filed a grievance after that, y'all never 

brought me any grievance and I didn't know 

about it. 

With regard to Mr. Tarvin's assertion that rock project 

foreman Scott uses a laborer, rather than Mr. Tarvin, when 

there is a need for shuttle car operator, Mr. Blake stated 

that he has never seen this done, and that he found it hard to 

believe. If he was aware of this, he would instruct the foreman to use Mr. Tarvin on the shuttle car. Mr. Blake stated 

that while it was possible for a foreman on the rock project 

to use a laborer who knew how to operate a shuttle car instead 

of Mr. Tarvin, this should not occur "because he's got a bid 

man there to run the car" (Tr. 231). 

When asl<:ed who informed Mr. Tarvin of his transfer, 

Mr. Blake stated as follows (Tr. 232-233): 

Q. Who told Mr. Tarvin that he was being 

transferred, do you know? 

A. I think I told Mr. Scott to take him with 

him that day. That's usually how -- I don't go 

out and tell the rank and file union people 

that I'm transferring them here and there. I 

go to my foremen and line them up with who I 

want them to take. 

Q. Would you have notified Mr. Allinson that 

Mr. Tarvin was being transferred? 

A. I don't think Gary was there. 

324 
Q. If he was there would you have notified 

him? 

A.. I don't know who I told. I told one of the 

foremen to take him, or go make the change. 

That's how I do it. 

Q. Could it have been Mr. Allinson? 

A. It could have been but I don't remember 

whether it was Mr. Allinson or Mr. Scott, but I 

transferred him to Mr. Scott. 

Mr. Tarvin was recalled by the Court, and when asked 

whether he had ever run over a cable with his shuttle car, or 

had problems witn the car which may have caused any down time, 

as testified to by Mr. Allinson, he responded "maybe once a 

month or something like that. Not every other night like he 

said1

' (Tr. 234). Mr. Tarvin clarified his prior testimony, 

and stated that he did not mean to imply that when there is 

shuttle car work to be done on the rock project, that a 

laborer is assigned that wor~, rather than him. His complaint 

is that when there is a need for a substitute shuttle car 

operator on another section, a laborer from the rock crew is 

sent to the section, rather than him, and he is used for crib 

work (Tr. 234). However, he conceded that on at least two 

occasions since he has been on the rock crew, he has in fact 

been assigned to Mr. Allinson's production crew as a substi~ 

tute shuttle car operator (Tr. 235). 

Mr. Tarvin stated that in the bathhouse on February 18, 

2 days after the curtain incident, Mr. Allinson "told me I 

wasn't going with him no more, to go with Mr. Scott" (Tr. 236). 

As he finished dressing, Mr. Scott "came in and told me to go 

with him" (Tr. 237). Mr. Tarvin confirmed that he did not 

speak with Mr. Blake at this time, but did speak with him 2 or 

3 weeks later when he came to the section. Mr. Tarvin further 

confirmed that he assumed that Mr. Allinson made the decision 

to transfer him because "he's the one that came told me I 

wasn't going with him 'anymore" (Tr. 237). 

Respondent's Arguments 

The respondent argues that even assuming that Mr. Tarvin 

has made a prima facie case that his transfer came about as a 

result of his complaint about the ventilation curtain, the 

respondent has completely rebutted this claim, and has shown 

that Mr. Blake made the decision to transfer Mr. Tarvin for 

legitimate business reasons, and that he was unaware of the 

325 
curtain incident at the time he made the decision to transfer 

Mr. Tarvin. The respondent argues further that the dispute 

which gave rise to the discrimination complaint is a contractual matter which was taken to grievance by Mr. Tarvin, and 

should not be relitigated in this case (Tr. 239-240). 

Complainant's Arguments 

The complainant maintains that the purported "business 

reasons" justification for his transfer are entirely 

pretexual, and that the respondent's assertions concerning his 

alleged deficiencies are not documented and have been fabricated. The complainant suggests that although the respondent 

could have transferred him at any time, it did not do so until 

after he complained about the curtain, and that "it's too much 

of a coincidence that it was done two days after" his complaint. Conceding that the respondent took immediate action 

to correct the curtain condition, the complainant nonetheless 

believes that the coincidence of the transfer after alleged 

months of ineptitude with regard to his work, is too much to 

believe. Complainant suggests that he was transferred either 

as punishment or retaliation, or because Mr. Allinson did not 

want him on the section after he complained, and that this was 

a violation of the Act (Tr. 240-245). The complainant agreed 

that there is no issue of any "work refusal" in this case, and 

that when he observed that the curtain down, he immediately 

summoned his foreman to take care of the problem (Tr. 

246-248). 

Findings and Conclusions 

In order to establish a prima facie case of discrimination under section 105(c) of the Mine Act, a complaining miner 

bears the burden of production and proof to establish (1) that 

he engaged in protected activity and (2) that the adverse 

action complained of was motivated in any part by that activity~ Secretary on behalf of Pasula v. Consolidation Coal 

Company, 2 FMSHRC 2768 (1980), rev'd on other grounds sub. 

nom. Consolidation Coal Company v. Marshall, 663 F.2d 1211 

(3d Cir. 1981); Secretary on behalf of Robinette v. United 

castle Coal Company, 3 FMSHRC 803 (1981); Secretary on behalf 

of Jenkins v. Hecla-Day Mines Corporation, 6 FMSHRC 1842 

(1984); Secretary on oehalf of Chacon v. Phelps Dodge Corp., 

3 FMSHRC.2508, 2510-2511 (November 1981), rev'd on other 

grounds sub. nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 

(D.C. Cir. 1983). 

·rhe operator may rebut the prima facie case by showing 

either that no protected activity occurred or that the adverse 

326 
action was in no way motivated by protected activity. If an 

operator cannot rebut the prima facie case in this manner it 

may nevertheless affirmatively defend by proving that it was · 

also motivated by the miner's unprotected activities al'one. · 

The operator bears the burden of proof with regard to the· 

affirmative defense. Haro v. Magma Copper Company, 4 FMSHRC 

lg35 (1982). The ultimate burden of persuasion does not shift 

from the complainant. Robinette, supra. Se.e . also Boich v. 

FMSHRC, 719 F.2d 194 (6th Cir. 1983); and Donovan v. Stafford 

Construction Company, No. 83~1566 D.C. Cir. (April 20, 1984) 

(specifically-approving the Commission's Fasula-Robinette 

test). See also ·NLRB v. Transportation Management 

Corporation, 462 U.S. 393, 76 L.ed.2d 667 (1983), where the 

Supreme Court approved the NLRB's virtually identical analysis 

for discrimination cases arising under the National Labor 

Relations Act. 

Direct evidence of actual discriminatory motive is rare. 

Short of such evidence, illegal motive may be established if 

the facts support a reasonable inference of discriminatory 

intent. Secretary on behalf of Chacon v. Phelps Dodge Corp., 

3 FMSHRC 2508, 2510-11 (November 1981), rev'd on other ground~ 

sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 

1983); Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 

(June 1984). As the Eight Circuit analogously stated with 

regard to discrimination cases arising under the National Labor 

Relations Act in NLRB v. Melrose Processing Co., 351 F.2d 693, 

69 8 C 8th Cir. 19 65) : 

It would indeed be the unusual case in 

which the link between the discharge and the 

[protected] activity could be supplied exclusively by direct evidence. Intent is subjective and in many cases the discrimination can 

be proven only by the use of circumstantial 

evidence. Furthermore, in analyzing the evidence, circumstantial or direct, the [NLRB] is 

free to draw any reasonable inferences. 

Circumstantial indicia of discriminatory intent by a mine 

operator against a complaining miner include the following: 

knowledge by the operator of the miner's protected activities; 

hostility towards the miner because of his protected activity; 

coincidence in time between the protected activity and the 

adverse action complained of; and disparate treatment of the.· 

complaining miner by the operator. 

327 
Mr. Tarvin's Protected Activity 

The iecord in this case establishes that Mr. Tarvin had 

worked under Mr. Allinson's supervision on the No. 1 producing 

section as a shuttle car operator foe approximately 6-months 

pcior to his transfer to the rock project on or about 

February 18, 19 87. Mr. ·rarvin was not a member of the mine 

safety committee, and I find no credible evidence to suggest 

that he was a "safety activist," or that he regularly filed 

safety complaints. Indeed, Mr. Tarvin confirmed that prior to 

his bringing the ventilation curtain matter to the attention 

of his forem~n, Gary Allinson, on the evening of February 16, 

1987, he had not previously filed any safety complaints with 

mine management, the safety committee, or with any state or 

Federal mine enforcement agencies. Although Mr. Tarvin stated 

that approximately 3-weeks prior to his transfer, he mentioned 

to Mr. Allinson and his crew that they were not using their 

methane detectors to check for methane in the section, 

Mr. Tarvin confirmed that he did not report the matter to 

MSHA, and that after he spoke with Mr. Allinson, the crew 

began to use their detectors. Further, Mr. Tarvin conceded 

that his "complaint" in this regard did not result in any 

action being taken against him, and I find no credible 

evidentiary basis for concluding that this particular incident 

had anything to do with Mr. Tarvin's transfer. 

The credible evidence in this case establishes that 

Mr. Tarvin did in fact register and communicate a timely 

safety complaint to Mr. Allinson, as well as to a member of 

the mine safety committee, during the end of the working shift 

on the evening of February 18, 1987. Mr. Tarvin's complaint 

concerned a ventilation curtain which was not in place, or had 

not been advanced, to within 10 f~et of the working face in an 

area where coal was being mined, and where Mr. Tarvin was 

expected to work while operating his shuttle car. I find no 

credible evidence to establish that Mr. Tarvin reoorted the 

matter to' any state or Federal inspector, or that~any violation was issued to the respondent as a result of the complaint. 

Further, the record establishes that once the matter was 

brought to Mr. Allinson's attention, he took immediate action 

by instructing members of the work crew who were present to 

install or advance the curtain to the required distance from 

the face. Although Mr. Tarvin's original complaint statement 

filed with MSHA on February 18, 1987, suggested that 

Mr. Tarvin may have refused to work because the ventilation 

curtain was not located where it should have been, I find no 

credible evidence to support any such conclusion, and in fact, 

Mr. Tarvin has conceded that he did not refuse to work because 

of the absence of the curtain. 

328 
I conclude and find that Mr. Tarvin's February 16, 1987, 

complaint to Mr. Allinson concerning the ventilation curtain 

is protected activity, and that mine management, including 

Mr. Allinson, is prohibited from intimidating or harassing 

Mr. Tarvin, or otherwise retaliating against him because of 

that complaint. Transferring Mr. Tarvin from one mine section 

to another, or similar personnel actions taken against him 

because of any protected activity on his part is a form of 

retaliatory discrimination which is prohibited by the Act, 

Baker v. Interior Board of Mine Operations Appeals, 595 F.2d 

746 (D.C. Cir. 1978); Secretary ex rel Johnny N. Chacon v. 

Phelps Dodge Corporation, 3 FMSHRC 2508 (November 1981), rev'd 

on other grounds, sub nom. Donovan v. Phelps Dodge Corp., 

709 F.2d 86 (D.C. Cir. 1983). 

Respondent's Motivation for Mr. Tarvin's Transfer 

The record establishes that Mr. Tarvin has lost no pay or 

job classification status as a result of his transfer, and he 

is still on the same work shift (Tr. 50). The relief 

requested is that he be put back on a producing section (Tr. 

50). In my view, the trust of Mr. Tarvin's complaint lies in 

his belief that the respondent is not fully utilizing him as a 

shuttle car operator on the rock section, and has assigned him 

to do other work, such as rock dusting, building cribs, cleaning up, or installing ventilation curtains. Mr. Tarvin also 

complains that when the need arises for the services of a 

shuttle car operator elsewhere in the mine, either by temporary detail or assignment, the respondent assigns a laborer or 

someone other than Mr. Tarvin to do this work (Tr. 87-90). As 

a matter of fact, Mr. Tarvin candidly admitted that this is 

the basis for his complaint (Tr. 92-93). 

Mr. Tarvin's assertions that he has not been used as a 

shuttle car operator in other sections of the mine since his 

transfer are not accurate. Mr. Allinson testified that since 

his transfer, Mr. Tarvin has worked for him on the No. 8 producing section on three or four occasions during the absence 

of the regular shuttle car operator (Tr. 184-185). Mr. Tarvin 

admitted that on at least two occasions since his transfer to 

the rock crew, he has worked for Mr. Allinson on a production 

crew as a substitute shuttle car operator (Tr. 235). 

With regard to Mr. Tarvin's work assignments on the rock 

crew, one of his own witnesses, Marteen Nichols, testified 

that everyone on the rock crew rock dusted and picked up 

trash, including Ms. Hamner, who was a shuttle car and ram car 

operator (Tr. 122, 127). 

329 
Mr. Tarvin's transfer from the production sec4ion to the 

rock project was the subject of a contract grievance filed by 

Mr. Tarvin's union on his behalf (Tr. R-3). Although the 

respondent asserted in its answer to the complaint that the 

grievance "was denied," the fact is that the grievance was 

settled and did not go to arbitration. 

Mr. Tarvin stated that he disagreed with the settlement 

of his grievance. However, under the terms of the contract, 

any settlement of a grievance apparently becomes final, and 

there is nothing to show that Mr. Tarvin's grievance was taken 

any further. Mr. Tarvin confirmed that he filed no further 

grievances. I take particular note of the fact that the 

grievance form executed by Mr. Tarvin contains no suggestions 

that his transfer was in any way connected with any safety 

complaints on his part. As a matter of fact, Mr. Tarvin's 

grievance appears to be based on an issue of job classif ication, and the relief requested by Mr. Tarvin is shown as "I'm 

asking to be retained. on my bidded job CR/C operator on 

running section)." The respondent's position is stated as 

"Every reasonable effort shall be made to keep an employee at 

work on the job duties normally and customarily a part of his 

regular job." 

Mr. Tarvin confirmed that at the time of his transfer to 

the rock section, he did not seek out Mr. Blake to discuss the 

matter with him, and there is no evidence that Mr. Tarvin 

lodged any protest with Mr. Bla~e at that time, or otherwise 

suggested to Mr. Blake that his curtain safety complaint to 

Mr. Allinson was the reason for his transfer. As a matter of 

fact, Mr. Blake's testimony, which I find credible, establishes that he had no knowledge of Mr. Tarvin's complaint when 

.he.made the decision to transfer him. Further, the unrebutted 

testimony of Mr. Allinson and Mr. Blake, which I also find 

credible, establishes that Mr. Blake alone made the decision 

to transfer Mr. Tarvin, and that Mr. Allinson took no part in 

that decision • 

. Mr~ Tarvin confirmed that he filed his grievance about a 

week after his transfer to the rock section on February 18, 

1987. I take note of the fact that the grievance form executed by Mr. Tarvin, (exhibit R-3), contains a notation 

"2/25/87. F. Blake" on the line designated "Date of Foreman's 

Decision." Mr. Blake testified that he had a conversation 

with Mr. Tarvin subsequent to his transfer during which 

Mr. Tarvin protested the fact that a laborer was being used on 

a production section, while he was left on the rock project. 

330 
Mr. Blake advised Mr. Tarvin at that time that he had no intention of transferring him back to a production section, and 

Mr. Tarvin responded "you'll see, you'll see" (Tr. 226-227). 

One can reasonably conclude from this that Mr. Tarvin's 

grievance was prompted by Mr. Blake's refusal to transfer him 

back to a producing section. As a matter of fact, Mr. Tarvin 

confirmed that as a result of his grievance, the laborer who 

had been assigned to the shuttle car job on the No. 1 Section 

after his transfer, was removed from the job. Mr. Sides 

subsequently bid on the position and was awarded the job. 

Mr. Tarvin did not pursue the matter further and filed no more 

grievances (Tr. 39-40). 

With regard to Mr. Tarvin's purported poor work performance, his counsel pointed out that this issue was raised for 

the first time during the course of the hearing, and that the 

respondent never informed Mr. Tarvin of any poor work performance, and had never given him any work deficiency notices. 

Couns~l concluded that the alleged poor work record argument 

advanced by the respondent has been fabricated as a further 

excuse to justify Mr. Tarvin's discriminatory transfer (Tr. 

240-241). 

With regard to Mr. Tarvin's alleged poor work performance 

as a shuttle car operator on the production section, while it 

is ·true that the respondent did not specifically detail this 

as pa~t of its initial answer and defense to the complaint, I 

take note of the fact that in paragraph four of its answer, 

the respondent's counsel did state that Mr. Tarvin's transfer 

came about in part because "he was having problems coordinating his activities with those of the other equipment operators." Although Mr. Tarvin's purported problems with his 

shuttle car did not result in his being officially disciplined 

or reprimanded by the respondent, the testimony of 

Mr. Allinson and Mr. Blake, which I find credible, do support 

the respondent's contention that Mr. Tarvin has experienced 

some problems with running over his cable from time-to-time. 

As a matter of fact, Mr. Tarvin admitted that he had run over 

cables "once in awhile" (Tr. 44), and that he had experienced 

problems with his shutt.le car which resulted in "down time" 

"maybe once a month," but not to the degree stated by 

Mr. Allinson (Tr. 234). 

Both Mr. Allinson and Mr. Blake confirmed that they have 

personally observed Mr. Tarvin frequently running over shuttle 

car cables, and Mr. Allinson's unrebutted testimony is that he 

had previously discussed this with Tarvin and informed him 

that he needed to do better. Mr. Allinson explained that 

while he was concerned with Mr. Tarvin's performance, he did 

331 
not "write him up" out of concern for continued "team work" 

among his crew, his lenient attitude towards his crew, and his 

reluctance to discipline them or to make it a practice to hand 

out "work slips" for poor performance. Mr. Allinson further 

explained that since Mr. Blake has the sole authority to 

assign the work and the crews, he has no say in rejecting a 

crew member who may be incompetent. 

Mr. Blake testified that since he only assumed the evening shift mine foreman's position in January, 1987, he had no 

prior authority to transfer Mr. Tarvin earlier. Mr. Blake 

confirmed that his personal observations of Mr. Tarvin running 

over cables, and the fact that the section had a lot of "down 

time" because of shuttle car problems which may or may not 

have been attributable specifically to Mr. Tarvin, was only 

one part of the reasons for his decision to transfer him. 

After careful consideration of the testimony of Mr. Blake 

and Mr. Allinson, which I find credible, and Mr. Tarvin's own 

admissions, I cannot conclude that the respondent has concocted or fabricated Mr. Tarvin's problems with his shuttle 

car as an excuse for his transfer. Indeed, Mr. Blake's credible testimony is that Mr. Tarvin's problems with his shuttle 

car on a producing section were only a part of the reasons for 

his decision to transfer Mr. Tarvin, and the fact that the 

respondent failed to include this as part of its original 

answer and defense in this case is not particularly 

significant. 

Mr. Tarvin's counsel asserted that the vacancy on the 

rock crew had existed for some time prior to the transfer, and 

that other qualified miners we~e available to fill the vacancy 

just as easily as Mr. Tarvin (Tr. 102-103). Counsel suggested 

that the respondent had an ample opportunity to transfer 

Mr. Tarvin to the rock crew prior to his ventilation curtain 

complaint, and in view of the fact that the respondent has 

contended that Mr. Tarvin's work as a shuttle car operator on 

a producing section was less than adequate, the respondent 

could haye legitimately transferred him for that reason, but 

chose not to do so until he complained to his foreman about 

the curtain. Under these circumstances, counsel argued that 

the timing of Mr. Tarvin's transfer, shortly after his complaint to his foreman, raises an inference that his transfer 

was motivated by his complaint, rather than his alleged poor 

work performance, and that the respondent's contention that 

Mr. Tarvin was transferred to an existing and available 

vacancy on the rock crew because a shuttle car ooerator was 

required for work on the' rock project is pretexu~l and simply 

an excuse for the discriminatory transfer. 

332 
Mr. Sides testified that the vacancy on the rock crew 

created by Ms. Hamner's successful bid on a day shift job, 

came about approximately a month or two prior to Mr. Tarvin's 

transfer, and that he (Sides) bid on the job. However, 

Mr. Sides confirmed that Ms. Hamner's job vacancy on the rock 

crew was withdrawn by the respondent on the ground that it was 

posted "in error" and that no jobs were available (Tr. 105, 

108). Mr. Sides conceded that when such a vacancy is posted 

for bid, management may, in its discretion, assign the 

successful bidder to any place in the mine, including the rock 

crew, and that one simply bids on the position and not for any 

particular mine location (Tr. 108). Mr. Sides also confirmed 

that the posting of a shuttle car job indicates that there are 

more available jobs than car operators, and that "they needed 

jobs on the rock crew" (Tr. 110). Mr. Sides confirmed that 

after Mr. Tarvin was transferred, he (Sides) successfully bid 

on the job vacancy created by the transfer. Mr. Sides confirmed that Mr. Allinson is no longer his foreman, and he also 

confirmed that foremen are in fact moved "every now and then" 

(Tr. 114). 

Marteen Nichols, who worked on the rock crew with 

Ms. Hamner, testified that the rock crew is usually 

short-handed because personnel are borrowed for other sections 

(Tr. 125). He could not recall anyone immediately replacing 

Ms. Hamner after she left the rock crew, and he believed that 

several weeks, and possibly a month, passed before Mr. Tarvin 

arrived to replace her (Tr. 125). He later stated that he was 

unsure of the dates that Ms. Hamner left and Mr. Tarvin 

arrived, and that "she was gone and then Robert was up there" 

(Tr. 133). He also recalled that Ms. Hamner's departure from 

the rock crew after she bid on the day shift job was delayed, 

but he did not know the reason for this (Tr. 133). 

Mr. Blake confirmed that Ms. Hamner's bid on a day shift 

job resulted in a vacancy for a shuttle car operator on the 

rock project. He stated that rather than transferring 

Ms. Hamner immediately, he kept her on the rock crew for 

approximately 30 days, and subsequently transferred Mr. Tarvin 

to fill the vacancy. Although he could not recall the 

specific dates, Mr. Blake stated that following his usual 

practice, Ms. Hamner would have transferred to the day shift 

on a Friday, and Mr. Tarvin would have been transferred on a 

Monday or Tuesday of the following week. Mr. Blake stated 

that his decision to transfer Mr. Tarvin, rather than someone 

else, was based on his knowledge of the down time on the 

producing section, and the fact that Mr. Tarvin had problems 

with his shuttle car on the producing section. Mr. Blake 

333 
further explained that the work on the rock project is at a 

slower pace than the work on the producing section, and since 

only one shuttle car is used most of the time on the rock 

project, there is little chance of the operator running over 

cables. Further, since a back-up car is usually available on 

the rock project, in the event one car breaks down, the 

operator can simply use the other one to continue to "run the 

rock" (Tr. 196-198). Mr. Blake also confirmed that since he 

only became the evening shift mine foreman in January, 1987, 

he lacked the authority to transfer Mr. Tarvin earlier (Tr. 

219-220). Since there is only one shuttle car operator on the 

rock project, he needed someone to fill the vacancy created by 

Ms. Hamner's bid to a day shift job, and he alone made the 

decision to fill it by transferring Mr. Tarvin to the position 

(Tr. 223). 

After careful consideration of all of the testimony, I 

conclude and find that Mr. Blake has provided a plausible and 

believable explanation as to why Mr. Tarvin was not transferred earlier to the rock project. More to the point, however, is the fact that as the evening shift mine foreman,· 

Mr. Blake had the absolute authority and discretion to assign 

and transfer his available mine personnel to any section where 

he believed they could be best utilized. Absent any credible 

evidence that Mr. Blake's personnel action concerning 

Mr. Tarvin was in violation of the contract, or that it was 

otherwise arbitrary, or the result of any disparate treatment 

of Mr. Tarvin, I cannot conclude that Mr. Blake had any 

ulterior motive, such as punishment or retaliation in mind 

when he made the decision to transfer Mr. Tarvin to the rock 

project. 

Mr. Tarvin's counsel also questioned the respondent's 

assertion that Mr. Tarvin was transferred because the No. 1 

Section was "mined out" and that his services were needed on 

the rock project. The use of the term "mined out" by the 

respondent in its answer to the complaint does convey the 

impression that all of available coal on the section had been 

taken, and that there was no further need for Mr. Tarvin on 

that section. If this were true, it would lend credence to 

the respondent's assertion that there was a legitimate'reason 

for Mr. Tarvin's transfer. If not, it would raise an· inference that the respondent may have been motivated by reasons 

other than the section being mined out. 

Mr. Tarvin testified that after his transfer, the crew 

remained on the No. 1 Section (Tr. 32). Mr. Tarvin asserted 

that after Mr. Sides successfully bid on the vacancy created 

by his transfer, Mr. Sides continued to work on the section 

334 
for a month and a half, until he and the entire crew were 

transferred to the No. 4 Section (Tr. 38, 41). Mr. Tarvin did 

not know why they were transferred (Tr. 41). 

Mr. Sides testified that when he bid on the job created 

by Mr. Tarvin's vacancy on the No. 1 Section, the evening 

shift was idled and the entire crew was moved and started 

mining on the No. 4 Section. He confirmed that different 

shifts are idled from time-to-time, and that after the crew 

was moved, an electrician and a service crew were left on the 

No. 1 Section (Tr. 100-101). This lends credence to the 

following explanation by Mr. Blake as to whether or not the 

section had been "mined out" (Tr. 197): 

A. The section that Robert was working on was 

temporarily mined out. In other words, it had 

reached a point it was going to go. Then the 

crew was all broken up for a couple of days to 

the best of my memory. Some of them stayed, 

some of them went here and there, but the section was turning directions. There was ventilation changes to be made, and I needed an 

operator for Mr. Scott. He didn't have one. 

Q. A shuttle car operator? 

A. Right. Shuttle car/ram car. 

Q. As long as you go in conformity with the 

contract and don't, of course, discriminate 

against people because of race, sex, or age, or 

something like that, can you move a person 

anywhere in the mine you want to? 

A. I certainly can. 

Q. Okay. I don't know if I asked you this or 

if you answered it, but could you tell us why 

you moved Mr. Tarvin to that position? 

A. Mainly there was a vacancy. There was a 

vacancy created on the rock project. 

While it may not be clear precisely when the crew on the 

No. 1 producing section was moved, or whether the area had 

been "mined out" in the usual sense of that term, when taken 

in context, I believe one can conclude from the testimony presented that active mining on the No. 1 producing section evening shift was temporarily discontinued, and that this was not 

335 
a particularly unusual event since sections are idled from 

time-to-time, and miners are transferred and reassigned on any 

particular section. Under the circumstances, I cannot conclude that the respondent's use of the term "mined out" was a 

deliberate attempt to conjure up an after-the fact reason to 

support Mr. Tarvin's transfer. The record in this case 

reflects that Mr. Blake had several reasons for his decision 

to transfer Mr. Tarvin, and the discontinuance of mining on 

the evening shift was not the sole reason for this action. 

Although the timing of Mr. Tarvin's transfer, coming 

2 days after he complained to Mr. Allinson about the ventilation curtain, raises an inference that the transfer may have 

resulted from the complaint, I conclude and find that the 

respondent has rebutted this presumption by a clear preponderance of the credible evidence adduced in this case. 

Mr. Tarvin confirmed that he assumed that Mr. Allinson 

made the decision to transfer him to the rock crew, and he 

believed that he did so in retaliation or to punish him for 

co~plaining about the ventilation curtain. However, the 

unrebutted testimony of Mr. Allinson and Mr. Blake, which I 

find credible, establishes that Mr. Blake alone made the 

transfer decision, and that Mr. Allinson was not a party to 

that decision. Mr. Blake's credible testimony also establishes that he was not aware of Mr. Tarvin's safety complaint 

to Mr. Allinson at the time he made the decision to transfer 

him. Although Mr. Tarvin testified that he was aware of other 

miners who were transferred for making safety complaints, 

there is absolutely no evidence or testimony to support 

Mr. Tarvin's claim. 

I find no evidence in this case to even suggest that 

Mr. Tarvin has ever been harassed, intimidated, or threatened 

by mine management because of his work or any work-related 

safety complaints. In fact, the only evidence of any safety 

complaints by Mr. Tarvin while in the respondent's employ is 

the complaint he made about the ventilation curtain on 

February 16, 1987. With regard to Mr. Tarvin's chastizing of 

his crew for their alleged failure to use their methane monitor, there is no probative or credible evidence to establish 

that this particular allegation resulted in any bona fide 

safety complaint lodged with mine management. Further, that 

particular incident took nlace much earller than Mr. Tarvin's 

transfer, and he conceded~that no action wa3 taken against hin 

for any such "complaint," and he did not believe that it had 

anything to do with his transfer. 

336 
I find no credible evidence to establish any disparate 

treatment of Mr. Tarvin by the respondent. As stated earlier, 

Mr. Tarvin's ~ssertion that he is not used as a shuttle car 

operator while assigned to the rock crew has been rebutted by 

Mr. Allinson's credible testimony that since his transfer, 

Mr. Tarvin has been assigned to work as a shuttle car operator 

for Mr. Allinson on a production section, and Mr. Tarvin himself has admitted that this is the case. Further, the record 

establishes that Mr. Tarvin is still classified as a shuttle 

car operator, with the same pay, and on the same work shift, 

which he enjoyed prior to his transfer. As for Mr. Tarvin's 

complaint that he is assigned other work on the rock crew, his 

own witness and fellow crewman on the rock crew confirmed that 

everyone on the crew, including the shuttle car operator, are 

assigned other work duties from time-to-time. 

I find Mr. Blake's explanation as to the factors which he 

considered in making his decision to transfer Mr. Tarvin to be 

reaspnable and plausible, and that his decision was motivated 

by a legitimate managerial concern to assign mine personnel 

where he best believed they could be utilized as effective and 

productive members of the available workforce, rather than to 

discriminate against Mr. Tarvin for complaining to 

Mr. Allinson about a ventilation curtain which had not been 

installed or advanced to its proper location. In short, I 

conclude and find that any inference of discriminatory intent 

by the respondent in connection with Mr. Tarvin's transfer has 

been rebutted by the respondent's credible evidence which I 

believe establishes that the transfer of Mr. Tarvin constituted a reasonable and plausible management business-related 

decision made by Mr. Blake, the evening shift mine foreman, 

acting within his clear authority and discretion to manage his 

own mine personnel. In this regard, I take particular note of 

the Commission's decision in Bradley v. Belva Coal Company, 

4 FMSHRC 982 (June 1982). Citing its Pasula and Chacon 

decision, the Commission stated in part as follows at 4 FMSHRC 

993: "* * * Our function is not to pass on the wisdom or fairness of such asserted business justifications, but rather only 

to determine whether they are credible and, if so, whether 

they would have motivated the particular operator as claimed." 

ORDER 

In view of the foregoing findings and conclusions, and on 

the basis of a preponderance of all of the credible testimony 

and evidence adduced in this case, I conclude and find that 

the complainan~ has failed to establish that his transfer on 

or about February 18, 1987, was discriminatory, or motivated 

by the respondent's intent to retaliate against him, or to 

337 
punish him, for exercising his statutory right to make a 

safety complaint. to his foreman. Accordingly, the complaint 

IS DISMISSED, and the complainant's requests for relief ARE 

DENIED. 

Admi 

rg 

istrative 

• ~tras ~ Law Judge 

Distribution: 

Patrick Nakamura, Esq., 2101 City Federal Building, 

Birmingham, AL 35203 (Certified Mail) 

R. Stanley Morrow, Harold Rice, Esqs., Jim Walter Resources, 

Inc., P.O. Box C-79, Birmingham, AL 35283 (Certified Mail) 

H. Gerald Reynolds, Esq., Environmental Counsel, Jim Walter 

Corporation, P.O. Box 22601, Tampa, FL 22622 (Certified Mail) 

/fb 

338 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

HAR 9 1988 

EMERY MINING CORPORATION 

AND/OR UTAH POWER & LIGHT 

COMPANY, 

Contestants 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA, 

Intervenor 

CONTEST PROCEEDINGS 

Docket No. WEST 87-138-R 

Citation No. 2844750; 3/24/87 

Docket No. WEST 87-139-R 

Citation No. 2844751; 3/24/87 

Docket No. WEST 87-140-R 

Citation No. 2844752; 3/24/87 

Docket No. WEST 87-141-R 

Citation No. 2844753; 3/24/87 

Docket No. WEST 87-142-R 

Citation No. 2844754; 3/24/87 

Docket No. WEST 87-143-R 

Citation No. 2844760; 3/24/87 

Docket No. WEST 87-148-R 

Citation No. 2844801; 3/24/87 

Docket No. WEST 87-149-R 

Citation No. 2844803; 3/24/87 

Docket No. WEST 87-151-R 

•Citation No. 2844806; 3/24/87 

Docket No. WEST 87-154-R 

Citation No. 2844810; 3/24/87 

Docket No. WEST 87-162-R 

Citation No. 2844825; 3/24/87 

(Consolidated) 

Wilberg Mine 

Mine I.D. 42-00080 

ORDER OF DISMISSAL 

Before: Judge Morris 

The issues presented here involve the renewed motion of Utah 

Power & Light, Mining Division, C"UP&L") for a summary decision in 

its favor pursuant to Commission Rule 64, 29 C.F.R. § 2709.64. 

339 
PROCEDURAL HISTORY 

On May 26, 1987, UP&L moved for a summary decision. 

In support of its motion, UP&L stated that it is entitled 

as a matter of law to a summary decision that it is not liable as 

"successor in interest" to Emery Mining Corporation for the 

violations alleged in the citations and orders contested in the 

captioned proceedings. ~/ 

UP&L has submitted affidavits in support of its position. 

These affidavits establish the following facts: 

1. The Utah Power and Light Company C"UP&L"), a public 

electric utility, purchased the Deseret, Beehive and Little Dove 

Mine in 1971 and the Deer Creek and Wilberg Mine in 1976. Exhibit 

A, paragraph 2. In 1972, UP&L initially contracted with the 

American coal Company and later, beginning in June 1979, with Emery 

Mining Corporation ("Emery") to operate its mines. Exhibit A, 

paragraph 3. The Wilberg Mine Fire occurred on December 19, 1984, 

killing 27 miners, including a number of Emery's upper management 

personnel. 

2. Mine recovery efforts were conducted over an extended 

period of time, concurrent with the course of MSHA's investigation. 

Representatives of Emery Mining Corporation were closely involved 

in those efforts but UP&L personnel were not permitted to participate by MSHA. Exhibit A, paragraph 9. 

l/ The identical issue is raised in other contest proceedings 

involving the same parties and pending before the Judge. The 

cases are docketed as WEST 87-130-R, WEST 87-131-R, WEST 87-132-R, 

WEST 87-133-R, WEST 87-134-R, WEST 87-135-R, WEST 87-136-R, 

WEST 87-137-R, WEST 87-144-R, WEST 87-145-R, WEST 87-146-R, 

WEST 87-147-R, WEST 87-150-R, WEST 87-152-R, WEST 87-153-R, 

WEST 87-155-R, WEST 87-156-R, WEST 87-157-R, WEST 87-158-R, 

WEST 87-159-R, WEST 87-160-R, WEST 87-161-R, WEST 87-162-R, 

WEST 87-163-R, WEST 87-243-R, WEST 87-244-R, WEST 87-245-R, 

WEST 87-246-R, WEST 87-247-R, WEST 87-248-R, WEST 87-249-R. 

This issue will also affect.three penalty cases, docketed as 

WEST 87-208, WEST 87-209 and WEST 88-25. 

340 
3. Subsequently, on April 16, 1986, UP&L bought for cash all 

of Emery's assets with respect to the operation of all of its 

mines, including the Wilberg Mine, and for the first time assumed 

operating control of the Wilberg Mine. Exhibit A, paragraph 4. 

The owners of Emery Mining Corporation did not receive stock in 

UP&L as part of that transaction, nor did UP&L receive stock in 

Emery. Exhibit A, paragraph 5. The asset purchase agreement 

between UP&L and Emery stated that Emery retained any liability 

resulting from the Wilberg Mine Fire, specifically including 

"Emery's liability, if any, for MSHA fines assessed to Emery for 

events caused by Emery and which occur(ed) prior to the Closing 

Date" of April 16, 1986. Exhibit A, paragraph 8; Exhibit B, paragraph 5; Exhibit C. In addition, Emery reserved sufficient funds 

to pay for any future Wilberg liabilities. Exhibit B, paragraph 7. 

Although UP&L retained most of Emery's workforce, UP&L's officers 

and directors replaced Emery personnel as the top management of the 

company while those management personnel wh'o were retained assumed 

subordinate positions in the new organization. Exhibit A, paragraph 7. None of Emery's present or former officers or directors 

have beco~e UP&L officers or directors since the Asset Purchase 

Agreement was executed. Exhibit A, paragraph 6. 

4. On March 24, 1987, as a result of its Wilberg Mine Fire 

accident investigation, MSRA issued 34 2/ citations and orders to 

"Emery Mining Corp. and its successor-in-interest CUP&L)." Emery 

continues to exist, since execution of th~ Asset Purchase Agreement 

in April of 1986, as a legally and financially viable company. 

Exhibit B, paragraph 7. Emery accepts responsibility for any MSHA 

civil penalties which ultimately result from the 34 Wilberg Mine 

Fire investigation citations and orders issued on March 24, 1987, 

and Emery has sufficient funds avai'lable to pay those civil 

penalties. Exhibit B at paragraphs 6 and 7. 

(The foregoing affidavits were attached to UP&L's Motion filed 

May 26, 1987). 

On June 29, 1987 the Secretary filed his response in opposition to UP&L's motion and his cross motion for summary decision. 

~/ In fact, a total of 41 citations and orders were issued by 

MSHA. However, seven citations were issued after Exhibit B, the 

relevant affidavit, was executed. 

341 
The Secretary, in his response and cross motion stated the 

following facts: 

1. UP&L obtained the mining rights to the Wilberg Mine from 

the Peabody Coal Company in March 1977. UP&L was officially listed 

as lessee of the Mine on September 1, 1977 (Exhibit A, page (3-1), 

UP&L Mining Application to the Bureau of Mines, Revised 11/21/83). 

UP&L's mining plan for the Wilberg Mine was subsequently submitted 

to the Bureau of Mines (Exhibit B, page 8). 

2. Emery was under contract with UP&L to operate the Wilberg 

Mine from June 1979 to April 16, 1986. During the time Emery was 

under contract to operate the Wilberg Mine, UP&L had a resident 

engineer present at the mine on a daily basis to make sure that the 

mining plan referred to above, was followed (Exhibit B, page 

12-14). 

3. UP&L purchased and owned the major mining equipment 

utilized by Emery at the Wilberg Mine during the June 1979 to 

April 16, 1986 period <Exhibit B, page 14). 

4. UP&L and Emery mutually agreed on production goals for the 

Wilberg Mine during this period (Exhibit B, page 13). 

5. Under the Mine Act and implementing regulations, mine 

operators are required to submit a number of mine plans to MSHA for 

approval. UP&L reviewed Emery's mine plans before they were submitted to MSHA when the plans concerned the mining system in use 

at the mines (Exhibit B, pages 11, 12). 

6. UP&L prepared and submitted to the Bureau of Land Management extensive mining plans for the Wilberg Mine. These plans were 

prepared and submitted without Emery involvement (Exhibit B, pages 

8-9). 

7. After the Wilberg Mine fire on December 19, 1984 and after 

UP&L's purchase of Emery's assets in the operation of the mine, 

including Emery's supervisory and labor personnel, UP&L directly 

participated in MSHA's investigation of the fire origin area of the 

Mine (Exhibit c, Exhibit C-1). 

David D. Lauriski, presently UP&L's Safety Director (formerly 

Emery's Safety Director) helped plan and direct UP&L employees in 

this most crucial aspect of MSHA's investigation. Mr. Lauriski 

and/or other UP&L personnel were present or nearby at all times 

during the underground investigation (Exhibit C, Exhibit C-1). 

342 
8. As stated by UP&L (page 3, Statement of Facts to its 

Motion for Summary Judgment), UP&L retained most of Emery's work-. 

force when it took over complete operation of the Wilberg Mine in 

April 1986. Although this transfer did not include all of the same 

officers and directors, UP&L did retain Emery mining supervisors 

and management personnel including David D. Lauriski, Safety Diector, and John Boylen, Mine Manager, at the Wilberg Mine (Exhibits 

C, D and E). 

9. After UP&L purchased Emery assets, Emery appears to exist 

only as a skeleton corporation. Emery apparently has corporate 

officers, secretaries, and legal counsel, but few other employees 

(since UP&L retained them), and Emery exists with no other apparent 

corporate purpose than the resolution of outstanding claims arising 

out of the fire. There has been no specific evidence presented 

concerning Emery's financial situation and its ability to pay any 

civil penalties imposed (UP&L Exhibit B). 

10. On March 24, 1987, when the mine fire investigation 

orders and citations were issued, UP&L owned, operated and fully 

controlled the Wilberg Mine. This is indicated by the Legal 

Identity Reports filed by Emery and UP&L with MSHA as required by 

law (Exhibits D and E). At the time the citations and orders were 

issued, UP&L, not Emery, had responsibility for abatement of vio- · 

lations and compliance with mandatory federal mine safety and 

health standards at the Wilberg Mine. 

11. As indicated by the pleadings in this proceeding, both 

UP&L and Emery are represented by the same legal counsel. 

(The foregoing facts were attached to the Secretary's motion 

and affidavits filed June 29, 1987.) 

On July 9, 1987, UP&L filed its reply to the Secretary's 

response. 

On August 5, 1987, the Judge denied the motions filed by both 

parties. The Judge stated the Secretary had raised a genuine issue 

of fact "whether UP&L was in control of the Wilberg Mine at the 

time of the alleged violations", citing Bituminous Coal Operator's 

Association v. Secretary of the Interior ("BCOA">, 547 F.2d 240 

(4th Cir. 1977). 

On the same date the parties filed pleadings indicating that 

Emery Mining Corporation, ("Emery"), had paid the proposed 

penalties in each of the cases listed in the caption of this order. 

Accordingly, the Judge dismissed said cases as to Emery. {Order, 

August 5, 1987). 

On September 21, 1987, UP&L moved the Judge to reconsider his 

order of August 5, 1987 denying UP&L's motion for summary decision. 

343 
On October 13, 1987, the Secretary filed his response to 

UP&L's motion for reconsideration. 

On October 14, 1987, the Judge denied UP&L's motion to reconsider his order of August 5, 1987. The Judge did not further 

explain his prior ruling. 

On November 16, 1987, UP&L filed a petition for interlocutory 

review with the Commission. After responses by the Secretary and 

Intervenor the Commission denied the petition. Utah Power & Light 

Co., Mining Division, 9 FMSHRC 2028 (December 1987). In its order 

the Commission considered the Secretary's pleadings as "unfocused 

and confused providing neither UP&L nor the Commission with a clear 

statement of his asserted basis for imposing liability on UP&L." 

Further, "(t)he Secretary, as prosecutor, is responsible for 

charging violations under the Mine Act, not the Commission." In 

addition, the Commission observed that "Ct)o avoid any possibility 

of prej~dice to UP&L, a clear articulation of the liability theory 

or theories that the Secretary is alleging and intends to pursue in 

this important litigation is required," 9 FMSHRC at 2030. 

The Commission further indicated "(t)he Secretary must clarify 

the theory of liability upon which he intends to proceed." In 

addition, "it is incumbent on the judge to fully explain the basis 

of his rulings on any such further motions," 9 FMSHRC at ~031. 

After the Commission's Order was issued the Secretary did not 

move to amend his petition nor did UP&L move for a more definite 

statement of the petition. 

Accordingly, on January 11, 1988, the Judge directed the 

Secretary to clarify his theory of liability against UP&L. The 

Judge's Order indicated the Secretary could plead in the alternative. Further, UP&L and UMWA 3/ could reply (Orders, January 11, 

1988 and January 15, 1988). -

3/ The UMWA filed in opposition to UP&L's petition for interlocutory review but has filed no other pleading on the successorship 

issue raised by UP&L. 

343 
On February 1, 1988 the Secretary's statement on UP&L's 

liability was filed. The Secretary's theories of UP&L's liability 

are twofold. · His initial theory is that UP&L is liable as a coal 

mine operator (or co-operator) at the time of the fire; further, 

and in the alternative, UP&L is liable as a successor-in-interest 

to Emery. 

His statement on his theories of liability reads as follows: 

The Secretary of Labor (Secretary), by 

the undersigned counsel, states the following 

in response to the Judge's Order of January 

11, 1988, regarding the Secretary's theory of 

liability against Utah Power and Light (UP&L). 

The Secretary contends that UP&L is liable as 

a co-operator with the Emery Mining Corporation ("Emery") or in the alternative, as 'a 

successor-in-interest operator to Emery. 

The Secretary cited UP&L under the 

alternative theory as a successor-in-interest 

to Emery since that characterization of UP&L 

more graphically described UP&L's status at 

the time the citations and orders were issued. 

This does not prevent the Secretary from 

defending the citations and orders under any 

available theory relating to UP&L liability 

that can be shown to apply. 

Argument 

Utah Power and Light Company ( "UP&L") 

is liable under the Federal Mine Safety and 

Health Act of 1977 (Mine Act) for mandatory 

safety violations found during the Mine 

Safety and Health Administration ("MSHA") 

investigation of the December 19, 1984, 

Wilberg Mine fire. 

Theories of Liability 

I. UP&L is liable as a coal mine operator at 

the time of the fire. 

Under Section 3(d) of the Mine Act, 30 

u.s.c. § 803(d} an "operator" means any 

owner, lessee, o~ other person who operates, 

controls, or supervises a coal or other mine. 

If more than one entity participates as an 

operator in a mining operation, either one or 

344 
both can be cited for violations that occur 

at the mine. See Bituminous Coal Operator's 

Asaociation v. Secretary of the Interior, 547 

F.2d 240 (4th Cir. 1977); Harman Mining 

Corporation v. Federal Mine Safety and Health 

Review Commission, 671 F.2d 794 at 797 (4th 

Cir. 1981). Further, multiple operations can 

be cited regardless of fault. (Footnote> 

The footnote in the Secretary's statement reads as follows: 

"Congress, when it enacted the 

1969 Coal Act, recognized that 

the Act: 

Provide[d] liability for violation 

of the standards against the operator without regard to fault, [and] ••. also provide[d] that the Secretary [would] apply 

the more appropriate negligence test, in 

determining the amount of penalty, recognizing that the operator has a high degree 

of care to insure the health and safety of 

persons in the mine." 

The facts which will be introduced at the 

hearing in this case will show that UP&L was a 

co-operator of the Wilberg Mine. 

Factual Basis 

As indicated in the Secretary's Response to UP&L's Motion for Summary Decision 

(Secretary's Response, pages 4-6) on the issue 

of UP&L liability, both Emery and UP&L were 

involved with coal production monitoring, 

planning and development involving the Wilberg 

Mine from the beginning of their relationship. 

Also: 

1. UP&L was the lessee of the Wilberg 

Mine from the Bureau of Mines at the time of 

the fire (see page 4, Secretary's Response). 

345 
2. Prior to the fire, UP&L had purchased 

the major mining equipment utilized by Emery at 

the Wilberg Mine. UP&L owned this equipment at 

the time of the fire. (Secretary's Response, 

page 4 >. 

3. UP&L and Emery mutually agreed on 

production goals for the Wilberg Mine CSecretary' s Response, page 4). 

4. UP&L had a resident engineer present 

at the mine on a daily basis to make sure that 

UP&L's mining plan was followed (Secretary's 

Response, page 4). 

5. When Emery's mine plans affected the 

mining system at the Wilberg Mine U~&L reviewed 

the plans before they were submitted to MSHA 

for approval (Secretary's Response, page 5). 

II 1

• In the alternative, UP&L is liable as a 

successor-in-interest operator to Emery 

The Federal Mine Safety and Health Review 

Commission has squarely ruled that a successor 

mine operator is jointly and severally liable 

for correcting the illegal acts of discrimination committed by a predecessor operator. In 

such instances the remedies of back pay, costs 

and civil penalties for the Mine Act violations 

are included in the aiabili~y of the successorin-interest. See Secretary of Labor v. Sugartree Corporation, Terco, Inc. and Randall 

Lawson, 9 FMSHRC 394 (March 30, 1987), affirmed 

by ·6th Circuit, Dec. 8, 1987. Munsey v. Smitty 

Baker Coal Company, Inc., 2 FMSHRC 3463 (1980). 

This result is necessary because the purposes 

of Mine Act liability are both prospective and 

remedial. Only UP&L, the current operator, has 

the capacity to correct or abate violations 

subsequently cited by MSHA and related to the 

fire investigation. From the time it became 

the mine's sole operator on April 16, 1986, 

only UP&L could take remedial and prospective 

action designed to prevent such health and 

safety violations from recurring. Only UP&L 

can comply with Section 109 of the Mine Act 

which requires that citations be posted at the 

mine in order to encourage present and future 

compliance (Secretary's Response, page 17). 

346 
The Secretary's statement continues: 

Further, UP&L substantially meets the 

successor-in-interest criteria as highlighted 

in EEOC v. Mac Millan Bloedel Containers, Inc., 

503 F.2d 1986 (6th Cir. 1974} and Terco, supra, 

which are: 

1. Whether the successor company had 

notice of the charge against the predecessor; 

(2} the ability of the predecessor to provide 

relief; (3) whether there was substantial 

continuity of business operations; (4} whether 

the new employer uses the same plant (mine}; 

(5) whether the new employer retains the same 

or substantially the same work force; (6) 

whether the new employer retains the same or 

substantially the same supervisory personnel; 

(7) whether the same jobs exist under substantially the same working conditions; (8) 

whether the same machinery, equipment, and 

method of production are used; and (9) whether 

the same product is produced. Id. at 1094, 

citing Howard Johnson Co., Inc. v. Detroit 

Local Joint Executive Board, Hotel and 

Restaurant Employees and Bartenders International Union, AFL-CIO, 417 U.S. 249, 256-258 

(1974}. 

Factual Basis 

The relevant facts supporting UP&L being 

liable as a successor are as follows: 

1. UP&L had notice of these violations 

(See copies of citations and orders issued}. 

2. UP&L itself has stated that it 

retained most of Emery's Wilberg Mine workforce. (See Statement of Facts to UP&L's 

Motion for Summary Judgment, page 3). 

3. Emery's Director of Safety and its 

Mine Manager at the mine were retained by UP&L. 

(Secretary's Response; page 5 and Exhibits 

c, C-1 thereto}. 

4. UP&L uses most of the same equipment 

Emery used. (Secretary's Response, page 20}. 

347 
5. UP&L produces the same product - coal, 

and it uses the same method of production. 

(See Exhibits D-G to Secretary's Response). 

6. UP&L operates the same mine, Wilbe~g. 

7. As stated previously, only UP&L can 

now provide the remedial and prospective relief 

pertaining to the health and safety conditions 

and practices cited by MSHA. This goes beyond 

the payment of any civil penalties assessed. 

(See Secretary's Response pages 4-6 and 

attached exhibits). 

8. UP&L itself, by other pleadings 

before the Department of Labor termed itself 

successor-in-interest to Emery (Secretary's 

Response, Exhibit F). 

9. The Secretary anticipates other 

documents and evidence in support of UP&L 

liability after discovery is completed. 

(Footnote) 

The footnote in Secretary's Argument 

reads: 

Requests for answers to Interrogatories and production of 

documents are pending against 

Emery and UP&L as of May 13, 1987, 

and a second set of Interrogatories 

and request for production of documents have been submitted as of 

January 29, 1988. 

Conclusion: 

As stated in the Secretary's Response at 

page 13, the Secretary has the authority and 

discretion to cite appropriate parties under 

the Mine Act in order to achieve the statutory 

goals of health and safety enforcement. 

Secretary of Labor v. Cathedral Bluffs Shale 

Oil, 796 F.2d 533 at 538 CD.C. Cir. 1986). 

Citing UP&L as a co-operator or in the alternative as a successor-in-interest accomplishes 

this purpose. Under both theories, UP&L has 

remedial and prospective health and safety 

responsibilities under the Act, and it is 

liable for the Wilberg Mine Act violations. 

348 
On February 12, 1988 UP&L filed its response to the Secretary's statement and renewed its motion for summary decision. 

On March 4, 1988 the Judge severed the cases listed in the 

caption of this order from the remaining pending cases. 

Discussion 

I 

In support of his position that UP&L was a coal mine operator 

at the time of the fire, the Secretary argues that he has discretionary authority to cite an operator, an independent contractor, multiple operators, or even an owner for violations of 

.an independent contractor, regardless of fault, citing, among 

other cases, Bituminous Coal Operator's Ass'n. C"BCOA") v. Secretary of Interior, and Harman Mining Corporation, supra. 

Further, the Secretary argues that his decision to impose 

joint and several liability on Emery and UP&L is particularly 

appropriate. UP&L is not in the position of a stranger who might 

purchase a mining operation without any connection with or knowledge of past events at that mine. At all pertinent times, UP&L 

owned the mining rights. Furthermore, Emery and UP&L worked together when Emery operated the mine. The fact that they continue 

to have a close business relationship is shown by the fact that 

they are represented by the same law firm and counsel. 

In addition, the Secretary contends that since it acquired 

the Wilberg Mine in 1977, it exercised ultimate control over the 

mine's development and production. Emery, which exercised dayto-day operational responsibility at the mine from June 6, 1979 to 

April 16, 1986, was always ultimately subservient to UP&L control 

of the mine. This situation was directly analogous to the relationship between a production operator and his independent 

contractor. The federal courts of appeals have been unanimous 

in holding that the Secretary has wide discretion to hold either 

or both liable for violations of the Mine Act committed by the 

contractor and its employees. 

I completely agree that the Secretary has broad discretion in 

issuing citations and orders under the Act. But the fact remains: 

UP&L was not cited as an operator but as a successor-in-interest. 

An enforcement action cannot be sustained absent implementation by 

the issuance of a citation or order against UP&L as an operator, 

Act§ 104(a),(d). 

349 
The citations and orders on their face indicate UP&L was 

only cited as a successor-in-interest. Further, various statements of the Secretary clearly confirm this view. Specifically, 

the Secretary states he cited UP&L under the alternate theory as a 

successor-in-interest to Emery since that characterization of UP&L 

more graphically described UP&L's status at the time the citations 

and orders were issued. ~/ Further, "Emery was properly cited as 

the operator and UP&L was properly cited as a successor-ininterest." ~/ 

It is clear that the requirements of the Act have not been 

met. The Secretary did not "issue a citation to the operator" 

to initiate a proceedings under§ 104Ca) or§ 104Cd). If the 

Secretary seeks to charge UP&L in its own right as an operator 

liable for the Wilberg fire violation, a citation or order.must 

be issued to UP&L charging it with direct liability for those 

violations. 

In addition, the Commission and the courts have ruled that 

procedural shortcuts are unlawful under the Act. The Commission 

invalidated a procedural shortcut in Monterey Coal Co., 7 FMSHRC 

1004 (July 1985). In Monterey an order and associated penalties 

had been contested by the mine operator to whom the order had been 

issued, on the ground that its independent contractor, FrontierKemper, "was the operator responsible for the violation," 7 FMSHRC 

at 1004. During the course of the litigation, the Secretary 

moved to amend his penalty proposal to join Frontier-Kemper as 

an additional respondent. Although the judge granted the motion, 

the Commission reversed, holding that: 

Before the Secretary may :institute a proceeding 

before this Commission se'eking a civil penalty 

from an operator for a violation of the Mine Act 

or a mandatory standard, the operator must have 

been cited for a violation and been given the 

opportunity either to contest or to pay the 

Secretary's proposed penalty. 

**** 

!/ Secretary's statement on UP&L's liability filed February 1, 

1988, Cat l>. 

5/ Secretary's response to YP&L motion for reconsideration filed 

October 13, 

1987, Cat 3-4>. 

350 
We believe that Congress did not intend 

the Secretary to be able to leapfrog over 

these procedural steps and begin a civil 

penalty proceeding against an operator by 

the filing of a proposal for penalty in 

the first instance, before the Commission. 

7 FMSHRC at 1005, 1006. 

The foundational principles set forth in Monterey bar 

the Judge from holding UP&L liable for civil penalties assessed 

directly against it as a mine operator in the absence of UP&L 

being cited as an operator and a civil penalty being proposed 

against it directly. UP&L has only been cited, and it is being 

subjected to civil penalty liability in these proceedings, for 

Emery's alleged violations. Had UP&L been cited as an operator, 

the entire course of this litigation would have been different. 

Any proposed penalties assessed by MSHA against UP&L as an operator 

would most likely have been dramatically lower. This is one of 

the reasons why the commission in Monterey would not allow the 

Secretary to shortcut the Act's required procedures by commencing 

a proceeding against Frontier-Kemper in the midst of an ongoing 

proceeding against another operator. As the Commission explained: 

our insistence on the need for compliance 

with the procedural requirements [of the Act 

for initiating such proceedings] also serves 

a practical purpose and furthers the enforcement scheme contemplated by Congress in the 

Mine Act. Providing a mine operator with the 

opportunity to pay a civil penalty before the 

institution of litigation promotes judicial 

and administrative economy and can assist 

more expeditious resolution of enforcement 

disputes. 

7 FMSHRC at 1007. See also Phil Baker v. U.S. Department of Interior Board of Mine Operations Appeals, 595 F.2d 746 (D.C. Cir. 

1978), wherein the Court held that a judge could not find a violation of a mandatory safety standard absent the particular statutory proceedings for bringing that issue to federal attention. 

595 F.2d at 750. 

The Judge previously denied UP&L's motion and Secretary's 

motion. But his prior analysis of the facts was erroneous. The 

motions by UP&L and the Secretary for summary decision were denied 

because it was the Judge's view that a genuine issue of fact was 

351 
raised as to whether "UP&L was in control of the Wilberg Mine at 

the time of the alleged violations. 11 (Order, August 5, 1987). 

While such a fact issue still exists, control by UP&L would be 

relevant only if UP&L had been cited and could be held liable as 

an operator or co-operator. 

In short, I conclude that the Secretary's claims that he could 

have cited UP&L as an operator independently liable for the alleged 

violations does not empower the Judge to uphold the citations, 

orders and Emery-based civil penalties here, or to otherwise assess 

civil penalties against UP&L as an operator. The Secretary's post 

hoc assertions on UP&L's liability cannot take the place of citations and orders citing UP&L with violations pursuant to the Act. 

As the Supreme Court has stated, an agency's action "must •.• 

be supported by the findings actually made by the Secretary, not 

merely by findings that we believe he might have made. 11 Industrial 

Union Dep't., AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 

659, 100 S.Ct. 2844. See Vermont Yankee Nuclear Power Corp. v. 

NRDC, 435 U.S. 519, 549, 98 S.Ct. 1197 (1978), ( 11 When there is a 

contempor~neous explanation of the agency decision, the vali~ity 

of that action must 'stand or fall on the propriety of that finding 

"': American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 

539, 101 S.Ct. 2478 (1981), ("the post hoc rationalizations of 

the agency or the parties to this litigation cannot serve as a 

sufficient-predicate for agency action"). 

The Secretary also relies on the fact that, as indicated by 

the pleadings in the cases, both UP&L and Emery are represented by 

the same legal counsel (Paragraph 11, Secretary's response filed 

June 29, 1987). 

The fact that UP&L and Emery are represented by the same 

law firm has no relevance to the issues of UP&L's liability. The 

interests of UP&L and Emery are not adverse particularly since 

Emery agrees that it, and not UP&L, bears the liability for any 

violations as they are finally adjudicated. 

The facts relied on by the Secretary would generally establish, if true, that UP&L was an operator at the Wilberg Mine 

at the time the citations were issued. However, since it is clear 

UP&L was not cited as an operator, the stated facts are not 

relevant. 

, Further, the cases relied on by the Secretary are not controlling. In these cases the owners were, in fact, issued an MSHA 

citation. 

352 
In BCOA the mining company was cited for violations committed 

by a construction company. In Harman Mining the defense failed 

but it focused· on the issue that the Secretary had not cited the 

independent contractor. In Cyprus Industrial the owner was cited 

but was not insulated from liability because an independent contractor committed the violation. The remaining cases relied on 

by the Secretary are not inopposite the view expressed herein. 

In sum, UP&L was never cited as an operator and for the 

reasons expressed herein the Secretary's attempt to impose liability on UP&L as an operator cannot be sustained. 

II 

In his alternative theory of liability the Secretary relies on 

the successorship doctrine and he asserts that UP&L substantially 

meets the successor-in-interest criteria. 

As a threshold matter it appears the Commission has considered 

the issue of successorship liability only in the context of discrimination cases. Sugartree Corp., 9 FMSHRC 394 (1987) and Glen 

Munsay v. Smitty Baker Coal Co., 2 FMSHRC 3463 (1980), aff'd in 

relevant part rev'd in part on other grounds sub nom. Munsey v. 

FMSHRC, 701 F.2d 976 (D.C. Cir. 1983) cert. denied, 464 U.S. 851 

(1983). In the cited cases the Commission has held the successor 

corporation liable for the discrimination committed by the predecessor. The Commission followed the discrimination and labor law 

precedents and disregarded the general successor liability rule. ~/ 

The rationale for its ruling in discrimination disputes was explained by the Commission as follows: 

In Munsey, this Commission noted that 

the statutory protection against discrimination afforded miners is similar to the statutory protection afforded workers under other 

labor statutes. The Commission stated: "In 

certain circumstances, the protections of those 

other statutes have been construed to include 

the liability of bona fide purchasers and other 

~/ The general rule is that a corporation which purchases the 

assets of a company does not assume the liabilities of the seller. 

Certain exceptions exist but they are not involved here. The rule 

has been applied frequently by courts in many jurisdictions. See 

Bud Antle, Inc. v. Eastern Foods, Inc., 758 F.2d 1451, Cllth Cir. 

1985); Mozingo v. Correct Manufacturing Corp., 752 F.2d 168 (5th 

Cir. 1985); Travus v. Harris Corp., 565 F.2d 443 {7th Cir. 1977); 

R.J. Enstron Corp. v. Interceptor Corp., 555 F.2d 277 {10th Cir. 

1977; Cooper v. Utah Light & Railway Co., 35 Utah 570, 102 P. 202 

(1909). 6A Fletcher's Cyclopedia on Corporations, § 2953, § 7122. 

353 
successors for their predecessors' act of discrimination ••• and ••• in appropriate ca~es 

the successorship doctrine should also be 

applied [by the Commission] •••• " 2 FMSHRC at 

3465. Although Munsey was decided under th~ 

Federal Coal Mine Health Act of 1969, 30 u.s.c. 

§ 801 et seq. ( 1976) (amended 1977) ("Coal Act"), 

the predecessor to the Mine Act, the discrimination protections afforded miners under the 

Mine Act are even greater than those afforded 

miners under the Coal Act, and the successorship doctrine clearly applies under the Mine 

Act as well. 

Sugartree, 9 FMSHRC at 397. 

The cases at bar do not in any way involve discrimination. 

The citations and orders arise from the dramatics of a mine fire 

but all the cases involve disputes as to whether the mine operator 

did or did not violate a particular mandatory standard; further, 

whether the facts involve the operator's unwarrantable failure 

to comply and the appropriate penalty. In short, all the cases 

pending before the Judge are contest and penalty cases of alleged 

violations of specific safety standards. 

In the pending cases there are present none of the considerations which compelled the Commission in Munsey and Sugartree to 

adopt the labor/discrimination subject matter exception to the 

general rule governing successor liability. Even if remedy is a 

consideration, the violations have all been abated and Emery has 

paid the penalties involved in the captioned cases. Further, Emery 

has the funds available to pay any remaining civil penalties. 

The fundamental differences between the present enforcement 

disputes and the discrimination cases the Commission addressed in 

Sugartree and Munsey are critical since "the resolution of any 

question concerning successorship involves 'striking a balance 

between the conflicting legitimate interests of the bona fide 

successor, the public, and the affected employee.'" Munsey, 

2 FMSHRC at 3468, quoting Golden State Bottling Co. v. NLRB, 414 

U.S. 168, 181 (1973). A fair balancing of these interests in this 

case requires that successor liability not be imposed on UP&L. 

Unlike the facts in Sugartree and Munsey, the Wilberg miners have 

no compelling interest which would be vindicated by such an action. 

The miners who were discriminated against in Munsey and Sugartree 

could only obtain reinstatement if the successor corporation were 

held liable. In contrast, any safety violations which may have 

existed at the Wilberg Mine before the fire have long since been 

abated (and even if still uncorrected, they could be corrected by 

UP&L without holding that company liable for Emery's actions). 

354 
The Secretary also argues that successorship liability should 

be imposed because UP&L hired the Emery workforce and certain Emery 

personnel; namely, the mine manager and safety director. 

The Secretary's position lacks merit. Many cases hold that 

in order to establish successorship a common identity of officers, 

directors and stockholders is the critical element in determining 

whether a purchaser of assets is a successor, not the purchaser's 

"mere employment" of the seller's personnel - even its officers. 

Bud Antle, Inc. v. Eastern Foods, Inc., supra, 758 F.2d at 1459. 

There is no such common identity here. 

The Secretary's arguments that UP&L must be a successor 

since Emery now lacks the capacity to abate any violations or post 

citations are not persuasive. The citations and orders on their 

face reveal that all of the alleged violations had been corrected 

or abated the date they were issued. If the Secretary believes 

UP&L as an operator has violated a regulation then it is his duty 

to cite UP&L. It will then be UP&L's obligation to comply 

with the posting requirement of the Act. But at this time the 

Secretary's assertions that UP&L must be held liable as a successor 

for remedial reasons are meritless. 

The Secretary further contends that some of the violations 

were· charged as "unwarrantable" under Section 104(d) of the Act 

(Secretary's Response, filed June 29, 1987, page 17). Hence, only 

the current operator can assume responsibility for the termination 

of the unwarrantable sequence, because that sequence runs with the 

mine until a complete inspection of the entire mine discloses no 

further "unwarrantable" violations. Jj 

The Secretary's premise is flawed. The nature of the unwarrantable failure sequence precludes automatic application to a 

subsequent operator of the mine. The unwarrantable failure 

sequence is a special sanction for dealing with a particular 

operator who has not responded adequately to the normal, lesser 

sanctions imposed under§ 104(a). See Consolidation coal co., 

4 FMSHRC 1791, 1794 (1982) ("graduated scheme of sanctions"); 

S.Rep. No. 181, 95th Cong., 1st Sess. 31 (1977) reprinted in 

Legislative History of the Federal Mine Safety and Health Act of 

1977 at 619 (1978). An unwarrantable failure is operator specific: 

it means that the violation occurred as a result of the operator's 

indifference, willful intent, or serious lack of reasonable care. 

Westmoreland Coal Co., 7 FMSHRC 1338, 1342 (1985). Further, it 

21 The cases in the caption involving the issue of unwarrantable 

failure are WEST 87-149-R, WEST 87-154-R and WEST 87-162-R. 

355 
has been held that a mine operator cannot be held liable for an 

unwarrantable failure order where the cited operator did not know 

<nor should have known) of the violation, GEX Colorado Incorporated, 2 FMSHRC 1347, 1350 (1980) (Morris, J). It is one thing to 

hold a party liable for a violation without fault, but quite 

another to hold that he unwarrantably failed to comply without 

fault. 

The Secretary's position, cited without authority, is accordingly rejected. 

The Secretary also contends that UP&L represented itself as a 

successor-in-interest to Emery in Docket No. 86-MSA-3 involving a 

petition for modification (Secretary's Exhibit F). 

The evidence relied on merely shows that UP&L voluntarily 

assumed Emery's position in ongoing litigation. It falls far 

short of establishing that UP&L is liable for the violations the 

Secretary has urged against Emery. 

As noted above, the issues presented in this motion appear in 

other related pending cases. Unless directed otherwise by a higher 

authority the Judge will, in due course, enter the same order as to 

UP&L where the issue arises. 

In sum, the rationale for imposing the successorship liability 

doctrine on UP&L does not exist in an enforcement action involving 

violation of a safety or health standard. Accordingly, the facts 

and the case law relied on by the Secretary do not support his 

position. 

Emery has paid the penalties in the cases listed in the 

caption of this order and those cases have been dismissed as to 

Emery. The Judge further concludes there is no issue of material 

facts as to UP&L. 

Accordingly, for the reasons stated herein, I enter the 

following:. 

ORDER 

1. The motion of Utah Power & Light for the Judge to reconsider his order denying Contestant UP&L's Motion for summary 

decision is granted. 

2. The Judge's order, of August 5, 1987 denying said motion is 

reconsidered. 

356 
3. The order of August 5, 1987 denying the motion is vacated. 

4. The renewed motion for summary decision by Contestant Utah 

Power & Light is granted. 

5. The contest filed by Utah Power & Light is sustained. 

Law Judge 

Distribution: 

Timothy M. Biddle, Esq., Thomas c. Means, Esq., Susan E. Chetlin, 

Esq. and Kevin Darken, Esq., Crowell & Moring, 1001 Pennsylvania 

Avenue, N.W., Washington, D.C. 20004 (Certified Mail) 

James B. Crawford, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 Fifteenth 

Street, N.W., Washington, D.C. 20005 (Certified Mail) 

/ot 

' 357 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF. ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

MAR 141988· FALLS CHURCH, VIRGINIA 22041 

SOUTHERN OHIO COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

CONTEST PROCEEDING 

Docket No. WEVA 87-166-R 

Order No. 2699493; 4/9/87 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 87-306 

A. C. No. 46-03805-03806 

Martinka No. 1 Mine 

DECISION 

Appearances: W. Henry Lawrence, Esq:, Steptoe.· & Johnson, 

Clarksburg, West Virginia, £or Contestant/' 

Respondent; 

Before: 

Susan M. Jordan, Esq., Office of the Solicitor, 

u.s. Department of Labor, Philadelphia, Pennsylvania, for Respondent/Petitione~~ 

Judge Maurer 

STATEMENT OF THE CASE 

These consolidated cases concern the contest pursuant to 

section 105(d) of the Federal Mine Safety and Health Act of 

1977 (the "Act"), challenging the legality of a section 104(d) (2 

order issued to the contestant at its Martinka No. 1 Mine on 

April 9, 1987. The captioned proceedings have been consolidate< 

for hearing and decision because the order contested in the 

c.ontest proceeding charges a violation of a mandatory safety 

itandard for which the Secretary seeks a penalty in the civil 

penalty proceeding. 

Pursuant to notice, the cases were heard in Morgantown, 

West Virginia, on November 16, 1987. The parties filed posthearing proposed findings of fact, conclusions of law, and 

briefs which have been considered by me in the course of making 

this decision. 

358 
Section 104(d) (2) Order No. 2699493, which is the 

subject of this proceeding, was issued by an MSHA inspector 

on April 9~ 1987. The order alleges a violation of the 

mandatory safety standard found at 30 C.F.R. § 75.507-l(a) 

and the condition or practice alleged by the inspector to be 

a violation of that standard states as follows: 

After making a 103(g) (1) inspection of the complaint 

alleging the continuous mining machine was trammed 

down the No. 2 entry return air course in the 1 

north 017 section on the afternoon 4-3-87, it was 

revealed that Joe Metz, mechanic found 3 openings 

in junction boxes on the continuous mining machine 

and reported this to Tom Permo (sic) prior to the 

machine being moved down the return, this was heard 

by Fred Shingleton who was present in the area at the 

time. Tom Permo (sic) was present during the time 

the continuous miner was being tramed. Tom Permo (sic) 

was the foreman in charge of the area at this time. 

To terminate this Order all Foremen shall be instructed to see that all electrical equipment taken 

into the return air course outby the last open crosscut be in an permissible condition, and a list of 

Foremen instructed given to MSHA. 

30 C.F.R. § 75.507-l(a) provides in pertinent part as 

follows: 

All electric equipment . . . used in return air 

outby the last open crosscut in any coal mine 

shall be permissible . . . . 

STIPULATIONS 

The parties stipulated to the following: 

1. The Southern Ohio Coal Company owns and operates 

the Martinka No. 1 Mine and both are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977. 

2. The presiding Administrative Law Judge has jurisdiction over this proceeding pursuant to section 105 of the Act. 

3. The subject Order No. 2699493, its modification and 

termination were properly served by duly authorized representatives of the Secretary upon an agent of the contestant at the 

dates, times and places stated therein, and may be admitted into 

evidence ror the purpose of establishing their issuance. 

4. The assessment of a civil penalty in this proceeding 

will not affect contestant's ability to continue in business. 

359 
5. The appropriateness of the penalty, if any, to the 

size of the contestant's business should be determined based 

on the fact that the Martinka No. 1 Mine has an annual production of approximately 2.5 million tons of coal and the 

Southern Ohio Coal Company has an annual tonnage of approximately 7.3 million. 

6. There was no intervening clean inspection between 

the§ 104(d) (2) order being contested and the previous 

§ 104 (d) (1) citation. 

ISSUES 

The ultimate question presented is whether or not the 

cited condition or practice constitutes a violation of 30 

C.F.R. § 75.507-l(a). Included as part and parcel of any 

determination of that question is whether or not the violative 

act took place in "return air outby the last open crosscut" 

as stated in section 75.507-l(a). Additional issues are 

whether the cited violation was of such a nature as would 

significantly and substantially contribute to the cause and 

effect of a coal mine safety hazard and whether the cited 

violation was caused by an unwarrantable failure to comply 

with the standard in question. Also, an appropriate penalty 

must be assessed in the event that a violation is found. 

FINDINGS OF FAC'I' 

1. MSHA Inspectors Wayne Fetty and Frank Bowers issued 

the subject order on April 9, 1987, subsequent to their investigation of a section 103(g) complaint. The order and the 

complaint concern an incident that occurred on the afternoon 

shift of April 3, 1987, in the 1 North Section of the mine. 

2. The crew assigned to the 1 North Section on the 

afternoon shift of April 3rd consisted of section foreman 

Torn Premo, mechanic Joe Metz and general inside laborers Tim 

Dotson, Fred Shingleton and Joe Hardesty. Joe Metz actually 

worked for maintenance supervisor Bud Boone. His particular 

assignment that afternoon was to perform permissibility checks 

on a miner, roofbolter, flight pump and two shuttle cars that 

were physically located in the 1 North Section, and also to 

repair any nonpermissible conditions he found. The crew's 

assignment from Shift Supervisor Fred Rundle was to move the 

roofbolter, one of the shuttle cars and the mining machine 

from their then existing locations in the section to a fall 

area in the No. 2 entry, so that the roof fall could be 

cleaned up. 

3. An unintentional roof fall had occurred in the No. 2 

entry as depicted on Government Exhibits 1 and 2, some weeks 

prior to April 3, 1987. 

360 
4. No mining occurred in the 1 North Section on April 3, 

1987, active mining having ceased two shifts earlier. The face 

areas were ieft squared off and "faced-up." Mining eubsequently resumed in the section after the fall area was cleared. 

5. Mechanic Metz began his permissibility checks with the 

roofbolter. Metz detected a nonpermissible condition on the 

roofbolt-er's lighting system and unplugged it, placed a danger 

tag on the plug and placed the plug in a lockbox. Foreman 

Premo asked Metz if the lights could be turned out and the 

machine moved anyway, but Metz opined that it could not. Premo 

then called Shift Supervisor Rundle, told him the bolter.was 

not permissibl·e, and asked if he could move it. Rundle told 

Pre.mo not to move the bolter, but rather to move the miner 

instead at that time. 

6. At the start of the shift, the continuous miner was 

located in the No. 6 entry up towards the face. The crew's 

mission then was to move the miner from there to the fall area 

in the No. 2 entry. In the process of doing that, Dotson, 

Hardesty, and Shingleton had trammed the miner as far as the 

No. 5 entry, marked with an "X" on Government Exhibits 1 and 2, 

when they had to stop because of a line curtain fastened across 

the entry. 

7. At this point in time and space, Metz arrived and informed the crew that he would perform his assigned oermissibility 

checks on the miner while the miner was stopped and the crew 

was removing the curtain. In the process of making these checks, 

he found three junction boxes on the miner that his five thousandths t.005) of an inch feeler gauge would penetrate. Metz 

thereupon told and showed Dot.son, who was operating the miner, 

what he had found. At this point, Premo arrived on the scene 

and was told by Metz that there were permissibility violations 

on the miner. There followed an exchange between Premo and 

Metz, the substance of which I find to be that Premo felt Metz 

was being an obstructionist on the issue of moving the miner 

and responded with words to the effect that he had a job to do 

and that he was not going to lose his job over something as 

minor as these openings. 

8. Following the discussion between Metz and Premo, Premo 

ordered the crew to move the miner to the fall area. At that 

time, Shingleton expressed his concern to Premo that the crew 

would get into trouble for moving the miner in a nonpermissible 

condition. Premo responded to the effect that if anyone got 

into trouble it would be him, not them. I find the sense of 

the situation to be that Premo clearly understood that the 

miner was in a nonpermissible condition, but he ordered it 

moved anyway in order to accomplish his assigned mission. 

361 
9. Prior to moving the miner, Shingleton took methane 

readings with. a methane detector at the faces of the Number 5, 

4, and 1 entries and at the fall area and did not detect 

methane. Premo had earlier checked all the faces for methane 

without detecting any. 

10. The miner was then trammed from the No. 5 entry 

across the faces and then down the No. 2 entry to the fall 

area. 

11. The curtain at the intersection of the No. 2 entry 

and the face was taken down to allow the miner and later the 

shuttle car to enter the No. 2 entry, but it was replaced 

after each piece of equipment entered the entry. Nevertheless, 

there was some degree of air movement in that entry moving 

away from the faces. 

12. After the miner was moved to the fall area, Metz 

completed his permissibility checks on the miner and corrected 

the nonpermissible conditions. He also recorded the violative 

conditions in the permissibility book on the surface at the 

end of the shift. 

13. On April 3, 1987, the 1 North Section had eight (8) 

entries. The No. 1 and 2 entries were the returns on the 

right side of the section and the No. 6, 7, and 8 entries were 

the return airways on the left side of the section. The No. 3, 

4, and 5 entries were the intake airways with the No. 3 entry 

as the main intake escapeway and the No. 4 and 5 entries as 

the belt and track entries, respectively. 

DISCUSSION WITH: FURTHER FINDINGS 

Reduced to its essentials, the Secretary's position in 

this case is that (1) the miner was in a nonpermissible condition and (2) it was used in return air outby the last open 

crosscut in the No. 2 entry. 

3o·c.F.R. § 18.3l(a) (6) provides that the allowable 

limit for the openings in the junction boxes on the continuous miner is .004 of an inch. Metz' unrefuted testimonv on 

this point was that there were three such openings in the 

junction boxes that were in excess of this limit. Dotson 

directly corroborates this testimony at least as to the one 

junction box on the operator's side of the miner. Furthermore, 

Metz and all the other miners who testified stated that the 

permissibility violatioris were discovered while the miner 

was stopped at the No. 5 entry before it was moved into the 

No. 2 entry, and that Premo was advised of the nonpermissible 

conditions found on the miner at that time. More specifically, 

Dotson, Shingleton, and Hardesty~ as well as Metz himself, all 

362 
stated that Metz informed Premo that he had found permissibility violations on the continuous miner and that it should 

not be moved in that condition. 

In making these credibility findings in favor of the 

Secretary, I am aware that Premo testified that no one 

reported any impermissible conditions on the miner to him 

when the miner was stopped in the No. 5 entry and in fact he 

maintains that he first learned of Metz' allegations that 

the miner was moved in a nonpermissible condition three days 

later on April 6. 

The operator points out that on February 16, 1987, Metz 

had received a two week suspension for refusal to wear his 

safety glasses, and had only returned to work on February 26, 

1987, five weeks prior to this incident. The operator urges 

that this suspension angered Metz and provided the motivation 

for him to fabricate this violation out of whole cloth. He 

could use MSHA to take his revenge against the company. This 

argument might have some appeal if it was only Metz' word 

against Premo's, but in this case all the percipient witnesses 

to the incident with the exception of Premo tell the same 

tale. To be sure there are minor variations in their testimony, but no more than might be expected. In fact, I would 

be very surprised if four individual witnesses to an incident 

related their impressions and recollections of that event in 

exactly identical terms. The argument also overlooks the 

difficulty Metz might have in convincing three other miners 

who had not been suspended to commit perjury on his behalf. 

Metz didl10t even have the luxury of being able to choose 

which miners he would have corroborate his complaint. He 

was stuck with the crew at hand. It is simply too far 

fetched to believe that a single individual with his own 

personal grievance against the company could convince three 

out of three witnesses to the incident to go along with a 

completely fabricated version of events and stick by it for 

the next seven months through various and sundry investigations, interrogations, and hearings. A more plausible 

explanation is that Premo, who was assigned to move three 

pieces of equipment that evening, had already failed to move 

the first and didn't want to have to call Rundle back again 

to report he also couldn't move the second. There was 

testimony at the hearing from Premo's supervisors to the 

effect that Premo was overly cautious and indecisive and 

that had a question arisen about the miner, he would have 

passed it to them. These characteristics had been adversely 

commented upon in his annual job performance reviews, and in 

my view, Mr. Premo was attempting to correct this flaw on 

the evening of April 3. He made the decision to get the 

miner to the fall area in spite of the fact that it was not 

in a permissible condition and he knew it was not. 

363 
Before there could be a violation though, the nonpermissible miner must have been used in return air outby the last 

open crosscut. The term "return air" is not specifically 

defined in the Act or regulations. It is defined, however, 

in the Dictionary of Mining, Mineral and Related Terms (1968) 

published by the Department of the Interior simply as "Air 

traveling in a return." "Return" is then defined by the same 

dictionary as "any airway which carries the ventilating air 

outby and out of the mine." In my opinion, therefore, since 

the No. 2 entry was a designated return airway and the testimony of the miners was that there was a detectable current of 

air flowing from the face area down the No. 2 entry toward the 

mine exit, this entry would constitute "return air" as that 

term is used in the mandatory standard. 

I specifically reject the proposition that since there 

was no coal actually being mined at the time, there could be 

no return air. Both Windsor Power Coal Co. v. Secretary, 

2 FMSHRC 671 (1980), an ALJ decision by Judge Melick; and 

Mid-Continent Coal and Coke Co. v. Secretary, 3 FMSHRC 2502 

(1981) involved temporary delays or halts in production, similar to the instant situation, that were found not to affect 

the ventilation requirements. In all three cases, including 

this one, coal production had recently ceased and other work 

was being performed to prepare the section for resumed production. 

Lastly, I find as a fact and conclude as a matter of law 

that the miner was "used," i.e., trammed into and down the 

entry to the fall area, which area was "outby the last open 

crosscut." See Government Exhibi t,s No. 1 and 2. 

I therefore conclude that a violation of 30 C.F.R. 

§ 75.507-l(a) has been established. 

A "significant and substantial" violation is described 

in section 104 (d) (1) of the Act as a violation "of such nature 

as could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety or health 

hazard." A violation is properly designated significant and 

substantial "if, based upon the particular facts surrounding 

the violation there ex~sts a reasonable likelihood that the 

hazard contributed to will result in an injury or illness of 

a reasonably serious nature." Cement Division, National Gypsum 

Co.,, 3 FMSHRC 822, 825 ( 1981). 

In Mathies Coal Co., 6 FMSP.RC 1, 3-4 (1984), the Commission explained its interpretation of the term "siqnificant and 

substantial" as follows: · 

364 
In order to establish that a violation of a 

mandatory safety standard is significant and substantial under National Gypsum the Secretary of 

Labor must prove: (1) the underlying violation 

of a mandatory safety standard; (2) a discrete 

safety hazard--that is, a measure of danger to 

safety--contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed 

to will result in an injury; and (4) a reasonable 

likelihood that the injury in question will be of 

a reasonably serious nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further that the third 

element of the Mathies formula "requires that the 

Secretary establish a reasonable likelihood that 

the hazard contributed to will result in an event 

in which there is an injury." U.S. Steel Mining 

Co., 6 FMSHRC 1834, 1836 (August 1984). We have 

emphasized that, in accordance with the language 

of section 104 (d) ( 1) , it is the contribution of a 

violation to the cause and effect of a hazard that 

must be significant and substantial. U.S. Steel 

Mining Company, Inc., 6 FMSHRC 1573, 1574-75 

(July 1984). 

While it is true that no active coal mining was taking 

place and no methane was detected at the time the miner was 

being moved, it is also true that the 1 North Section is the 

gassiest section in the Martinka No. 1 Mine and has been known 

to liberate methane in the explosive range. Furthermore, I 

take administrative notice that methane can be liberated at 

any time. 

The safety hazard contributed to by the violation was 

an explosion. The nonpermissible miner was a potential 

ignition source for any methane that would have been present 

in the return entry. Because of the three openings in the 

junction boxes, methane could enter those electrical compartments and any spark or electrical arc could become an ignition 

source. Given these facts and circumstances, it was reasonably likely that an ignition or explosion would occur. In the 

event that an ignition or explosion did occur, it was reasonably likely that there would have been at least serious injury, such as smoke inhalation, burns, cuts, and/or lacerations. 

I therefore conclude that the violation was "significant 

and substantial" and serious. 

365 
The Secretary further urges that this violation was caused 

by the operator's "unwarrantable failure" to comply with the 

mandatory standard, and I agree. 

In Zeigler Coal Company, 7 IBMA 280 (1977), the Interior 

Board of Mine Operations Appeals interpreted the term "unwarrantable failure" as follows: 

An inspector should find that a violation of any 

mandatory standard was caused by an unwarrantable 

failure to comply with such standard if he determines that the operator has failed to abate the 

conditions or practices constituting such violation, conditions or practices the operator knew 

or should have known existed or which it failed 

to abate because of lack of due diligence, or because of indifference or lack of reasonable care. 

The Commission has concurred with this definition to the 

extent that an unwarrantable failure to comply may be proven 

by a showing that the violative condition or practice was not 

corrected or remedied prior to the issuance of a citation or 

order, because of indifference, willful intent, or serious 

lack of reasonable care. United States Steel Corp. v. 

Secretary of Labor, 6 FMSHRC 1423 at 1437 (1984). And most 

recently, in Emery Mining Corp. v. Secretary of Labor, 9 FMSHRC 

1997 (1987), the Commission stated the rule that "unwarrantable 

failure" means aggravated conduct, constituting more than 

ordinary negligence, by a mine operator in relation to a violation of the Act. 

In this case, foreman Premo knew of the impermissible 

condition of the miner, yet ordered it taken into the No. 2 

return entry in violation of the mandatory standard. This 

action demonstrates aggravated conduct that is clearly imputable to the 09erator. Accordingly, I conclude and find that 

this violation resulted from gross negligence and this is reflected in the civil penalty assessed by me for this violation. 

In assessing a civil penalty in this case, I have also 

considered the foregoing findings and conclusions and the requirements of section llO(i) of the Act, including the fact 

that the operator is large in size and has a substantial history of violations. Under these circumstances, I find that a 

civil ~enalty of $1,000, as proposed, is appropriate. 

366 
ORDER 

Order No. 2699493 IS AFFIRMED, and Southern Ohio Coal 

Company is hereby directed to pay a civil penalty of $1,000 

within 30 days of the date of this decision. 

Distribution: 

& /./1/j . Llt/fl/~/ R aurer 

A ntJ r~tive Law Judge 

w. Henry Lawrence, Esq., Steptoe & Johnson, P. o. Box 2190, 

Clarksburg, WV 26302 (Certified Mail) 

Susan M. Jordan, Esq., Office of the Solicitor, u. s. De~artment 

of Labor, 3535 Market St., Philadelphia, PA 19104 (Certified 

Mail) 

yh 367 
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. 

TENNESSEE CHEMICAL, INC., 

Respondent 

MAR 151988 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. SE 85-63-M 

A.C. No. 44-00704-5513 

Cherokee Mine 

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, TN, for 

Petitioner; 

Ronald G. Ingham, Esq., Clements, Ingham & 

Trumpeter, Chattanooga, TN, for Respondent. 

Before: Judge Fauver 

This civil penalty petition by the Secretary of Labor 

charges a violation of a safety standard under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et~ 

On September 14, 1984, a roof fall at Respondent's copper 

mine killed one miner and severely injured another. The men were 

at the controls of a drilling machine under unsupported roof, 

drilling blasting holes into the face, when a large rock fell 

upon them. The Secretary's citation, as amended, charges a 

violation of 30 C.F.R. § 57.3-20 (now§ 57.3020), which provides: 

Mandatory. Ground support shall be used if the 

operating experience of the mine, or any 

particular area of the mine, indicates that it is 

required. If it is required, support, including 

timbering, rock bolting, or other methods shall be 

consistent with the nature of the ground and the 

mining method used. 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the substantial, reliable, 

and probative evidence establishes the following: 

368 
FINDINGS OF FACT 

1. At all pertinent tim~s, Responderit operated an 

underground copper mine near Copperhill, Tennessee, where it 

employed about 200 miners working three 8-hour shifts per day, 

seven days a week. Copper and iron sulfide ore was mined using 

the sublevel stoping method. The ore was drilled, blasted, 

loaded and transported to a skip pocket raise where it was 

crushed, loaded into skips and hoisted up a shaft to storage bins 

on the mine surface. · 

2. For development work, that is, excavating tunnels for 

haulageways and travelways, Respondent grouped miners in six-man· 

development crews, who drilled blast holes into the tunnel face 

and roof, set charges, blasted the rock, scaled the roof, r_emoved 

the rock ("mucking" out the blast area), and repeated this cycle. 

They were paid a crew incentive rate based on the number of feet 

they advanced the tunnel. 

3. The development crews used a Jumbo~type, three-boom, 

pneumatic drill. The drilling pattern was a standard burn cut, 

drilling 36 2 1/4-inch diameter holes to a depth of 12 feet. 

Holes were also drilled and blasted on close centers in the roof 

to provide a smooth wall extending about 20 feet from the face. 

Split set and hydraulic cement cartridge rock bolts were 

installed in the roof on an "as needed" basis. Under the 

supervision of a development foreman, each development crew was 

to examine and scale the roof in its own work places, and to do 

roof bolting depending on the amount of bolting involved. If a 

large area were to be bolted, a separate roof bolting crew would 

be brought in. 

4. On the day of the accident, September 14, 1984, Steve 

Dillard and Joshua waters, development drillers, and Frank 

Wright, development loader, made up one-half of a six-man 

development crew (on the evening shift) that was tunneling in the 

14 North 33 drift, to develop a large truck haulage road 16 x 18 

feet. The development foreman for their shift was Cleaston 

Morrow. The other half of the crew worked the previous shift 

(day shift) on September 14. 

5. Dillard, waters and Wright reported to work at 3:00 

p.m., and received their work assignments from the development 

foreman, Cleaston Morrow. Their assignment was to continue 

development in the 14 N 33 drift. 

6. Dillard, waters, arid wright, all members of the 

development crew, and Hayden Stiles, equipment operator, arrived 

at the 14 N 33 drift and found that the heading had to be mucked 

369 
out (removing blasted rock). The heading had been blasted by the 

other half of the development crew at the end of the prior shift. 

7. Dillard, Waters, and Stiles started to scale the roof in 

the blast area while Wright went to the 18 level to get a loader 

to muck out the blasted rock. The regular practice was to have 

the development drillers examine and scale the roof after each 

blast. When they finished this task, they would tell the loader 

the area was ready to be mucked and the loader would move in a 

loading machine and remove the blasted rock. After the area was 

mucked, the drillers would move in the Jumbo drill, drill the 

face and roof, set the charges, set off the blast and the crew 

would repeat the above cycle. 

8. When Wright returned, Dillard told him they had finished 

scaling and the area was ready to be mucked. Dillard and Waters 

left, and Wright and Stiles started mucking. They had most of 

the blasted rock removed when a rock fell from the roof in front 

of wright's loader, inby the last row of roof bolts. The rock 

fall was very near the place where a rock later fell upon Dillard 

and waters. (See Exh. P-22 and Tr. 212.) The rock was about two 

feet wide and three to four feet long. The rock fall frightened 

Wright because he had been driving back and forth under that spot 

and the rock could have fallen on him and killed him. Also, he 

was startled and angered by the fall because Dillard had said the 

roof had been scaled. 

9. After the rock fell, Wright backed his loader into the N 

28 crosscut and waited for Stiles to return in the loader Stiles 

was operating. When Stiles returned, Wright told him about the 

rock Dall and stood in the dipper of Stiles' loader so he could 

reach the roof with a scaling bar. He and Stiles then scaled 

down "quite a bit" of loose roof. When Wright and Stiles were 

through scaling, they finished mucking out the blasted rock and 

Wright went to the office/lunchroom. There he saw Dillard, 

Waters, and the foreman, Cleaston Morrow. Wright confronted and 

criticized Dillard because Dillard had said the roof had been 

scaled but a rock had fallen near his loader and Wright found a 

lot of loose roof. He warned Dillard that some roof had "blowed 

up"l/ (Exh. P-21, p. 10) and that the roof still needed to be 

checked (Id.~ Tr. 172, 174). 

1/ "Blowing" is an adverse roof condition that signals danger of 

apotential roof fall. "Blowing" may include popping noises, 

cracking or the falling of small pieces ("fines" or "scales"). 

Exh. P-21 p. 11. 

370 
10. Cleaston Morrow, the development foreman, was the 

supervisor of Dillard, Waters, Wright, and Stiles and was 

responsible for examining the roof conditions in the 14 N 33 

drift to ensure that proper roof testing and roof control 

practices were being followed. Morrow did not go to the 14 N 33 

drift after hearing Wright's warning about the roof and had not 

examined the face area before then on September 14. He did not 

instruct Dillard and Waters to check the roof, to install roof 

support, or to delay drilling in order to have additional bolting 

done by the pinning crew. Morrow knew that when Dillard and 

Waters left the lunchroom they were going to the face area where 

they would be drilling the face and roof while working under 

unsupported roof. 

11. Dillard and Waters returned to the drift, did some 

scaling of the tunnel floor, but not the roof, moved in the Jumbo 

drill, and started drilling holes into the tunnel face •. While 

they were at the operating controls, under unsupported roof, and 

drilling the face, a rock fell on them, killing Dillard and 

permanently disabling Waters. The rock was about six feet eight 

inches lon9, four feet ten inches wide and four to five inchesthick. 

12. The rock that killed Dillard and injured Waters fell 

from unsupported roof seven and one-half feet inby the last row 

of roof bolts. The heading where they were working had just 

been blasted near the end of the prior shi~t on September 14. 

13. Shortly before the fatality on September 14, the 14 N 

33 drift had been down for eight shifts because of adverse roof 

conditions. In that period, 198 roof bolts were installed up to 

the edge of a "smooth wall." 1 A "smooth wall" is a lip or brow 

that is intentionally left in the roof after an explosion. This 

is illustr~ted in Exh. R-2. The roof bolting work was completed 

on September 13. The roof bolter, Mark Richards, testified that 

when he was ·installing the roof bolts he backed up and installed 

an extra row of roof bolts at one place because he heard popping 

noises in the roof and saw small bits of rock, which he called 

"fines," falling from the roof. His supervisor, Laddie Hicks, 

later criticized him for using an extra row of roof bolts. 

Richards told Hicks about the dangerous roof conditions he had 

encountered. 

14. On September 13, Mark Richards completed the roof 

bolting referred to above. He roof bolted around a small bore 

hole 14 N 33 drift and bolted the drift roof inby from there up 

to the smooth wall lip or brow left by the last blast of the face. 

That smooth wall was later shot down in the blast on September 14. 

Gary Williams, general mine foreman, had ordered the area around 

the small bore hole roof bolted because of dangerous roof 

371 
conditions he observed in the area. This was within 15 feet of 

the place where Dillard was killed. 

15. Wright, Richards and Thomas Mason, the development 

driller on the day shift who had "taken the heading" on the 

afternoon of the 14th, all testified at the hearing about bad 

roof conditions they had experienced in the 14 N 33 drift before 

the roof fall that killed Dillard. 

16. Dr. Ross Hammett, a mining engineer consultant to 

Respondent, had advised the Respondent in a written report in 

July, 1984, that the requirement for roof support should be 

determined by continuing to observe "local geological 

conditions." 

17. Anthony Edey, Respondent's manager of mining and 

milling at the time, and Dr. Hammett both testified that noise in 

the roof, fretting or the falling of small rocks from the roof, 

larger rocks falling from the roof, and the necessity for 

installing roof bolts in a particular area all make up a part of 

a mine's operating experience. 

Prior Fatality 

18. On January 27, 1984, Ted B. Ledford, a development 

driller, had been doing the same kind of work as that done by 

Dillard and Waters on September 14, 1984. When he was operating 

a Jumbo drill in a different drift, also under an unsupported 

roof and also drilling blasting holes into the face, a large rock 

fell from the roof and killed him. 

19. Following an investigation of the Ledford fatality, 

MSHA made the following recommendations to Respondent: 

1. Supervisors should review with each miner 

the proper ground control procedures. 

2. Overhead protection should be provided on all 

mobile equipment where feasible. 

3. A continued surveillance of day-to-day ground 

conditions is required by both supervisors and 

miners to avoid ground fall injuries. Scaling of 

the back [roof] and ribs must be a continual process in 

order to prevent rock fall accidents. 

20. The MSHA accident investigation team in the Ledford 

case found the following "Cause of Accident": 

372 
• 

The cause of the accident was the failure of 

management and employees to detect loose ground. 

Contributing causes may have been that vibrations 

from the drilling operation may have affected the 

ground conditions above the area by loosening unstable 

ground. 

21. After the Ledford fatality, Respondent continued its 

practice of not installing canopies on the Jumbo drills. If 

Respondent had installed a canopy over the operating controls 

compartment of the Jumbo drill operated by Dillard and Waters, in 

all reasonable probability the canopy would have protected them 

from injury from the rock fall on September 14. 

22. If Respondent had extended its rows of roof bolts to 

support the roof above the Jumbo drill, in all reasonable 

probability the rock would not have fallen upon Dillard and 

Waters on September 14, 1984. 

The MSHA Investigation of the Dillard/Waters Accident 

23. When the MSHA accident investigators and their 

supervisor inspected the Dillard/Waters accident scene, they 

observed unbolted loose rocks in the roof near the area where the 

rock had fallen on Dillard and waters and elsewhere in the roof. 

They determined from their investigation and observation that the 

loose rocks were problably there and visible before the rock fall 

In their accident investigation report, they found the following 

"Cause of Accident": 

The cause of the accident was the failure of 

management and employees to scale down and/or 

adequately support loose ground. Contributing 

causes may have been the f a1lure of management 

and employees to detect loose ground and that 

vibrations from the drilling operation may have 

affected the ground conditions above the drill area 

by loosening unstable ground. 

25. The MSHA i.1vestigation report made the following 

recommendations to Respondent: 

1. Supervisors should review with each miner the 

proper ground control procedures and practices. 

2. Overhead protection (canopies) should be provided 

on all mobile equipment, where feasible. 

3. A continued surveillance of day-to-day ground 

conditions is required by both supervisors and 

373 
miners to avoid ground fall fatalities and 

injuries. Scaling of the back and ribs must be 

a continual process throughout the mining cycle 

in order to prevent rock fall accidents. 

4. Where it is necessary for ground support, the 

bolting plan should include rock bolting up to and 

as near the face as possible to keep the drill crew 

at a minimum of exposure. 

DISCUSSION WITH FURTHER FINDINGS 

Title 30 C.F.R. § 57.3-20 states: 

Mandatory. Ground support shall be used if the 

operating experience of the mine, or any 

particular area of the mine, indicates that it 

i$ required. If it is required, support, including 

timbering, rock bolting, or other methods shall be 

consistent with the nature of the ground and the 

mining methods used. 

This regulation has not been frequently interpreted by the 

Commission or its judges. In White Pine Copper Division, Copper 

Range Company, 5 FMSHRC 825 (1983), the Commission expressed the 

following quidelines: 

••• (I]n view of the fact that section 57.3-20 

is intended to protect miners against roof falls, 

we conclude that a mine's "operating experience" 

broadly encompasses all relevant facts tending 

to show the condition of the mine roof in question 

and whether, in light of the roof condition, roof 

support is necessary. 

* * * 

While we do not in this case define the term "operating 

experience," we conplude that the operating experience of a 

mine requires the use of roof support if, in a given 

situation, the mining conditions are such that roof support 

is necessary. This determination takes into account the 

operating history of the mine (i.e., its past mining 

practice), geological conditions, scientific test or 

monitoring data and any other relevant facts tending to show 

the condition of the mine roof in question and whether in 

light of those factors roof support is required in order to 

protect the miners from a potential roof fall. (5 FMSHRC 

836·, 838.] 

374 
The Commission also considered the common usage of the term 

"experience" in interpreting the standard (at Fn. 23): 

• • • [W]e turn to the dictionary for the common usage 

of that term. There, the key word "experience" is 

defined: 

2: direct observation of or participation in events: 

an encountering, undergoing, or living through things in 

general as they take place in the course of time ••• 4: 

knowledge, skill, or practice derived from direct 

observation or participation in events: practical 

wisdom resulting from what one has encountered, 

undergone, or lived through ••• Sa: the sum total of the 

conscious events that make up an individual life ••• 6: 

something personally encountered, undergone, or lived 

through •••• 

Webster's Third New International Dictionary 

(Unabridged 1971) (Emphasis the Commission's). 

In Amax Chemical Company, 8 FMSHRC 1146 (1986), the 

Commission interpreted§ 57.3-20's companion section, 

§ 57.3-22.2/ The Commission stated: 

Unlike the regulatory schem~ that obtains 

with respect to underground coal mines, 

approved roof control plans are not required 

in underground metal-nonmetal mining operations. 

Rather, '[g]round support shall be used if the 

operating experience of the:mine, or any particular 

area of the mine, indicates;that it is required.' 

2/ This mandatory ground control safety standard, which applies 

to metal-nonmetal underground mines, provides: 

Miners shall examine and test the back, face, and rib 

of their working places at the beginning of each shift and 

frequently thereafter. Supervisors shall examine the ground 

conditions during daily visits to insur~ that proper testing 

and ground control practices are being followed. Loose 

ground shall be taken down or adequately supported before 

any other work is done. Ground conditions along haulageways 

and travelways shall be examined periodically and s·caled or 

supported as necessa~y. 

30 C.F.R. § 57.3-22 (1984). In 1985, this provision was 

renumbered as 30 C.F.R. § 57.3022 but its wording was not 

changed. 

375 
The Commission also considered the common usage of the term 

"experience" .in interpreting the standard (at Fn. 23): 

••• (W]e turn to the dictionary for the common usage 

of that term. There, the key word "experience" is 

defined: 

2: direct observation of or participation in events: 

an encountering, undergoing, or living through things in 

general as they take place in the course of time •.• 4: 

knowledge, skill, or practice derived from direct 

observation or participation in events: practical 

wisdom resulting from what one has encountered, 

undergone, or lived through ••• Sa: the sum total of the 

conscious events that make up an individual life ••• 6: 

something personally encountered, undergone, or lived 

through •••• 

Webster's Third New International Dictionary 

(Unabridged 1971) (Emphasis the Commission's). 

In Amax Chemical Company, 8 FMSHRC (Slip. Op., 

August 27, 1986), the Commission interpreted§ 57.3-20's 

companion section, § 57.3-22.2/ The Commission stated: 

Unlike the regulatory scheme that obtains 

with respect to underground coal mines, 

approved roof control plans are not required 

in underground metal-nonmetal mining operations. 

Rather, "[g]round support shall be used if the 

operating experience of the mine, or any particular 

area of the mine, indicates that it is required." 

2/ This mandatory ground control safety standard, which applies 

to metal-nonmetal underground mines, provides: 

Miners shall examine and test the back, face, and rib 

of their working places at the beginning of each shift and 

frequently thereafter. Supervisors shall examine the ground 

conditions during daily visits to insure that proper testing 

and ground control practices are being followed. Loose 

ground shall be taken down or adequately supported before 

any other work is done. Ground conditions along haulageways 

and travelways shall be examined periodically and-scaled or 

supported as necessary. 

30 C.F.R. § 57.3-22 (1984). In 1985, this provision was 

renumbered-as 30 C.F.R. § 57.3022 but its wording was not 

changed. 

376 
(30 C.F.R. § 57.3020 (1985) (formerly numbered as 30 

C.F.R. S 57.3-20 (1984)). See generally, White Pine 

Copper Range Co., 5 FMSHRC 825, 835-37 (May, 1983). 

(Of course, the standard involved in the present case 

also imposes the continuing duty to examine ground 

conditions in such mines and to take down or adequately 

support any loose ground.) 

* * * 

we hold that in evaluating ground conditions and the 

adequacy of support under this standard [§ 57.3-22], 

all relevant factors and circumstances must be taken 

into account. 

* * * 

Visible fractures, sloughed material, '"popping" and 

"snapping" sounds in the ground, the presence, if any, 

of roof support, and the operating experience of the 

mine, or any of its particular areas, are also relevant 

factors to be considered. Cf. White Pine, supra, 5 

FMSHRC at 833-37. 

use of the term "indicates" in§ 57.3-20 denotes something 

less than a requireillent of certainty before roof support is 

required to protect miners against roof falls. This 

interpretation is consistent with the Commission's interpretation 

of§ 57.3-22 in the Amax case, where it stated (in Fn. 5): 

We reject any suggestion that the ground control 

measures required by the standard apply only when 

ground is in immediate danger of falling. 

It is also consistent with the Commission's statement in White 

Pine that the purpose of § 57.3-20 is "to protect the miners from 

apotential roof fall" CS FMSHRC 838, emphasis added). 

I construe § 57.3-20 as meaning that "operating experience" 

sufficient to indicate the need for roof support does not have to 

be at the point of an immediate danger of a roof falling, but 

includes danger of a potential roof fall. 

The "operating experience" of Respondent's mine included, 

besides those conditions described in the Findings of Fact, 

above, the conditions and incidents described by personnel who 

worked in the 14 N 33 drift on a daily basis. The import of the 

testimony of the miners and MSHA witnesses, which I credit, is 

377 
that the 14 N 33 drift had a bad roof, it was dangerous, and it 

needed roof support where Dillard and Waters were working. 

Frank Clay Wright 

As stated above, wright was the 

same shift with Dillard and Waters. 

problems in the 14 N 33 drift on the 

been partially recounted above. 

development loader on the 

His testimony about roof 

night Dillard was killed has 

Wright testified that the roof in the 14 N 33 drift was bad 

and that, after the drift was driven through the N 28 crosscut 

the roof conditions became worse (Tr. 185-186) and loose ground 

conditions were "all over. On the ribs, back [roof] everything" 

c•rr. 203-204). 

Mark Richards 

A portion of Richards' testimony has also been recounted 

above. As noted, on September 13 he installed an extra row of 

roof bolts because of popping noises in the roof and because the 

roof was dropping "fines." 

He corroborated Gary Williams' statements about the bad roof 

around the bore hole, within 15 feet of the place where Dillard 

and Waters were struck by the roof fall. 

Richards testified that he bolted the roof up to the smooth 

wall on· September 13. The smooth wall was shot down on the 

afternoon of the 14th of September, exposing the area from which 

the rock fell that killed Dillard. 

Richards, like Wright, described the roof conditions in the 

14 N 33 drift as being "bad": 

Q. Had you observed the roof conditions along the 

33 drift? 

A. It's bad. It's bad from day one. 

Q. When you say day one what? 

A. Well, I'm talking about from where they broke 

it off all the way up. 

(Tr. p. 319). 

Richards testified that he believed the whole drift needed 

pinning (Tr. 7324), that he told his supervisor, Laddie Hicks, 

that there was a roof area in the 14 N 33 drift that still needed 

378 
pinning and thereafter, to his knowledge, that roof area was not 

pinned (Tr. 324-326). 

Richards regarded the 14 N 33 roof as dangerous and 

testified that he would not have wanted to work anywhere in the 

14 N 33 drift unless it was pinned (Tr. 344). 

Thomas J. Mason 

Mason was the day shift development driller who shot the 

heading in the 14 N 33 drift shortly before Dillard, Waters, and 

wright began their shift on September 14. He had worked in that 

drift from the time it was begun. Referring to the roof, he 

testified that in his 16 years in development work: 

A. I've never seen one no worser. I've never seen 

one that bad. I mean as far as the roof and top 

and all. 

Q. Okay. You're referring then to 14 N 33? 

A. If we're talking about going in the drift 

where Mr. Dillard got killed at. It was 

rough on us all the way. I'm saying it was 

ground we had -- we had ground all the way there. 

(Tr. 281). 

Mason described a number of adverse ground conditions he 

experienced in the 14 N 33 drift before the Dillard fatality: 

The roof was bad "all the way" (Tr. 273, 277); about 30 feet from 

the N 28 crosscut in the 14 N 33 drift, a rib caved in, "just 

gave way" (Tr. 275), and almost struck his drill buddy (Tr. 274); 

later, between N 28 and the face where Dillard and Waters were 

struck by a roof fall, a rib "jumped out" on Mason and his drill 

buddy (Tr. 277); after the tunnel advanced beyond the bore hole, 

a large rock fell from the roof and hit his Jumbo drill and broke 

a jack (Tr. 278-279); after that roof fall, his foreman, 

Glenn Morrow, helped the miners move the rock from his drill 

(another incident of a foreman's knowledge of adverse roof 

conditions in the 14 N 33 drift) (Tr. 299-300). 

Mason worked in the 14 N 33 drift from the time it was 

opened until after the Dillard fatality. He saw many falls of 

roof or rib and in each case the fallen rocks had been 

unsupported. He never saw a roof fall where the roof was 

supported by roof bolts. 

379 
MSHA'S Accident Investigation 

Frank Holiday and Eugene Mouser, MSHA inspectors, inspected 

the accident scene on the morning following the fatality. They 

interviewed mine officials and employees and inspected the 14 N 

33 drift. On the 15th they decided to issue a citation, which 

was put into written form on Monday, September 17, 1984. On that 

date, the inspectors' supervisor, M. P. Turner, visited the mine 

and the 14 N 33 drift. Turner was accompanied by his supervisor·, 

Fred Juopperi. 3/ 

MSHA's findings are, in part, set out in its investigation 

report dated October 12, 1984, and entitled "Report of Fatal 

Fall-Of-Ground Accident," which was admitted into evidence as 

Exh. P-4. The report concluded that: 

The cause of the accident was the failure of 

management and employees to scale down and/or 

~dequately support loose ground. Contributing 

causes may have been the failure of management 

and employees to detect loose ground and that 

vibrations from the drilling operation may have 

affected the ground conditions above the dri11 area 

by loosening unstable ground. 

(Exh~ P-4, p. 4). 

Inspector Mouser issued Citation 2247782 charging a 

violation of 57.3-22 (quoted in Fn. 2, supra). The citation was 

modified by Turner on Aagust 18, 1986, to cite § 57.3-20 

instead of§ 57.3-22 (Exh. P-3). In the body of the citation 

(which was not modified) Inspector Mouser identified the 

condition or practice as follows: 

One miner was fatally injured and one seriously 

injured as a result of a rock fall. The men were 

operating a drill Jumbo under unsupported back in 

the 14 N 33 drift. The men were approximately 

7 1/2 feet beyond the last supported roof. 

3/ In the transcript Juopperi's name is misspelled "Dupress." 

380 
At the hearing Turner and Holiway were called by the 

Secretary to testify. Respondent called Mouser. 

Turner, who has a mining engineer's degree and 30 years 

experience in the mining field, testified that he believed the 

areas of loose roof he observed on the 17th of September (loose 

rocks in the roof near the accident site and in other areas of 

the roof (Tr. 118)) were not caused by the fall of the rock that 

struck Dillard and Waters but existed before the fall (Tr. 94-96, 

118, and 142). I credit his testimony on this point. 

Holiway testified that he decided to issue the citation {in 

consultation with Mouser) because of loose rocks which he 

observed in the roof on September 15 (Tr. pp. 362-363) -- "a 

man ••• was killed and a man seriously injured, and there were 

still loose rocks hanging in the drift ••• {Tr. 362)." 

Mouser fundamentally agreed with Turner and Holiway. At one 

point in the questioning by counsel for the Respondent, he 

testified as follows: 

Q. You couldn't say that the ground fall was a 

surprise? 

A. Because they knew there was some loose rock there. 

Q. You're, again, referring to the Frank Wright 

comment? 

A. Right. 

* * • 

Q. If I were to tell you, Mr. Mouser, that 

Frank Wright was talking about a piece of 

rock that was pinned, rock bolted, would 

that changed entirely your opinion of whether 

or not a citation should have issued? 

A. I don't think so, from the evidence I saw 

when we went in the drift, because there was 

loose ground, and a rock fell and killed a 

miner. 

Q. Yeah. But that loose ground could have 

occurred as a result of stress that 

occurred after Mr. Wright left the area; 

could it not? 

381 
A. That's a possibility; but I don't believe 

it did. 

Q. On what basis do you draw the conclusion that 

it did not? 

A. Well, from the condition the ground was in 

when we saw it, when we went in there. 

(Tr. 4141-415.) 

Respondent contends that, at the time of the fatality, roof 

control at the Cherokee Mine was founded upon a "layered system" 

of three levels of responsibility to monitor and control the 

roof: the miners, the front line supervisors, and upper 

management. 

I find that a preponderance of the credible evidence shows 

that the system failed at all three levels and, as a consequence, 

roof that should have been supported was not. The result was an 

accident that killed one miner and permanently disabled another. 

Miners' Level 

Respondent contends that the roof in the 14 N 33 drift was 

adequately examined and scaled by the miners who began work there 

at 3:00 p.m. on September 14, 1984, and that the roof fall was a 

"surprise" for which Respondent is not accountable under the Act. 

The development crew on that shift consisted of Steve 

Dillard and Joshua Waters, development drillers, and Frank 

Wright, development loader. It was assisted on that particular 

evening by Hayden Stiles, who was normally a truck driver. They 

were all under the supervision of the development foreman, 

Cleaston Morrow. 

Respondent contends that Dillard and Waters scaled the drift 

before and after Wright and Stiles mucked it out. I find, 

however, as Waters testified, that he and Dillard had scaled only 

about 30 feet back from the face (Tr. 563, 568) and they did not 

scale the roof further after Wright and Stiles were through 

mucking (Tr. 566). Based upon the measurements made by 

Respondent after the fatality, and adopted by the MSHA 

investigation team , the distance of scaling stated by Waters may 

have missed the area where the rock fell that killed Dillard and 

injured Waters. Inspector Mouser testifed that it was 37 feet 

from the last row of bolts to the face and that Dillard and 

Waters were struck approximately seven and one-half feet inby the 

last row of roof bolts CTr •. 439). The rock that fell was six 

feet and eight inches long, four feet and ten inches wide CExh. 

'382 
P-4). Given the measured distances involved and the fact that 

Waters could only estimate the distance he and Dillard scaled, I 

find that waters and ~illard may well have missed loose roof in 

the part of the roof that fell. I credit the testimony of the 

MSHA witnesses who observed loose, unbolted rocks in the roof 

near the area where the rock had fallen and elsewhere and their 

opinions as experts that the loose rocks were probably there and 

visible before the rock fall. 

The roof area that the third member of the crew, Frank 

Wright, expected to have been scaled by Dillard and Waters was 

very different from the area they actually covered. Wright 

testified about his anger when he was nearly struck by a rock 

fall after Dillard told him the area was ready to be mucked. 

After being assured by Dillard--whom he met on the way into the 

drift--that they (Dillard and waters) had finished scaling, a 

rock approximately 2 x 3 feet fell in front of Wright's loader 

(Tr. 167). When this happened Wright stopped mucking and, with 

the assistance of Hayden Stiles, pulled down what Wright 

described as "quite a bit" of loose rock from the roof (Tr~ 170). 

After Wright completed this additional scaling and finished 

mucking out the area, he confronted Dillard in the lunchroom and 

complained to him about his (Dillard's) failure to scale the area 

where he (Wright) had been mucking (Tr. 171-172). 

The testimony of Waters and of Wright shows that there was a 

breakdown in communication among the development crew about what 

areas of the roof were to be scaled. When Wright asked Dillard 

whether the area was ready to be mucked, he (Wright) assumed that 

the scaling had included--at a minimum--the area back to N 28 in 

the 14 N 33 drift but Dillard and Waters apparently viewed the 

area necessary to be scaled as only from the face extending back 

as far as their estimate of where the Jumbo drill would be when 

it was moved in for drilling. This represents a substantial 

disparity as to the roof areas to be scaled. 

Further evidence of a communication breakdown at the miner 

level is the fact that, after Wright told Dillard about adverse 

roof conditions in the drift and warned him that the roof still 

needed to be checked, Dillard did not pass this information on to 

Waters (Tr. 571) and Dillard and Waters did not enlarge the area 

where they scaled the roof (Tr. 563, 566). 

. Visibility and audibility in the 14 N 33 drift were poor, 

because of dust and machinery noises. These conditions made it 

difficult to conduct proper examinations of the roof and to 

listen for sounds that could help one to keep a careful check on 

the roof. ·Also, the roof was 18 feet high. Wright, Waters, 

Dillard and Stiles could not be reasonably sure that they had not 

383 
missed some areas of the roof that were loose or making slight 

noises that would give signs of danger. Indeed, Dillard and. 

waters missed "quite a bit" of loose roof and after they said the 

roof was scaled there was a rock fall that nearly hit Wright. 

After that, Wright scaled the roof but acknowledged that, "maybe 

I missed a piece of [loose] ground. I don't know." (Tr. 241.) It 

is likely that Wright did miss some loose roof because after he 

scaled the roof there was a fatal roof fall and when the MSHA 

investigation team examined the scene they observed loose 

unbolted rocks in the roof near the rock fall and elsewhere. 

Based upon their years of experience they believed that the loose 

rocks were probably there and visible before the roof fall. I 

credit the testimony and expert opinions of the MSHA witnesses on 

these points. 

Front Line Supervisor Level 

When Wright returned to the lunchroom after he completed 

scaling and mucking, he complained to Dillard about his 

(Dillard's> failure to scale the roof adequately and warned 

Dillard about the roof conditions in the area where Dillard and 

Waters would be working (Tr. 172). Cleaston Morrow, the 

development foreman, was responsible for the 14 N 33 drift and 

the safety of the miners working on his shift. As a supervisor, 

he had mandatory safety duties under 30 C.F.R. § 3-22, which 

provides, inter alia, that "Supervisors shall examine the ground 

conditions during daily visits to insure that proper testing and 

ground control practices are being followed. * * * Ground 

conditions along haulageways and travelways shall be examined 

periodically and scal~d or supported as necessary." Morrow's 

deposition was admitted into evidence as Exh. P-21. He testified 

that he heara wright say to Dillard that, "there had been some 

ground that had blowed up down there on the face ••• to watch the 

ground, make sure they check it good (Exh. P-21, p. 10.)." 

Morrow defined ground "blowing" to include popping or cracking 

and little pieces of "scale" falling (Exh. P-21, p. 11). 

Although Morrow heard Wright tell Dillard that there were adverse 

roof conditions in 14 N 33, he did not go there to examine the 

unsupported roof and had not gone to the face area on that shift 

before then. He knew that when Dillard and waters left the 

lunchroom they would be drilling into the face and roof while 

working under UP.supported roof. 

When Gary Williams, the general mine foreman, was 

interviewed by Eugene Mouser, an MSHA investigator, on September 

15, 1984--the day following the fatality--Williams stated that 

adverse roof conditions had been reported to Morrow by the 

development crew (Tr. 420-421). Gary Williams' deposition was 

admitted into evidence as Exh. P-20. He testified that it was 

384 
Cleaston Morrow's responsibility as the crew foreman to inspect 

the face area (Id. p. 75). 

Mark Richards, a roof bolter, testified that the last row of 

roof bolts was at a point which he measured to be seven and 

one-half feet outby the place where the rock fell upon Dillard 

and waters on September 14 (Tr. p. 309). He described adverse 

roof conditions that had caused him to install an extra row of 

bolts in the area between the bore hole and the place where the 

rock fell that killed Dillard (Tr. 315): 

I did feel the ground, it popped real loud 

overhead, you know, and that's what we call in 

the mines taking weight. I backed the jimbo up 

from under it and put another row of pins in. 

And it was I was setting there in the driver's 

seat when it did pop, and I backed up and I put 

another row of pins in for my own satisfaction. I 

didn't want to get hurt and I didn't want nobody 

else to get hurt. 

Richards testified that he was criticized by his supervisor, 

Laddie Hicks, for installing an extra row of bolts. Richards 

informed Hicks that he had put the extra bolts in the roof 

because he had heard the roof pop and because of the fall of some 

"fines" from the roof (Tr-. 318-319, 330-332). Laddie Hicks was 

the superivsor of stoping and rock bolting. He was made aware of 

adverse roof conditions by Mark Richards but seemed to be more 

concerned with the extra cost of the roof bolts than with the 

conditions that gave rise to their installation. Hicks was not 

called as a witness to dispute or rebut the testimony of Mark 

Richards. 

Thus, two front line supervisors, Laddie Hicks on September 

13, and Cleaston Morrow on September 14, were told of adverse 

roof conditions near the area where Dillard and waters would be 

working. Yet neither of these supervisors took any action to 

inspect and provide roof support above the place where Dillard 

and Waters would be operating a drill drilling blasting holes 

into the face and roof. 

Upper Management Level 

Gary Williams, the general mine foreman, testified that he 

had ordered roof bolting of an area around the bore hole within 

40-45 feet of the face where Dillard and Waters were later struck 

by a rock fall in the 14 N 33 drift (Exh. P-20 p. 39). He 

ordered the roof bolting because of adverse roof conditions he 

personally observed. That means that the bad roof he observed 

385 
was within 15 feet of the Dillard/Waters accident si~e, because 

the rock fell about 30 feet from the face. He testified that "I 

didn't like the looks of it. I didn't like what I was afraid it 

might turn into •••• (Exh. P-20, p. 56)." He also testified that 

underneath the bore hole he could see "some cracks in the 

separation of the rock" and that "when you see a bore hole 

flaking with little small flakes, you know that your' re getting 

-- a little something is trying to squeeze there." (Id., pp. 

56-57.) Despite these conditions, he did not order roof support 

for the area where Dillard and Waters would be operating the 

Jumbo drill. 

Respondent contracted with Dr. Ross D. Hammett of Golden 

Associates, a mining consulting firm, for, among other things, 

advice on "the need for support and the stability of development 

excavations." (Exh. P-26 p. 14.) Dr. Hammett testified that in 

May, 1984, he visited the mine and in July, 1984, filed a written 

report with Respondent, the narrative portion of which was 

admitted as Exh. P-27. At page 10 of the report, entitled "Local 

Stability of Development Openings," he stated: 

With the high stress levels evident at deep depths 

in the mine and the increased stress concentrations 

from adjacent mining, more detailed consideration 

will need to be given in the future to the support 

of development openings in the mine. 

* * * 

It is difficult to recommend optimum support designs 

based on observations from one or two underground 

inspections but the following are general guidelines 

which will assist in developing a support strategy: 

(1) Development openings (including drilling drives 

and drilling chambers) should be of minimum practical 

size. (Under some circumstances, narrow openings may 

attact [sic] higher stresses than wide openings and so 

rninimirn [sic] size openings will not prevent stress 

fracturing. However, stress fracturing is much easier 

to control and provide adequate support than 

instabilities associated with wide openings). 

(2) It is not felt that routine systematic bolting of 

openings of 16 ft to 18 ft span or less is presently 

required, it may ultimately be necessary to adopt this 

approach. Decisions on the areas to be sup~orted will 

depend primarily on local geological conditions. It is 

recommended that spans greater than 16 ft to 18 ft be 

systematically bolted with bolts at least 6 ft long for 

386 
narrower spans, and up to at least 8 ft for wider spans. 

It is not recommended that spans be designed for more 

than 25 ft. [Emphasis added.] 

The 14 N 33 tunnel did not exceed the dimensions at which 

Dr. Hammett recommended systematic roof bolting, but it was at 

this limit and after his report there were numerous incidents of 

adverse roof conditions in that tunnel before the fatality on 

September 14. After the fatality, another development miner was 

injured by a rock fall and management finally acknowledged that 

"we could not reasonably predict where further rock falls would 

take place" (Exh. P-25, p. 43); it therefore adopted a policy of 

systematic roof bolting up to the face in development drifts. 

This policy was implemented by a new safety rule: "No person 

shall enter an active development heading until ground support 

has been installed up to the face" (Exh. R-4). 

I find that, before the September 14 fatality, Respondent's 

operating experience indicated the need for this kind of safety 

rule or some other adequate method of roof support above the 

drillers in the 14 N 33 drift. At least as early as the Ledford 

fatality in January, 1984, Respondent was put on notice that 

operation of the Jumbo drill in a development drift, drilling 

blasting holes into the face or roof while being under 

unsupported roof, presented a serious hazard of a potential roof 

fall. MSHA warned Respondent that "the drilling operation may 

have affected the ground conditions above the [drilling machine] 

area by loosening unstable ground." (The MSHA investigation team 

repeated this same warning in its report on the Dillard/Waters 

roof fall. This expert opinion was corroborated by the firsthand 

experience of Frank Wright, who worked in the 14 N 33 tunnel from 

the beginning and testified that the vibrations of the drill 

would cause "anything loose" in the roof to fall (Tr. 217).) 

After the warning in the Ledford case, in another development 

drift Cl4 N 33) where the same kind of drilling and blasting was 

being done, there were numerous incidents of adverse roof 

conditions, including popping noises, cracking, loose rocks, 

falling rocks and falling "fines" or "scales," before the 

September 14 fatality, to show a clear danger of a potential roof 

fall presented by drilling the face or roof while being under 

unsupported roof. Despite this clear evidence of risk to the 

development drillers, Respondent assigned Dillard and Waters to 

drill blasting holes into the face and roof while being under 

unsupported roof. 

I find that Responde~t violated 30 C.F.R. § 57-3-20 by 

failing to provide roof support at the place where the rock fell 

on Dillard and Waters on September 14, 1984. In light of the 

abundant operating experience showing the need for roof support 

in this area before the fatality, I find that Respondent's 

387 
failure to provide roof support to protect Dillard and Waters 

from a potential roof fall constituted gross negligence. 

The degree of gravity of the violation was very high, 

because of the risk of death and severe, permanently disabling 

injuries involved in a roof fall. 

Respondent is a medium to large sized operator. Considering 

all of the criteria for civil penalties in § llO(i) of the Act, I 

find that a penalty of $7,500 is appropriate for this violation. 

CONCLUSIONS OF LAW 

1. The Commision has jurisdiction in this proceeding. 

2. Respondent violated 30 C.F.R. § 57.3-20 (now§ 57.3020) 

as charged in Citation 2247782 as amended. 

ORDER 

WHEREFORE rr IS ORDERED that Respondent shall pay the above 

penalty of $7,500 within 30 days of this Decision. 

Distribution: 

} 4 • """' 

ttl~~ 1 ... ~ .,.-,.., William Fauver 

Administrative Law Judge 

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

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Ronald G. Ingham, Esq., Clements, Ingham & Trumpeter, Volunteer 

State Life Building, 10th Floor, Chattanooga, TN 37402 (Certified 

Mail) 

kg 

388 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 151988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

Docket No. KENT 87-21 

A.C. No. 15-05407-03501 M75 

v. Docket No. KENT 87-23 

A.C. No. 15-08382-03501 M75 

TRIPLE B CORPORATION, 

Respondent No. 1 Surface Mine 

DECISION 

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, TN, for 

Petitioner; 

Gary A. Branham, President, Triple B Corporation, 

Prestonsburg, KY, for Respondent. 

Before: Judge Fauver 

These consolidated proceedings were brought by the Secretary 

of Labor for civil penalties for alleged violations of safety 

standards under the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et~ 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the substantial, reliable, 

and probative evidence establishes the following: 

FINDINGS OF FACT 

1. At all pertinent times, Respondent was an independent 

contractor at the Southside Surface No. 1 Mine in Pilgrim, Martin 

County, Kentucky, and at the No. 1 Surface Mine in Lovely, Martin 

County, Kentucky, both of those coal mines being subject to the 

Act. 

2. 

Daniels 

portion 

the No. 

KENT 87-21 

Respondent was an independent contractor engaged by 

Construction Company, Lovely, Kentucky, to construct a 

of roadway that led into an underground coal mine area of 

1 Surface Mine. 

389 
bitation 2783877 

3. MSHA Inspector Andrew Reed issued Citation 2783877 to 

Respondent, charging a violation of 30 C.F.~. § 77.1605(k), 

because it had failed to provide a berm or guard to the outer 

bank of the roadway, which was elevated 20 to 50 feet above the 

adjacent terrain and had a grade of about eight percent. 

4. About six months before the·· issuance of the above 

citation, Inspector Reed had issued a citation to Daniels 

Construction Company for a violation of the same standard on this 

roadway within one-quarter mile of the area for which th~ 

citation was issued to Respondent. 

5. On A~ril 29, 1~85, MSHA Inspector R.C. Hatter had issued 

a citation to Respondent for a violation of § 77.1605(k) at No. 1 

Surface Mine. 

KENT 87-23 

6. Respondent was engaged as an independent contractor 

doing reclamation work for Martin County Coal Corporation at the 

latter's Southside Surface Mine No. 1 in Martin County, Kentucky. 

7. The reclamation work by Respondent included the use of 

bulldozers, trucks, arid other equipment for grading, sloping, 

seeding, and mulching areas of Martin County Coal Corporation's 

strip mines that were required by federal and state law to be 

reclaimed. 

' 8. Respond~nt used the overburden (i.e. rocks and dirt) 

that had· been removed by Martin County Coal Corporation during 

its mining cycle to carry out grading, ~loping, ~nd backfilling 

work in reclaiming the surface of the mine. 

9. Martin County Coal Corporation was actively strip mining 

coal at the mine site where the Respondent was doing reclamation 

work. 

Citation 2784979 

10. A D65E Komatsu bulldozer used in reclamation work, as 

described above, was not equipped with a fire extinguisher. 

Citation 2784980 

11. Another D65E Komatsu bulldozer used in reclamation work 

was not equipped with a fire extinguisher. 

390 
Citation 277626 

12. The D65E Komatsu bulldozer for which Inspector Reed 

issued Citation 2784980 for the lack of a fire extinguisher also 

did not have a reverse alarm. 

Citation 2776262 

13. A hydroseeding truck used by Respondent for reclamation 

work at Martin County Coal Corporation's mine site was used to 

spray water, mulch, grass seed, and fertilizer to promote the 

grown of vegetation in the areas being reclaimed. 

14. The hydroseeding truck did not have operative 

headlights, tail lights, brake lights, or turn signals. In 

addition, it was missing a muffler and heat shield around the 

exhaust pipe on the passenger's side. The rear steps used to 

mount the back of the truck and the right side hand hold were 

also missing. 

Citation 2776263 

15. The above hydroseeding truck did not have a fire 

extinguisher. 

Citation 2776264 

16. The above hydroseeding truck did not have a reverse 

alarm. 

DISCUSSION WITH FURTHER FINDINGS 

KENT 87-21 

In this case Respondent filed the following answer to the 

petition for civil penalties: 

We contest the above violation for the following 

reasons. We were hired as a contractor to construct 

a length of road for Daniels Construction Company, 

Lovely, Kentucky. It was our understanding that 

the road was to be used for employee travel to 

their assigned work areas. We were employed on a 

hourly basis and worked at their direction. The 

work was in a construct phase with no through traffic 

permitted. We feel the violation is in error 

against our company and should be dismissed. 

391 
Respondent offered no proof at the hearing to rebut the 

Government's evidence of the violation charged, nor did it offer 

any proof that the road construction was not covered by the Act. 

The Act and regulations allow the Secretary to cite an 

independent contractor for violation of a safety standard under 

the Act. Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533 

(D.C. Cir. 1986). 

The allegations of Citation 2783877 as to a the violation, 

negligence and gravity were proved by a preponderance of the 

credible evidence. 

KENT 87-23 

In this case, Respondent filed the following answer: 

We contest the above violations for the 

following reasons. We were contracted for 

reclamation work at the above mine. There 

was no active mining at the locations. 

Therefore, we were not subject to MSHA 

jurisdiction, therefore, these violations 

are in error. 

The following definitions are relevant to this case (30 

u.s.c. § 802): 

(d) "operator" means any owner, lessee, or 

other person who operates, controls, or 

supervises a coal or other mine or any independent 

contractor performing services or construction at 

such mine; 

(h)(l) "coal or other mine" means CA) an area 

of land from which minerals are extracted in 

nonliquid form or, if in liquid form, are 

extracted with workers underground, (B) private 

ways and roads appurtenant to such area, and 

(C) lands, excavations, underground passageways, 

shafts, slopes, tunnels and workings, structures, 

facilities, equipment, machines, tools, or other 

property including impoundments, retention dams, 

and tailings ponds, on the surface or underground, 

used in or to be used in or resulting from, the 

work of extracting such minerals from their natural 

deposits in nonliquid form, or if in liquid form, 

with workers underground, or used in, or to be used 

in, the milling of such minerals, or the work of 

preparing coal or other minerals, and includes 

custom coal preparation facilities. In making 

392 
a determination of what constitutes mineral milling 

for purposes of this chapter, the Secretary shall give 

due consideration to the convenience of administration 

resulting from the delegation to one Assistant 

Secretary of all authority with respect to the health 

and safety of miners employed at one physical 

establishment; 

(2) For purposes of subchapters II, III, and IV,. of 

of this chapte~ "coal mines" means an aiea of land and all 

structures, faciliites, machinery, tools, equipment, shafts, 

slopes, tunnels, excavations, and oth~r properti, real or 

personal, placed upon, under, or above the surface of such 

land by any person, used in, or to be used in, or resulting 

from, the work of extracting in such area bituminous coal, 

lignite, or anthracite from its natural deposits in th.e 

earth by any means or method, and the work of prepar in·g the 

coal so extracted, and includes custom coal preparation 

facilities; · 

[Emphasis Added.] 

Respondent meets the definition of an operator under the 

above definitions. It wa~ performing services at Martin County 

Coal Corporation's mine to reclaim land conditions that 

"resulted from" coal mining. Respondent provided a significant 

and continuing service to Martin County Coal Corporation which 

was required by its (Martin County's) need to comply .wi.th federal 

and state laws regarding reclamation. · 

Respondent's employees were using bulldozers and large 

trucks identical to or similar to those used in day-to-day strip 

mining operations. The services supplied ~y Respondent qould n6t 

be considered incidental or tenuous but were an important part of 

Martin County's mining operation and, therefore, constituted 

activities covered by the Act. 

Civil Penalties 

The allegations of the following citations as to the 

violations, negligence, and gravity were proved by a 

preponderance of the credible evidence. Considering all the 

criteria for a civil penalty in § llOCi> of the Act, I find that 

the following civil penalties are appropriate: 

Citation 

2783877 

277646"1 

2776262 

393 

Civil Penalty 

$98 

68 

39 
2784979 

2784980 

2776263 

2776264 

39 

39 

39 

68 

$390 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction in these proceedings. 

2. Respondent violated the mine safety standards as charged 

in the above citations. 

ORDER 

WHEREFORE IT IS ORDERED that Respondent pay the above civil 

penalties in the total amount of $390 within 30 days of this 

Decision. 

~~.,,~ William Fauver 

Administrative Law Judge 

Distribution: 

Carole M. Fernandez, Esq., Office of the Solicitor, U.S. 

Department of Labor, 28 U.S. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

Gary A. Branham, President, Triple B Corportion, P.O. Box 428, 

Prestonsburg, KY 41653 (Certified Mail) 

kg 

394 
FEDERAL 'MINE SAFETY AND HEALTH REVliW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR . 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

PEABODY COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

MAR 161988 

CONTEST PROCEEDING 

Docket NO. WEVA 87-263-R 

Order No. 2956024; 5/29/87 

Robin Hood No. 9 Mine 

Mine ID 46-02143 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 88-26 

A.C. No. 46-02143-03567 

Robin Hood No. 9 Mine 

DECISION 

Appearances: Thomas Clark, Esq., Charleston, West Virginia for 

Peabody Coal Company; 

Ronald E. Gurka, Esq., Office of the Solicitor, 

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

Secretary of Labor. 

Before: Judge Melick 

These consolidated cas~s are before me under section 105(d) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 

801 et. seq., the "Act," to challenge Withdrawal Order No. 

2956024 issued by the Secretary of Labor under section 104(d)(2) 

of the Act and for review of civil penalties proposed by the 

Secretary for the violation alleged therein.~/ 

~/ Section 104(d)(2) of the Act provides as follows: 

"[I]f .a withdrawal order with respect to any area in a coal 

or other mine has been issued pursuant to paragraph Cl), a 

withdrawal order shall promptly be issued by an authorized 

representative of the Secretary who finds upon any subsequent 

inspection-the existence in such mine of violations similar to 

those that resulted in the issuance of the withdrawal order under 

paragraph Cl) until such time as an inspection of such mine 

discloses no similar violations. Following an inspection of such 

mine which discloses no similar violations, the provisions of 

paragraph Cl> shall again be applicable to that mine." 

395 
Order No. 2956024, as amended at hearing, alleges a 

"significant and substantial" violation of the regulatory 

standard at 30 C.F.R. § 75.303(a) and charges as follows: 

[a] preshift examination was not made in 1 right 

section and air used to ventilate 1 right section faces 

and air passing by openings at mouth 1 right section 

was used to ventilat~ ~he active working faces in 1 

North section and continuous miner was loading coal in 

No. 5 face 1 North. Chemical smoke was used to check 

air movement. 

There is no dispute in this case that preshift examinations 

were not being conducted in accordance with the regulatory 

standard at 30 C.F.R. § 75.303(a) in the 1 Right area when the 

order was written on May 29, 1987. That standard provides in 

relevant part as follows: 

Within 3 hours immediately preceding the beginning of 

any shift, and before any miner in such shift enters 

the active workings of a coal mine, certified persons 

designated by the operator of the mine shall examine 

such workings and any other underground area of the 

mine designated by the Secretary or his authorized 

representative. Each such examiner shall examine every 

working section in such workings and shall make tests 

in each such working section for accumulations of 

methane with means approved by the Secretary for 

detecting methane, and shall make tests for oxygen 

deficiency with a permissible flame safety lamp or 

other means approved by the Secretary; examine seals 

and doors to determine whether they are functioning 

properly; examine and test the roof, race, and rib 

conditions in such working section; examine active 

roadways, travelways, a~d belt conveyors on which men 

are carried, approaches to abandoned areas, and 

accessible falls in such section for hazards; test by 

means of an anemometer or other device approved by the 

Secretary to determine whether the air in each split is 

traveling in its proper course and in normal volume and 

velocity; and examine for such other hazards and 

violations of the mandatory health or safety standards, 

as an authorized representative of the Secretary may 

from time t0 time require •••. 

,396 
The term "active workings" is defined as "any place in a 

coal mine where miners are normally required to work or travel". 

30 C.F.R. § 75.2 Cg)(4}. 

In her "Final Argument 11 set forth in a post hearing brief, 

the Secretary argues that the 1 Right area at issue was 

"considered to be an integral part of the 1 North working 

section" and since the 1 North area was admittedly within the 

"active workings" of the subject mine on May 29, 1987, then the 1 

Right area must also be within the "active workings" and likewise 

subject to the preshif t examination requirements of section 

75.303(a).2/ Peabody Coal Company (Peabody) disagrees and 

maintains that the 1 Right area was then in a separate and 

distinct area of "idle workings" and was therefore subject only 

to the weekly inspections required by the standard at 30 C.F.R § 

75.305. 

It is not disputed that Peabody began producing coal in the 

area designated as "l Right" at the Robin Hood No. 9 Mine in 

April of 1987. Production continued in this area until May 21, 

1987, when the mining equipment was moved from that area into the 

adjacent 1 North area. Weekly examinations for hazardous 

conditions were then scheduled to be performed in the 1 Right 

area and pursuant to that schedule a weekly examination was in 

fact performed on May 26, 1987. Coal production in the 1 Right 

area did not resume until September 1987. 

On May 29, 1987, an inspector for the Federal Mine Safety 

and Health Administration CMSHA}, Clinton Lewis, arrived at the 

No. 9 Mine to investigate an unrelated matter. Lewis observed 

that coal was then being produced in the 1 North area but not in 

the 1 Right area. Moreover he found no mining equipment in the 1 

Right area and found that no miners were working in the 1 Right 

area and no miners were scheduled to work in the 1 Right area. 

In fact Lewis concluded that the 1 Right area had been 

"abandoned".' Based on this undisputed evidence it is clear that 

on May 29, 1987, the 1 Right Section was not "active workings" as 

defined in the regulations. See Vesta Mining Co. v. Secretary of 

Labor, 6 FMSHRC 1547 (Judge Fauver, 1984) and Secretary of Labor 

and UMWA v. Jones and Laughlin Steel Corp. and Vesta Mining Co., 

8 FMSHRC 1058 (1986). 

~/The Secratary had maintained until the date of hearing 

that the 1 Right area was an "abandoned area" and had argued at 

hearing, alternatively, that the 1 Right area was a "worked-out 

area of active workings". The Secretary also produced evidence 

at hearing that the 1 Right area was an abandoned area and not 

"active workings". These contentions have apparently now been 

completely abandoned. 

397 
The Secretary nevertheless argues that a notation on a 

ventilation map current for May 1, 1987, and an entry on the 

record of a weekly examination of the "l North Panel" on May 26, 

1987, show that Peabody itself considered the 1 Right area to be 

"active workings". While the determination of whether an area is 

"active workings" as defined in 30 C.F.R. § 75.2Cg)(4) depends on 

the underlying facts, the Secretary's evidence is in any event 

irrelevant to the date at issue, i.e. May 29, 1987. Indeed 

Peabody does not dispute that the 1 Right area was an "active 

working" until May 21, 1987. The Secretary's argument is 

accordingly devoid of merit. 

Finally, the Secretary argues that whether or not the 1 Right 

area was within the "active workings" of the mine, it was 

nevertheless subject to preshift examinations under the 

provisions of 30 C.F.R. § 75.303-1. She argues that since a 

split of air which passes through the 1 Right area was used to 

ventilate the working places of the 1 North section (admittedly 

active workings) a preshift exam of the 1 Right area should have 

been made in order to determine whether the air in each split" is 

traveling in its proper course, normal volume and velocity" under . 3 30 C.F.R. § 75.303-1._/ 

The short answer to this argument is that no violation of 

the regulatory standard at 30 C.F.R. § 75.303-1 has been charged 

in this case. Indeed this allegation was made for the first time 

well after the conclusion of hearings and in the Secretary's 

post-hearing brief. Section 104(a) of the Act requires that 

"each citation shall describe with particularity the nature of 

the violation, including a reference to the provision of the Act, 

standard, rule, regulation oc order alleged to have been 

violated." Section 104Cd)(2) of the Act· may be regarded in pari 

materia with Section 104(a) and orders issued under Section 

104Cd)(2) would therefore be expected to conform to the same 

notice requirements. In this case tha operator was charged 

(after amendment on the date of hearing) only under the general 

provisions of 30 C.F.R. § 303(a). To now charge posthearing that 

section 75.303-1 was violated denies the operator an opportunity 

to properly defend and denies the trial judge an opportunity to 

make appropriate inquiry. See Secretary v. B.B.& W Coal Co., 1 

FMSHRC 1479 Cl979) affirming the decision of Judge Michels 

reported at 1 MSHC 2238. 

ll 30 C.F.R. § 75.303-1 provides as follows: 

To determine whether the air in each split is traveling 

in its proper course and in normal volume and velocity, 

the mine examiner shall use an anemometer or other 

device approved by the Secretary to measure the 

velocity and determine the volume of air at the 

following locations: 

(a) The last open crosscut of each pair or set of developing entries; 

Cb> The last open crosscut of each pair or set of rooms, 

Cc) The intake end of each pillar line. 

398 
Notice of the specific regulation charged is particularly 

important in this case where the cited regulatory language is 

ambiguous and subject to several interpretations and the mine 

operator has been denied the opportunity to present expert 

testimony on relevant industry experience and practices and on 

the "reasonably prudent person" test relating specifically to 

section 75.303-1. See Alabama By-Products, 4 FMSHRC 2128, 2129 

(1982). Here for example Peabody argues in its response brief 

that the Secretary's proposed interpretation, of section 75.303-1 

"would require mine operators to preshift each split of air which 

is used to ventilate a working place and would require mine 

operators to examine intake airways that may be thousands of feet 

long between the working places and the ventilation fan, even 

though such airways or splits of air are never traveled by miners 

other than certified persons who do this only for the purpose of 

conaucting weekly examinations or performing functions that are 

otherwise required by law. 11 

In any event based on the limited record before me I find 

that the Secretary has miscontrued her regulations. The specific 

inspection requirements under section 75.303-1 must reasonably be 

limited to areas in which a preshift examination is required by 

the first sentence of section 75.303(a), i.e. to the "active 

workings". Otherwise the mine operator would indeed be required 

to preshif t intake airways from the working places all the way to 

the ventilation fan even though such airways are not in "active 

workings" and may never be traveled by miners except those 

conducting weekly examinations. There is an insufficient record 

to warrant the sweeping construction the Secretary here urges. 

Finally, even assuming arguendo, that section 75.303.1 was 

violated, it would have been a violation of improperly performing 

a pre-shift examination of the 1 North section. Peabody is here 

charged with failing to perform a pre-shift exam of the 1 Right 

section. Thus not only has the Secretary failed to cite the 

specific regulation alleged to have been violated, as required by 

the Act and due process standards, she has also failed to state 

in the order the factual allegations necessary to constitute a 

violation of the regulation she failed to cite. For this 

additional reason the Secretary's charge is deficient. 

Under the circumstances Oraer No. 2956024 must be vacated. 

399 
ORDER 

Order No. 2956024 is vacated. Civil Penalty Proceeding 

Docket No. WEVA 88-26 is dismissed and Contest Proceeding Docket 

No. WEVA 87-263-R is granted. 

~~\ -bary · elick I 

Admiri strative Law Judge 

Distribution: 

(703\ 56-626~ 

Thomas L. Clark, Esq., 800 Laidley Tower, P.O. Box 1233, 

Charleston, WV 25324 (Certified Mail) 

Ronald E. Gurka, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson bo1.1levard, Room 516, Arlington, VA 22203 

(Certified Mail) 

npt 

400 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

JEFF MCQUEEN, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 211988 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. KENT 87-162-D 

v. 

BARB CD 87-26 

FELOSI & FELOSI TRUCKING, 

Respondent Belmon No~ 10 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

I have reviewed the settlement agreement of the parties and 

find that it is consistent with the purposes of § 105(c) of the 

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

~ Accordingly the joint motion to dismiss the proceeding~ 

based upon the settlement is GRANTED and this proceeding is 

DISMISSED. 

Distribution: 

w~-:r~~v~ William Fauver 

Administrative Law Judge 

Mr. Jeff McQueen, P.O. Box 104, Bledsoe, KY 40810 (Certified 

Mail) 

Tony Oppegard, Esq., Appalachian Research and Defense Fund of 

Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified Mail) 

kg 

401 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

GREEN RIVER COAL COMPANY, 

INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, 

Petitioner 

v. 

GREEN RIVER COAL COMPANY, 

INC. 

Respondent 

MAR 241988 

. . 

DECISION 

CONTEST PROCEEDING 

Docket No. KENT 87-167-R 

Citation No. 2835650; 4/28/87 

No. 9 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 87-227 

A. C. No. 15-13469-03612 

No. 9 Mine 

Appearances: Flem Gordon, Esq., Gordon, Gordon, and Taylor, 

Owensboro, Kentucky for Green River Coal Company, 

Inc.; 

Mary Sue Ray, Esq., Office of the Solicitor, U. s. 

Department of Labor, Nashville, Tennessee for the 

Secretary of Labor. 

Before: Judge Melick 

These consolidated cases are before me under section 105(d) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c § 801 

et. seg., the "Act," to challenge five citations issued by the 

Secretary of Labor against the Green River Coal Company, Inc. 

(Green River) and for review of civil penalties proposed by the 

Secretary for the violations alleged therein. 

Citation No. 2835668 aileges a "significant and substantial" 

violation of the regulatory standard at 30 C.F.R. § 75.302Cb) and 

charges that "[a] violation was observed on the No. 7 unit 

section ID 007 in that the space between the line brattice and 

rib in the No. 1 entry was not large enough to permit the flow of 

a sufficient volume and velocity of air to keep the working face 

402 
clear of flammable, explosive, and noxious gases, dust and 

explosive fumes." 

The cited standard requires that "the space between the line 

brattice or other approved device and the rib shall be large 

enough to permit the flow of a sufficient volume and. velocity of 

air to keep the working face clear of flammable, explosive, and 

noxious gases, dust and explosives fumes. 

Citation No. 2835669 alleges a "significant and substantial" 

violation of the regulatory standard at 30 C.F.R § 75.301 and 

charges that "the air current reaching the face of the No. 1 

entry on the No. 7 unit ID 007 was not sufficient to dilute, 

render harmless, gases and dust, and smoke and explosive fumes." 

The cited standard provides in relevant part that "all 

active workings shall be ventilated by a current of air 

containing not less than 19.5 volume per centum of oxygen, not 

more than 0.5 volume per centum of carbon dioxide, and no harmful 

quantities of other noxious or poisonous gases; and the volume 

and velocity of the current of air shall be sufficient to dilute, 

render harmless, and to carry away, flammable, explosive, noxious 

and harmful gases and dust and smoke and explosive fumes." The 

standard also requires that "the minimum quantity of air in any 

coal mine reaching each working face shall be 3,000 cubic feet a 

minute." 

The essential facts supporting the cited violations are not 

in dispute. Ronald Oglesby, an inspector for the Federal Mine 

Safety and Health Administration (MSHA), reported to the Green 

River No. 9 mine on April 7, 1987, at about 7:15 a.rn. to 

investigate an alleged ignition and mine fire. After 

interviewing emplbyees outside the mine Oglesby proceeded 

underground to the scene of the accident. Arriving on the No. 7 

Unit at the No. 1 Entry Oglesby observed "slack coal" piled to 

within 18 inches of the mine roof in the space between the 

brattice and rib. He also found that the right tire of the 

cutting machine in the No. 1 Entry was pushed into the line 

curtain thereby further restricting the flow of air. (See 

Secretary's Exhibit No. 2). 

Oglesby then recreated conditions as they reportedly existed 

at the time of the accident by removing an extension to the 

brattice curtain. Under these conditions Oglesby was un~ble to 

detect any movement of air upon testing with a calibrated 

anemometer. Even with the added curtain replaced Oglesby 

detected only 1,260 cubic feet of air per minute CC.F.M.) 4 feet 

inby the end of the line curtain. Near the right tire of the 

cutting machine where the curtain was pushed over he still found 

only 1,600 C.F.M. Once the slack coal had been removed and the 

403 
curtain again extended Oglesby found legally sufficient air 

ventilating the face of the No. 1 Entry i.e. at least 3000 C.F.M. 

Within this frameworK of undisputed evidence both violations are 

clearly proven as charged. 

Inspector Oglesby also considered the violations to be quite 

serious and "significant and substantial". Based on his 

interviews with Dwayne Oldham, the unit cutter operator, and 

Kathy Lambert, the shot fireman, Oglesby opined that the mine 

fire on the No. 7 unit earlier that day had been caused by a 

methane ignition further igniting hydraulic oil leaking from the 

cutting machine. Oldham reportedly told Oglesby that a sudden 

flash came over the cutting machine as he was beginning to cut. 

Kathy Lambert had also seen an orange flame on the back side of 

the curtain. The fire was located below the cutter bar at a 

location Oldham could not see from the operator's compartment. 

The fire had been extinguished with no injuries or property 

damage. 

Green River Safety Director Grover Fischbeck was "hesitant 

to believe" that there had been a methane ignition, favoring the 

view that the hydraulic oil had been ignited directly by sparks 

from the cutting bar striking rock. However, regardless of the 

source of the fire it would be reasonably likely to expect, in 

the absence of adequate ventilation in a working section of a 

mine having an undisputed history of methane ignitions and recent 

overall methane liberation of 1.9 million cubic feet in 24 hours, 

that methane ignitions would occur. Indeed it is undisputed that 

the cutter machine had earlier on the shift twice "gassed-out" 

because of excess methane i.e. the methane detector on the 

equipment automatically shut the machine down because of high 

levels of methane. Under the circumstances it is reasonably 

likely that a methane ignition would occur with resulting serious 

burn injuries and fatalities. The violations were accordingly 

serious and "significant and substantial". Secretary v. Mathies 

Coal Company, 6 FMSHRC 1 (1984). 

I also find that the violations were the result of operator 

negligence. There is no dispute that face boss Robert Sandidge 

was on the unit at the time of the accident. Sandidge also 

testified that there was adequate ventilation at the No. 1 Face 

at the time of his preshift examination (which commenced at 5:50 

a.m. on April 7) and that he found only .4 percent methane 30 

minutes before the cutting machine entered the No. 1 Entry. 

However the fact th~t the cutting machine had twice before the 

accident "gassed-out" because of excess methane should have 

placed Sandidge on notice of a methane problem requiring 

extraordinary care in maintaining adequate ventilation. Moreover 

the mine operator was already under a higher duty of care because 

of the history of methane ignitions at this mine and because of 

' 404 
the overall high liberation of methane. The recent history of 

similar violations in this mine for inadequate ventilation and 

the failure to maintain adequate brattice curtains constitute 

patterns that may also be considered in finding operator 

negligence in this case. 

Citation No. 2837677 alleges a "significant and substantial" 

violation of the operator's ventilation system, methane and dust 

control plan under the standard at 30 C.F.R. § 75.316. More 

particularly Green River is charged with failing to have "the 

back-up curtain between No. 6 and 7 entry ••• in place." It is 

not disputed that there was indeed no back-up curtain in position 

between the No. 6 and 7 entries as alleged and that such a 

curtain was required by the operator's ventilation plan 

(Secretary's Exhibit No. 6 page 4). The violation is accordingly 

proven as charged~ It is also undisputed that the absence of 

this back-up curtain would have reduced the ventilation on the 

working sections. Considering the history of methane liberation, 

ignitions, and recent violations of ventilation requirements it 

is apparent that this violation also was serious and "significant 

and substantial". Mathies Coal Company, Supra. 

In evaluating operator negligence I have given considerable 

weight to the credible testimony of Face Boss Robert Sandidge 

that the backup curtain was in position at the time of his 

preshift examination at 5:50 that morning. In addition I accept 

the testimony of Safety Director David Harper that a check 

curtain of the proper size was lying on the ground in an open 

position below where it should have been hung. I nevertheless 

find that the operator was negligent because a high degree of 

care was required in this section. There was a history of high 

methane concentrations and the methane detector on the cutter 

machine had already 11 gassed-out 11 the machine twice before on same 

shift. Under the circumstances management was on notice that 

methane levels were aproaching dangerous concentrations and it 

therefore should have been on particular notice to maintain its 

check curtains to maintain adequate ventilation. 

Citation No. 2837678 also charges a violation of the 

ventilation plan under the standard ~t 30 C.F.R. § 75.316 in that 

"a permanent stopping had not been constructed in the third open 

crosscut from the face in the stopping line. 11 

It is not disputed that a permanent stopping had not been 

constructed in the third open crosscut from the face in the 

stopping line. Green River maintains however that a oermanent 

stopping was not required and that in any event the b~ck-up 

curtain being used was adequate. Whether there was a violation 

in this instance depends on the applicable definition of "open 

crosscut". According to Inspector Newlin the definition of "open 

405 
crosscut" that had been uniformly applied to Green River on prior 

occasions included a crosscut where air could pass through or a 

crosscut that ·was clean and travelable (i.e. supported). 

According to Safety Director David Harper the cited area was not 

an "open crosscut" because it had not been completely bolted and 

cleaned. 

I find that the definition adopted by Green River is the 

more persuasive. It meets the "reasonably prudent person" 

standard. Alabama By-Products, 4 F.MSHRC 212 8 (19 82); United 

States Steel Corp., 5 FMSHRC3 (1983). Inspector Newlin 

acknowledged that.his definition was not accepted by some other 

inspectors and it is undisputed that MSHA approved a modification 

to the ventilation plan shortly after this citation which allowed 

a check curtain to be used in the cited crosscut instead of a 

permanent stopping. MSHA thus, in effect, acknowledged that 

there was no hazard in Green River's prior practice of utilizing 

a check curtain instead of a permanent stopping in the third open 

crosscut from the face. Under these circumstances it cannot be 

said that a reasonably prudent person, familiar with the facts, 

would have recognized a hazard in the practice here followed by 

Green River. Accordingly there was no violation and the citation 

must be vacated. 

Citation No. 2835650, issued under section 104(d)(l) of the 

Act, alleges a violation of the standard at 30 C.F.R. § 75.301 

and charges as follows:~/ 

The quantity of air reaching the end of the line 

curtain in the No. 2 Entry on 7 Unit was 1,320 cfm 

CH 4.7. The loader was loading coal in this entry. 

~/ Section 104(d)(l) reads in part as follows: 

If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there has 

been a violation of any mandatory health or safety standard, and 

if he also finds that, while the conditions created by such 

violation do not cause imminent danger, such violation is of such 

nature as could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety or health hazard, 

and if he finds such violation to be caused by an unwarrantable 

failure of such operator to comply with such mandatory health or 

safety standards, he shall include such findi~g in any citation . 

given to the operator under this Act. 

406 
As previously noted, the standard at 30 C.F.R: § 75.301 

provides that "the minimum quantity of air in any coal mine 

reaching each working face shall be 3,000 cubic feet a minute." 

It is undisputed that there was only 1,320 C.F.M •. of air at the 

end of the line curtain in the No. 2 Entry on the No; 7 Unit. 

Indeed, Green River now admits the violation, does not deny that 

it was "significant and substantial" and challenges only the 

"unwarrantable failure" findings. 

The Secretary maintains that the violation was due to the 

"unwarrantable failure" of the operator to comply with the 

standard because "of the history of ventilation problems at this 

mine, and the apparent lack of concern by the operator while 

[Inspector Newlin] was on the unit". Newlin had found several 

other violations for inadequate ventilation shortly before 

discovering the instant violation (see Secretary's Exhibits Nos. 

9 and 10). Indeed Newlin observed that 15 to 20 minutes had 

elapsed while the operator abated a prior citation (No. 2835649) 

and before he had moved on to discover the instant violation. 

During this time miners were continuing to load coal. Newlin 

also observed that it took only six minutes to improve the 

ventilation and to abate the instant violation. 

It was apparently Newlin's position that Green River should 

have, upon the issuance of Citation No. 2835649 for deficient 

ventilation in the No. 1 Entry, not only abated that violation 

but also stopped all mining activity on the unit and checked the 

No. 2 Entry for sufficient ventilation. Newlin acknowledges 

however that after observing the abatement of the violation in 

the No. 1 Entry and as he proceeded to the No. 2 Entry he in fact 

did see two or three miners working to improve the ventilation 

affecting the No. 2 Entry even before he cited inadequate 

ventilation in the No. 2 Entry. In light of this evidence that 

Green River had commenced abatement even before the violation was 

cited I cannot find that the violation was the result of 

inexcusable aggravated conduct constituting more than ordinary 

negligence. Emery Mining Company v. Secretary 9 FMSHRC 1997, 

(1987). The violation was thererore not the result of 

"unwarrantable failure" and the 104Cd)(l} citation must be 

modified to a citation under Section 104(a) of the Act. In light 

of the recent history of ventilation violations on this unit and 

the presence of high levels of methane I do find however that 

Green River was negligent. Under these circumstances it was 

under a heightened duty of care to maintain proper ventilation. 

In determining appropriate civil penalties in this case I 

have also considered that the operator is of moderate size, has a 

moderate history of violations and abated the violative 

conditions ·cited herein as prescribed by the Secretary. 

407 
ORDER 

Green River Coal Company, Inc. is directed to pay the 

following civil penalties within 30 days of the date of this 

decision: Citation No. 2835668 - $600, Citation No. 2835669 -

$750, Citation No. 2837677 - $600, Citation No. 2837678 -

(vacated), Citation No. 2835650 - $400. Contest Proceeding 

Docket No. KENT 87-167-R is granted to the extent that Citation 

No. 2835650 is modified to a citation under section 104(a) of thP. 

Act. 

aw Judge 

Distribution: 

Mary Sue Ray, Esq., Office of ~he Solicitor, U. S. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

(Certified Mail) 

Flem Gordon, Esq., Gordon, Gordon, & Taylor, P. O. Box 390, 

Owensboro, KY 42302-0390 (Certified Mail) 

npt 

408 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 241988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

MELLOTT TRUCKING AND SUPPLY, 

COMPANY, INC., 

Respondent 

. . 

: 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. SE 87-123-M 

A. C. No. 31-01799-05501 

Lee Mine 

DECISION 

Appearances: Ken s. Welsch, Esq., Office of the Solicitor, 

u. S. Department of Labor, Atlanta, Georgia for 

Petitioner; 

Calvin A. Mellott, Carrboro, North Carolina for 

Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to section 

105Cd) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. §801 et. seq., the,"Act,",charging Mellott Trucking 

and Supply Company, Inc., (Mellott) with two violations of 

regulatory standards. 

Preliminary Issues: 

Respondent raises several preliminary issues that could 

be dispositive of these proceedings. He first claims that 

the area of land owned by he and his wife, from which sand 

was being removed and on which it was being processed, was 

not a "mine" within the meaning of the Act since it was 

merely a land reclamation project adjunct to his alleged 

primary business of farming. 

Section 3(h)(l) of the Act reads in part as follows: 

"coal or other mine" means CA) an area of land from 

which minerals are extracted in nonliquid form 

... CB) private ways and roads appurtenant to such 

area, and CC> lands excavations, underground 

passageways, shafts, slopes, tunnels and workings, 

409 
structures, facilities, equipment, machines, tools, 

or other property including impoundments, retention 

dams, and tailings ponds, on the surface or 

underground, used in, or to be used in, or 

resulting from, the work of extracting such 

minerals from their natural deposits in nonliquid 

form, ••• or to be used in, the milling of such 

minerals, or the work of preparing coal or other 

minerals 

There is no dispute that on the date these citations 

were issued Mellott was extracting minerals (sand) in 

non-liquid form from the cited area. Moreover Mellott's 

power screen and stacker are within the scope of scructures 

"used in, or to be used in, the milling of such minerals, or 

the work of preparing ••• minerals". Under the circumstances 

it is clear that Respondent was operating a "mine" within the 

meaning of the Act. It is immateLial that land may have also 

been reclaimed as a result of the mining activity. 

Respondent next contends that he was not engaged in 

interstate commerce and therefore this Commission is without 

jurisdiction over his activities. Section 4 of the Act 

provides that "each coal or other mine, the products of which 

enter commerce, or the operations or products of which affect 

commerce, and each operator of such mine and every miner in 

such mine shall be subject to the provisions of this Act." 

"commerce" is defined in Section 3(b) of the Act as follows: 

"trade, traffic, commerce, transportation or communication 

among the several States, or between a place in a State and 

any place outside thereof, or within the District of 

Columbia, or a possession of th¢ United States, or between 

points in the same State but through a point outside 

thereof." 

The evidence in this case is that Mellott was using 

machinery and equipment in its mining business that was 

manufactured outside of its home state of North Carolina. It 

.is undisputed that its front-end loader was made in Illinois, 

and the power screen in Kentucky. use of equipment that has 

moved in interstate commerce affects commerce. See United 

States v. Dye Construction Co., 510 F.2d 78(10th Cir. 1975). 

In addition, although the evidence shows that the sand 

extracted, processed and sold by the Mellott facility was 

used only intrastate, it may reasonably be inferred that such 

use of the mine product would necessarily impact upon the 

interstate market. See Fry v. United States, 421 U.S. 542, 

547 (1975). Under the circumstances it is clear that the 

operation~ and products of Mellott affect commerce and.that 

its operation is therefore under the coverage of the Act. 

410 
Mellott next maintains. that the warrantless inspection 

of its operation by employees of the Federal Mine Safety and 

Health Administration CMSHA) on April 16, 1987, which led to 

the citations at bar was in violation of the provisions 

against unreasonable searches and seizures under the Fourth 

Amendment to the United States Constitution. In Donovan v. 

Dewey, 452 U.S. 594 (1981), the Suprene Court held however 

that warrantless inspections of mines authorized by section 

103(a) of the Act do not violate the Fourth Amendment. The 

court found that an exception to the warrant requirement was 

permissible in these cases because there is a substantial 

Federal interest in improving mine safety and health and 

because the certainty and regularity of inspection programs 

under the Act provide a constitutionally adequate substitute 

for a warrant. Mellott's contention herein is accordingly 

contrary to the prevailing law. 

Finally, Mellott maintains that it was denied its 

constitutional right under the Seventh Amendment to the 

United States Constitution to a trial by jury. In Atlas 

Roofing Co. Inc. v. OSHRC, 430 U.S. 442 (1977), the Supreme 

Court held that under the Seventh Amendment jury trials are 

required only in suits at common law and that the Seventh 

Amendment did not purport to require a jury trial where none 

was required before. Within this legal framework it is clear 

that these statutorily created proceedings do not require a 

trial by jury. It is noted that this civil penalty 

proceeding is similar to the penalty proceeding at issue in 

the Atlas case before the Occupational Safety and Health 

Review Commission. 

The Merits: 

The general issues before me on the merits are whether 

Mellott violated the cited regulatory standards as alleged, 

and, if so, whether the violations were of such a nature as 

could significantly and substantially contribute to the cause 

and effect of a mine safety or health hazard, i.e. whether 

the violations were "significant and substantial." If 

violations are found, it will also be necessary to determine 

the appropriate civil penalty to be assessed in accordance 

with section llO(i) of the Act. 

Citation 2859882 alleges a violation of the standard at 

30 C.F.R. § 31-01799 and charges as follows: 

The automatic reverse signal alarm was not 

operating on the Cat 950 B loader working in the 

411 
pit area. There was an obstructed view to the 

rear. 

The cited standard provides as follows: 

Heavy duty mobile equipment shall be provided with 

audible warning devices. When the operator of such 

equipment has an obstructed view to the rear, the 

equipment shall have either an automatic reverse 

signal ala-rm which is audible above the surrounding 

noise level or an observer to signal when it is 

safe to back up. 

The testimony of MSHA Inspector Thel Hill in support of 

this violation is largely undisputed. According to Hill the 

only worker at the mine site on April 16, 1987, a Mr. Bruell, 

represented himself to be the foreman. Bruell was operating 

the Catapillar Model 950B front-end loader removing sand from 

the pit area and transporting it to the processing equipment. 

Hill observed the front-end loader in action and saw that the 

backup alarm was not functioning. Bruell conceded that the 

backup alarm had not been operating for several days. There 

was no observer to signal when it was safe for the equipment 

to back up. Hill found that the engine on the equipment 

obstructed the view to the rear for some 2 to 3 feet on level 

ground so that persons as tall as 5 foot 6 inches could not 

be seen in that obstructed area. The exhaust arrangement 

(muffler) also interfered with rear vision. 

Hill felt that the violation was not "significant and 

substantial" because of only limited exposure to danger. 

There were no other employees on ,site and he concluded that 

the truck drivers remained in their trucks while being 

loaded. 

Calv.in Mellott, Respondent's president, did not dispute 

that the back-up alarm was not functioning and that there was 

at least a partially obstructed view to the rear of the 

loader. Mellott maintained however that it was Bruell's 

responsibility to bring such problems to his attention and 

that back up alarms were in stock. Mellott suggested that 

Bruell may have been sabotaging his operations because -Bruell 

later purportedly worked for a competitor. The credible 

evidence does not however support this contention. 

Within this framework of evidence it is clear that the 

violation is proven as charged. I accept Inspector Hill's 

testimony however that the violation was not serious because 

of the limited exposure to the hazard I must accept that 

finding. I conclude that the violation was caused by 

412 
operator negligence since the condition was known to have 

existed for several days. Moreover, proper inspection of the 

equipment on a daily basis should have led to discovery of 

the violative condition. 

Citation No. 2859883 alleges a "significant and 

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

56.14001 and charges that "the tail pulley on the sand 

stacker was not guarded." 

The cited standard provides that "[g]ears; sprockets; 

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

couplings; shafts; sawblades; fan inlets; and similar exposed 

moving mac.hine parts which may be contacted by persons, and 

which may cause injury to persons, shall be guarded. 

Inspector Hill observed that the sand stacker conveyed 

materials from the screen to the stockpile and that its 

height could be adjusted. At the time of the alleged 

violation a 4 to 4 1/2 foot build-up of spillage was found at 

the tail pulley. Thus the pulley would be located at 

arm level to an individual passing nearby. The pulley was 

not guarded and there was nothing to prevent a person from 

contacting it. The pulley was in operation at this time and 

Hill believed that fatal injuries were likely. In reaching 

this conclusion Hill observed that Bruell admitted that he 

greased the tail pulley while it was in motion (because it 

would be easier to grease) and acknowledged that he passed 

nearby the pulley several times a day as he was performing 

the duties of both plant operator and loader operator. 

Calvin Mellott admitted that the tail pulley was not 

protected but disagreed that there was any danger of contact. 

I find the testimony of Inspector Hill to be more credible in 

this regard. Indeed Bruell admitted that he greased the tail 

pulley while it was moving and that he passed in close 

proximity to the pulley during his workshift. It is 

therefore reasonable to inf er that there was a reasonable 

likelihood of contact and injury and that such injuries would 

be serious or fatal. Accordingly I find that the violation 

is proven as charged and was "significant and substantial" 

and serious. See Secretary v. Thompson Brothers Coal 

Company, Inc. 6 FMSHRC 2094, (1984); Secretary v. Mathies 

Coal Company, 6 FMSHRC 1 (1984). 

I also find that the violation was the result of 

operator negligence. It is apparent that company president 

Calvin Mellott knew the tail pulley was not guarded and he 

should have known of Bruell's practice of greasing that tail 

pulley while it was in motion. 

413 
In assessing civil penalties in this case I have also 

considered that the operator is small in size and has no 

reported history of violations. I have also considered that 

the violations were abated promptly. Under the circumstances 

I find that the following civil penalties are appropriatei 

Citation No. 2859882 - $20i Citation No. 2859883 - $68. 

ORDER 

Mellott Trucking and Supply Company, Inc., is hereby 

directed to pay civil penalties of $88 within 30 days of the 

date of this decision. 

Law Judge 

Distribution: 

Ken s. Welsch, Esq., Office of the Solicitor, u. s. 

Department of Labor, Room 339, 1371 Peachtree Street, N.E., 

Atlanta, GA 30367 (Certified Mail) 

C. A. Mellott, President, Mellott Trucking & Supply Company, 

Inc., P. o. Drawer 336, Carrboro, NC 27510 (Certified Mail) 

npt 

414 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 24 \988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MELLOTT TRUCKING AND SUPPLY, 

COMPANY, INC. , 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 87-123-M 

A. C. No. 31-01799-05501 

Lee Mine 

ORDER CLOSING RECORD 

At hearing in this case held January 5, 1988, the 

Respondent was given the opportunity to file a brief within 

three weeks after the Petitioner filed her brief. Petitioner 

filed her brief on February 26, 1988, and, accordingly, 

Respondent's brief was due on or before March 18, 1988. 

Respondent has not filed a brief as of this date and 

accordingly the record of these proceed1 gs is closed. 

Distribution: 

ary M 

.Admini' 

(703)/ 

i 

\ 

trative Law Judge 

56-62 61\ 

Ken S. Welsch, Esq., Office of the Solicitor, u. S. 

Department of Labor, Room 339, 1371 Peachtree Street, N.E., 

Atlanta, GA 30367 (Certified Mail) 

c. A. Mellott, President, Mellott Trucking & Supply Company, 

Inc., P. O. Drawer 336, Carrboro, NC 27510 (Certified Mail) 

npt 

415 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 291988 

CHARLES CONATSER, 

Complainant 

DISCRIMINATION PROCEEDING 

v. Docket No. KENT 87-168-D 

MSHA Case No. PIKE CD 87-04 

RED FLAME COAL COMPANY, INC., 

Respondent No. 2 Surface 

Appearances: 

Before: 

DECISION 

Tony Oppegard, Esq., Appalachian Research & 

Defense Fund of Kentucky, Inc., Hazard, 

Kentucky, for the Complainant; 

Ronald G. Polly, Esq., Polly, Craft, Asher & 

Smallwood, Whitesburg, Kentucky, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed 

by the Complainant, Charles Conatser, against the respondent 

Red Flame Coal Company pursuant to section 105(c) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c). 

The complainant filed his initial complaint with the Mine 

Safety and Health Administration CMSHA), on January 26, 1987. 

After completion of an investigation of the complaint, MSHA 

advised the complainant by letter dated May 22, 1987, that the 

information received during the investigation did not establish any violation of section 105(c) of the Act. Thereafter, 

on June 8, 1987, the complainant filed a prose complaint with 

the Commission, but subsequently retained counsel to represent 

him. 

The complainant, who was employed by the respondent as an 

endloader operator at its No. 2 Surface Mine, alleged that he 

was discharged by mine foreman Zachary Mullins on January 26, 

1987, after refusing the foreman's order to drive a rock truck. 

The complainant asserted that his refusal to drive the truck 

was based on the fact that there was 11 to 12 inches of snow 

on the ground; that he did not know how to operate the truck; 

416 
and that his prior experience driving such a truck was limited 

to "a few days" during the summer months when he operated a 

truck on level ground under dry weather conditions. The 

complainant asserted further that his lack of truck driving 

experience, coupled with the prevailing adverse weather conditions, presented a possible safety hazard. The complainant 

has alleged that his discharge because of his refusal to drive 

the truck was in violation of section 105(c)(l) of the Act. 

The complainant subsequently amended his complaint to 

include an allegation of an additional violation of the Act. 

In this regard, the complaint alleged that the respondent's 

refusal to reinstate him after it had received a copy of his 

complaint and had been informed of the safety reasons for his 

work refusal during a meeting with him on February 27, 1987, 

further violated section 105(c)(l) of the Act. 

In its answer to the complaint, the respondent admitted 

that the complainant refused the request of his foreman to 

operate the rock truck in question. However, the respondent 

asserted that the respondent quit his job; that his actions in 

refusing the foreman's request were not justified; that the 

equipment, prevailing conditions, and request by the foreman 

for the work were reasonably safe; and that the complainant 

had had previous experience in the operation of a rock truck 

under similar circumstances. 

Issues Presented 

(1) Whether the complainant was fired or quit his job. 

(2) Whether the complainant was engaged in protected 

activity on January 26, 1987, when he refused his foreman's 

request to operate the rock truck in question, and whether his 

work refusal was reasonable and justified in the 

circumstances. 

(3) Whether the complainant communicated his alleged 

safety concerns and reasons for refusing to drive the truck to 

the respondent. 

(4) Whether the respondent's subsequent refusal to 

reinstate the complainant was discriminatory and in violation 

of the Act. 

Additional issues raised by the parties are idGntified 

and disposed of in the course of this decision. 

417 
Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 301 et seq. 

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

Safety and Health Act of 1977, 30 u.s.c. § 815(c)(l), (2) and 

( 3 ) • 

3. Commission Rules, 29 C.F.R. § 2700.1, et seq. 

Procedural Rulings 

The following rulings were made by me in the adjudication 

of this matter: 

1. The complainant's motion to amend his 

complaint was granted (Tr. 6, 44). 

2. Respondent's motions for summary 

decision in its favor on the basis of the 

complainant's prehearing deposition was denied 

(Tr. 154). 

3. Respondent's motion for a summary 

decision in its favor at the close of the complainant's case at the hearing was denied (Tr. 

269). 

4. Complainant's request for the admission of certain training records, exhibit C-5, 

was granted (Tr. 264-265)~ 

5. Respondent's motion to quash the complainant's prehearing request to take the depositions of several of its witnesses was granted. 

However, the complainant's counsel was afforded 

the opportunity to interview these individuals 

before the taking of any testimony at the 

hearing (Tr. 10-11, 34). 

6. Complainant's request for the introduction of a written statement executed by MSHA 

Inspector Avon Pratt during the course of 

MSHA's investigation of the complaint was 

denied, and the statement (exhibit C-4) was 

rejected (Tr. 528)J 

418 
7. Complainant's request to take the 

depositions of two witnesses posthearing was 

granted, and the respondent's objections were 

denied (Tr. 528). However, the respondent was 

granted an opportunity to take and file any 

posthearing rebuttal depositions (Tr. 533). 

8. The parties were subsequently afforded 

an opportunity to take and file additional 

posthearing depositions. 

Complainant's Testimony and Evidence 

Complainant Charles Conatser testified that he worked at 

Red Flame Coal Company from June, 1986, until his last day of 

work on January 26, 1987. Prior to that time, he worked at 

No. 8 Ltd. of Virginia from 1978 until August, 1985, and again 

from January to June, 1986. During his employment with No. 8 

Ltd. he was a coal and rock endloader operator. He also 

operated a rock truck "a few times," but was never assigned as 

a permanent rock truck driver. When he operated a truck "it 

was always fair weather conditions, dry roads, hills, just in 

places where the foreman knew I could handle the truck." His 

foreman at that time was Bill Meade, and he would assign him 

to drive a rock truck when he was short-handed. Mr. Conatser 

stated that he was never given any task training in the operation of a rock truck, and would never drive in bad weather, 

and that "my whole desire is to be a loader operator" (Tr. 

55-62). 

Mr. Conatser stated that during his second term of employment with No. 8 Ltd., he was employed as a utility man loading 

drill holes, and that "I remember two times that I was on a 

rock truck" (Tr. 63). He also began operating a rock loader 

again. He recalled one occasion when Mr. Meade assigned him 

to fill in for another driver on a Saturday, and he drove an 

85-ton 777 rock truck that day hauling rock from the pit to 

the dump on level ground. On another occasion, Mr. Meade 

assigned him to haul some stockpile coal in a 50-ton 773-A 

rock truck along "fairly level ground" to the parking lot, and 

there were no steep hills (Tr. 63-68). During this period of 

time at No. 8 Ltd., he received no training or task training 

in the operation of a rock truck (Tr. 70). 

Mr. Conatser stated that during the year prior to his 

discharge, he drove a rock truck two times. Prior to that 

time he drove one "five other times," and in his entire career 

"in heavy equipment," he has only driven a rock truck "maybe 

seven times" (Tr. 68-69). He was never trained in any way to 

419 
drive a rock truck while at Red Flame. His job was a rock and 

coal endloader operator. He also operated a sweeper or farm 

tractor a few times sweeping up coal dust, and has also operated a dozer pushing dirt over a hill at the dump, but he does 

not.consider himself to be a qualified dozer operator. He 

also operated a road grader during 1978-1985 grading roads out 

of the pit, but does not consider himself to be a qualified 

grader operator (Tr. 72). 

Mr. Conatser stated that upon his arrival at work on the 

morning of January 26, 1987, he observed dozers "over the hill 

working on the road." His foreman Zack Mullins informed him 

that his loader was down, and assigned him to assist the 

mechanic to help start and prepare some equipment. 

Mr. Mullins called later on the CB radio and instructed the 

mechanic to start up a WABCO 85-ton rock truck, and when he 

arrived at the truck he motioned him (Conatser) to the truck 

and informed him that he wanted him to drive the truck. 

Mr. Conatser explained what transpired next at (Tr. 75-77): 

* * * I told him I couldn't drive a rock truck. 

And, he said that he had two or three other 

people that was learning how to drive a rock 

truck and if they could do it you could do it 

too, and if you didn't want to do it you could 

ge~ your stuff and take your ass to the house. 

Q. What did you say after he said that? 

A. I was just in shock. I didn't know what to 

say. I just stood there for a few minutes 

looking at him and then tur,ned around and, as I 

was getting ready to walk off, I told him you 

are making me go to the house. And, I went 

over to get in my jeep and remembered my safety 

toes that was in the endloader I used to run. 

I asked him if he would get my shoes for me and 

he said he never had time, that I could get 

them on my way out. So, I left. 

Q. Okay. Why did you refuse to drive the rock 

truck? 

A. Because it was unsafe for me to drive the 

rock truck. I hadn't been trained to operate 

420 
on any kind of hills or any kind of slick conditions and I wasn't qualified to drive it. 

* * * * * * * 

THE WITNESS: Because I hadn't been trained to 

drive the truck and I am afraid to drive a 

truck in any kind of slick conditions. I 

thought it was going to be hazardous to my 

health. I thought I might have a chance to 

kill myself. So, I never went. 

Mr. Conatser stated that there was 10 to 12 inches of 

snow, and that the roadway where he was expected to drive the 

truck was up and down hills from the pit to the hollow dump, a 

distance of approximately 200 yards, three-fourths of which 

was on a steep grade. While employed at Red Flame, he has 

observed rock trucks on that particular hill, and when it is 

raining or snowing, trucks will slide down the hill, and 

during the times he did drive a rock truck at No. 8 Ltd., he 

never drove one down a hill as steep as the one at Red Flame. 

He also observed trucks sliding down hills at No. 8 Ltd., and 

he generally was afraid of rock trucks because they cannot be 

controlled when they are going to stop and he does not know 

what to do to control one in a slide, and does not believe 

that he has the ability to control a truck in a slide (Tr. 

78-79). 

Mr. Conatser stated that he believed Mr. Mullins wanted 

him to drive the 85-ton WABCO because he had previously 

instructed him to start it up and it was the only truck in the 

parking lot. Even if Mr. Mullins had asked him to drive a 777 

Caterpillar truck, he would still not drive it because "I 

haven't got the experience to drive one. I am afraid of them 

and I just don't think I could handle one on a hill. If I 

w~nt into a slide, I honestly don't think I can" (Tr. 81). 

Mr. Conatser stated that after he left the mine on 

January 26, he went straight home, which was 3 miles away, and 

that it took him no longer than 5 minutes to get there. He 

was crying, and when he arrived home he told his mother and 

father that "they fired me for not driving a rock truck, that 

I wasn't qualified to drive a rock truck I thought" (Tr. 82). 

His father than called his brother who advised him to go to 

MSHA to file a report. He then went to MSHA and filed his 

discrimination complaint. 

Mr. Conatser stated that prior to his father telling him 

that his uncle was of the opinion that the Federal mine safety 

421 
laws gives surface miners the right to refuse to do something 

if they think it is unsafe, he was unaware of this, and that 

he was also unaware of it at the time he told Mr. Mullins that 

he would not drive the truck. Mr. Conatser stated "I just 

thought I was fired and that was going to be the end of it" 

(Tr. 84}. 

Mr. Conatser stated that after his discharge, he called 

Wesley Burke, the president of No. 8 Ltd., the parent company 

that owns Red Flame, and asked to speak with him about getting 

his job back. Mr. Burke invited him to come in and speak with 

him on February 27, a Friday, and he then met with Mr. Burke 

and superintendent Cruce Davis on that day (Tr. 86). 

Mr. Conatser stated that during the meeting, he told Mr. Burke 

and Mr. Davis that "I was afraid to drive a rock truck and 

that I didn't think I was qualified to drive a rock truck and 

that I feared for my life." Mr. Burke then advised him that 

"he would get back to me" (Tr. 87). He heard nothing further 

from Mr. Burke, and called him a week later, and Mr. Burke 

informed him that he would not be rehired. Mr. Conatser asked 

Mr. Burke if he "wanted to make any other kind of settlement" 

and that Mr. Burke informed him that he had no authority to do 

this (Tr. 88). 

Mr. Conatser confirmed that MSHA investigator South 

suggested that "it wouldn't hurt to go back and ask for my job 

back, and so I did" (Tr. 88). Mr. Conatser also confirmed 

that since his discharge, he has not had any coal mining 

employment, but has. looked for work, and he explained his 

attempts to find work. He did receive $50 a week for taking 

care of his girlfriend's house, and limited unemployment 

benefits (Tr. 53, 88-90). 

On cross-examination, Mr. Conatser confirmed that he quit 

his first job at No. 8 Ltd., after a dispute with Mr. Meade, 

and he left because he was mad at Mr. Meade (Tr. 94). 

Mr. Conatser could not recall the dates that he drove the rock 

truck while at No. 8 Ltd., during 1978 to 1985. It could have 

been five times, but he could not recall, and he reiterated 

that he has driven a rock truck for a total of seven times 

during his 12 years of employment as a surface miner (Tr. 96). 

He would never get into a truck in any kind of "slick weather" 

and he is afraid of the truck. He stated that he agreed to 

drive a rock truck "because I was asked to and I knew the 

conditions I would be running in," but that he would prefer to 

drive a loader because "that's what I chose to do" (Tr. 97). 

Mr. Conatser testified as to a prior statement he made to 

the Kentucky Department of Employment Services in connection 

422 
with his unemployment claim in which he states that "I had 

probably one months experience in 12 years driving a rock 

truck" (Tr. 101, Exhibit R-1). He acknowledged signing the 

statement, but claimed that he never read it before signing 

it, and stated that he told the interviewer that he had 

"possibly a month but it is probably less" experierice as a 

truck driver (Tr. 102). 

Mr. Conatser confirmed that when he drove a rock truck at 

No. 8 Ltd., from January to June, 1986, he drove one truck for 

an 8-hour shift in March, 1986, and a second one for half a 

day in April, 1986 (Tr. 106). He confirmed that on 

January 26, 1987, he wanted to operate the loader (Tr. 107). 

He confirmed that when it snowed and rained at the No. 8 Ltd. 

site, graders or dozers were used on the haulroads, and the 

trucks were operated over the roads after they were scraped 

(Tr. 109). He confirmed that Mr. Mullins and Mr. Davis always 

had the roads scraped, and he had no reason to believe that 

they; did not comply with safety regulations (Tr. 109-110). 

Mr. Conatser stated that while there was 11 to 12 inches 

of snow on the ground on the day of his discharge, it had just 

quit snowing and the haul roads were being graded, but "after 

you grade the snow off, you ~till got all that mud" (Tr. 111). 

He drove to work that day in his four-wheel drive vehicle and 

the roads were "sloppy" and he had no problem getting to work 

(Tr. 111). He also drove up the mountain, which is a steep 

grade, and parked his vehicle on the parking lot (Tr. 112). 

He confirmed that he knew how to operate the brakes on the 

rock truck, but denied that he knew what gear to put it in 

while "driving off the mountain," and he then proceeded to 

explain how to "gear down" the truck (Tr. 113-114). 

Mr. Conatser stated that prior to January 26, 1987, he 

never told Mr. Mullins or Mr. Davis that he did not know how 

to drive a rock truck because they never asked him and he had 

no reason to tell them. He stated that he told Mr. Meade that 

he was not a qualified rock truck driver, and that Mr. Meade 

"knows what I can do in a rock truck and what I can 1 t, 11 and 

that "he never put me in any place that I thought was unsafe 

for me to operate it" (Tr. 114). He also stated that 

Mr. Meade always put him in places where he was not afraid to 

drive the truck "just hauling around the top of the hill and 

mainly in level areas" (Tr. 115). 

With regard to his conversation with Mullins on 

January 26, 1987, Mr. Conatser stated as follows at (Tr. 

116-119): 

423 
A. I told him I couldn't drive the rock truck 

and he said he had two or three other people 

that were training to learn how to drive a rock 

truck and that if they could do it that you 

could do it too, either dri~e the rock truck or 

get your ass to the house. Then, when I turned 

around and left, when I was walking toward my 

jeep, I turned around and said that you are 

forcing me to go to the house or you are making 

me to go to the house. 

* * * * * * * 

Q. You never said anything to Zack about the 

weather or the steepness of the grade? 

A. No. 

Q. You never said anything to Zack about it 

being unsafe? 

A. No. 

Q. Did you use the words I don't know how to 

drive a truck? 

A. No. 

Q. Did you request any task training with Zack 

Mullins that morning? 

A. No. 

Q. Did you mention anything to him about 

putting somebody in the truck with you while 

you were driving there about anything that you 

might not feel comfortable about? 

A. No. 

Mr. Conatser denied that he refused to drive the truck 

because other drivers were available, or that he was upset 

because Mr. Mullins would not assign someone else to drive. 

He insisted that the only reason he left was because he could 

not drive the truck, and he assumed that Mr. Mullins kn~w that 

he did not know how to drive (Tr. 119). 

' With regard to his prior statement in connection with his 

unemployment claim, Mr. Conatser stated as follows (Tr. 121): 

424 
Q. Does that statement say, and I quote, 

"There was a rock tru~k driver operating · 

another endloader and I felt he could have 

driven the truck and the foreman could have let 

me operate the endloader as that was my regular 

job."; does it say that? 

A. Yes, but this was two weeks after it 

happened. By that time, I had had time to 

think about it and I thought there was a 

possibility that somebody else could have drove 

the truck. 

Q. Did you make that statement at that time? 

A. This statement right here. 

Q. Yes. 

A. Yes, sir. 

Mr. Conatser confirmed that he never said anything to 

Mr. Mullins about assigning any of the available truck drivers 

who were operating loaders to drive the rock truck in question. He also confirmed that he and the mechani~ were 

discussing the truck assignment as he observed Mr. Mullins 

approaching, and he suspected that Mr. Mullins would select 

him to drive the truck, and that he mentioned this to the 

mechanic. Mr. Conatser stated that "the only thing I was 

thinking about when he said that was whether I could drive the 

truck, and I come to the conclusion that I couldn't drive it" 

and that it never crossed his mind to suggest any alternative 

to Mr. Mullins. In response to·a hypothetical question as to 

whether he would have refused to drive the truck if 

Mr. Mullins had asked him to do so during the summertime, 

Mr. Conatser responded "If it was on a hill, I would have 

refused because I couldn't--well, unless he would have trained 

me" ( Tr • 12 4 } • 

Mr. Conatser confirmed that his refusal of January 26, 

1987, was the only time he had refused to do anything, and 

that this was the first time that Mr. Mullins ever asked him 

to drive a truck (Tr. 125-126). In response to questions 

concerning his knowledge of a rock truck, Mr. Conatser stated 

as follows (Tr. 125-126): 

JUDGE KOUTRAS: Now, on the trucks you operated 

previously, you knew where to put the ignition 

425 
key, know where the brakes are, know whe£e the 

gear systems are, know where the headlights 

are, and all the other equipment, right? 

THE WITNESS: Right. 

JUDGE KOUTRAS: So, you know how to operate a 

truck. 

THE WITNESS: I know how to operate a truck on 

level ground. 

JUDGE KOUTRAS: Well, let's leave the level 

ground out of it for a moment. 

THE WITNESS: Okay. 

' JUDGE KOUTRAS: Do you know how to operate a 

rock truck? 

THE WITNESS: I know how to operate a rock 

truck. 

JUDGE KOUTRAS: So, when you told Mr. Mullins 

on the day of- January the 25th that you didn't 

know· how to operate a rock truck, what did you 

have in mind when you told him that? 

THE WITNESS: That I couldn't operate a rock 

truck in any kind of conditions like that. 

JUDGE KOUTRAS: But you didn't tell him that, 

did you? 

THE WITNESS: I just figured it would be 

common. 

JUDGE KOUTRAS: You figured that he would 

THE WITNESS: I figured he would know. 

JUDGE KOUTRAS: You assumed that he would know 

that. 

THE WITNESS: Yes, I assumed that he would know 

that. 

Mr. Conatser denied that he ever offered to operate a 

rock truck in the presence of Tommy Dotson while employed at 

426 
Red Flame. He also denied that he had already made his mind 

up not to drive the truck before being asked by Mr. Mullins 

and while speaking with the mechanic CTr. 128}. He stated 

that his offer of settlement made to Mr. Burke was his own 

idea {Tr. 132-133}. He also stated that he did not know 

whether he offered any explanation as to his prior statement 

in connection with his unemployment claim at the time of his 

October 20, 1987 deposition, and respondent's counsel confirmed that he did not {Tr. 136}. Mr. Conatser also confirmed 

that since his deposition, he has seen the statement in his 

counsel's office when they discussed it, but the explanations 

that he was riow offering are his own {Tr. 134, 137-138}. 

Mr. Conatser confirmed his prior statement of February 2, 

1987, to MSHA Investigator South during his investigation of 

his complaint (Exhibit C-3, pg. 6-60}, during which he stated 

"I did not have an opportunity to tell Mullins that I feared 

for my safety that day but that was what I was thinking and 

what I was implying as well as my lack oi experience at operating a rock truck." Mr. Conatser confirmed that Mr. South 

asked him whether he had communicated a safety complaint {Tr. 

139}. He also confirmed that Mr. South asked him whether he 

had said anything to Mr. Mullins about being afraid or scared, 

and that he informed Mr. South that he never said anything to 

Mr. Mullins, but that "I told him that in my mind at that time 

was my fear for my life driving that truck" {Tr. 140-142}. 

Mr. Conatser stated that he had spoken to Mr. Mullins on 

many occasions, and although he indicated that Mr. Mullins 

"wasn't waiting around for no long-term explanations. He was 

ready to go," on the morning of January 26, Mr. Conatser 

confirmed that Mr. Mullins did not prevent him from saying 

anything {Tr. 143}. 

In response to further questions, Mr. Conatser confirmed 

that his unemployment claim statement previously ref erred to 

was not in his handwriting, and that it was reduced to writing 

by the person who interviewed him {Tr. 146}, and that his 

statement with regard to the availability of other drivers was 

in response to a question put to him by the interviewer {Tr. 

146-147}. With regard to his prior statement that he had no 

opportunity to explain to Mr. Mullins about his safety concerns, Mr. Conatser stated that everything happened so fast 

and that he was shocked and did not know what to say. He also 

stated that Mr. Mullins did not ask him for any reasons as to 

why he could not drive the truck, and said nothing about ever 

observing him drive a truck or that he was qualified to drive 

one (Tr. 149). Mr. Conatser confirmed that the statement he 
gave to Mr. South and signed was in Mr. South's handwriting 

(Tr. 153). 

Elmer Conatser, father of the complainant, testified that 

he is a retired underground mine foreman, and that on the day 

his son lost his job he came home crying and upset and stated 

that "they told me to drive a rock truck and I told them that 

I couldn't and then he told them that he was afraid to under 

them conditions, and he said the foreman fired him and told 

him to get his things and go home" (Tr. 158). Mr. Conatser 

stated that he telephoned his brother, a retired Bureau of 

Mines employee, and his brother advised him to "get an investigator over there as quick as possible and not willy around 

with it" (Tr. 160). 

Mr. Conatser stated that his son told him that although 

he drove a rock truck one or two times on level, rather than 

steep ground, he was not experienced, and said that he never 

drove one "under no conditions like that" (Tr. 160). 

On cross-examination, Mr. Conatser stated that he told 

his son to go to the MSHA off ice, but that he did not go with 

him. He stated that his son told him that he had informed his 

foreman that "he was inexperienced on the rock truck, and the 

bad weather, that he had never drove under them conditions, 

and he was afraid." His son did not tell him that he had 

informed the foreman that the grade was too steep, or that it 

was too slick, and "the only thing he said was that the snow 

and weather was so bad that he was afraid to drive it," and 

that he had so informed his foreman (Tr. 166-168). 

Mr. Conatser stated that his son talked to his uncle 

later and that "all that I heard them talk about was the conditions." He had no knowledge that his brother had spoken with 

anyone at MSHA, and simply advised his son to go and talk to 

the MSHA people (Tr. 170). 

Cyrus Boggs, rock truck driver, Red Flame Coal Company, 

testified that he worked with Mr. Conatser at Red Flame from 

October, 1986, until the end of January, 1987, and at the 

No. 8 Ltd. strip site for approximately 3 years before that 

time. He never observed Mr. Conatser drive a rock truck at 

Red Flame, and Mr. Conatser operated a rock and coal loader 

during this time. He recalled that Mr. Conatser drove a rock 

truck at No. 8 Ltd., 3 years ago while stockpiling coal, but 

he could not state how many times he drove a truck, nor could 

he recall any details (Tr. 171-176, 180). Mr. Boggs did not 

consider Mr. Conatser to be a truck driver, and stated that 

his job was mostly a coal loader (Tr. 181). 

428 
Mr. Boggs confirmed that he drove a rock truck on 

Mr. Conatser's last day of work on January 26, 1987, and he 

recalled that there was snow and that he drove on the same 

hill road that Mr. Conatser would have driven down that day 

had he driven a rock truck. Mr. Boggs described the road as 

"wet and slick," and he confirmed that the road was being 

scraped. He drove down the road after it was scraped, and 

while he could not remember its condition after it was 

scraped, he recalled that it was wet. He could not remember 

whether he slipped on it, and stated that it was not unusual 

for a truck to slide on a wet road (Tr. 183). 

Mr. Boggs was of the opinion that while the road in question is berrned, an inexperienced driver would not know how to 

handle a truck that went into a slide. If he had never driven 

a rock truck before and someone asked him to drive down the 

hill bn the day in question, he would not have done it because 

"that~s a big piece of equipment and you don't know how it is 

going to act." He explained that once a truck starts to slide 

"I don't know if you would know to pull the retarder and give 

it fuel or hold the brakes anq give it fuel and keep the 

wheels from sliding" (Tr. 186). He confirmed that his 

father-in-law, who is an experienced driver, flipped a truck 

backwards once, and he has heard of trucks tipping over while 

going down hills (Tr. 187). He did not believe that any snow 

was on the roadway in question after it was scraped (Tr. 188). 

On cross-examination, Mr. Boggs stated that at the time 

he observed Mr. Conatser drive a truck 3 years ago, he 

·appeared to be able to handle it, and in his opinion, one had 

to drive a truck for 6 or 7 months to be considered "experienced." Mr. Boggs learned to drive a rock truck in 3 hours 

after someone showed him how, and he believed that one should 

know how to handle it in a couple of weeks, and that "if the 

weather conditions come up in those few weeks, I guess he 

would have to learn" (Tr. 192). Based on his observation of 

Mr. Conatser driving a rock truck, he had no reason to believe 

that he could not drive it under different weather conditions 

(Tr. 193). . 

Mr. Boggs confirmed that during his employment under the 

supervision of Mr. Davis and Mr. Mullins, they always reacted 

favorably to any of his requests for rocking or scraping the 

roads, and he could recall no problems in this regard (Tr. 

194). He confirmed that the extent of his training as a rock 

truck driver consisted of 3 hours, and that he had never 

driven one before this time. He also confirmed that while 

there is a difference in driving a truck on level ground and 

429 
going up and down hills, he believed that an inexperienced 

driver "would just take a few loads to get used to driving on 

a wet hill" (Tr. 195). 

When asked whether anyone who can drive a pick-up can 

also drive an 85-ton rock truck, Mr. Boggs replied "they are 

more or less the same except for the size and just the judging" (Tr. 197). He stated that he would not want anyone who 

had not driven such a truck to start driving up and down hills 

by themselves if they did not know how. He stated that he 

would want to drive with that person first to show him a few 

things, and would want to "haul a few loads with him" (Tr. 

198). If his foreman asks him, he would accompany anyone who 

was asked to drive a truck on a hill even if that person had 

never driven a truck before (Tr. 199-201). He later clarified 

his answer and stated that he would go with such a person as 

long as he were able to show him how to drive, and in 

Mr. Conatser's case, he would have ridden with him on the day 

in question because he had seen him operate a truck in the 

past (Tr. 206). 

Mr. Boggs confirmed that although it had snowed, the 

roads were scraped and had no snow on them, but that the 

trucks driving up and down would force the water out of the 

ground, and the roads would not be dusty (Tr. 207). He 

believed that "a little bit of training" is necessary to drive 

on a hill, and he would have trusted anyone to drive down the 

hill on the day in question as long as he was seated next to 

them to be prepared to control the truck (Tr. 208-209). 

Mr. Boggs stated that the Red Flame haulroads are approximately 40 feet wide, enough for trucks to pass, and that the 

average speed of the trucks, filled and empty, is 10 miles an 

hour. He was not aware of any haul truck accidents or fatalities at Red Flame or No. 8 Ltd. (Tr. 212). When asked for an 

opinion as to whether or not Mr. Conatser could have driven a 

rock truck down the hill in question because he had driven one 

in the past on level ground, Mr. Boggs responded "I guess he 

could hav~ tried" (Tr. 222). He stated that if he were the 

foreman, he would not want anyone to operate any equipment if 

they were afraid of it (Tr. 223). 

Russell Akers, coal and rock loader, No. 8 Ltd., testified that he worked with Mr. Conatser at Red Flame Coal 

Company for 6 months until the spring of 1987, when he moved 

back to his present job. On January 26, 1987, he was working 

as a rock truck driv~r at Red Flame, and he has 3-1/2 years of 

experience driving 50 and 85 ton trucks. Ee never observed 

430 
Mr. Conatser drive a rock truck while working at Red Flame or 

at No. 8 Ltd. (Tr. 224-249). 

Mr. Akers stated that he could not remember the weather 

conditions on January 26, 1987, but did recall that the haulroad was "pretty slick" and that Mr. Mullins instructed the 

men not to go down the hill until it was cleared and dried up. 

Mr. Akers was not sure whether he actually drove a truck that 

day, but confirmed that no one drove up and down the hill in 

question until the roadway was cleared up. If he were an 

inexperienced driver, he would be afraid to drive down the 

hill if it were wet because driving down a "slick little slope 

would be sort of scary like" (Tr. 232). He has observed 

trucks slide down wet hills, and he has slid but has been able 

to control the truck (Tr. 233). He has never heard 

Mr. Conatser offer to "trade out" with any truck driver (Tr. 

234). 

On cross-examination, Mr. Akers stated that one should 

know how to drive a rock truck after "one or two trips." He 

confirmed that on January 26, 1987, the hill was dried up 

before any trucks were allowed to go down, and that Mr. Davis 

and Mr. Mullins never refused any of his safety requests. 

Mr. Mullins instructed him not to go down the hill until it 

was cleared, and has never attempted to put him in any danger 

(Tr. 235). Mr. Akers was of the opinion that 7 days was long 

enough for one to learn to drive a rock truck, and that in 

30 days, "you ought to be good at it" CTr. 236). 

Mr. Akers stated further that once the snow is scraped 

from the roadway, it should remain dry the rest of the day, 

and he estimated that scraping 3 inches deep would render the 

roadway dry (Tr. 237). He also estimated that it took 15 or 

20 minutes to scrape the snow off the hill on January 26, and 

that the roadway was about 500 to 600 feet long, bermed, and 

trucks could pass on it. The roadway was not slick after it 

was scraped (Tr. 240). 

Lloyd Day, Jr., dozer operator, No. 8 Ltd., testified 

that he worked at the Red Flame site for approximately 

10 months starting in the spring of 1986. He was working at 

Red Flame on January 26, 1987, and there was snow on the 

ground. He recalled that the hill haulroad from the pit to 

the hollow field was "pretty rough" before he and Jerry 

Sturgill scraped the snow off with a dozer and a grader. He 

observed trucks driving up and down the hill and "imagined" 

that he saw some of them sliding down the hill because "they 

slide anyway, whether it i~ wet or dry" (Tr. 245). The roadway was slick until it dried off, but it was still "a little 

431 
wet and slick after you get the snow off," because it would 

have to be cut 6 to 8 inches deep to get it dry, and it was 

still wet after the snow was scraped off {Tr. 246). 

Mr. Day stated that he never observed Mr. Conatser drive 

a rock truck while at the Red Flame site, but did observe him 

drive one "a couple of times" while at No. 8 Ltd. {Tr. 247). 

The day that he observed him, he was working alone loading and 

hauling coal in the fall, under dry conditions. He has never 

heard Mr. Conatser offer to "trade out onto a rock truck." 

Mr. Day did not consider Mr. Conatser to be an experienced 

rock truck driver because "the only thing that I have ever 

known Chuck Conatser done was run an endloader" {Tr. 250). 

Although Mr. Day stated that he could drive a rock truck, he 

did not consider himself to be an experienced truck driver. 

If his foreman had asked him to drive a rock truck on 

January 26, he would have done so "because he asked me to," 

and that he may or may not have had problems with the truck. 

He confirmed that he has "filled in" as a rock truck driver at 

Red Flame {Tr. 248-252). 

On cross-examination, Mr. Day stated that when the road 

was scraped on January 26, "we went down beyond the snow," but 

he could not recall how deep they penetrated the roadway 

surface. Once the roadway was cut, the trucks started hauling, and the more they hauled the roadway conditions improved. 

In his opinion, the roadway was cut sufficiently enough for 

the trucks to operate safely {Tr. 257). He could not recall 

the number of hours Mr. Conatser drove a truck on the two 

occasions he observed him at No. 8 Ltd. (Tr. 258). Mr. Akers 

confirmed that he has driven a rock truck on the job up and 

down hills, but cornpared•to other drivers who do this every 

day, he did not consider himself to be an experienced rock 

truck driver (Tr. 259). He confirmed that he received no 

training when he began driving a rock truck, but that he had 

driven coal trucks and tractor trailers prior to that, and 

that is why he could simply get into a rock truck and drive it 

(Tr. 260). 

Wesley Burke, testified by deposition that he serves as 

the president of the No. 8 Ltd. of Virginia and the Red Flame 

Coal Company mines, both of which are incorporated under the 

laws of Virginia, and authorized to mine in the State of 

Kentucky. He confirmed that both companies conduct strip mining operations, and that No. 8 Ltd. owns the Coaland Corporation, which in turn owns the Red Flame Coal Company (Tr. 1-5). 

Mr. Burke confirmed that when Mr. Conatser was discharged 

on January 26, 1987, he (Burke) was president of Red Flame. 

432 
He also confirmed that the training of miners is under the 

authority of mine superintendent Cruce Davis, and he believed 

that the designated health-safety official is foreman Zack 

Mullins (Tr. 15-16). 

Mr. Burke stated that he learned of Mr. Conatser's discharge late in the morning on the day of his discharge, and 

that Mr. Davis informed him that Mr. Conatser had been discharged or quit his job for refusing to operate a rock truck 

(hauler). Mr. Burke stated that Mr. Davis told him that 

Mr. Mullins had informed him that he (Mullins) gave 

Mr. Conatser the option of driving the truck or going home, 

and that Mr. Conatser had chosen to go home (Tr. 17-18). 

Mr. Burke confirmed that later that same day, he discussed the 

matter with Mr. Davis and Mr. Mullins, and he explained what 

transpired as follows (Tr. 19-21): 

Q. Okay, and tei1 me what was said at that 

conversation? 

A. Again, exact words I can't remember, I just 

remember the situation. Chuck was gone and we 

were trying to find out the details why, and 

Zack was the foreman on the job and had been 

involved in it so we went and talked to him. 

And, basically, he told us that they'd had some 

trouble getting the men lined out, they didn't 

have enough men to do what he wanted to do, so 

he had to change plans. And that he'd asked 

Chuck to run the hauler, and Chuck had refused. 

He'd told Chuck to either run the hauler or go 

home, and he said that Chuck got his dinner 

bucket and his shoes and went home. 

Q. Did Zack say which rock truck - that's what 

you're referring to as a hauler, right? 

A. Right. 

* * * * * * * 

Q. Did you ask Mr. Mullins which truck he had 

instructed Conatser to operate? 

A. I can't remember. All I know is it was a 

discussion over a hauler, and I might have 

asked him and I might not have. I don't know. 

433 
Q. was there any discussion with Zack Mullins 

about the condition of the hill that 

Mr. Conatser would have had to drive down had 

he driven the rock truck? 

A. No. The only thing that, along those lines 

that I can remember, is I asked him if there 

was any certain reason why Chuck wouldn't have 

wanted to have run it, and he said no, none 

that I know of. 

Q. You asked Zack Mullins if he knew of any 

certain reason why Chuck wouldn't have wanted 

to drive the rock truck, and he said no? 

A. Uh-huh. 

Mr. Burke stated.that the weather was cold, and he could 

not recall whether there was a foot of snow on the ground, and 

that when he arrived at the mine "if there was a foot of snow 

it had melted when I got there" (Tr. 21). He could not remember whether he asked Mr. Mullins whether or not Mr. Conatser 

was qualified to drive a truck, and he assumed that Mr. Davis 

had discussed this with Mr. Mullins before he arrived at the 

mine. Mr. Burke could not recall Mr. Mullins telling him that 

Mr. Conatser informed him that he could not drive the truck, 

and "The way it was posed to me was that Zack had given Chuck 

the option to either run the truck or go home. That's the way 

I understood it" (Tr. 23). 

Mr. Burke confirmed that he received a copy of 

Mr. Conatser's complaint in the mail, and vaguely remembered 

Mr. Conatser's claim that he was not qualified or experienced 

enough to drive the rock truck on the day in question. 

Mr. Burke stated that he did not at that time check any 

company training records to see if Mr. Conatser had the training to qualify him as a rock truck driver, but that he did ask 

Mr. Davis about it, and Mr. Davis informed him that 

Mr. Conatser could drive the truck. Mr. Burke stated that he 

had no personal knowledge as to whether Mr. Conatser was qualified to drive the truck, and stated that "the way I envision 

it is if somebody can run one piece of heavy equipment they 

can run another" (Tr. 24). He explained that the fact that a 

person can operate one piece of equipment does not qualify him 

automatically to operate another one if they were not trained, 

and that "given proper training and opportunity, I would think 

a person would be able to pick it up" {Tr. 25). 

434 
Mr. Burke confirmed that after Mr. Conatser's discharge, 

Mr. Conatser telephoned him at his office, and that "the main 

topic of the conversation was Chuck getting his job back, or 

reaching some type of settlement" (Tr~ 25). Mr. Burke confirmed that he later met with Mr. Conatser and Mr. Davis in 

his office, and he explained what transpired as follows (Tr. 

26-28) : 

A. Well, again Chuck came in and wanted to get 

his job back or get some kind of settlement. 

He said he had some payments that he needed to 

make and he was out of a job. 

Q. Okay, what else was said? 

A. Well, I can't remember exactly. I remember 

Cruce asking him why he refused to run the 

hauler. 

Q. What did Chuck say? 

A. I don't remember his explanation. It was 

something to the fact tbat he didn't think that 

he could do it, and Cruce being the superintendent, and in more charge of the situation, I 

felt like that that was wrong, that he could, 

in fact, do it. 

Q. Do you remember Chuck telling you and Cruce 

that he didn't feel it was safe to operate the 

truck because he hadn't been trained, or he 

wasn't qualified? 

A. I remember generally there was some discussion about that, but exactly what was said I 

can't tell you. 

Q. At this point, when you met with Chuck and 

with Cruce to talk about the situation, you 

knew that Chuck ~as saying it would have been 

unsafe for him to drive the truck on the day in 

question? 

A. I'm saying that I assumed that he felt like 

he had a reason for doing that, yeah. 

Q. But I'm talking about a safety reason for 

refusing to drive the truck. 

435 
A. Safety reasons, no I wouldn't say safety. 

I'm assuming - I was assuming when he came in 

that he had a legitimate reason for doing that. 

And that's what the discussion was to be about, 

and that's why Cruce was there. And like I 

said, Cruce is much more in tune with the situation than I am, and he and Chuck just didn't 

see eye to eye on it. 

Respondent's Testimony and Evidence 

Shawn Sturgill, dozer operator, confirmed that he went to 

work at the Red Flame Strip operation in June, 1986, with 

Mr. Conatser, and that prior to that time worked at the No. 8 

Ltd. Strip operation from 1982 or 1983 until going to Red 

Flame. Mr. Sturgill confirmed that he operated a 773-B 50-ton 

rock truck at Red Flame and at No. 8 Ltd., and that he first 

learned to drive the truck at No. 8 when his father rode 

around with him one Saturday during the summer, and when he 

later drove around one or two times with another driver until 

he learned to drive the truck. He did not know whether the 

respondent ever filed a training certificate on his behalf 

confirming that he had received task training in the operation 

of a rock truck. 

Mr. Sturgill confirmed that while at the No. 8 Ltd. operation, he observed Mr. Conatser driving a rock truck "maybe 

10 times," but he could not recall whether he did so during 

the winter, and that it may have been late summer or early 

fall, but he was not sure. 

Mr. Sturgill confirmed th~t he was out of town on the day 

Mr. Conatser was discharged. Mr. Sturgill also confirmed that 

he has dr1iven the rock truck down the haul road at Red Flame, 

and that the road has a curve in it whi~h requires the braking 

of the truck. He described the length of the road as less 

than a football field, and confirmed that it was bermed. He 

also confirmed that any snow on the road would be scraped off, 

and that foreman Mullins and superintendent Davis never hesitated· in' responding to any requests to remove any snow on the 

road. 

Mr. Sturgill confirmed that when he observed Mr. Conatser 

driving the rock truck at No. 8 Ltd., he would pass him on the 

roadway or see him at the pit area, and he observed nothing 

unusual about his operation of the truck. Mr. Sturgill was of 

the opinion that there were no differences in operating a rock 

truck at Red Flame or No'. 8 Ltd. "if you have driven one long 

enough" (Tr. 269-281). 

436 
On cross-examination, Mr. Sturgill stated that he never 

observed Mr. Conatser drive a rock truck at Red Flame during 

the period he was there from June, 1986 until the day 

Mr. Conatser was fired. He also confirmed that he worked with 

Mr. Conatser for 4 to 5 years at No. 8 Ltd., and observed him 

driving a rock truck there "maybe 10 times." He denied that 

he ever told Mr. Conatser that he had not seen him drive a 

rock truck for 5 years. He confirmed that when he observed 

Mr. Conatser driving the truck, it was always on level ground 

at the No. 8 Ltd. site. 

Mr. Sturgill stated that his training on the rock truck 

consisted of driving once with his father, and five or six 

trips consisting of an hour and a half with a mechanic who 

showed him how to operate the truck. 

Mr. Sturgill stated that a slick roadway would make a 

difference to an inexperienced truck driver, and in his 

opinion it would not be safe for such a driver to drive a 

truck down a slick hill. He would not want an inexperienced 

driver to be "the first one down tne hill." 

When asked for his opinion as to whether a truck driver 

with 7 days of experience driving a rock truck would be considered inexperienced, Mr. Sturgill stated that it would depend 

on the individual, and that each person is different. However, he would consider anyone with a month of driving experience to be an experienced driver. 

Mr. Sturgill confirmed that he has observed trucks sliding on the haulroad in question at Red Flame, and that he has 

himself done this when encountering small patches of ice, when 

the road was watered down, or when it rained. However, he was 

able to control the truck, and if the snow was scraped off the 

road, it was "o.k." {Tr. 281-294). 

Mr. Sturgill confirmed that he has observed trucks sliding down hills, and that he too has slid down a hill. He 

believed that if an inexperienced driver slid down a hill, it 

might present problems for him {Tr. 297). Sliding would occur 

when its raining and the road is wet, but he can control a 

slide. He would not expect any sliding if the road was 

scraped {Tr. 298). 

Robert Yeary, rock truck operator, confirmed that he has 

worked for the respondent for a year and a half, and has operated a rock truck for 7 to 8 months. He stated that he first 

learned h-0w to drive the t~uck after informing his foreman 

' 437 
that he wanted to learn. He accompanied another rock truck 

driver on four or five trips during the fall season, and considered himself to be trained. He could not recall that the 

respondent ever filled out any papers certifying that he was 

trained as a rock truck driver. 

Mr. Yeary confirmed that at the time Mr. Conatser was 

fired in January, 1987, he (Yeary) was working as a parts 

runner and did not work at the Red Flame operation "on the 

hill." Mr. Yeary stated that he has driven a rock truck on 

the Red Flame haulroad in question and had no particular 

problem doing so when it rained and the road was slick. He 

confirmed that when it snowed, the snow was always trammed off 

the roadway down to the mud or dirt. In his opinion, if someone had previously driven a rock truck, it would be 11 0.k. 11 for 

him to drive on the roadway in question. Mr. Yearly confirmed 

that he never observed Mr. Conatser drive a rock truck at anytime prior to his discharge {Tr. 298-30~). 

On cross-examination, Mr. Yeary confirmed that his initial rock truck training consisted of four to five trips with 

another driver for a total of 40 to 45 minutes, and he was 

shown how to operate the brakes and retarder before driving 

the truck himself. This training was on level ground during 

normal production time, and before Mr. Conatser's discharge. 

Mr·. Yeary was of the opinion that there are differences 

in operating a rock truck down a hill under wet road conditions, and on level, dry ground. One has to be more cautious 

going down hill. When asked whether he considered 45 minutes 

to be sufficient training to operate a rock truck, Mr. Yeary 

stated that he could not 1 say, a~d he pointed out that he had 

volunteered to learn how to drive the truck and that the 

respondent did not suggest that he do so. 

Mr. Yeary confirmed that he has observed trucks sliding 

down the Red Flame haul road, and that this would occur if one 

were driving on the wet road or applied the brakes. He never 

observed a truck flip over. Mr. Yeary could not state whether 

it was safe for an inexperienced driver to drive down the 

roadway· when it was wet, but he believed that such a driver 

would need to take several trips down the road in ord~r "to be 

shown the ropes." 

Mr. Yeary was of the opinion that a driver with 7 days 

experience at driving a rock truck should be able to drive 

down the Red Flame haul road after 11 to 12 inches of snow had 

been scraped from the roadway. The same was true in the case 

438 
of a driver with 10 to 30 days of driving experience (Tr. 

304-312). 

Roy Porter confirmed that he has worked for the respondent for 3 years. He started work at the No. 8 Ltd. strip 

mine operation, and for the last year has worked at the Red 

Flame strip. His duties included shooting coal, operating a 

drill, and operating a rock truck. 

Mr. Porter stated that he learned how to drive a rock 

truck after Cyrus Boggs showed him how to operate the brakes 

and controls, and after "a few trips down the hill." 

Mr. Porter believed that learning how to operate a rock truck 

was a simple matter, and that most of his fellow workers could 

readily learn how to drive one. 

Mr. Porter confirmed that he has worked with Mr. Conatser 

at the No. 8 and Red rlame operations and that he never 

observed him driving a rock truck. Mr. Porter stated that he 

was familiar with the haulage road at the Red Flame operation 

where Mr. Conatser was expected to drive the rock truck, and 

he confirmed that it was always kept in good shape, and that 

mine foreman Zack Mullins and mine superintendent Cruce Davis 

always kept the road scraped of snow and otherwise addressed 

and took care of any safety concerns of the men. 

Mr. Porter was of the opinion that with 7 days of experience at driving a rock truck, Mr. Conatser should be experienced enough to drive it down the haul road in question, while 

others may not. Mr. Porter stated that none of the other men 

who worked at Red Flame and who drove a rock truck ever took 

as long as 7 days to learn how to drive the truck (Tr. 

313-323). 

On cross-examination, Mr. Porter stated that as far as he 

personally was concerned, there was no difference in driving a 

rock truck down a hill or on level ground, and that this would 

pose no problem for him. He confirmed that when he first 

learned to drive a rock truck, he did it on the rainy haulroad 

in question, and although the truck slid, it did not bother 

him. He confirmed that he has observed rock trucks sliding on 

the roadway in question while going downhill, and ·he believed 

that this was normal. 

Mr. Porter confirmed that he received his rock truck driving training before Mr. Conatser was fired, and that when he 

was first trained by Mr. Boggs, he had never previously driven 

any trucks other than a powder truck, and that his initial 

training was over the wet haul road (Tr. 323). 

439 
Robert Terry Boggs, stated that he has been employed by 

No. 8 Ltd. since 1980, and-has only visited the Red Flame job· 

site on two occasions, but has never worked there. Mr. Boggs 

stated that he is a rock truck driver, and that he has operated a dozer, loader, and grader. Mr. Boggs stated that he 

learned how to drive a rock truck by "getting in it and driving it." He had someone ride with him one day to show him how 

to drive the truck, and this was during snow and icy weather. 

He stated that when he fiist learned to drive the truck, he 

was asked to drive it to fill in for a regular driver who was 

off, or if his own equipment was down. He has since driven a 

rock truck on a iegular basis for at least 5 years. 

Mr. Boggs stated that he worked with Mr. Conatser at the 

No. 8 Ltd. job site for approximately 5 to 6 years, and 

observed him driving a rock truck 2 to 4 years ago hauling 

coal from the pit up _and down a hill. He also observed him 

driving a smaller rock truck on another occasion back and 

forth over a haul road for a distance of one-half a mile 

one-way, and that on both occasions the weather conditions 

were dry. He also observed him on another occasion hauling 

from under a back hoe, and indicated that Mr. Conatser had 

filled in on other days for the regular 777 rock truck driver. 

Mr. Boggs could not state the number of times he observed 

Mr. Conatser driving a rock truck, and indicated that on some 

days he may have hauled one truck load, and on others, four 

truck loads. The weather conditions wera always dry, and 

Mr. Conatser's travels would take him to the pit. 

Mr. Boggs stated that when he observed Mr. Conatser driving he appeared to be "O.K.," but that he was afraid to back 

up the truck close to the dumping area, and would dump his 

load 10 to 15 feet from the dump area. Mr. Boggs stated that 

he never observed anything which would lead him to believe 

that Mr. Conatser was not qualified to drive a rock truck. 

Mr. Boggs believed that he last saw Mr. Conatser drive a 

rock truck in June, 1986. When asked whether driving a truck 

7 days would qualify one to drive a rock truck, Mr. Boggs 

replied that "it would depend on the individual," and that he 

would have to ride with the person to observe him driving 

before he could conclude that he was a qualified driver. However, based on his observations of Mr. Conatser while he was 

driving rock trucks, Mr. Boggs believed that he was a qualified driver. 

Mr. Boggs stated that he would have no problem driving a 

rock truck in snow, ice, or mud, and he confirmed that snow 

440 
was always scraped from the haul roads. He also confirmed 

that he has accompanied new drivers while training and showing 

them the operator's controls and otherwise instructing them in 

the operation of the truck. 

Mr. Boggs confirmed that Mr. Mullins has always responded 

to any of his safety concerns and always assigns people to 

clear the haul roads of any rocks or snow. Mr. Boggs also 

confirmed that he has never known Mr. Mullins or superintendent Davis to ever ask anyone to do anything which was unsafe 

{Tr. 334-359}. 

On cross-examination, Mr. Boggs confirmed that he never 

observed the haul road at the Red Flame job site. He stated 

that wet roads are more hazardous than dry ones, and that he 

has observed experienced truck drivers slide on hills. 

Although he has heard of rock trucks turning over, he has 

never seen one. 

' 

Mr. Boggs stated that before learning to drive a rock 

truck, he had 5 years of prior experience driving coal trucks, 

including driving in snow conditions. He also indicated that 

even though snow may be scraped off a haul road, it may still 

be wet because of freezing and thawing. 

Mr. Boggs confirmed chat some of his fellow miners have 

expressed a desire not to drive rock trucks because they find 

it boring, or would rather operate their own equipment. He 

has never known of anyone refusing to drive a truck because of 

any safety reasons. He also confirmed that he did not speak 

with Mr. Conatser about his refusal to operate the rock truck 

in question, and that he observed Mr. Conatser operate up and 

down the pit area at No. 8 Ltd. on two occasions {Tr. 

359-375}. 

Tommy Roger Dotson, confirmed that he is employed by 

No. 8 Ltd., as a loader operator, but is assigned to work at 

the Red Flame job site. He has been so employed since July, 

1986, and he worked with Mr. Conatser until his discharge in 

January, 1987. Mr. Dotson confirmed that he can operate a 

rock truck, and that he learned to drive it by observing other 

operators, and familiarizing himself with it by riding and 

taking four or five loads. He learned how to drive on his 

first day on the truck. 

Mr. Dotson stated that he observed Mr. Conatser operate a 

rock truck at Red Flame only once when he got into a 50-ton 

truck on the parking lot and backed it up for some 30 to 

40 feet •. He stopped the truck and reparked it after a foreman 

441 
indicated that the truck was not needed and would not be used. 

Mr. Dotson confirmed that he was at work with Mr. Conatser on 

the day of his discharge and that he was working on a scraper 

to clear the haul road of snow (Tr. 376-381). 

On cross-examination, Mr. Dotson confirmed that he worked 

with Mr. Conatser on a regular basis, and with the exception 

of the one instance when he observed him backing up his truck, 

he has never observed him driving a rock truck. At the time 

Mr. Conatser backed up the truck, Mr. Dotson believed that 

Mr. Conatser was going to load and haul coal from a pile near 

the parking lot to a storage pit at the other end, a distance 

of no more than 100 feet over fairly level ground (Tr. 

381-383). 

Zachary J. Mullins, testified that he was the foreman at 

Red Flame from April, 1985 to July, 1987, and that he is 

currently working at the No. 8 Ltd. site. He confirmed that 

Mr. Conatser worked for him at Red Flame from July 14, 1985 to 

Janury 26, 1987, and that he would also be assigned to the 

No. 8 Ltd. site to load coal. He stated that Mr. Conatser 

operated the loader while at Red Flame, but that on one 

occasion, he observed him driving a rock truck "coming off 

down in the hollow field," during the summer, but did not know 

how many trips he made. He assumed that Mr. Conatser had 

"switched off" that day with another operator, but he was not 

sure. Since Mr. Conatser did not seek his permission to 

switch with the truck driver, and since he observed him in the 

truck, he assumed that he could drive it, and he observed 

nothing that would indicate otherwise (Tr. 383-397, 409). 

Mr. Mullins confirmed that there was 10-12 inches of snow 

on the ground on January 26, 1987, but that the clearing of 

the haulroads began before anyone arrived for work. His usual 

practice was to clear the roads before any trucks used them. 

Mr. Mullins stated that he assigned one of the truck drivers 

to operate a drill that day, and since Mr. Conatser's loader 

was down for repairs, he asked Mr. Conatser to drive the rock 

truck a~d "he said no. So, I told him he could drive the 

hauler or go to the house" (Tr. 398). Mr. Mullins stated that 

Mr. Conatser gave him no explanation for refusing to drive the 

truck, and simply asked him to retrieve his hard-toed shoes 

from the loader, and "I told him he could get his hard-toes on 

his way out" (Tr. 399). 

Mr. Mullins stated that Mr. Conatser did not state that 

he could not drive the rock truck, and simply told him "no" 

442 
twice. Mr. Mullins explained that "to me, he was just refusing to drive the hauler, period, I felt like that he felt like 

that he just considered himself to be nothing but a loader 

operator" (Tr. 399). Mr. Conatser made no requests other than 

to retrieve his shoes, and had he asked for someone to accompany him in the truck, or informed him that he was incapable 

of driving it, Mr. Mullins would have assigned someone to go 

with him, or he would have personally gone with him to show 

him how (Tr. 400). Mr. Mullins did not ask Mr. Conatser for 

his reasons for refusing to drive the truck because he 

believed it was incumbent on Mr. Conatser to voice any doubts 

to him (Tr. 402). 

Mr. Mullins stated that he was satisfied that Mr. Conatser 

was qualified to drive the rock truck, and that this conclusion 

on his part was based on the fact that he had previously 

observed him drive a rock truck one time down to the hollow 

fill, and the fact that he had a "general reputation" of being 

capable of driving a rock truck (Tr. 409). He also vaguely 

recalled one other occasion at Red Flame where Mr. Conatser 

backed up a rock truck for 15 feet. In view of the fact that 

Mr. Conatser took it upon himself to drive the truck, 

Mr. Mullins assumed he could drive it. Mr. Mullins confirmed 

that when Mr. Conatser refused to drive the truck he said 

nothing to him about the weather conditions, or that driving 

the truck would be unsafe, and he made no statements that he 

was not qualified to drive the truck (Tr. 412). Mr. Mullins 

stated "if he felt like it was unsafe that he would have told 

me that it was unsafe instead of telling me to get his 

hard-toes" (Tr. 414). He explained further as follows at (Tr. 

415-417): 

At that point I had never told him he was fired. 

At that point I felt like that he knowed he was 

going to go to the house one way or the other, 

whether it would be quitting or me firing him, 

and was the reason that he asked me to get his 

shoes. 

JUDGE KOUTRAS: When he told you twice no, no, 

and you told him to get on to the house, that 

meant he was fired, didn't it? 

THE WITNESS: When he told me no, I said, well, 

you can drive the hauler or go to the house. 

JUDGE KOUTRAS: You gave him a choice? 

443 
THE WITNESS: Yes. I said Larry and all them 

other boys, I said they drove them and there is 

no reason you can't. And, he said no again. 

* * * * * * * 

JUDGE KOUTRAS: Well, if you tell a fellow to 

go on to the house, what does that mean in 

normal modern talk? That means a man is fired, 

right? 

THE WITNESS: Well, it --

JUDGE KOUTRAS: You gave him a choice. You 

claim you gave him a choice, to either operate 

the truck or go on to the house, right? So, he 

opted to go on to the house. 

THE WITNESS: No, it don1 t necessarily mean you 

are fired. 

JUDGE KOUTRAS: What does that mean, take the 

day off, go home, and then come back tomorrow? 

THE WITNESS: At times that's what you do. 

JUDGE KOUTRAS: How about this time? 

THE WITNESS: This time I meant that he was 

fired. 

Mr. Mullins explained his procedure for teaching someone 

to drive a rock truck as follows (Tr. 420-421): 

A. You show them everything about one. You 

t~ll them the hazards of it. You show them how 

to keep it maintained as far as engine, you 

know, and the lubricant system of it. That's 

the first thing you show them before they climb 

in it. Basically there is two seats in a 

hauler. It is the only piece of equipment on 

the job that two can ride. The driver will 

more than likely sit in the passenger seat and 

show whoever is learning everything about it 

and ride with him. 

Q. How long does it normally take? 

444 
A. Probably one or two trips and it will give 

you the basic idea about driving one. You 

learn something every day. I would say it 

would basically be the person. 

Q. would seven days be enough? 

A. Yes. 

on cross-examination, Mr. Mullins confirmed that he discharged Mr. Conatser on January 26, 1987, and that the only 

basis that he had to conclude that he was qualified to drive 

the rock truck in question was his observation the one time he 

drove it down the hollow fill at Red Flame, and the "talk" 

among the miners that Mr. Conatser drove a truck at No. 8 Ltd. 

before he came to work at Red Flame. Mr. Mullins confirmed 

that Mr. Conatser had not previously informed him that he 

could drive a rock truck {Tr. 423-424). Mr. Mullins stated 

the one time that he saw Mr. Conatser drive at Red Flame was 

when he drove a 50-ton 773 rock truck, and that he "thought" 

and "assumed" that Mr. Conatser had traded off with Maynard 

Harris {Tr. 428-429). 

Mr. Mullins confirmed that when he discharged 

Mr. Conatser, he did not ask him whether he was qualified to 

drive the truck, nor did he offer to train him because "he 

give me no reason to." He insisted that Mr. Conatser simply 

told him "no" when he asked him to drive the truck, and "if he 

had told me he can't drive a rock truck, I would ask him why" 

{Tr. 429). He did not recall Mr. Conatser stating "I can't 

drive the truck" {Tr. 423). Mr. Conatser did not tell him 

that he should only have to operate·the loader, and at no time 

did he tell him that he was only a loader operator {Tr. 433). 

Mr. Mullins confirmed that he never gave Mr. Conatser any 

task training in driving a rock truck at Red Flame, and that 

when he worked at No. 8 Ltd., Mr. Mullins assumed that 

Mr. Conatser had received such training (Tr. 432). He also 

confirmed that Mr. Conatser had never previously refused to 

operate any equipment or stated that he was only going to 

operate an endloader (Tr. 434). 

Mr. Mullins stated that on the day of the discharge no 

coal was hauled "because the coal trucks couldn't get to it," 

and that no haulage at all was done "in the hollow field," and 

that "we hauled to the level." He could not recall "if we had 

made it to the pit with them or not" (Tr. 437). He confirmed 

that he did not check his training records to determine 

445 
whether Mr. Conatser was qualified to drive a rock truck 

because "I had seen him driving a hauler" C~r. 439). 

Mr. Mullins stated that if Mr. Conatser had told him anything but "no,"·or given him a reason for not driving the 

truck, or felt that it was endangering his life or safety, he 

would not have required him to drive the truck (Tr. 442). 

Mr. Mullins confirmed that he did not ask Mr. Harris whether 

or not Mr. Conatser had switched out with him, nor did he 

actually observe Mr. Conatser backup a rock truck (Tr. 443). 

Mr. Mullins stated that after the discharge, neither 

Mr. Davis or anyone else from management asked him whether or 

not Mr. Conatser was qualified to drive a rock truck. 

Mr. Davis and Mr. Burke never asked him to check the training 

records to determine whether or not Mr. Conatser had been 

trained to operate the truck. Mr. Mullins could not recall 

whether Mr. Burke ever asked him about the condition of the 

hill on the day of the discharge (Tr. 449-450). He confirmed 

that the decision not to rehire Mr. Conatser was made "because 

basically we all three felt like he was qualified to do it and 

he just flat out refused to do it," and "we thought he was 

qualified" {Tr. 451, 453). Mr. Mullins also confirmed that 

when he met with Mr. Burke and Mr. Davis, he knew that 

Mr. Conatser had filed a discrimination complaint and that 

another reason for not reinstating him was because he surmised 

that Mr. Conatser did not have a case, and the respondent did 

{Tr. 454). 

Mr. Mullins stated that when the decision was made not to 

rehire Mr. Conatser, no one checked the respondent's training 

records to determine whether he had been trained to drive a 

rock truck because "if someone gets on something or other and 

drives it, you assume that they know what they are doing, 

especially when they have been on a job for 12 years or whatever" (Tr. 455). He also stated that "I assumed he had enough 

ambition to go down the hill" {Tr. 456). Mr. Mullins confirmed that he never previously fired anyone for refusing to 

do a job that he knew he was qualified to do (Tr. 457). 

Cruce Davis, Superintendent, No. 8 Ltd. and Red Flame, 

testified that he has observed Mr. Conatser driving a rock 

truck on three different occasions at the No. 8 Ltd. site 

during March, 1986, and he described what Mr. Conatser did as 

follows (Tr. 474): 

He took the endloader, as he said the other 

day, around the hill to a pit of coal that we 

needed to stockpile. He loaded it himself. If 

446 
I am not mistaken, that was sometime during 

March. To the best of my knowledge, it was 

good weather, dry. The terrain, there 

was -- well, it wasn't completely level. The 

road around the bench had a dip in it and you 

go down a little hill and up another hill. 

There was a curve in it and he went up a pretty 

steep grade on the bench and loaded the truck 

and then came back off and dumped it in the 

stockpile. 

Mr. Davis stated that Mr. Conatser hauled coal for 

3 days, but he was not sure whether he did it for full days. 

He hauled along a road grade of approximately 150 feet long, 

and it was "quite a bit steeper than the road over at Red 

Flame." Based on his observations of Mr. Conatser driving the 

rock truck on these occasions, Mr. Davis had no reason to 

believe that Mr. Conatser had any problems driving the truck, 

and he was of the opinion that he was qualified to drive it 

(Tr.:475). Mr. Davis confirmed that he first learned of 

Mr. Conatser's claim that he was not qualified to drive a rock 

truck after he was discharged, and he did not believe him (Tr. 

477). 

Mr. Davis stated that when he spoke with Mr. Mullins on 

the morning when Mr. Conatser was discharged, Mr. Mullins 

informed him that he had asked Mr. Conatser to drive the rock 

truck and "he told him no, that he couldn't" (Tr. 479). 

Mr. Davis was of the opinion that Mr. Conatser's refusal to 

drive the truck was based on the fact "that he just didn't 

want to drive the truck that day" and that "I feel like he 

looked at himself as being a loader man, strictly a loader man. 

He didn't want to do anything else but run a loader." 

Mr. Davis stated further that "he felt like Zack should have 

taken some of the other truck drivers that had been driving 

trucks from time to time and put them on the truck and let him 

run the loader" (Tr. 480). 

Mr. Davis confirmed that he and Mr. Burke met with 

Mr. Conatser after he was discharged, and the decision not to 

rehire Mr. Conatser was based on the fact that he refused to 

do something he was qualified to do, and that "we don't tolerate that" (Tr. 481). Mr. Davis also stated that Mr. Conatser 

had a "terrible work record" and missed a lot of work, but he 

confirmed that this had nothing to do with his discharge. 

Mr. Davis was of the opinion that Mr. Mullins acted reasonably 

in discharging Mr. Conatser, and while he had never observed 

~r. Conatser drive a rock truck at Red Flame he believed that 

447 
"if you can drive a hauler on one job you can drive it on 

another job" (Tr. 484). 

Mr. Davis stated that there was no unusually steep hills 

at the Red Flame site, and that the hill where Mr. Conatser 

was expected to drive the truck had a grade of approximately 

ll-to-12 percent, and while it did snow, he did not believe 

that this was unusual inclement weather for the wintertime 

(Tr. 487). Mr. Davis stated that had Mr. Conatser informed 

Mr. Mullins that he was afraid to drive the truck, Mr. Mullins 

would either have assigned someone to show him how, or would 

have assigned Mr. Conatser to a loader and put someone else in 

the truck. Mr. Davis did not believe that Mr. Mullins would 

ever endanger anyone in a piece of equipment, and if he did, 

he would fire Mr. Mullins (Tr. 488). 

On cross-examination, Mr. Davis stated that while he did 

not know exactly how many hours Mr. Conatser operated the 

truck on the 3 days that he observed him at the No. 8 Ltd. 

site, he did observe him coming and going 12 to 20 times during those 3 days while driving the 50-ton 773 rock truck. 

Mr. Davis confirmed that he had previously stated in his 

pretrial deposition that he "thought" that Mr. Conatser had 

operated a rock truck at Red Flame after swapping out with 

Maynard Harris, but that he did not actually know that for a 

fact, and never observed him driving a truck. He also confirmed that he never asked Mr. Harris whether he and 

Mr. Conatser had "swapped out" (Tr. 490-494). 

Mr. Davis confirmed that Mr. Mullins told him that 

Mr. Conatser stated "no, I can't" when he asked him to drive 

the truck. He also confirmed that while he has been the 

superintendent at Red Flame and No. 8 Ltd., Mr. Conatser has 

received no rock truck driving task training, and that 

Mr. Conatser never told him that he would not operate any 

equipment other than an endloader. Mr. Davis stated that if 

anyone told him "I can't drive a rock truck," this would mean 

"that I would train him" (Tr. 497-501). 

Complainant's Rebuttal 

Maynard Harris, loader operator, Red Flame Coal Company, 

confirmed that he has been so employed since May, 1986, and 

that he worked with Mr. Conatser from that time until his discharge in January, 1987. He stated that he never observed 

Mr. Conatser operating a rock truck. Mr. Harris also· confirmed that while he is a loader operator, he has driven a 

rock truck, and he denied that he has ever "traded out" with 
Mr. Conatser so that he could drive his rock truck. He confirmed that he knows of no one else who has "traded out" with 

Mr. Conats~r (Tr. 507-511). 

Mr. Conatser testified that his previous rock truck driving experience has always been on level ground, and that he 

has never been trained on a rock truck, and knew nothing about 

the retarder or what gear to put the truck in while going down 

hills (Tr. 513-517, 521). He denied that he ever backed up a 

rock truck while working at Red Flame (Tr. 519). Although he 

knew how to operate the rock truck foot brakes, steering 

wheel, and lights, he was "always scared" of the truck, but 

was not afraid to drive one on level ground because "it's just 

there ain't no danger of anything happening to you there" (Tr. 

520). He denied that he ever operated a truck on a hill (Tr. 

522). 

Mr. Conatser admitted that he never said anything to 

Mr. Mullins about his safety concerns at the time of his 

refusal to drive the truck because "I was just in shock" and 

"never thought to" and "I didn't know I had to." He also 

admitted that before Mr. Mullins asked him to drive the truck, 

he discussed with the mechanic the probability that 

Mr. Mullins would ask him to do so, and that he would have to 

drive it down the haulroad (Tr. 522-525). Mr. Conatser confirmed that he learned that telling Mr. Mullins about his fear 

of driving the rock truck was critical to his case after he 

talked with MSHA Inspector South, and that "he said that you 

had to tell them that you were in fear for your life" (Tr. 

525). When asked whether he was aware of the fact that he was 

supposed to bring any safety concerns to the attention of his 

supervisors, Mr. Conatser responded "I guess so" (Tr. 527). 

Complainant's Posthearing Depositions 

Bill Meade, self-employed long-distance trucker, testified that he worked for No. 8 Ltd. from 1975 through 

September, 1986, as a mechanic foreman, and that from the 

Spring of 1983 until he quit in September, 1986, he was the 

foreman of the No. 8 Ltd. strip mining site. He confirmed 

that Mr. Conatser worked for him at the No. 8 Ltd. site for 6 

to 7 years, and that he was his supervisor during that time. 

Mr. Conatser's job was an endloder operator, and he loaded 

some rock, but mostly coal. Mr. Meade stated that 

Mr. Conatser was one of his best endloader operators, and that 

he would hire him if he were in business. 

Mr. Meade stated that he was an experienced rock truck 

driver, and has driven trucks on level and steep ground, and 

449 
in wet and dry conditions. He considers a rock truck to be 

the most dangerous piece of equipment on a strip job, and 

depending on the conditions under which it is operated, and if 

one is not trained in all of its controls, "it is very dangerous because it can get away from you at the bat of an eye" 

(Tr. 11). Mr. Meade described the controls of different 

models of rock trucks used at the No. 8 Ltd. site, including 

the braking systems, and the skills required to operate the 

trucks on hills, steep ground, and under wet conditions. He 

indicated that the vehicle manual that comes with the 

Model 777 or 773 rock truck states "do not operate this 

machine on steep ground during wet or slick conditions" (Tr. 

12-18). 

Mr. Meade confirmed that he has observed rock trucks sliding down hills in wet conditions, and that this is a common 

occurrence. He also confirmed that while he was employed at 

the No. 8 Ltd. site, he was aware of rpck truck accidents. He 

stated that Cyrus Boggs, an experienced driver, put an 85-ton 

777 truck into a ditch while driving down a slick road, and 

bent the fenders. Mr. Boggs also had another problem coming 

up a slick hill, but it did not damage the truck. Jerry 

Sturgill wrecked a 773-B truck, and it had to be pulled out 

with a dozer. ,Robert Yeary, an inexperienced driver, damaged 

a 777 truck engine when the truck got away from him on a steep 

hill, and Roy Porter, who was also inexperienced, recently 

damaged a 777 truck at Red Flame's operation when he backed it 

into the pit and damaged the bumper. Shawn Sturgill, an 

inexperienced driver, bent the drive shaft on a 773-B truck 

when it got away from him at the No. 8 Ltd. site and went into 

the hollow fill. Mr. Boggs was also involved in two or three 

incidents with a 3311 Terex, 85-ton truck, and a 40 ton 3307 

Terex truck on slick ground CTr. 19-27). Mr. Meade described 

some of the problems that a rock truck driver could encounter 

driving down hills in wet conditions (Tr. 27-30). 

Mr. Meade confirmed that Mr. Conatser operated a 773-A 

rock truck at the No. 8 Ltd. strip site, and during the 

6 years he was there he drove it five to six times in level 

areas during the spring of 1986. He did not drive the truck 

into the hollow fill. On one day, Mr. Conatser filled in for 

another driver, and he operated a 777 model while hauling rock 

over a flat and level area 300 to 500 feet wide, and over a 

distance of a few hundred yards. He hauled rock in and out of 

a level pit area (Tr. 30-35). 

Mr. Meade was of the opinion that Mr. Conatser was not 

qualified to drive a rock truck up and down hills in wet conditions because he had no experience at all and was not capable 

450 
of hauling in any steep or dangerous territory (Tr. 39). 

Mr. Meade was not aware that Mr. Conatser ever drove a truck 

while stockpiling coal over 3 consecutive days, and the 

longest time that he ever drove a truck was for 8 hours when 

he filled in for the driver previously mentioned. Mr. Meade 

believed that Mr. Conatser probably drove a truck for a total 

of 3 full days during all of the time he was employed at the 

No. 8 Ltd. site (Tr. 40). 

Mr. Meade believed that Mr. Conatser went to work at the 

Red Flame site in June, 1986, and he stated that the steepness 

of the hollow fill hill at Red Flame did not compare with the 

pits at No. 8 Ltd. where Mr. Conatser drove a truck. The hill 

at Red Flame was 18 degrees in some places, and the areas at 

No. 8 Ltd. were level, and at no time while he was there were 

the roads as steep as at Red Flame (Tr. 43). 

Mr. Meade confirmed that when he was foreman at the No. 8 

Ltd. site, it was his practice to use alternative level dumping sites and to never go down hills when it snowed or rained 

(Tr. 45). He stated that roads which are scraped after a 

12-inch snow in 25-30 degree weather would be muddy after 

scraping, and that the snow would be melting all day and the 

roads would not freeze unless the temperature was "in the 

teens." He was of the opinion that the road would have to be 

cut 3 to 4 inches deep to reach dry ground, but that melting 

snow on the roads would prevent them from staying dry (Tr. 

47). 

Mr. Meade was of the opinion that anyone who had driven a 

rock truck only on level ground would have to be task trained 

if he were assigned to drive the truck up and down hills 

because "it's a complete different operation" (Tr. 48). He 

confirmed that while he was foreman at No. 8 Ltd., if anyone 

told him that they did not want to operate a piece of equipment, he would assign someone else in their place. If anyone 

told him that they were afraid, or could not operate the equipment, he would find someone else because he did not believe in 

assigning anyone work which they did not norffially do on a 

daily basis because they would endanger themselves and others 

(Tr. 48-50). In his opinion, Mr. Conatser was a qualified 

endloader operator, and although he has seen him operate a 

dozer, he did not believe he was a qualified dozer operator 

(Tr. 51). 

On cross-examination, Mr. Meade confirmed that as a supervisor and foreman, he has trained employees to operate a rock 

truck, and he explained how this was done. He also confirmed 

that he trained Mr. Conatser to drive a rock truck on level 

451 
ground during the spring of 1986, and this consisted of riding 

with him "a trip or two" (Tr. 55). Mr. Meade also confirmed 

that since Mr. Conatser was not hired as a rock truck driver, 

his training was limited to operating the truck on level 

ground, and he was not aware of any other training received by 

Mr. Conatser at No. 8 Ltd. prior to 1986 (Tr. 56). · 

Mr. Meade stated that during the time Mr. Conatser worked 

for him at No. 8 Ltd. from 1978 to 1985, he had no knowledge 

that he ever operated a rock truck, and he never assigned him 

to drive a truck. He also was unaware of Mr. Conatser ever 

offering to "swap out" with a rock truck driver, and he indicated that this was against company policy because it was 

dangerous and expensive (Tr. 60). In those instances where he 

assigned someone to work in someone's place during their 

absence, he always made sure that the replacement was certified or trained to do the work (Tr. 61). 

Mr. Meade stated that Mr. Conatser was trained every year 

that he worked at No. 8 Ltd., but that his training was 

limited to his job as an endloader operator. He also stated 

that the miners were not trained to operate every piece of 

equipment, and switching jobs was not practiced, unless he 

personally selected someone to replace another and was assured 

that he was trained to do a particular job (Tr. 63-64). He 

never permitted any of his truck drivers to go up and down 

hills when it was wet or slick, and if it was snowing and 

25 degrees or above (Tr. 71). Mr. Meade confirmed that while 

he was foreman at No. 8 Ltd., task training was only given to 

those men who were moved from one piece of equipment to 

another, and that initial training was given to those men 

hired to drive rock trucks (Tr. 77). 

Mr. Meade confirmed that he observed Mr. Conatser drive a 

rock truck five to seven times during the 6-month period from 

January to June, 1986 (Tr. 72). Mr. Conatser's total hours of 

driving a rock truck would have amounted to 1 day for the two 

or three times he drove, and 6-1/2 hours when he replaced a 

driver, and 2 to 3 hours on the other occasions that he drove 

(Tr. 74-75). He estimated that Mr. Conatser's total rock 

truck driving experience was approximately 3 working days (Tr. 

95), and he explained further as follows (Tr. 100): 

Q. When you worked at the #8 strip site, did 

Chuck Conatser have a reputation as being a 

rock truck driver or a hauler operator? 

A. Chuck Conatser was a loader man. That's 

all that Chuck - everybody that knows Chuck 

452 
Conatser knows that he's a loader man. And, I 

mean, it's a known fact that's all he does. 

Chuck started out as a loader man, and that's 

all he ever wanted to be. And to me that's the 

only reputation he had with me, was he was my 

loader man. 

Q. Okay. 

A. As a matter of fact, he resented everytime 

I would try to get him haul that stuff because 

he told me that he was afraid. 

Q. The times that you assigned him to operate 

the hauler he didn't like it? 

A. Yeah, he didn't really like it, no. But, 

you know, he would go along if it was in a safe 

condition. 

Mr. Conatser denied that he had ever offered to swap out 

with Mr. Maynard Harris so that he could drive Mr. Harris' 

truck while Mr. Harris operated his loader. With regard to 

Mr. Meade's testimony that he operated a rock truck five to 

seven times at No. 8 Ltd. during the spring of 1986, 

Mr. Conatser stated that he only operated a rock truck on two 

occasions as he testified to at the hearing in this case. 

Respondent's Posthearing Depositions 

Cruce Davis testified as to certain task training certificates which he located for various equipment, and he was 

unable to locate any other certificates covering the period 

prior to his employment at No. 8 Ltd. in February, 1986. 

Approximately 24 to 28 equipment operators were employed at 

the No. 8 Ltd, site, and while he believed that no one would 

be allowed to operate equipment unless they were trained, he 

did not believe that any training certificates were filled out 

for these employees •. In his opinion, the dozer would be the 

most dangerous piece of equipment to operate since it would be 

pushing materials over the hill at high elevations. The 

Caterpillar 777 rock trucks do not have right and left steering brakes because they were disconnected or not there when he 

came to the site, and the retarders would only be used when 

the trucks are driven on hills or under wet conditions. 

Mr. Davis stated that the dozers and graders make the 

hills safe to operate on during wet or slick conditions, and 

sometimes the trucks are placed elsewhere to operate under 

453 
such conditions. On January 26, 1987, the roads were made 

safe for the trucks after they were scraped, and the trucks 

have enough braking power to operate on the hills. He had no 

knowledge that Cyrus Boggs, Jerry Sturgill, Robert Yeary, Roy 

Porter, Shawn Sturgill, or Terry Boggs ever wrecked a rock 

truck, and if they did, he would be aware of it. Although he 

has observed rock truck wheels sliding, he never saw them go 

"in the wrong direction," but given the right conditions such 

as an "awful slick" road, this was possible. Although there 

were no hollow fills at the No. 8 Ltd. site when he worked 

there during the spring of 1986, there were some "small hills" 

at a 9 to 10 percent grade coming out of the pit. He was not 

aware that Red Flame was in "any trouble" due to the steepness 

of the hill going to the hollow fill. He was unaware of any 

truck collisions at the sites. 

Mr. Davis stated that while anyone can operate a rock 

truck on level ground, this is not true on hills, and one "has 

to be used to it." He would not put just anyone on a rock 

truck on level ground, and just "turn him loose," but that if 

one "gets used to the truck controls" on level ground, after 

15 to 20 minutes, he should be able to drive the truck downhill. Task training is given to those who are newly hired, 

those who have never operated a piece of equipment before, and 

those who go from one piece of equipment to another. He knows 

of no one who has operated a rock truck on level ground being 

task trained to operate a truck on hills. He was aware of 

some employees refusing to operate a dozer after being asked, 

and after stating that they were unable to operate it. However, those who were known to be able to operate equipment 

have never refused, and if anyone expressed any fear in operating equipment, they would not be assigned to do so. 

Mr. Mead~ threatened him over some differences between them, 

and he has also threatened to shut the Red Flame job down 

several times. These threats were made over the C.B. radio, 

and Mr. Davis recognized Mr. Meade's voice. Mr. Davis conceded that rock trucks could have wrecked at the No. 8 Ltd. 

site before he worked there and that he may not have heard 

about i't. 

Cyrus Boggs--denied ever wrecking a rock truck, but 

recalled that he may have slid on the wrong side of the road 

and "put one into a ditch on the level," but not on a hill. 

One can slide backwards on slick road going uphill until the 

road is scraped, and he regularly operated rock trucks at 

No. 8 Ltd. up and down hills when it was raining, wet, or snowing, and "you would have to try." 

454 
Shawn Sturgill denied that he ever wrecked a rock truck 

at No. 8 Ltd. or Red Flame, but did get stuck in the mud and 

fill one time, but did not damage the truck and was in no 

danger. He has operated trucks at No. 8 Ltd. or Red Flame 

when the roads were wet or when it snowed, but the roads were 

scraped or cut. 

Terry Boggs denied that he had ever wrecked a rock truck 

or been hurt in one. He has had mechanical and transmission 

problems. The roads are scraped or rock is dispersed on the 

road in order to dry them out. He has operated trucks on 

hills when they are wet, and in the rain or snow, but the 

roads are always "fixed" before going up hills. On one occasion, he rolled backwards on a hill about 50 feet into "a 

little valley" when the truck "kicked out of gear" after he 

experienced transmission problems, and the truck gears have 

"kicked out" many times. He knew of one driver at No. 8 Ltd. 

who mired his truck into the spoil while turning and dumping, 

and he had to be pulled out with a dozer. Shawn Sturgill also 

got stuck in the mud with a truck while backing out of a dump. 

Roy Porter denied that he ever wrecked a rock truck at 

No. 8 Ltd. or at Red Flame, but did recall that a wheel fell 

over once while he was turning on top of a shot. Dozers are 

used to drag the roads, and he has driven trucks in snow and 

rain. He has a total of 3 weeks of experience at driving a 

rock truck, and stated that "I can drive it." He is sometimes 

used to drive a truck when substituting for someone who is 

sick. 

Robert Yeary confirmed that on one occasion while driving 

down the hollow fill road at Red Flame, a wheel fell off his 

rock truck and the front-end was damaged and parts had to be 

replaced. The incident was unexplained, and he was driving at 

normal speed in dry weather, and he was not hurt. He is 

unaware of any truck accidents while working at Red Flame. He 

has a year of truck driving experience, and drove one on one 

night shift at No. 8 Ltd., but Mr. Meade never observed him 

driving. 

Maynard Harris testified that during July, 1986, at Red 

Flame, he was operating an old rock truck which was not air 

conditioned, and Mr. Conatser was operating an air conditioned 

loader. Mr. Conatser called him over the radio and offered to 

swap jobs with him. Mr. Harris was operating the truck "out 

of the pit down into the hollow fill," and the road was steep. 

The first hill would have been as steep as it was on 

January 26, 1987, and had the swap occurred, Mr. Conatser 

would have driven on that road. However, they did not swap. 

455 
Findings and Conclusions 

In this case, Mr. Conatser's employment with the respondent terminated on the morning of January 26, 1987, after he 

refused his foreman's (Mullins) request to operate a rock 

truck. Although the respondent initially took the position 

that Mr. Conatser quit his job, it subsequently abandoned this 

position and it is clear from the testimony of Cruce Davis, 

and Zachary Mullins' own admissions that he discharged 

Mr. Conatser for refusing his request to drive the rock truck. 

In order to establish a prima facie case of discrimination 

under section 105(c) of the Mine Act, a complaining miner bears 

the burden of production and proof to establish Cl) that he 

engaged in protected activity and (2) that the adverse action 

complained of was motivated in any part by that activity. 

Secretary of Labor ex rel. Fasula v. Consolidation Coal 

Company, 2 FMSHRC 2768 (October 1980), rev'd on other grounds 

sub nom. Consolidation Coal Company v. Marshall, 663 F.2d 1211 

C3d Cir. 1981); Secretary on behalf of Robinette v. United 

Castle Coal Company, 3 FMSHRC 803 (April 1981); Secretary on 

behalf of Jenkins v. Hecla-Day Mines Corporation, 6 FMSHRC 1842 

(August 1984); Secretary on behalf of Chacon v. Phelps Dodge 

Corp., 3 FMSHRC 2508, 2510-2511 (November 1981), rev'd on other 

grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 

(D.C. Cir. 1983). 

The operator may rebut a prima facie case by showing 

either that no protected activity occurred or that the adverse 

action was in no way mo~ivated ~y protected activity. If an 

operator cannot rebut the prima facie case in this manner, it 

may nevertheless affirmatively defend by proving that it was 

also motivated by the miner's unprotected activities alone. 

Fasula, supra; Robinette, supra. See also Eastern Assoc. Coal 

Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. 

Stafford construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 

1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) 

(specifically approving the Commission's Fasula-Robinette test). 

Cf. NLRB v. Transportation Management Corporation, 462 U.S. 

393, 397-413 (1983) (approving nearly identical test under 

National Labor Relations Act. 

Complainant's Termination 

It seems clear to me from the record in this case that the 

complainant was discharged from his job by foreman Mullins on 

January 26, 1987, for refusing the request by Mr. Mullins that 

he drive a rock truck, and Mr. Mullins admitted that this was 

456 
the case. Consequently, the respondent's initial assertion 

that Mr. Conatser quit his job is rejected, and I conclude and 

find that he was in fact discharged. 

Complainant's Work Refusal 

A miner has the right under section 105Cc) of the Act to 

refuse to work if he has a good faith, reasonable belief that 

his continued work involves a hazardous condition. Pasula, 

supra, 2 FMSHRC at 2789-96; Robinette, supra, 3 FMSHRC at 

807-12; Secretary v. Metric Constructors, Inc., 6 FMSHRC 226, 

229-30 (February 1984), aff'd sub nom. Brock v. Metric 

Constructors Inc., 766 F.2d 46~472-73 Cllth Cir. 1985). 

However, where reasonably possible, a miner refusing work 

ordinarily must communicate or attempt to communicate to some 

representative of the operator his belief that a hazardous 

conditions exists. Simpson v. Kenta Energy, Inc. & Roy Dan 

Jackson, 8 FMSHRC 1034, 1038-40 (July 1986); Secretary on 

behalf of Dunmire & Estle v. Northern Coal Co., 4 FMSHRC 126, 

133-135 (February 1982); Dillard Smith v. Reco, Inc., 9 FMSHRC 

992 (June 1987); Miller v. Consolidation Coal Company, 687 F.2d 

194, 195-97 (7th Cir. 1982) (approving Dunmire & Estle communication requirement); Sammons v. Mine Services Co., 6 FMSHRC 

1391 (June 1984). 

Mr. Conatser asserts that his refusal to drive the rock 

truck in question was based on his fear for his safety pecause 

he had not previously driven a rock truck on hills or in wet 

conditions, and he did not feel that he was qualified to drive 

the truck on the Red Flame haul road to its hollow fill. 

Mr. Conatser further asserts that due to his extremely limited 

experieP.ce driving rock trucks, which was confined to level 

terrain in dry conditions, his safety concerns on January 26, 

1987, were clearly reasonable, and that his refusal to drive 

the truck was made in good faith. 

The hollow fill road over which Mr. Conatser was expected 

to drive was described as "steep" by several witnesses. The 

evidence establishes that the roadway was approximately 40 feet 

wide, 100 to 600 feet long, and that trucks could pass each 

other on the roadway. The average truck speed was estimated at 

10 miles per hour, and while there were incidents of mechanical 

break-downs and trucks being bogged down, there is no probative 

evidence of any truck collision accidents or injuries. The 

roadway was bermed, and the truck that Mr. Conatser was asked 

to drive was in good operating condition. 

The evidence establishes that the respondent generally 

made it a practice to scrape and clear the roadways when it 

457 
snowed, "rocked" them to prevent sliding under wet and rainy 

conditions, and watered them down under dry conditions to keep 

the dust down~ The evidence also establishes that foreman 

Mullins and superintendent Davis consistently addressed the 

safety concerns of drivers with respect to road conditions, and 

took appropriate action to insure that the roads were safe 

before permitting any trucks to operate over the roads. 

Drivers were instructed not to operate their equipment until 

the roads were made safe. 

With regard to the road conditions on the morning of 

January 26, 1987, while it had snowed and there was 

10-12 inches of snow on the ground, the evidence establishes 

that the hollow fill road in question was bermed and cleared of 

snow before any trucks were permitted to operate. However, 

truck driver Cyrus Boggs, who drove a truck on the hill that 

day, testified that the road was wet after it was scraped, and 

that it was not unusual for a truck.to slide on a wet road 

surface. Dozer operator Lloyd Day, who worked on the road on 

the day in question, described the road as "pretty rough" 

before it was scraped, and he confirmed that it was still wet 

after the snow was scrapped off. Although he believed that the 

road was safe after it was scraped, he also believed that 

trucks will slide on a hill regardless of whether the conditions are wet or dry. Truck driver Robert Boggs testified that 

once snow is removed from a roadway, the roadway is still wet 

and that "it ain't no more than water in the road" (Tr. 353). 

Former mine foreman Meade testified that in 25 to 30 degree 

weather, once snow is removed from a roadway, the roadway 

remains "wet and muddy" and that "it's gonna lay there and melt 

and run all day long" (Deposition pgs. 45-47). 

Roy Porter confirmed that he had previously driven a rock 

truck over the roadway in question under rainy and wet conditions, and that the truck would slide. Shawn Sturgill testified that he has observed rock trucks sliding on the roadway, 

and that while operating trucks on that very same roadway, he 

has experienced a slide while encountering small patches of ice 

under wet conditions. Foreman Mullins confirmed that he has 

observed trucks sliding on the roadway in question when the 

road was slick, and he agreed that a sliding truck indicates 

that its not braking properly. Rock truck driver Robert Yeary 

confirmed that he has observed trucks sliding on the road in 

question and that this would occur when the road was wet or 

when the driver applied the brakes. Mr. Conatser testified 

that prior to his discharge, he ooserved rock trucks operating 

on the hill road on a daily basis, and that when it snowed or 

rained, or when the road froze and thawed, it was impossible to 

take a trip without sliding. 

458 
Although one can conclude that the roadway in question was 

made reasonably safe after.the snow was removed, and some 

drivers experienced no difficulty in driving on the roadway, I 

conclude and find from the credible testimony of the aforementioned witnesses that the roadway was wet, and probably muddy, 

after the snow was removed, and that given these conditions, it 

presented a possible sliding and slipping hazards for the 

trucks which were scheduled to operate on the morning of 

January 26, 1987. As a matter of fact, foreman Mullins stated 

that the roadway was not used at all that day because "the coal 

trucks couldn't get to it" and "we hauled to the level" (Tr. 

43 7) . 

With regard to Mr. Conatser's ability to drive a rock 

truck, a distinction must be made as to whether he is totally 

incapable of driving a truck, or whether, as he contends, he 

lacks the necessary experience and training to drive it under 

inclement weather conditions on a steep inclined road. On the 

basis of the evidence presented in this case, I conclude and 

find that Mr. Conatser can basically operate and drive a rock 

truck, and his denials to the contrary are rejected. The evidence establishes that prioi to his discharge, Mr. Conatser 

drove a rock truck at the No. 8 Ltd. site, and he admitted that 

he knows how to operate a rock truck, on level ground, but 

denied that he knew how to "gear it down" on a hill (Tr. 

113-114; 125-126). 

With regard to Mr. Conatser's actual rock truck driving 

experience, his former supervisor at No. 8 Ltd., Bill Meade, 

testified that during the 6 or 7 years that Mr. Conatser was 

employed at that site, when the occasion arose for Mr. Conatser 

to drive a rock truck, he always drove it on level ground in an 

environment that posed no hazard to him. Cyrus Boggs confirmed 

that while he observed Mr. Conatser drive a truck while stockpiling coal at the No. 8 Ltd. site 3 years ago, he had no 

recollection of the particular details, and he did not consider 

Mr. Conatser to be a truck driver. Shawn Sturgill testified 

that when he observed Mr. Conatser driving a rock truck at 

No. 8 Ltd., he always drove it on level ground, and Mr. Sturgill 

was not certain as to the weather conditions. Tommy Dotson 

testified that the only time he observed Mr. Conatser in a rock 

truck was one time when he backed it up on the level Red Flame 

parking lot for a distance of 30 to 40 feet. Robert T. Boggs 

confirmed that when he observed Mr. Conatser driving a truck at 

the No. 8 Ltd. site 2 to 4 years ago, he was hauling coal from 

the pit up and down hills, but under dry road conditions. 

Superintendent Davis confirmed that he never observed 

Mr. Conatser drive a rock truck at Red Flame, and while he 

459 
observed him driving a truck on three occasions while at the 

No. 8 Ltd. site during March, 1986, the weather was clear and 

dry, and the road was not completely level, and included na 

dipy" "a little hill," and a "steep grade on the bench." 

Mr. Mullins' testimony that he had previously observed 

Mr. Conatser driving a rock truck on the Red Flame hill in 

question during the summer of 1986 prior to his discharge is 

rejected as less than credible. I have carefully reviewed 

Mr. Mullins' testimony in this regard, and find that his purported observation of Mr. Conatser was based on his assumption 

that Mr. Conatser had swapped out with rock truck driver 

Maynard Harris. During the hearing, Mr. Harris denied under 

oath that he had ever swapped out with Mr. Conatser, and he 

said nothing about any offer by Mr. Conatser to drive his truck. 

Later, during his posthearing deposition, Mr. Harris stated 

that Mr. Conatser offered to swap out with him, but given the 

lack of time, the swap never occurred. Weighed against the 

credible testimony of all of the other witnesses who testified 

that they never observed Mr. Conatser drive a rock truck at Red 

Flame, and were unaware of any offers on his part to swap out 

with other equipment operators, I simply do not believe 

Mr. Harris' testimony concerning the purported offer by 

Mr. Conatser. As for Mr. Mullins, I take note of the fact that 

in his pretrial deposition, he made a statement that 

Mr. Conatser had switched out with Mr. Harris and drove the 

rock truck for one day, making three or four trips down the 

hill in question (Pgs. 34-35). However, at the hearing, 

Mr. Mullins completely contradicted himself and testified that 

he only "thought" and "assumed" that Mr. Conatser had switched 

with Mr. Harris (Tr. 428-429). 

Wh~le it is true that several witnesses were of the 

opinion that Mr. Conatser's prior driving experienced qualified 

him to drive a rock truck, some of these same witnesses 

expressed reservations over an inexperienced driver operating a 

rock truck on a hill under wet road conditions. Drivers Cyrus 

Boggs and Shawn Sturgill testified that an inexperienced driver 

would ·not know how to handle a truck in a slide and would have 

problems, and Mr. Sturgill believed that it was unsafe for such 

a driver to operate a truck on a slick hill. Mr. Conatser's 

former foreman at No. 8 Ltd., Bill Meade, opined that 

Mr. Conatser was not qualified to operate a rock truck on a 

hill on wet roads because of his total lack of experience in 

driving under such conditions. Mr. Meade stated that driving 

on hills "is a completely different operation" from driving on 

the level, and that a driver whose experience was limited to 

driving on level ground would need to be task trained to drive 

on hills. 

460 
Drivers Robert Yeary, _Cyrus Boggs, and Russell Akers confirmed that there were differences in driving on hills and on 

the level, and Mr. Akers confirmed that if he were an inexperienced driver, he would be afraid to drive on a wet hill road 

because it would be "scary." Superintendent Davis agreed that 

while anyone could drive a rock truck on level ground, this 

would not be true on hills, and that a driver would have to get 

used to driving on hills if he had not done so in the past. 

Cyrus Boggs believed that some training was required in order 

to learn how to drive a rock truck on a hill. Robert T. Boggs 

opined that wet roads are more hazardous than dry ones, and 

that he has observed experienced drivers sliding on hills. 

The evidence in this case clearly establishes that 

Mr. Conatser's principal job with the respondent was that of an 

endloader operator, and except for the possibility that he may 

have on one occasion backed up a rock truck for a very short 

distance on the parking lot, there is no credible evidence that 

he otherwise drove a rock truck during the 7 or 8 months that 

he worked at the Red Flame site. Mr. Conatser's principal job 

at the No. 8 Ltd. site during his 7 years of employment was 

other than that of a truck driver, and the credible evidence 

establishes that at best, Mr. Conatser drove a rock truck for 

at least 3 consecutive days at the No. 8 Ltd. site, with three 

or four additional sporadic days of driving at that location. 

The evidence also establishes that Mr. Conatser's rather 

limited truck driving experience was confined to driving on 

level ground under clear and dry weather conditions, and that 

he has had no experience at driving on wet or steep roadways, 

and never received any truck driving training during his entire 

employment tenure with Red Flame and No. 8 Ltd., except for 

riding with Mr. Meade for one or two trips. 

Given all of the aforementioned circumstances, including 

the fact that Mr. Conatser was an inexperienced rock truck 

driver, had never driven a rock truck on a wet hill or roadway, 

had never been trained to operate a truck under those conditions, and the potentially hazardous nature of the wet roadway 

over which Mr. Conatser was expected to drive at the time he 

was requested to drive the rock truck in question, I conclude 

and find that his refusal to drive the truck was reasonable. 

The respondent has suggested that Mr. Conatser's refusal 

to drive the rock truck was based on his desire to operate only 

an endloader, and his belief that foreman Mullins should have 

assigned other available drivers to drive the truck in question. 

In support of this conclusion, respondent relies on a statement 

given by Mr. Conatser to the State unemployment office in which 

461 
he indicated that another available driver should have been 

assigned to drive the rock truck in question. 

Apart from the statement relied on by the respondent, the 

record is devoid of any other evidence that Mr. Conatser has 

ever taken the position that Mr. Mullins should have assigned 

someone else to drive the truck. Mr. Conatser made no such 

assertion in his initial complaint to MSHA, and the respondent 

has conceded that Mr. Conatser had never previously declined to 

operate any equipment other than his loader when asked to do so. 

Further, at the time of his work refusal, Mr. Conatser said 

nothing which would have lead Mr. Mullins to believe that his 

refusal was based on his desire to operate only an endloader, 

or that Mr. Mullins should have selected someone else for this 

job. The same is true at the time Mr. Conatser met with 

Mr. Burke and Mr. Davis after his discharge. Indeed, during 

his entire working career at No. 8 Ltd. and Red Flame, a period 

in excess of 8 years,. Mr. Conatser had never taken the position 

that he "was only an endloader operator" and would not operate 

any other equipment. The record here establishes that 

Mr. Conatser has operated a dozer, a scraper, and a rock truck, 

in addition to his usual job as an endloader, and there is no 

evidence to show that he did so other than willingly. 

Although Mr. Conatser's statement to the state unemployment off ice raises an inference that his refusal to drive the 

truck was made for reasons other than his safety concerns, and 

is therefore "tainted," I cannot conclude that this isolated 

statement, made after the work refusal, is sufficiently 

probative, standing alone, to support a conclusion that 

Mr. Conatser's work refusal on January 26, 1987, was made in 

bad faith. Accordingly, respondent's argument in this regard 

is rejected. 

Complainant's Safety Communication to the Respondent 

The crucial and difficult determinative issue in this case 

is whether or not the complainant communicated his safety concerns to the respondent prior to or reasonably soon after his 

work refusal, and if not, whether unusual circumstances excused 

his failure to do so. In Secretary/Dunmire and Estle v. 

Northern Coal Company, supra, at 4 FMSHRC 133, the Commission 

formulated the rule as follows: 

Where reasonably possible, a miner refusing to work should ordinarily communicate, or 

at least attempt to communicate, to some representative of the operator his belief in the 

safety or health hazard at issue. 'Reasonably 

462 
possibility' may be lacking where, for example, 

a representative of the operator is not present, or exigent circumstances require swift 

reaction. We also have used the word, 'ordinarily' in our formulation to indicate that 

even where such communication is reasonably 

possible, unusual circumstances--such as 

futility--may excuse a failure to communicate. 

If possible, the communication should ordinarily be made before the work refusal, but, 

depending on circumstances, may also be made 

reasonably soon after the refusal. 

In Secretary of Labor ex rel. Paul Sedgmer et al., v. 

Consolidation Coal Company, 8 FMSHRC 303 (March 1986), the 

Commission affirmed a Judge's decision dismissing a discrimination complaint brought by several equipment operators who were 

suspended for refusing to operate heavy mobile equipment at 

speeds which they considered to be unsafe. With regard to the 

failure of the miners to communicate their safety concerns to 

mine management, the Commission stated as follows at 8 FMSHRC 

309: "* * * While such communications are not only expected, 

in ordinary course, in work refusal situations, their absence 

also lends weight to the conclusion that the disagreement here 

as to the operating speed did not have a sound basis in safety 

concerns." 

In Miller v. FMSHRC, 687 F.2d 194 (7th Cir. 1982), the 

Court affirmed the dismissal of a discrimination complaint 

filed by a section foreman who was discharged after refusing 

to start up a longwall miner on the grounds that he was incapable of operating it; that he was unfamiliar with the control 

panel; and that in order to start the machine, it would have 

been necessary to short out its methane detector. Although 

the foreman felt that this would be in violation of safety 

laws, he did not immediately communicate his safety concerns 

to mine management, but waited until later in his work shift 

to do so, and only after the mine manager telephoned him. The 

Court noted as follows at 687 F.2d 196: 

The specific requirement of promptly reporting 

the hazard to the employer which the Commission 

has read into the Act is not only a natural 

corollary to the general requirement that the 

work stoppage be reasonable but also a device 

well suited to promoting the Act's fundamental 

objective of promoting mine safety and health. 

It gives the worker an incentive to bring a 

safety hazard to his employer's attention, for 

463 
by doing so he gains the protection of the Act 

against retaliation (provided that his belief 

that there is a hazard is reasonable}. The 

requirement also serves an evidentiary purpose: 

it helps the Commission distinguish between 

genuine and spurious invocations of the Act's 

protections. The worker who does not promptly 

report an alleged hazard to his employer is 

less likely to be sincere in his belief that 

there is a hazard than the worker who 

does. * * * 

In Simpson v. Kenta Energy, Inc., supra, Judge Broderick 

upheld the discrimination complaint of a miner who left his 

job out of concern over the lack of a foreman on the job and 

the failure to conduct preshift and onshift examinations. 

With regard to the safety communication issue, although Judge 

Broderick found that the miner had not communicated these 

safety concerns to his foreman (Jackson}, he nonetheless concluded that the communication was not necessary because the 

foreman was deemed to have known about these conditions and 

the communication would have been futile. Judge Broderick 

stated "I do not consider that it is necessary in order to 

invoke the protection of Section 105(c}, that it be shown that 

the operator was specifically aware of the reason for a 

miner's work refusal, if the operator was aware of the hazardous conditions which prompted the refusal • • " 6 FMSHRC at 

1462. 

The Commission reversed, and while it agreed that Simpson 

had valid and reasonable safety concerns in leaving his job, 

it found that Simpson had not communicated his safety concerns 

to his foreman, thus negating the foreman's opportunity to 

address them. In this regard, the Commission stated as 

follows at 8 FMSHRC 1040: "Even assuming, as the Judge did, 

that Jackson was aware of the absence of a foreman and the 

failure to conduct the required pre-shift and on-shift examinations, we cannot presume that Jackson would have taken no 

action had Simpson communicated his concerns to Jackson." 

(Emphasis added.} 

Although the Court of Appeals for the D.C. Circuit 

reversed and remanded the Simpson case to the Commission for 

further consideration of the issue of whether Simpson should 

be excused from meeting the communication requirement because 

notice would have been futile, it nonetheless accepted the 

Commission's application of the communication requirement set 

forth in the Northern Coal and Miller cases, supra. Simpson 

464 
v. FMSHRC, Court of Appeals, D.C. Circuit, Case No. 86-1441, 

Slip opinion pgs. 12-13, d~cided March 18, 1988. 

In Dillard Smith v. Reco, Inc., supra, an employee of a 

battery servicing company who had received no underground mine 

training was discharged when he refused to carry out a work 

assignment at an underground mine. The employee was asked to 

go on a service call by his supervisor, and after ascertaining 

that the call was at an underground mine, the employee told 

his supervisor that "he was not going." The employee left the 

premises and neither he or his supervisor said anything 

further. Later that same day, the discharged employee 

returned to the off ice to inquire about his pay check, and he 

informed a secretary to advise the president of the company 

that he had left because he did not want to go underground 

because his training had expired. Judge Broderick found that 

the employee's refusal to go underground because of his lack 

of training was justified and reasonable and therefore protected activity under the Act. However, he dismissed the 

discrimination complaint on the ground that the discharged 

employee had failed to communicate his lack of training as 

grounds for refusing to go underground. 8 FMSHRC 1597. In 

affirming Judge Broderick's decision, the Commission stated as 

follows at 9 FMSHRC 995-996: 

* * * * * * * 

Among other salutary purposes, the communication requirement is intended to avoid situations in which the operator at the time of a 

refusal is forced to divine the miner's motivations for refusing work. 

* * * * * * * 

Dillard was asked several times at the hearing 

why he had not communicated his asserted training concern, but provided no answer other than 

that Williams had failed to ask him his reasons 

for refusing his work assignment. The responsibility for the communication of a belief in a 

hazard that underlies a work refusal rests with 

the miner. 

* * * * * * * 

Thus, Dillard failed to make the necessary 

communication of a belief in a hazard and, 

accordingly, his work refusal was not protected 

465 
under the Mine Act. Because Dillard's work 

refusal was not protected, his termination by 

Reco because of that refusal did not violate 

the Act. 

* * * * * * * 

To the extent that the judge held that 

Dillard had engaged in a protected work refusal 

apart from his failure of communication, the 

judge erred. Proper communication of a perceived hazard is an integral component of a 

protected work refusal in the first instance 

rather than a wholly separate requirement. 

(Emphasis added.) 

Mr. Conatser's father testified that his son told him 

that he had informed Mr. Mullins that he lacked the experience 

to drive a rock truck, and was afraid to drive it because he 

had never driven one under "bad snow and weather." However, 

complainant Conatser contradicted this testimony when he subsequently testified under oath at the hearing that the only 

statement he made to Mr. Mullins at the time of his work 

refusal was "I couldn't drive a rock truck." Mr. Conatser 

admitted that he said nothing to Mr. Mullins about the 

weather, or the steepness of the road in question; did not use 

the words "I don't know how to drive a truck;" requested no 

task training; mentioned nothing about putting someone else in 

the truck with him; and said nothing about his inability to 

operate the truck under the then prevailing conditions. 

Indeed, the record clearly establishes that at no time during 

his conv~rsation with Mr. Mullins, did Mr. Conatser say anything about any safety concerns. · 

The critical part of the conversation which took place 

between Mr. Conatser and Mr. Mullins at the time of the work 

refusal is in dispute. There were no witnesses to the conversation •. Mr. Mullins claimed that Mr. Conatser simply stated 

"no, no" when he asked him to drive the rock truck, and 

Mr. Conatser denies this and asserts that he informed 

Mr. Mullins that "I can't drive a rock truck." Superintendent 

Davis, who arrived at the scene shortly after Mr. Conatser 

left the mine, testified consistently by deposition and at the 

hearing that Mr. Mullins told him that Mr. Conatser had told 

him that he could not drive a rock truck. I find Mr. Davis to 

be a credible and believable witnesses, and his testimony 

supports Mr. Conatser's version of the conversation in question. Accordingly, while I conclude and find that 

Mr. Conatser informed Mr. Mullins that he could not drive a 

466 
rock truck at the time of his work refusal, I also find that 

he did not elaborate further or explain to Mr. Mullins the 

reasons for his purported inability to drive the truck. 

Complainant's suggestion that the words "I can't drive a 

rock truck" were clearly sufficient to put Mr. Mullins on 

notice that he was raising a safety concern is rejected. When 

asked to explain why he refused to operate the rock truck in 

question, Mr. Conatser gave several reasons beyond a simple "I 

can't." He explained that his refusal to drive was based on 

his belief that Cl) he was not qualified to drive, (2) he had 

never been trained to drive on hills or under wet or slick 

conditions; (3) he thought it would be hazardous to his 

health; and (4) he thought that there was a chance that he 

would kill himself. He further explained that he had reservations about driving the rock truck on the hill in question 

because he had observed trucks sliding on the hill in the 

past, he was generally afraid of the trucks because of his 

asserted lack of ability to control them in a slide, and while 

he drove trucks in the past at the No. 8 Ltd. site, he never 

drove one down a hill as steep as the one at Red Flame. Yet, 

none of these reasons or safety concerns were communicated to 

Mr. Mullins at the time of the work refusal, and I decline to 

read them into Mr. Conatser's brief statement to Mr. Mullins. 

Complainant contends that foreman Mullins clearly understood the plain meaning of his words "I can't drive a rock 

truck," but failed to address his safety concerns. Conceding 

that he did not advise Mr. Mullins that it would be unsafe for 

him to drive the truck because of his lack of training, complainant nonetheless maintains that his statement to 

Mr. Mullins was sufficiently clear to put him on notice that 

he was raising a safety concern, and that the testimony of 

Mr. Mullins and Mr. Davis clearly establishes that Mr. Mullins 

understood that the complainant was making a safety complaint. 

In this regard, complainant points to the testimony of 

Mr. Mullins that the phrase "I can't drive a rock truck" 

connotes lack of ability or knowledge, and Mr. Davis' testimony that in the event someone told him he couldn't drive a 

truck this would mean "that I would train him." Complainant 

concludes that this testimony of Mr. Mullins and Mr. Davis 

clearly establishes that a safety issue is raised when a miner 

says "I can't drive a rock truck." 

Complainant's argument is rejected. As stated earlier, 

Mr. Conatser's claim that he could not drive a truck was not 

true. His claim is that he lacked the experience to drive a 

truck on a hill under wet ~oad conditions, and it is clear 

from the record that this safety concern on his part was in no 

467 
way communicated to Mr. Mullins at the time of the work 

refusal. Although Mr. Conatser subsequently stated in a 

February 2, 1987, statement to MSHA (exhibit C-3), that at the 

time he refused to operate the truck he "was thinking" and 

"implying" that he feared for his safety because of his lack 

of rock truck driving experience, I find these statements to 

be self-serving, and I have given them no weight. It seems 

obvious to me that when this statement was given to MS.HA, 

Mr. Conatser had the benefit of advice from his uncle, as well 

as the MSHA investigator who interviewed him, and he would 

naturally attempt to put his case in the most favorable light 

to support his claim of discrimination. As a matter of fact, 

Mr. Conatser admitted that he learned that communicating any 

safety concerns to management was a critical element of his 

case when he spoke with the MSHA inspector to whom he made his 

complaint after his discharge. When asked during the hearing 

whether he was aware of the fact that he had to bring safety 

concerns to the attention of his supervisors, Mr. Conatser 

responded "I guess so." 

Foreman Mullins testified that had Mr. Conatser told him 

that he feared for his life or safety, or given him a reason 

for not driving the rock truck, he would not have required him 

to do so. Superintendent Davis testified that Mr. Mullins 

would not endanger anyone's life, and if he did, he would fire 

him. The miners who testified in this case corroborated the 

fact that Mr. Davis and Mr. Mullins were concerned for their 

safety and always addressed their concerns over the road conditions. Mr. Davis further confirmed that had Mr. Conatser 

informed Mr. Mullins that he was afraid to drive the truck, 

Mr. Mullins would have assigned someone to go with him, or 

assigned another driver. Former foreman Meade also confirmed 

that if anyone expressed fear or •reluctance in operating a 

piece of equipment, he would either assign them to other work, 

or not require them to operate the equipment. In view of this 

testimony, which I find credible, it would appear to me that 

management at Red Flame and No. 8 Ltd. took appropriate action 

to address communicated safety concerns. However, in 

Mr. Conatser's case, since he did not communicate his safety 

concerns to his foreman at the time of his work refusal, the 

foreman had no opportunity to address them and take corrective 

action. 

Mr. Conatser claimed that he was "in shock" and had no 

opportunity to communicate to Mr. Mullins the reasons for his 

refusal to operate the trucK. I find this difficult to 

believe. Having observed Mr. Conatser during his testimony, 

and having review his testimony during his depositions, he 

does not .impress me as a timid individual who would back away 

468 
from a confrontation with a supervisor. Mr. Conatser 

impressed me as a rather combative individual who is quick to. 

take a position and not back off. I note that Mr. Conatser's 

work refusal on January 26, 1987, was not the first time that 

he has experienced a job separation situation or encounter 

with a supervisor. The record reflects that he was discharged 

from a mining job in 1978, after being accused of "doing too 

much talking and not enough working" (Tr. 92). He also walked 

off his job at No. 8 Ltd. at one time after he and Mr. Meade 

engaged in a confrontation over his work and Mr. Conatser got 

mad and left his job (Tr. 93). 

The evidence establishes that after Mr. Conatser refused 

to drive the truck, he engaged Mr. Mullins in further conversation and accused him of "forcing me to go to the house." 

Mr. Conatser also had the presence of mind to request permission to retrieve his safety shoes from the loader machine 

before leaving. Further, Mr. Conatser confirmed that prior to 

his work refusal, he had surmised from previous conversation 

with Mr. Mullins over the CB radio, and with the mechanic who 

was present, that Mr. Mullins would more than likely assign 

him to drive the rock truck (Tr. 523-524). Mr. Conatser conceded that Mr. Mullins did not prevent him from speaking, and 

that he had spoken to Mullins on many occasions in the past. 

Given all of these circumstances, I conclude that Mr. Conatser 

had an ample opportunity to communicate his safety concerns to 

Mr. Mullins, and I find no mitigating reasons or extenuating 

circumstances to excuse Mr. Conatser's failure to do so. 

In view of the foregoing, I conclude and find that 

Mr. Conatser failed to make the necessary communication of a 

belief of a safety hazard with respect to his refusal to drive 

the rock truck in question. Accordingly, his work refusal was 

not protected under the Act. Since his work refusal was not 

protected, I further conclude and find that Mr. Conatser's 

discharge by the respondent because of that work refusal did 

not violate the Act. 

Refusal to Rehire 

During the course of the hearing, complainant's counsel 

suggested that the failure by the respondent to reinstate 

Mr. Conatser after he met with Mr. Burke and Mr. Davis subsequent to his discharge constituted a second violation of section 105(c) of the Act. However, counsel makes no mention of 

this issue in his posthearing brief, and no further arguments 

have been forthcoming by the complainant in this regard. I 

find no probative credible basis for concluding that the 

469 
respondent's failure to reinstate Mr. Conatser after his discharge was in violation of the Act. Accordingly, the complainant's claim to the contrary is rejected. 

ORDER 

In view of the foregoing findings and conclusions, and 

after careful consideration of all of the credible evidence 

and testimony adduced in this case, I conclude and find that 

the complainant has failed to establish a violation of section 

105(c) of the Act. Accordingly, the complaint IS DISMISSED, 

and the complainant's claims for relief ARE DENIED. 

dministrative 

orge • Koutras ~~ 

Law Judge 

Distribution: 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified 

Mail) 

Ronald G. Polly, Esq., Polly, Craft, Asher & Smallwood, 

104-B North Webb Avenue, Whitesburg, KY 41858 (Certified Mail) 

/fb 

470 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 29, 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FIFE COAL COMPANY, 

INCQRPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 87-186 

A. C. No. 15-02218-03519 

No. 1 Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

The parties have filed a motion to approve settlements of 

the five violations involved in this case. The total of the 

originally proposed penalties were $960. The total of the 

recommended settlements are $720. 

The parti~s motion discusses the violations in lights of the 

six criteria set forth in section llO(i) of the Federal Mine 

Safety and Health Act of 1977. The citations were issued for 

violations of 30 C.F.R. § 75.1710 because canopies were not 

installed on five pieces of equipment. The parties represent that a reduction from the original assessments is warranted 

because due to the nature of the seam (rolling floor and roof) 

the coal height varied from 40 to 60 inches. Canopies are 

required by regulation i.n 60-inch coal, but, are not required in 

40-inch coal. Therefore, compliance with the regulation would 

have been difficult given the nature of the seam. Furthermore, 

the operator, who is now out of business, is small and is having 

serious financial problems. I accept the parties representations 

and approve the recommended settlements. 

For the foregoing reasons, the motion to approve settlement 

is GRANTED and the operator is ORDERED TO PAY $720 in installments according to the following schedule: One hundred and forty-f~ur dollars within 30 days of this decision; one hundred 

and forty-four dollars within 60 days of this decision; one 

471 
hundred and forty-four dollars within 90 days of this decision; 

one hundred and forty-four dollars within 120 days of this 

decision; and finally, $144 within 150 days of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Anne T. Knauff, Esq., Office of the Solicitor, U. S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Michael F. Johnson, Esq., Fife Coal Company, Incorporated, Post 

Office Drawer 721, Pikeville, KY 41501 (Certified Mail) 

I g l 

472 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 291988 

SECRETARY OF LABOR 

MINE SAFETY AND HEAL'rH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

STERLING ENERGY, INCORPORATED, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 87-205 

A. C. No. 15-14587-03528 

Sterling No. 5 Mine 

Appearances: Anne T. Knauff, Esq., Office of the Solicitor, 

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

for the Petitioner; 

Kenneth R. Krushenski, Esq., Rogers, Hurst & 

Krushenski, LaFollette, Tennessee for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

The Secretary (Petitioner) filed, on August 14, 1987, a 

petition for assessment of civil penalty for an alleged violation 

by Respondent of 30 C.F.R. § 75.319 on November 3, 1986. Pursuant to notice the case was heard in Knoxville, Tennessee, on 

October 20, 1987. J. Preston Payne, Sr. testified for Petitioner 

and Ralph Ball testified for Respondent. 

Petitioner filed its Post Trial Memorandum on March 2, 1988, 

and the Respondent filed its Hearing Brief and Proposed Findings 

of Fact and Conclusions on February 1, 1988. 

Issues 

The issues are whether the Respondent violated 30 C.F.R. 

§ 75.319, and if so, whether that violation was of such a nature 

as could significantly and substantially contribute to the cause 

and effect of a mine safety or health hazard, and whether the 

alleged violation was the result of the Respondent's unwarrantable failure. If section 75.319, supra, has been violated, it 

will be necessary to determine the appropriate civil penalty to 

be assessed in accordance with section llO(i) of the Federal Mine 

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

"Act"). 

473 
Citation 

Order No~ 2801008, issued on November 3, 1986, alleges a 

significant and substantial violation in that: 

Two 101 Jeffery continuous miners, 2-506 Bridge 

carriers and a shuttle car were being used on the same 

split of air, one miner and two bridge carriers were 

being used on the 001 section and one miner and shuttle 

car were being used three crosscuts from the face on 

the return side. 

Regulations 

30 C.F.R. § 75.319 provides as follows: 

Each mechanized mining section shall be ventilated with 

a separate split of intake air directed by overcasts, 

undercasts, or the equivalent, except an extension of 

time, not in excess of 9 months, may be permitted by 

the Secretary, under such conditions as he may prescribe, whenever he determines that this subsection 

cannot be complied with on March 30, 1970. 

30 C.F.R. § 75.319-1 provides as follows: 

The term "mechanized mining section" means an area of a 

mine in which coal is mined with one set of production 

equipment, characterized in a conventional mining 

section by a single loading machine, or in a continuous 

mining section by a single continuous mining machine, 

and which is comprised of a number of contiguous 

working places. Specialized mining sections, such as 

longwall mining sections, which utilize equipment other 

than specified in this section, may, if approved by the 

Coal Mine Safety District Manager, be ventilated by a 

single split of air. 

Findings of Fact and Conclusions of Law 

I 

On November 3, 1986, the 001 section of Respondent's 

Sterling No. 5 Mine was ventilated with only one split of air. 

One intake air entry ventilated the face and air from the face 

was vented outby in a return air entry. The face area, which was 

stipulated to be a working section, contained one continuous 

miner, two bridge carriers, two roof bolters, and one scoop. In 

an area located three crosscuts outby the face there was located 

a continuous miner, a roof bolter, and a shuttle car. It was 

stipulated at the hearing that there was no power source on this 

474 
equipment and no power was hooked up to this equipment. However, 

in an area three entries to the right of this equipment and in 

the second crosscut outby the face there was located a power 

center, and it was stipulated at the hearing that the AC outlet 

was energized. I find, based on the uncontradicted testimony of 

J. Preston Payne, Sr., a MSHA Inspector, that a power cable was 

in place and it would have taken approximately 15 minutes for one 

worker to get power to the equipment. located in the area three 

crosscuts outby the face. 

Payne testified, in essence, that when he inspected the 001 

section on November 3, 1986, he issued an order citing a violation 

of 30 C.F.R. § 75.319. Section 75.319, supra, provides that each 

"mechanized mining section" shall be ventilated with separate split 

of intake air. Section 75.319-1, supra, provides that "The term 

'mechanized mining section' means an area of a mine in which coal 

is mined with one set of production equipment • • • ." This 

section further provides that the set of production equipment in a 

continuous mining section is characterized by "· •• a single 

continuous mining machine and which is comprised of a number of 

contiguous working places." 

I find that the evidence clearly establishes that the 001 

section, on the date in question, was ventilated with only one 

split of intake air, but had one set of production equipment at 

the face area and another separate set of production equipment in 

an area three crosscut outby the face. It is Respondent's position, in essence, that section 75.319, supra, is violated only if 

there are two sets of mechanized mining section actively 

operating and engaged in the mining of coal at the same time off 

the same split of intake air. In this connection, Respondent 

relies upon the testimony of 'its President, Ralph Ball, who 

indicated that the equipment located in the area three crosscut 

outby the face was "parked up" (Tr. 45, 64), and that coal from 

that area had been removed before the 001 section was moved in. 

He further indicated, in essence, that the equipment located 

three crosscuts outby the face was never run the same time that 

the equipment at the face was run. In this connection, Payne had 

indicated that when he made his inspection on November 3, the 

equipment located in the area three crosscuts outby the face was 

not working. 

I find the interpretation of section 75.319, supra, and 

75.319-1, supra, urged by the Respondent to be unduly restrictive. 

The a~ea three crosscuts outby the face contained a set of production equipment and some coal had already been removed from that 

area. Accordingly, I find that area to be denominated a mechanized mining section. In reaching this conclusion, I note that 

although the equipment there was not energized, there was a cable 

present, which could have been hooked up to the nearby power 

center thus energizing the equipment. 

475 
II 

The order in question alleges that the violation of section 

75.319, supra, herein was "significant and substantial." However, 

Petitioner has failed to adduce proof on this issue. I therefore 

find that Petitioner has failed in its burden and that the violation herein can not be considered to be significant and substantial. 

III 

Payne testified that in his opinion the violation herein was 

caused by Respondent's unwarrantable failure, in that the equipment in the area three crosscuts outby the face could have been 

used any time and that management knew its location. In order to 

sustain Petitioner's position I must find that the violation 

herein resulted from Respondent's aggravated conduct which constitutes more than ordinary negligence (Emery Mining Corporation, 

9 FMSHRC 1997, (December 1987)). Ball testified that, in essence, 

it was his understanding that to be in violation of section 75.319, 

supra, coal must be produced in two different areas in the same 

split of air, and that it is not a violation to have two sets of 

equipment as long as they are not being operated at the same time. 

I find the testimony of Ball credible in this regard and evidencing 

no bad faith on his part. Accordingly, I conclude that the 

violation herein was not the result of any aggravated conduct on 

the part of Respondent, as it resulted from his good faith interpretation of the controlling regulation. Hence, I conclude that 

the violation was not caused by Respondent's unwarrantable failure. 

IV 

In assessing a violation herein, I note the history of 

Respondent's violations as stipulated to at the hearing by the 

Parties. Further, inasmuch as the evidence fails to establish 

that the two mining sections, one at the face and the other three 

crosscuts out by the face, were ever engaged in active mining of 

coal at the same time, I conclude that the gravity of the violation herein was low. Further, inasmuch as the violation herein 

was as a result of Respondent's interpretation of the controlling 

regulation, and there was no evidence that this interpretation 

was made in bad faith, I conclude that negligence herein was low. 

Accordingly, taking these factors into account, as well as the 

other factors in section llO(i) of the Federal Mine Safety and 

Health Act of 1977, I conclude that a civil penalty herein of $50 

is reasonable. 

476 
ORDER 

It is ORDERED that Order No. 2801008 be modified to a Section 

104(a) citation. 

It is further ORDERED that Respondent pay the sum of $50, 

within 30 days of this decision, as a civil penalty for the 

violation found herein. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

Anne T. Knauff, Esq., Office of the Solicitor, u. S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Kenneth R. Krushenski, Esq., Rogers, Hurst & Krushenski, 210 West 

Central Avenue, P. O. Box 1391, LaFollette, TN 37766 (Certified 

Mail) 

Mr. Ralph Ball, President, Sterling Energy, Incorporated, P. O. 

Box 1528, LaFollette, 'rN 37766 (Certified Mail) 

dcp 

477 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 80204 

MAR 291988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 86-122 

A.C. 05-03455-03545 

v. Southfield Mine 

ENERGY FUELS COAL, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

James H. Barkley, Esq. and Susan Bissegger, Esq., 

Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, 

for Petitioner; 

Phillip D. Barber, Esq., Welborn, Dufford, Brown 

and Tooley, Denver, Colorado, 

for Respondent. 

Judge Cetti 

Statement of the Case 

This civil penalty proceeding arises under the Federal Mine 

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

Act). The Secretary of Labor on behalf of the Mine Safety and 

Health Administration, charges the operator of the Southfield 

Mine with two violations of 30 C.F.R. § 75.701 mandatory mine 

safety grounding standard. 

This proceeding was initiated by the Secretary with the 

filing of a proposal for assessment of civil penalties. The 

operator filed a timely appeal contesting the existence of each 

of the alleged violations and the amount of the proposed civil 

penalties. Hearings were held on these issues on July 8 and 9, 

1987 at Denver, Colorado before Administrative Law Judge Michael 

A. Lasher, Jr., who later.entered an Order of Recusation. 

This matter was reset for a hearing before me on March 22, 

1988 at Denver, Colorado. Prior to that date the parties 

filed a joint motion pursuant to Commission Rule 30, 29 C.F.R. 

§ 2700.30, seeking approval of a settlement of the case. 

478 
Under the joint motion submitted by the parties, Responden~ 

agrees to use metal grounding straps on all metal couplings, including but riot limited to couplings between trailing cables and 

power centers, and trailing cables and the equipment to which the 

cables supply power. The two Citations, Nos. 2830956 and 

2830957, as issued, charged the Respondent with two significant 

and substantial violations of the grounding standard, § 75.701. 

The Secretary agr~es to amend Citation No. 283-0956 and Citation 

No. 2830957 to reflect that such Citations are non-significant 

and substantial. The Secretary states that this amendment is 

based on the fact that even though Respondent failed to have the 

required grounding straps, the system used by Respondent provided 

some limited grounding. In return, Respondent withdraws its 

contest to the Citations as amended and withdraws its contest to 

the Secretary's proposed penalties of $68.00 for each of the 

violations cited. 

In support of the proposed settlement disposition of this 

case, the parties further agree and stipulate that in the 24 

months prior to the inspection, Respondent was inspected a total 

of 12 days and has received 0 assessed violations; the coal mine 

in question produces 313,099 tons of coal per year and employs 

approximately 95 employees. Payment of the proposed penalties 

will not impair the Respondent's ability to continue in business. 

Conclusion 

After careful review and consideration of the pleadings 

and the evidence presented at the July 8 and 9, 1987 hearings, 

I conclude and find that the proposed settlement disposition 

is reasonable, appropriate, and in the public interest. Accordingly, the motion of the parties to amend Citation No. 

2830956 and Citation No. 2830957 and to permit Respondent to 

withdraw its contest to the Citations as amended, is granted, 

and the Settlement is approved. 

ORDER 

Respondent is ordered to pay civil penalties in the 

settlement amount totaling $136.00 in satisfaction of Citation 

No. 2830956 and Citation No. 2830957 within 40 days of the date 

of this Decision and Order and, upon receipt of payment by the 

Petitioner, this proceeding is dismissed. 

inistrative 

st F. Cetti 

~~ Law Judge 

479 
Distribution: 

James H. Barkley, Esq. and Susan Bissegger, Esq., Offi~e of the 

Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 

Stout Street, Denver, CO 80294 (Certified Mail) 

Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700 

Broadway, Suite 1100, Denver, CO 80290-1199 (Certified Mail) 

/ot 

480 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 30, 1988 

PHELPS DODGE CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PHELPS DODGE CORPORATION, 

Respondent 

CONTEST PROCEEDING 

Docket No. WEST 87-102-RM 

Citation No. 2674914; 1/21/87 

Morenci Mine & Mill 

Mine ID 02-00024 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-51-M 

A. C. No. 02-00024-05519 

Phelps Dodge Morenci Inc. 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

These proceedings are a petition for the assessment of a 

civil penalty for the one violation involved and the related 

notice of contest pr~ceeding. 

On February 8, 1988, the parties submitted a motion for 

settlement. The originally assessed amount was $6,000 and the 

proposed settlement was for $3,000. On March 8, 1988, a lengthy telephone conference call was held with both parties and the 

Administrative Law Judge during which the case was discussed in 

detail. Thereafter, the parties again conferred and on March 18, 

1988 the parties submitted a new motion for settlement with a pro- posed settlement of $4,500. I have concluded the second motion 

may be approved. 

On January 21, 1987, MSHA conducted an investigation of a 

·fatal mining accident that took place on the surface of the 

Morenci Mine and Mill on January 16, 1987. The investigation concluded that a haulage truck dumped too close to the edge of a 

bank that had been undercut by a steam shovel. The bank col481 
lapsed under the weight and the truck overturned down a 50 foot 

bank. The driver was fatally injured. The subject citation 

arose from this incident. 

The parties motion discusses the violation in light of the 

six statutory criteria set forth in section llO(i) of the Federal 

Mine Safety and Health Act of 1977. The citation was issued for 

a violation of 30 C.F.R. § 56.9055 because loads were not dumped 

back from the edge of the bank when evidence suggests that the 

ground may fail to support the weight of the vehicle. The 

parties represent that a reduction from the original assessment 

is warranted because negligence was less than originally assessed 

in that the condition which contributed to the accident had 

existed for a very short period of time. Additionally, the 

operator was not wearing a seat belt at the time of the accident, 

even though the operator instructed its employees to wear them at 

all times. It appears that the operator did all it could with 

respect to insuring the wearing of seat belts by its employees. 

I accept the foregoing and representations and approve the 

recommended settlement which I believe is sufficient to comport with the purposes of the statute. · 

Accordingly, the joint motion to approve s~ttlement is 

GRANTED and the operator is ORDERED TO PAY $4,500 within 30 days of the date of this decision. 

Based tipon the foregoing, the contest proceeding is hereby 

DISMISSED. 

, 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Stephen W. Pogson, Esq., G. Starr Rounds, Esq., Linda H. Miles, 

Esq., Evans, Kitchel & Jenckes, P.C., 2600 North Central Avenue, 

Phoenix, AZ· 85004 (Certified Mail) 

Marshall P. Salzman, Esq., Office of the Solicitor, U. S. Department of Labor, 71 Stevenson Street, P. 0. Box 3495, San 

Francisco, CA 94119-3495 (Certified Mail) 

Lawrence Beeman, Director, Office of Assessments, U. S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Handcarried) 

/gl 

482 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA}, 

Petitioner 

v. 

EUREKA STONE QUARRY, INC., 

Respondent 

MAR 301988 

DECISION: 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 87-207-M 

A. C. NO. 36-04243-05504 

Pocono Quarry & Plant 

Appearances: Evert H. VanWijk, Esq., Office of the Solicitor, 

Department of Labor, Philadelphia, Pennsylvania, 

for the Secretary; 

John T. Kalita, Jr., Esq., Eureka Stone Quarry, 

Chalfont, Pennsylvania, for the Respondent. 

Before: Judge Weisberger 

On October 8, 1987, the Secretary (Petitioner} filed a 

Petition for Assessment of Civil Penalty for an alleged violation 

by the Respondent of 30 C.F.R. § 56.15005. Respondent filed its 

Answer on November 23, 1987. Pursuant to notice, the case was 

scheduled for hearing on December 17, 1987. On December 9., 1987, 

Respondent requested an adjournment, in essence, alleging that he 

had been unable to contact a respective witness as Respondent was 

"in its winter shutdown." Respondent indicated that the Petitioner 

did not have any objections to the request for an adjournment. The 

case was adjourned, and subsequently rescheduled and heard in 

Philadelphia, Pennsylvania, on January 19, 1988. Robert Carter 

testified for the Petitioner, and James Cliff and Barry D. Lutz 

testified for the Respondent. 

Petitioner submitted a Prehearing Statement and Respondent 

submitted a Pretrial Statement along with Proposed Findings of 

Fact and Conclusions of Law. Subsequent to the hearing, Respondent 

and Petitioner filed Proposed Findings of Facts and Memorandum of 

Law on February 24 and February 29, 1988, respectively. 

Stipulations 

At the hearing, the Parties submitted the following stipulations: 

483 
1. The Pocono Quarry & Plant Mine is owned and 

operated by Stone Quarry, Incorporated. 

2. The Pocono Quarry & Plant'~ine is subject to the 

provisions of the Federal Mine Safety and Health Act of 

1977 •. 

3. The Administrative Law Judge has jurisdiction over 

this proceeding. 

4. In the 2 year period before May 29, 1987, the 

Pocono Quarry & Plant Mine had zero paid violations of 

the standards contested in this case. The size of the 

operator is that the Pocono Quarry & Plant Mine employs 

approximately 120 employees. The annual production of 

Eureka Stone Quarry is 304,903 tons; the annual production of the Pocono Quarry & Plant Mine is approximately 

57,562 tons. 

5. The Respondent operates nine mines. 

6. The authenticity of the exhibits offered at the 

hearing is stipulated, but no stipulation is made as to 

the facts asserted in such exhibits. 

7. The subject Citation and Termination were properly 

served by a duly authorized represen~ative of the 

Secretary of Labor upon agents of Eureka Stone Quarry 

as to dates, times, and places stated therein, and may 

be admitted into evidence for the purpose of establishing their issuance but not for the truthfulness or 

relevancy of any statements asserted therein. 

8. The condition was abated within the required time. 

9. The imposition of a proposed penalty by the 

Administrative Law Judge will not affect Respondent's 

ability to continue in business. However, Respondent 

does not stipulate to the appropriateness of the imposition of any penalty. 

Issues 

The issues are whether the Respondent violated 30 C.F.R. 

§ 56.15005, and if so, whether the 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 section 56.15005 

has been violated, it will be necessary to determine the appro484 
priate civil penalty to be assessed in accordance with section 

llO(i) of the Federal Mine Safety and Health Act of 1977. 

Regulations 

30 C.F.R. § 56.15005 provides as follows: " Safety belts and 

lines shall be worn when persons work where there is danger of 

falling; • • • " 

Findings of Fact and Conclusions of Law 

I. 

Robert Carter, an inspector for the Mine Safety and Health 

Administration, issued, on May 29, 1987, Citation No. 2851906 

alleging a violation of 30 C.F.R. § 56.15005 which requires the 

wearing of safety belts if a person is working "· o • where there 

is danger of falling." In evaluating whether the following facts 

establish a "danger of falling," I applied the test of " ••• 

whether an informed, reasonably prudent person would recognize a 

danger of falling warranting the wearing of safety belts and 

lines." Secretary v. Great Western Electric Co., 5 FMSHRC 840, 

842 (May 1983). 

Carter testified that, on May 29, 1987, he observed 

Respondent's driller, Barry D. Lutz, shoveling dirt on top of the 

highwall at Respondent's Pocono Quarry at a distance of approximately 3 to 4 feet from the face. Lutz was not wearing either a 

safety belt or a line at the time. 

Carter testified, in essence, that there was a danger of 

Lutz falling inasmuch as he could trip on "numerous" backbreaks 

or cracks in the ground that were spread throughout the strata of 

the highwall. Carter described these cracks as being 

approximately 6 to 8 inches wide and up to approximately 1 foot 

deep. In addition, according to Carter, if Lutz, working 3 to 4 

feet of the highwall, would have fallen off the highwall by 

losing his balance, he might have been fatally injured, as the 

distance from the top of the highwall to the top of the muck pile 

below was approximately 30 to 40 feet. 

In contrast, James Cliff, Respondent's manager in charge of. 

drilling and blasting, testified that, on the date in question, 

there were no cracks on the highwall except those backbreaks 

within a foot of the face. He also testified that the distance 

from the highwall edge to the top of the muck pile was 15 feet at 

most. He also.testified that when he observed Lutz, on May 29, 

the latter was 5 or 6 feet away from the edge of the highwall. 

He stated that he was of the opinion that, on May 29, Lutz was 

not in any danger of falling. On cross examination Cliff indi485 
cated that, on the date in question, there were cracks in the 

ground, but not big enough for a foot to get stuck in and they 

were all "filled in." (Tr. 58). 

Barry D. Lutz indicated he did not perceive himself in danger 

of falling on May 29, 1987, and that he felt comfortable being 4 to 

5 feet from the edge. He was asked whether there were cracks 

approximately 6 to 8 inches wide and he indicated that there were 

not any in the area where he was working. He indicated, however, 

that on May 29, he came within a couple of feet of the edge. 

In reconciling the conflict between Carter and Respondent's 

witnesses, with regard to the condition of the highwall, I have 

given more weight to the version testified to by carter based 

upon my observation of his demeanor. Further, I note that of the 

three witnesses, Lutz would have the most knowledge of the actual 

conditions at his work site. In this connection, Lutz testified 

that on May 29, he was within a couple of feet of the face at the 

closest, and his testimony did not negate the existence of any 

cracks. Also, Lutz's testimony did not contradict the opinion of 

Carter with regard to the distance from the top of the highwall 

to the muck pile. Accordingly~ I find that Lutz, in working 

within a couple of feet of the face on a highwall surface with 

cracks on it, was in danger of falling. 

II. 

In essence, Respondent's witnesses indicated, that in the 

normal course of the drilling operation, a driller wearing a belt 

would need a cable of approximately 25 feet to enable him to 

perform all his tasks. It was further their testimony that 

working attached to such a length of cable would be hazardous as 

there would be a possibility of it getting tangled in the feet of 

the driller causing the latter to fall. They indicated that 

there was also a danger of the cable getting caught in the controls of the drill. It was the opinion of Lutz that the use of a 

belt line could prevent him from getting away from any burst of 

the high pressure lines. Lutz and Cliff also indicated that such 

a cable length of 25 feet would not prevent the hazard of an 

injury, as the distance from the top edge of the highwall to the 

top of the muck pile is only approximately 15 feet. Further, 

they indicated that they have never seen a driller on a highwall 

use a safety belt. 

I find that Respondent has not established either that the 

wearing of a safety belt is not feasible or that it would present 

a greater hazard. In this connection, I note the distinct hazards 

of not wearing a safety belt in proximity to the edge of the highwall as delineated in the testimony of Carter as discussed above, 

infra. Further, I find, as agreed to by Cliff on cross-examina486 
tion, (Tr. 60-61), that the hazards of a driller working with a 25 

foot belt line can be obviated by having a smaller length belt line 

that could be unsnapped when the driller has to move around the 

drill away from the face. Also, I find that the evidence is 

insufficient to conclude that tethering a belt line to the drill 

would create a greater hazard than working in close proximity to 

the edge without such a belt. 

In essence, Respondent's witnesses, Cliff and Lutz, offered 

their opinion that Lutz was not in any danger of falling, when he 

was observed by Carter working without a safety belt. In addition, Cliff had testified that the cracks in the ground, were not 

big enough for a foot to get in and they were all filled in. 

Lutz testified that there were not any 6 to 8 inch cracks in the 

area that he was working. However, as discussed above, infra, I 

have found, based upon the testimony of Carter, that, indeed, the 

surface of the highwall near the edge did contain cracks. In 

this connection even Cliff indicated that there were backbreaks 

within 1 foot of the face. I thus find that due to the nature of 

the surface 0£ the highwall that there was a danger of Lutz 

falling. Due to the proximity of Lutz to the edge of the highwall in the normal mining operation, I conclude that by not 

wearing a saf~ty belt there was a reasonable likelihood of Lutz 

tripping and falling over the edge. I find, based upon observations as to the d~neanor of Carter, that the distance from the 

top of the highwall to the muck pile was approximately 40 feet. 

Based on all the above, I conclude that Lutz, being without 

a belt, in the condition observed by Carter, was in danger of 

falling and this danger would be recognized by an informed reasonably prudent person (See, Great Western Co., supra). As such, I 

find Respondent herein violated section 56.15005, supra. In addition, as an~lyzed above, I conclude that the violation herein, of 

Lutz not having a safety belt, contributed to a measure of danger 

to safety with a reasonable likelihood that the hazard contributed to will result in a injury of a reasonably serious nature, 

and as such the violation must be considered to be significant 

and substantial. (See, Mathies Coal Company, 6 FMSHRC 1 (January 

1984)). ' 

III. 

For the reasons discussed above, infra, I conclude that the 

gravity of the violation herein to be moderately serious. Further, the evidence establishes that Lutz was not provided· with a 

safety belt, and I conclude, based on the testimony of Carter, 

that Respondent should have known that working without a safety 

belt, under the condition testified to by Carter, would have 

subjected Lutz to a danger of falling. Accordingly, I find that 

Respondent, in violating section 56.15005, supra, was negligent 

487 
to a moderate degree. I also have considered the other factors 

of section llOCi) of the Federal Mine Safety and Health Act of 

1977, as stipulated to by the Parties. Based on all of the 

above, I conclude that a fine of $126 is proper. 

ORDER 

It is ORDERED that the Respondent pay the sum of $126, 

within 30 days of this Decision, as a Civil Penalty for the 

violation found herein. 

Distribution: 

cc_~. Avram Weisberger 

Administrative Law Judge 

Evert H. vanWijk, Esq., Office of the Solicitor, u. s. Department 

of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

John T. Kalita, Jr., Esq., General Counsel, Eureka Stone Quarry, 

Inc., Pickertown & Lower State Roads, P. O. Box 296, Chalfont, PA 

18914 (Certified Mail) 

dcp 

,488 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSIONOFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

.March 10, 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

DONALD J. ROBINETTE 

Complainant 

v. 

BILL BRANCH COAL COMPANY, 

INC., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF JOEY F. HALE, 

Complainant 

v. 

BILL BRANCH COAL COMPANY, 

INC., 

Respondent 

. . 

. . 

. •. 

ORDER 

DISCRIMINATION PROCEEDING 

Docket No. VA 87-21-D 

NORT CD 87-5 

Mine No. 8 

DISCRIMINATION PROCEEDING 

Docket No. VA 87-22-D 

NORT CD 87-7 

Mine No. 8 

On February 24, 1988, Respondent, in a telephone call to the 

undersigned, made a request to compel Petitioner to produce names 

of certain witnesses pursuant to a written interrogatory. In 

response to this request, on February 24, 1988, a telephone 

conference call was arranged by the undersigned with attorneys 

for both Parties. In this conference call the undersigned 

requested that the Parties file by March 4, 1988, a memorandum 

setting forth their position on the issues raised by Respondent's 

request. Memorandum were filed on March 7, 1988. 

It appears from Respondent's Memorandum that its request at 

this point is for Petitioner to respond to the following 

interrogatory: 

"Please state the names, addresses and t~lephone 

numbers of all witnesses interviewed by agents, 

servants or employees of the government who were not 

employees of the respondent, Bill Branch Coal 

Corporation, at the time of their interview with said 

agents, sub-agents, employees, etc." 

489 
Specifically, Respondent has indicated that it seeks "to 

discern the identity of those individuals whom the Respondent now 

claim 'over heard' certain statements or 'observed' certain 

conduct which the Claimants now maintain subsequently cause the 

Respondent to act in a way which would violate the Act." It 

appears to be the Respondent's position that th~se individuals 

cannot be classified as informers as they have not" ••• 

furnished information to a government otficial relating to or 

assisting in the government's investigation of a possible 

violation of law, including a possible violation of the Mine Act." 

(Secretary on behalf of George Roy Logan v. Bright Coal Company, 

Inc. 6 FMSHRC 2520, 2525 (Nov. 1984)). I find, however, that an 

individual is an informer if he provides information which is 

corroborative or supportive of the Complainant's cause of action 

and thus is in assistance of the government's investigation of a 

possible violation of section 105 of the Federal Mine Safety and 

Health Act of 1977. (See, Logan, supra.) As set forth by the 

Commission in Logan, supra at 2526, the Respondent herein has the 

burden of proving the necessary facts " ••• to show that the 

information is essential to a fair determination • • • . " In 

this connection, I note that in its Memorandum the Respondent has 

merely alleged in general that its need to discover these 

witnesses is essential to a fair determination, but has not set 

forth any facts to establish its position. I therefore conclude 

that the Respondent has not met its burden of establishing its 

specific need for divulgence of names of informer witnesses to 

the point that would outweigh the privilege granted in 29 C.F.R. 

§ 2700.59. 

Therefore, it is ORDERED that, within 7 days of this Order, 

Petitioner serve upon the Respondent the names, addresses, and 

telephone numbers of all its witnesses who are not miners. 

It is further ORDERED that Petitioner, shall within 7 days 

of this Order, file with the undersigned a statement containing 

the names of all witnesses who are informers, and a statement 

setting forth any facts Petitioner relies upon to establish the 

informers' privilege for each of the witnesses alleged to be 

informers. I shall then determine in a subsequent order those 

witnesses, if any, who are not informers and whose names are to 

be divulged to the Respondent. 

£_~ 

490 

Avram Weisberger 

Administrative Law Judge 

(703) 756-6210