May 1983 

Connnission Decisions 

5-05-83 

5-11-83 

5-12-83 

5-25-83 

5-26-83 

William A. Haro v. Magma Copper Co. 

United Mine Workers of America 

White Pine Copper Div., Copper Range Co. 

Great Western Electric Co. 

Shamrock Coal Co. 

Administrative Law Judge Decisions 

5-04-83 Western Coal Corp. 

5-09-83 Danny Henderson v. King Coal Co. 

5-09-83 MSHA ex rel Gerald D. Boone v. Rebel Coal 

5-17-83 Ozark Lead Co. 

5-17-83 Missouri Gravel Co. 

5-17-83 United States Steel Mining Co. 

5-23-83 Rio Algom Corp. 

5-25-83 Todilto Exploration & Developement Corp. 

5-26-83 Albert J. Dicaro v. United States Fuel Co. 

5-26-83 Plateau Re~ources LTD 

WEST 79-49-DM 

CENT 81-223-R 

LAKE 81-106-RM 

WEST 81-213-RM 

KENT 80-292 

WEVA 83-41 

SE 82-62-D 

WEVA 80-532-D 

CENT 81-269-M 

LAKE 80-83-M 

PENN 82-328 

WEST 79-122-M 

CENT 82-101-M 

WEST 82-113-D 

WEST 82-114-M 

\ 

Pg. 805 

Pg. 807 

Pg. 825 

Pg. 840 

Pg. 845 

Pg. 855 

Pg. 859 

Pg. 885 

Pg. 889 

Pg. 899 

Pg. 934 

Pg. 938 

Pg. 950 

Pg. 954 

Pg. 988 

\ 

Commission Decisions 

MAY 

The following cases were Directed for Review during the month of May: 

Secretary of Labor, MSHA v. Freeman United Coal Mining Co., Docket No. 

LAKE 82-3 (Judge Broderick, March 25, 1983). 

Minerals Exploration Company v. Secretary of Labor, MSHA, Docket No. 

WEST 81-189-RM (Judge Carlson, April 6, 1983). 

Secretary of Labor, MSHA v. FMC Corporation, Docket Nos., WEST 82-146-RM, 

WEST 82-207-M (Judge Kennedy, April 1, 1983). 

Southern Ohio Coal Company v. Secretary of Labor, MSHA, Docket Nos. 

LAKE 82-93-R, 82-94-R, 82-95-R (Judge Koutras, April 20, 1983). 

William Haro v. Magma Copper Co., Docket Nos. WEST 79-49-DM, 80-116-DM 

(Judge Morris' certification for Interlocutory Review, April 6, 1983) 

Secretary of Labor, MSHA v. Black Diamond Coal Mining Co., Docket No. 

SE 82-48 (Judge Koutras, April 20, 1983) 

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

James Dickey v. United States Steel Co., Docket No. PENN 82-179-D (Judge 

Koutras, March 23, 1983). 

Jay Montoya v. Valley Camp of Utah, Inc., Docket No. WEST 82-41-D (Judge 

Broderick, April 4, 1983). 

Leo Klimczak v. General Crushed Stone, Docket No. YORK 82-21-DM, (Judge 

Melick, April 6, 1983). 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

WILLIAM A. HARO 

v. 

MAGMA COPPER COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 5, 1983 

ORDER 

WEST 79-49-DM 

WEST 80-116-DM 

The certification of interlocutory review filed by the judge on 

April 6, 1983 is accepted. 29 C.F.R. § 2700.74(a) 

The remand order of the Commission issued on November 20, 1982 

directed the judge to make findings on the record presently befqre him 

as to the merits of the operator's defense. Accordingly, the case is 

returned to the judge. 

L. Clair Nelson, Commissioner 

83,....5-4 
Distribution 

N. Douglas Grimwood 

Twitty, Sievwright & Mills 

1700 TowneHouse Tower 

100 West Clarendon 

Phoenix, Arizona 85013 

Paul F. Tosca, Jr. 

Corcoran, Magness & Tosca 

608 Pioneer Plaza 

100 North Stone 

Tucson, Arizona 85701 

Administrative Law Judge John Mqrris 

:FMSHRC 

333 West Colfax Ave., Suite 400 

Denver, Colorado 80204 

Uv 0()6 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 11, 1983 

UNITED MINE WORKERS OF AMERICA 

(UMWA) 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Docket No. CENT 81-223-R 

DECISION 

The broad question presented here is whether miners, or representatives of miners, have statutory authority under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1976 & Supp. V 1981) 

("the Mine Act"), to initiate review o; citations issued by the Secretary 

of Labor through the filing of a notice of contest. The administrative 

law judge held that miners and their representatives do not have such a 

right. For the reasons set forth below, we agree. 

This case arose in the following context. On May 13, 1981, an 

inspector from the Mine Safety and Health Administration issued an 

imminent danger withdrawal order pursuant to section 107(a) of the 

Mine Act to Garland Coal & Mining Company. 30 U.S.C. § 817(a). 1/ 

In the withdrawal order, the inspector charged that explosives were 

being transported to the blasting area of the mine in a manner that 

constituted an imminent danger. The order alleged that the inspector 

had observed explosive materials being transported on the front seat 

and in the glove compartment of a truck. 

l/ Section 107(a) provides: 

If, upon any inspection or investigation of a coal 

or other mine which is subject to this Act, an 

authorized representative of the Secretary finds 

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

such mine throughout which the danger exists, and 

issue an order requiring the operator of such 

mine to cause all persons, except those referred 

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

to be prohibited from entering, such area until 

an authorized representative of the Secretary 

(Footnote continued) 

83-5-6 
On the same document as the imminent danger withdrawal order, the 

inspector also issued a citation under section 104(a) of the Mine Act. 

30 U.S.C •. § 814(a). :?:./ The citation alleged that the manner in which 

the explosives were being transported constituted a violation of 

30 C.F.R. § 77.1303(c). That mandatory safety standard states that 

"[s]ubstantial nonconductive closed containers shall be used to carry 

explosives, other than blasting agents to the blasting site." In 

addition, the citation also contained a "significant and substantial" 

finding. ]./ 

Fn. l/ continue 

determines that such imminent danger and the 

conditions or practices which caused such 

imminent danger no longer exist. The issuance 

of an order under this subsection shall not 

preclude the issuance of a citation under 

section 104 or the proposing of a penalty 

under section 110. 

30 U.S.C. § 817(a). 

l:.f Section 104(a) provides: 

If, upon inspection or investigation, the Secretary 

or his authorized representative believes that an 

operator of a coal or other mine subject to this 

Act has violated this Act, or any mandatory, health 

or safety standard, rule, order, or regulation promulgated pursuant to this Act, he shall, with reasonable promptness, issue a citation to the operator. 

Each citation sh~ll be in writing and shall describe 

with particularity the nature of the violation, 

including a reference to the provision of the Act, 

standard, rule, regulation, or order alleged to 

have been violated. In addition, the citation 

shall fix a reasonable time for the abatement of 

the violation. The requirement for the issuance 

of a citat~on with reasonable promptness shall 

not be a jurisdictional prerequisite to the 

enforcement of any provision of this Act. 

30 U.S.C. § 814(a). 

3/ With regards to significant and substantial findings, section 

l04(d)(l) of the Mine Act in part provides: 

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 

(Footnote continued) 

808 
Thereafter, the United Mine Workers of America ("UMWA"), proceeding 

as a representative of the miners, filed a notice of contest with the 

Commission. In the notice of contest, the UMWA submitted that there 

was "sufficient evidence" to establish that the violation of 30 C.F.R. 

§ 77.1303(c) was the result of the operator's "unwarrantable failure" 

to comply with the standard. See section 104(d)(l) at n.3, supra. 

Accordingly, the UMWA requested that the Commission modify the citation so as to include an unwarrantable failure finding. Garland Coal, 

the operator to which the citation and order were issued, did not 

contest the Secretary's action or seek to intervene in the proceeding 

instituted by the UMWA. 

The Secretary filed a motion to dismiss the UMWA's notice of contest 

on the ground that the UIB\TA had failed to state a claim upon which relief 

can be granted, ·The Secretary argued, among other things, that an 

"unwarrantable failure" finding cannot be made in a citation if the 

involved violation is also serving as the basis for an imminent danger 

withdrawal order. In that regard, the Secretary stated that section 

104(d)(l) provides that in order. to make an unwarrantable failure 

finding, the inspector must first determine that the cited violation 

did not result in an imminent danger. Thus, the Secretary submitted 

that under the facts of this case the inspector was precluded from 

making an unwarrantable failure finding. ··! 

The UMWA, in turn, filed a motion for summary decision with the 

judge. It argued that the "Inspector's Statement" regarding the violation of 30' C.F.R. § 77.1303(c), together with the Mine Safety and 

Health Administration's "Narrative Findings for a Special [Penalty] 

Assessment", established that the violation resulted from the operator's 

unwarrantable failure to comply with the cited standard. !::_/ 

Fn. ]./ continue 

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. 

30 U.S.C. T""814(d)(l). (Emphasis added.) 

4/ Botμ the inspector's statement and the narrative findings were 

attached to the motion f-0r summary decision. The inspector's statement was a standardized form filled out by the inspector who had 

issued the citation and it addressed the cited violation. The 

narrative findings was a statement by the Mine Safety and Health 

Administration to the effect that the circumstances of the case 

warranted the waiving of the penalty assessment formula appearing 

in 30 C.F.R. § 100.3 and the determination of a "special" assessment 

under 30 C.F.R. § 100.4 (1981). 

609 
On August 28, 1981, the judge issued a pre-hearing order dismissing 

the case. 3 FMSHRC 2016 (August 198l)(ALJ). The judge based his dismissal on the ground that the UMWA, as a representative of the miners, 

did not have the statutory authority to contest the citation. In light 

of his conclusion, the judge did not pass upon the issues raised in 

the parties' pre-hearing motions. 

Following the judge's order of dismissal, the UMWA's petition 

for discretionary review was granted by the Commission. 30 U.S.C. 

§ 823(d)(2). We also granted leave to intervene to Peabody Coal 

Company, U.S. Steel Corporation and the Council of the Southern 

Mountains, Inc., and oral argument was heard. 

The issue before us at the present time is extremely narrow. 

Although a number of potentially important questions involving the 

interpretation of various key provisions of the Mine Act have been 

raised by the parties, the sole issue ruled on by the judge and 

before us on review is whether miners and representatives of miners 

("miners") have the statutory authority under the Mine Act to contest 

citations. Because we agree with the judge's disposition of the 

preliminary question of the UMWA's right to institute this proceeding, 

we need not reach or decide at this time the secondary issues raised 

by the parties. 

The judge's conclusion that miner~·do not have the right to contest 

citations was based on the express statutory language of section 105(d) 

of the Act. 30 U.S.C. § 815(d). Section 105(d) sets forth certain 

Secretarial actions that operators and miners may contest: 

If, within 30 days of receipt thereof, an operator 

of a coal or other mine notifies the Secretary that he 

intends to contest the issuance or modification of an 

order issued under section 104, or citation or a notification of proposed assessment of a penalty issued 

under subsection (a) or (b) of this section, or the 

reasonableness of the length of abatement time fixed 

in a citation or modification thereof issued under section 104, or any miner or representative of miners 

notifies the Secretary of an intention to contest 

the issuance, modification, or termination of any 

order issued under section 104, or the reasonableness of the length of time set for abatement by a 

citation or modification thereof issued under 

section 104, the Secretary shall immediately advise 

the Commission of such notification, and the Commission shall afford an opportunity for a hearing ••• 

and thereafter shall issue an order, based on findings 

of fact, affirming, modifying, or vacating the Secretary's citation, order, or proposed penalty, or 

directing other appropriate relief •••• The rules of 

procedure prescribed by the Commission shall provide 

affected miners or representatives of affected miners 

an opportunity to participate as parties to hearings 

under this section. 

(Emphasis added.) 

810 
In sum, the above statutory language states that under section 

lOS(d) an operator may contest (1) the issuance or modification of an 

order of withdrawal, (2) a citation, (3) a proposed penalty assessment, 

and (4) the reasonableness of the length of abatement time contained in 

the citation. Comparatively, miners may contest (1) the issuance, modification or termination of a section 104 withdrawal order and (2) the 

reasonableness of the length of abatement time contained in the citation. 

Thus, as the judge noted in his order dismissing the case, "[t]he 

words 'or citation' are conspicuously absent from the list of items a 

miner or representative or miners may contest." 3 FMSHRC at 2017. 

Accordingly, a plain reading of the unambiguous language of lOS(d) supports the conclusion that Congress did not intend for miners to have the 

right to contest citations. 2/ 

Despite the unambiguous language of section 105(d) the UMWA submits 

that the Mine Act's legislative history establishes that Congress in fact 

intended miners to have the right to contest citations. 6/ In support of 

this argument we are directed to the following passage in the Conference 

Report: 

Procedure for Enforcement 

The Senate bill required that.within a reasonable time 

after completion of the inspection, the Secretary notify 

the operator, by certified mail, of the proposed civil 

penalty to be assessed for any violation noted in the 

inspection. Such notice, a copy of which must be sent 

to the representatives of miners at the mine, would 

notify the operator that he had fifteen working days 

from receipt to contest the citation or proposed civil 

penalty assessment. If within 15 working days, the 

operator or any miner or the representative of miners 

did not contest the civil penalty assessment or citation, such would be the final order of the Commission, 

and would not be reviewable in any court. 

* * * * * * 

The conference substitute conforms to the Senate bill, 

with an amendment changing the period within which 

appeals may be taken from orders and penalty proposals from "fifteen working days" to "thirty days." 

The conferees intend that this shall mean 30 calendar 

days. 

2/ Both the UMWA and intervenor Council of the Southern Mountains, 

Inc. note that in Energy Fuels Corp., 1 FMSHRC 299 (May 1979), we 

found section lOS(d) to be ambiguous. However, our discussion of 

ambiguity in Energy Fuels was directed at the question of whether an 

operator may contest a citation prior to the Secretary's proposing a 

penalty. It is inapposite to the question presented here. 

6/ In that respect, the UMWA is joined by intervenors Peabody Coal 

Company, U.S. Steel Corporation and the Council of the Southern 

Mountains, Inc. 

811 
· S. Rep. 95-461, 95th Cong., 1st Sess. 50 (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 1328 (1978) ["Legis. Hist."]. (Emphasis added.) 

We find the UMWA's and intervenors' reliance upon this portion of 

the legislative history to be misplaced. This portion of the Conference 

Report concerns section 105(a) of the Act -- addressing the procedural 

scheme for when a citation and proposed penalty become a final order of 

the Commission -- and not section 105(d). 7/ We read section 105(a) and 

the corresponding legislative history contained in the Conference Report 

as providing that unless the operator contests the citation and/or proposed penalty within the 30-day period, and unless the miners contest the 

reasonableness of the length of the abatement period contained in the 

citation within that same time frame, the citation and proposed penalty 

become a Commission final order. Thus, we find that section 105(a) does 

not expand upon the section 105(d) rights of miners to contest specified 

Secretarial enforcement actions -- that is, the right to contest the 

issuance, modification and termination of a withdrawal order issued under 

section 104 and the right to challenge the length of the abatement period 

contained in a citation. 

We find the Mine Act's legislative history relating to section 105(d) 

to be equally unpersuasive. Regarding,rsection 105(d), the Conference Report 

states the following: 

7/ Section 105(a) provides: 

If, after an inspection or investigation, the Secretary 

issues a citation or order under section 104, he shall, 

within a reasonable time after the termination of such 

inspection or investigation, notify the operator by 

certified mail of the civil penalty proposed to be 

assessed under section llO(a) for the violation cited 

and that the operator has 30 days within which to notify 

the Secretary that he wishes to contest the citation or 

proposed assessment of penalty. A copy of such notification shall be sent by mail to the representative of 

miners in such mine. If within 30 days from the receipt 

of the notification issued by the Secretary, the operator fails to notify the Secretary that he intends to 

contest the citation or the proposed assessment of 

penalty, and no notice is filed by any miner or 

representative of miners under subsection (d) of 

this section within such time, the citation and 

the proposed assessment of penalty shall be 

deemed a final order of the Commission and not 

subject to review by any court or agency. Refusal 

by the operator or his agent to accept certified 

mail containing a citation and proposed assessment 

of penalty under this subsection shall constitute 

receipt thereof within the meaning of this subsection. 

30 U.S.C. § 815(a). (Emphasis added.) 

812 
Administrative Review 

The Senate bill required that parties wishing to contest 

the issuance or modification of an order, or a notification, or the abatement requirement notify the Secretary 

of the intention to contest within 15 working days of 

receipt thereof. The Senate bill required that the 

Secretary immediately notify the Commission, which 

would afford the parties an opportunity for a hearing~ 

and issue a final decision, based on findings of fact 

affirming, modifying or vacating the Secretary's 

order, citation or proposed penalty, and directing 

other appropriate relief. The order of the Commission would become final 30 days after its issuance. 

Miners or their representatives were afforded the 

opportunity to participate in such hearings as 

parties. 

* * * * * * 

The conference substitute conforms to the Senate bill, 

with the amendment providing 30 calendar days for the 

filing of administrative appeals rather than the 15 

working days provided in the Senate bill. 

S. Rep. 95-461, 95th Cong., 1st Sess. 53 (1977), Legis. Hist. at 1331. 

(Emphasis added.) 

Although this portion of the Conference Report refers to "parties" 

contesting citations, in light of section 105(d)'s specific grant to 

operators, but not miners, of the right to contest citations, we find the 

preceding passage insufficient to establish that Congress intended to allow 

miners to contest citations. Instead, this portion of the Conference Report 

merely collectively summarizes the section 105(d) statutory rights that 

operators and miners have to challenge Secretarial enforcement actions. 8/ 

The Senate Report on S.717, the bill that substantially formed the 

basis for the Mine Act, is also bereft of any specific language to indicate 

that the Senate intended miners to have the right to contest citations. See 

S. Rep. 95-181, 95th Cong., 1st Sess. 34-35 (1977) ["S. Rep."], Legis. Hi"St." 

at 622-623. With regard to section 105(d), the Senate Report's section-bysection analysis states: 

8/ For that same reason, we reject the UMWA's argument that Commission 

Rule 20(b) expressly provides for miners to contest citations. 29 C.F.R. 

§ 2700.20(b). That procedural rule merely summarizes the various rights 

to contest set forth in section 105(d) of the Mine Act and quoted extensively in Commission Rule 20(a). 29 C.F.R. § 2700.20(a). Moreover, we 

could not, through procedural rules, expand upon the statutory rights to 

contest granted by Congress in section 105(d). 

813 
Section [105(d)] provides that if an operator notifies 

the Secretary that he intends to contest the issuance 

or modification of an order or a notification, or the 

reasonableness of an abatement period, or any miner or 

representative of miners notifies the Secretary that 

he plans to so contest, the Secretary shall immediately 

so advise the Commission. The Commission must then 

provide an opportunity for a hearing and thereafter 

issue an order affirming, modifying, or vacating the 

Secretary's citation, order, or proposed penalty or 

directing other appropriate relief. Such an order 

becomes final 30 days after its issuance. 

The rules of procedure prescribed by the Commission 

shall provide affected miners or their representatives an opportunity to participate as parties to 

Commission hearings under this subsection. The 

Commission shall take whatever action is necessary 

to expedite proceedings for hearing appeals of 

orders issued under section [104]. 

S. Rep. at 69, Legis. Hist. at 657. (Emphasis added.) 

As with the Conference Report, in ligh~ of the unambiguous language of 

section 105(d), we view the section-by;_section analysis as an ina~tful 

summary of the statutory provisions of that section. 9/ 

In sum, we find that a careful reading of the cited portions of 

the Mine Act's legislative history does not support the proposition 

that in section 105(d) Congress intended to confer upon miners the 

statutory right to contest citations. Moreover, even if we read the 

legislative history in the light most favorable to the UMWA's position, 

we do not find such Congressional intent to be so clearly expressed as 

to overcome the plain and unambiguous language used in section 105(d). 

Accordingly, we find the clear and precise language of section 105(d) 

to be controlling. See American Tobacco Company v. Patterson,~- U.S. 

, 71 L.Ed. 2d 748, 755 (1982); United States v. Turkette, 452 U.S. 

576, 580 (1981). 

9/ In addition, a statement made by Senator Javits during the Senate 

floor debate on S.717, and relied upon by the UMWA, likewise fails. 

Senator Javits stated: 

Administrative review of challenges to these procedures 

is lodged in an independent Mine Safety and Health Review 

Commission. Any affected party may appeal a citation, 

penalty, or order, and the Commission is directed to 

hold a hearing on their claim. 

Legis. Hist. at 910-911. (Emphasis added.) For the reasons mentioned 

above, we do not equate the phrase "[a]ny affected party may appeal a 

citation" with affording affected miners the right to contest a citation. 

814 
Furthermore, assuming arguendo that the Mine Act's legislative history 

could be read to evidence Congressional intent to confer on miners standing 

to contest citations, the failure of Congress to specifically incorporate 

such intent into the language of section 105(d) would be especially puzzling 

in view of the fact that the Mine Act's predecessor, the Federal Coal Mine 

Health and Safety Act of 1969, 30 u.s.c. § 801 et~· (1976)(amended 1977), 

did not contain a specific statutory provision allowing miners or operator's 

to contest the merits of a notice of violation -- the Coal Act's equivalent 

of a citation. See 30 U.S.C. § 815(a)(l)(l976). In the Mine Act, Congress 

specifically gave-operators the right to contest citations. One would 

assume, therefore, that if Congress had intended miners to also have this 

right, it would have at the same time specifically provided them such a 

right in section 105(d). J!l./ 

In the final analysis, we confront again the assertion of a right 

which leads to a search of the statute to find the requisite authority. 

The statute contains no express provision for the asserted right. Our 

dissenting colleague searches elsewhere and finds implications, but no 

express statutory provision. 

It may very well be desirable for the miner or the miner's 

representative to have a right to contest the issuance of a citation, 

but it remains the prerogative of the Congress to provide such right. 

It is not the prerogative of this Commission to confer that right in 

the absence of statutory provision. Repeated recitation of the purpose 

of the 1977 Act, which is well known, gives no support to an attempt 

to impart to the Act a provision which simply is not there. 

The 1977 Act represents a thoroughgoing amendment of the 1969 Act. 

The basic issue in this case did not spring forth last month or last 

year. It finds inception in the absence of statutory provision in the 

1969 Act, which forcefully begs the question: If it is so plain that 

the Congress intended to provide the right asserted here, why was it 

not clearly provided for in the 1977 Act? 

Finally, we reject the claims advanced by the UMWA and intervenor 

Council of the Southern Mountains, Inc. that miners are denied due 

process and equal protection of the law by not being permitted to 

initiate review of citations issued by the Secretary. Regarding the 

due process objection, neither the UMWA, nor the Council of the 

Southern Mountains, has identified a "life, liberty or property" 

interest of which miners are being deprived in this case. The fact that 

Congress enacted remedial safety and health legislation does not confer 

upon miners a due process right to initiate a challenge to the Secretary's 

issuance of a citation. Moreover, due process requires only that a party 

10/ Where Congress intended for miners to have an affirmative right 

under the Mine Act, it clearly provided for such • ..!:.&·• section 

10l(a)(7), 30 U.S.C. § 811(a)(7) (transfer of miners overexposed to 

hazardous substances); section 103(c), 30 u.s.c. § 813(c) (requiring 

(Footnote continued) 

815 
be afforded an opportunity to be heard "at a meaningful time and in a 

meaningful manner" appropriate to the nature of the case. See Mathews v. 

Eldridge, 424 U.S. 319, 333 (1976); Armstrong v. Manzo, 380--U:-s. 545, 

552 (1965). Thus, even if we assumed the exis.tence of a due process 

right of miners to be heard regarding the issuance of citations, the 

informal Secretarial review provisions contained in 30 C.F.R. Part 43 

afford miners due process. Tho~e informal review provisions allow miners 

the opportunity to explain to a representative of the Secretary why a 

citation should be issued. 

As for the equal protection argument, we find that the UMWA and 

the Council of the Southern Mountains have failed to show that no 

rational reason exists for the manner in which Congress sought to 

achieve safety in the mines -- that is, by permitting operators to 

initiate a contest to the Secretary's issuance of a citation, but 

not miners. See Secretary of Labor v. Kenny Richardson, 3 FMSHRC 8, 

21-27 (January 1981), aff'd, 689 F.2d 632 (6th Cir. 1982). In fact, 

a rational reason for the statutory scheme concerning the right to 

contest citations seems obvious -- Congress quite rationally may have 

thought it unnecessary to afford miners the right to contest th.e 

Secretary's issuance to an operator of a citation alleging a violation of the Act. Congress legitimately could have expected that 

operators, not miners, are adversely affected by issuance of a 

citation. 

Fn. 10/ continued 

the Secretary to adopt regulations permitting miners to observe the 

monitoring or measuring of toxic materials and harmful physical agents, 

and to have access to the records of one's own exposure); section 103(d), 

30 U.S.C. § 813(d) (interested persons' access to accident reports); 

section 103(f), 30 U.S.C. § 813(f) (right to accompany Mine Safety and 

Health Administration inspector during inspection of mine, without loss 

of pay); section 103(g), 30 U.S.C. § 813(g) (right to request a special 

inspection if there is reason to believe that a violation or an imminent 

danger exists and right to obtain informal review if the inspector does 

not issue a citation or a withdrawal order); section 105(c)(3), 30 u.s.c. 

§ 815(c)(3) (right to bring an independent action for discrimination before 

the Commission in the event that the Secretary declines to do so); section 

107(e)(l), 30 U.S.C. § 817(e)(l) (right to seek Commission review of the 

Secretary's issuance, modification or termination of an imminent 

danger withdrawal order); section 111, 30 U.S.C. § 821 (right to seek 

compensation if idled as a result of a withdrawal order issued under 

certain sections of the Act); section 115, 30 u.s.c. § 825 (mandatory 

health and safety training); section 302(a), 30 U.S.C. § 862(a) (miners' 

access to roof control plan); section 303(d)(l), (f), (g) and (w), 

30 u.s.c~ § 863(d)(l), (f), (g), and (w) (interested persons' access 

to records of operator's safety and health examinations); and section 

312(b), 30 U.S.C. § 872(b) (miners' access to confidential mine map). 

816 
Accordingly, we hold that miners and representatives of miners do 

not have statutory authority under section 105(d) of the Mine Act to 

initiate review of citations issued by the Secretary of Labor. 11/ 

The judge's order dismissing the UMWA's notice of contest is, therefore, 

affirmed. 

11/ This case does not raise, and we do not decide, any issue con-

"C;rning the scope of the right of miners or their representatives 

under section 105(d) to participate as parties in a proceeding 

initiated through an operator's contest of a citation. Compare 

~., OCAW v. OSHRC, 671 F.2d 643, 647-48 (D.C. Cir. 1982), with 

Marshall v. Sun Petroleum Products Co., 622 F.2d 1176 (3d Cir. 1980). 

817 
Commissioner Lawson dissenting; 

The majority has defined the question before us as "broad", but found 

the issue to be "extremely narrow". Slip. op. at 1, 4, supra. However, 

defined, 'r would hold that they have erred in finding that miners or their 

representatives are barred from initially contesting section 104(a) citations 

for reasons other than the reasonableness of abatement periods·. 

It is significant that the miners' representative (UMWA), and intervenors Council of the Southern Mountains, Peabody Coal Co., and U.S. Steel 

Corporation, all agree that the miners and their representative do have the 

authority under the statute to contest the citation here issued by the 

Secretary. Oral Arg. 49-50. I concur. ];./ The Secretary therefore stands 

alone in asserting that miners should be denied the right to thus participate 

in this implementation of the Act. 

The Mine Act granted both operators and miners expanded rights to 

challenge citations, as contrasted to the 1969 Coal Act, which permitted 

challenges only as to the time period for abatement. 30 U.S.C. § 815(a)(l) 

(1970). The judge below and majority here premise their denial of 

Secretarial actions which miners may contest on--a part of--the language 

of section 105(d), which enumerates matters an operator may contest as: 

"the issuance or modification of an order issued under 

section 104, or citation or a notification of proposed 

assessment of a penalty issued under subsection (a) or 

(b) of this section, or the reasonableness of the length 

of abatement time fixed in a citation or modification 

thereof under section 104." Federal Mine Safety and Health 

Act of 1977 § 105(d), 30 U.S.C. § 815(d) (1981 Supp.). 

That same section of the Act, however, also provides that miners or 

their representatives may contest the issuance, modification or termination 

of any order issued under section 104, or the reasonableness of the length 

of time set for abatement by a citation or modification thereof issued 

under section 104 (emphasis added). 

From this the majority concludes that because citations and penalty 

assessment are included in the list of actions which operators may contest, 

but not mentioned in the list of actions which miners and their representatives may contest, Congress intended to deprive miners of the opportunity 

to challenge citations and penalty assessments. 

1/ As set forth hereinafter, I take no position on the merits of the 

particular case before us, but would remand to the ALJ for hearing and 

development of the facts and determination of the other issues addressed 

by the parties. I would, to that extent, agree with the majority that 

the secondary issues (slip. op. at 4, supra), need not be addressed at 

this time. 

818 
However, the then majority of this Commission in the case of Energy 

Fuels, 1 FMSHRC 299 (May 1979), in construing section 105(d) of the Act, 

conceded that its language was ambiguous. J:j As stated there: 

These ambiguities convince us that the words of 

the 1977 Act can not serve alone as an accurate gauge 

of congressional intent. We have therefore considered 

the legislative history of the 1977 Act, and what construction and application of the 1977 Act would best 

implement it. 

Energy Fuels, supra at 301. 

A review of that legislative history reflects the intention of the 

Congress that not only operators but miners are permitted to contest 

citations. As the Senate Report noted: 

Section 10[5](d)--provides that if an operator notifies 

the Secretary that he intends to contest the issuance or 

modification of an order or notification, or the reasonableness of an abatement period, or any miner or representative of miners notifies the Secretary that he plans 

to so contest, the Secretary shall immediately so advise 

the Commission. 

S. Rep. No. 95-181, 95th Cong., 1st Sess. 69 (1977), reprinted in [1977] 

U.S. Code Cong. & Ad. News 3401, 3468 (emphasis added). 

The Conference Report on the Act also reviewed and specifically commented 

on section 105: 

If within 15 working days, the operator or any miner or 

the representative of miners did not contest the civil penalty 

assessment or citations, such would be the final order of the 

Commission •..• 

H. Conf. Rep. No. 95-655, 95th Cong., 1st Sess. 50 (1977) reprinted in 

[1977] U.S. Code Cong. & Ad. News 3485, 3498 (emphasis added). 

Even analyzed negatively, as does the majority, the legislative history 

is silent as to any restriction of the right of miners or their representatives to contest citations, or that Congress intended miners to have less 

opportunity to challenge citations, or their modifications, than would 

operators. Nor is there any dispute that Congress rejected the 1969 Coal 

Act limited appeal restriction which permitted only challenges to the 

reasonableness of the time period set for abatement of the violation. 

J:./ Intervenors Peabody and U.S. Steel recognized this ambiguity also, in 

supporting the Mine Workers position in this case. Oral Arg. 51. 

819 
The majority's characterization of the legislative history cited 

"[w]e view the section by section analysis as an inartful suunnary of the 

statutory.provisions of ••• section [105(d)]." Slip. op. at 8, supra, 

and its unwarrantably confident reading of Sen.at or Javit' s remarks (n. 10, 

supra), fail when read in the light of the overriding purpose of the statute, 

and its emphasis upon the rights and obligations of both the operators and 

the miners "to prevent the existence of unsafe and unhealthful conditions 

and practices in such mines." Section 2(e). 

The Counnission is empowered to and sh9uld provide a hearing to allow 

miners to contest citations. Wong Yang Sung v. McGrath, 339 U.S. 33, 

50-51 (1950) .. This Counnission did provide the operator a review hearing 

of a temporary reinstatement order under section 105(c), to protect property 

rights, even though that section has no such provision. Sec. ex rel. Gooslin 

v. Kentucky Carbon Corp., 3 FMSHRC 1707, 1712 (July 1981). See also 29 C.F.R. 

§ 2700.44. 

Finally, and perhaps of overriding importance in the administration 

of the Mine Act, the Secretary's view, as noted, is contrary to that of 

all other parties to this case, and is in essence that his prosecutorial 

discretion is unlimited. Perhaps the most respected authority on administrative law has strongly criticized this view, and pointed out that the 

exercise of the discretionary power 0£ an agency not to enforce can be of 

even greater concern than its power to enforce: 

Curiously, discretion not to enforce is not 

merely the other side of the discretion-to-enforce 

coin, although almost everyone, including some of 

the best of judges and lawyers, tend to assume that 

it is. Not only does discretion not to enforce 

necessarily mean discretion to discriminate, but it 

is more dangerous because it is much less controlled 

than the affirmative power: (1) Exercise of the 

negative power is usually final, not merely interim. 

Exercise of the affirmative power usually leads to 

a proceeding, with opportunity for some sort of review. (2) The negative power is counnonly secret, so 

that extraneous influences on discretion are less 

likely to be detected. Affirmative enforcement is 

usually intrinsically open and may often be reported 

to the press. (3) Guiding standards or principles 

are more likely to be formulated for action than for 

inaction. (4) Findings and reasons often support 

enforcement decisions but seldom support discretionary decisions not to enforce. (5) A discretionary 

decision to enforce may be reviewed, although often 

it is not. But a decision not to enforce is almost 

never reviewed. 

2 K. C. Davis, Administrative Law Treatise, 214 (2d ed. 1979). 

Sections 9:2, 9:6 at 220, 239-40, 244. 

820 

See also 
Mr. Davis points to several cases in which courts have moved away 

from the traditional view and have refused to allow "the phrase prosecutorial discretion to be treated as a magical incantation which automatically provides a shield for arbitrariness." Medical Committee for 

Human Rights v. SEC, 432 F.2d 659, 673 (D.C. Cir~ 1970). In Adams v. 

Richardson, 480 F.2d 1159 (D.C. Cir. 1973), a nine-judge court unanimously 

affirmed a district court decision ordering the Secretary of Health 

Education and Welfare, and the Director of HEW's Office of Civil Rights, 

to institute enforcement proceedings against more than two hundred systems 

of higher education and school districts, and to withhold federal funds, 

because of violations of Title VI of the Civil Rights Act of 1964, involving school desegregation. 

Further, this Commission has in the past refused to accept the 

Secretary's view that its prosecutorial functions were unreviewable. 

Old Ben Coal Co., 1 FMSHRC 1480 (October 1979). See also Phillips Uranium 

Corp., 4 FMSHRC 549 (April 1982). The Commission in those cases rejected 

the Secretary's argument that he had complete discretion as to whether to 

cite the mine owner or the contractor for a violation that occurred at 

the mine owner's site. 

It is also clear, and the Secretary concedes, that the Commission is 

the proper forum for relief if the Secretary fails to carry out his 

statutory mandate. Tr. Oral Arg. at 41. Nor was the Secretary able to 

articulate any practical reason why miners or their representatives should 

be forbidden to contest citations. Tr. Oral Arg. at 46-48. 

Finally, it has been noted and is clear in the legislative history 

of the 1977 Act, (H. Rep. 95-312 at 15; S. Rep. 95-181 at 8-9) that the 

Congress criticized the Secretary (then the Secretary of the Interior) 

for being seriously deficient in carrying out his responsibilities under 

the '69 Act. At oral argument, a request was made for statistics as to 

enforcement since the inception of the 1977 Act, some of which were subsequently furnished to the Commission. Those statistics indicate a substantial decrease in several categories of citations and orders initiated 

since the 1977 Act became law. 

For example, section 104 citations issued between fiscal years 1979 

and 1981 decreased in the Secretary's "coal" districts from 135,000 to 

105,000; similarly, section 104(d) citations decreased from 840 to 764 

in this same period of time, and failure to abate withdrawal orders under 

section 104(b) declined from 1,867 to 1,389. In the Secretary's "metal and 

non-metal" districts, section 104(a) citations decreased from 44,000 to 

23,000; and section 104(b) failure to abate withdrawal orders declined 

from 301 to 179 (although section 104(d) citations did increase from 39 

to 77). 

821 
Citations in coal districts on a calendar year basis declined from 

139,000 in 1979 to 112,000 in 1981, and significant and substantial 

violations declined from 96,000 to 52,000 over the same period of time. 

In metal and non-metal districts, citations declined from 41,000 to 

21,000, and significant and substantial violations from 37,000 to 14,000 

over a similar time span. 

Unfortunately, the Secretary states that MSHA does not maintain 

separate statistics for voluntary dismissals, i.e., dismissals that are 

sought by the Secretary. This, at best, therefore leaves unanswered the 

question of whether or not the Secretary is dismissing cases after 

citations are issued at a greater, lesser, or equivalent rate than has 

obtained in the past. The Secretary also averred that he keeps no 

statistics on the voluntary withdrawal or dismissal of cases brought (per 

district), compared to the number of enforcement actions pursued. 

While these statistics are not conclusive, they do present the 

possibility that there is more than mere rhetoric underlying the allegations of the miners' representative and the intervenor Council of Southern 

Mountains that the Secretary's prosecutorial vigor has lessened. More 

cogently, the Secretary has averred that the Commission's standard of 

review must be abuse of discretion (Tr. Oral Arg. at 39), but presents 

the Connnission with data which is insufficient for meaningful review. 

This is, perhaps, most evident in the·'claimed inability of the Secretary 

to supply data on cases withdrawn by him, which, together with his 

repetitive reliance on "prosecutorial discretion", frustrates any attempt 

to determine whether or not there has, indeed, been any abuse of discretion, 

or "pattern or practice by the Secretary in violation of his authority" 

(Council of Southern Mountains v. Donovan, 516 F.Supp. 955, 960 (D.D.C. 

1981)), and precludes this--or any other forum's--review thereof. 

The adversary system is, in my view, entitled to at least the same 

measure of respect as reliance on "prosecutorial discretion" and indeed 

presents preferable possibilities for the parties to challenge either 

abusive enforcement or lack of enforcement. For that reason, too, permitting the miner or miner's representative to fully participate and 

litigate issues such as those presented in this case appears to be far 

more in accord with the purpose and intent of the Act, certainly as 

reflected in the legislative history, than the denial to the most affected 

parties, the miners, of the right to review Secretarial action or inaction, 

even if limited to an abuse of discretion. Miners, too, must be assured 

that the Secretary is in compliance with the Act. 

Further, there is substantial precedent construing the 1969 Act--

~ fortiori applicable to the 1977 Act--which holds that between two 

possible interpretations of the Act, the one that promotes safety must 

be preferred. See District 6, UMWA v. IBMA, 562 F.2d 1260, 1265 (D.C. 

Cir. 1977). Accc;rd, UMWA v. Kleppe, 53~2d 1403, 1406 (D.C. Cir. (1976), 

cert. denied, 429 U.S. 858 (1976); Munsey v. Morton, 507 F.2d 1202, 1210-11 

(D.C. Cir. 1974); Munsey v. FMSHRC. 595 F.2d 735 (D.C. Cir. 1978); Phillips 

v. IBMA, 500 F.2d 772, 782 (D.C. Cir. 1974), cer~. denied, 420 U.S. 938 

(1975). It follows that the interpretation of section 105(d) that best 

promotes safety is one that permits miner participation in citation review. 

822 
Finally, and since section 105(d) does not specifically preclude a 

miner's contest of a citation, interpreting that section as conferring 

such a right would be consistent with the remedial enforcement scheme of 

the Mine Act, and foreclose the "imbalance in the Act's enforcement scheme" 

feared by the judge below. As we noted in Pasula v. Consolidation Coal Co., 

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

Coal Co. v. Marshall, 633 F.2d 1211 (3d Cir. 1981): 

In determining whether section 105(c)(l) protects 

Pasula's refusal to work, we considered it important 

that the 1977 Mine Act was drafted to encourage miners 

to assist and participate in its enforcement. 

Thus, for the reasons set forth, I dissent and would remand this case 

to the judge below. 

A. E. Lawson, Commissioner 

823 
Distribution 

Mary Lu Jordan 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Timothy M. Biddle, Esq. 

Crowell & Moring 

1100 Connecticut Ave., N.W. 

Washington, D.C. 20036 

J. Davitt McAteer, Esq. 

Center for Law & Social Policy 

1751 N Street, N.W. 

Washington, D.C. 20036 

Administrative Law Judge James A. Broderick 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

824 

---·· .------·-·· 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WHITE PINE COPPER DIVISION, 

COPPER RANGE COMPANY 

May 12, 1983 

DECISION 

Docket Nos. LAKE 81-106-R..~ 

LAKE 81-171-M 

This penalty case arises under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801.!:,!~· (1976 & Supp. V 198l)("the Mine 

Act"). It involves 30 C.F.R. § 57.3-20, which in part states, "Ground 

support shall be used if the operating experience of the mine, or any 

particular area of the mine, indicates that it is required." White Pine 

Copper Division, Copper Range Company ("White Pine") was issued a citation under section 104(a) of the Mine Act for an alleged violation of 

this metal/nonmetal standard. 30 u.s.c. § 814(a). 

The citation was issued because mining was being performed under 

unsupported roof in Unit 56 of the White Pine mine. Unit 56 has a roof 

composed of massive sandstone. It is White Pine's position that the massive 

sandstone roof in that unit does not require supplemental roof support 

such as roof bolts. Accordingly, White Pine began to mine a demonstration 

drift in Unit 56 in which it intended to roof bolt only as required 

(i.e., "as needed") by the particular roof conditions. In the remainder 

of the mine, White Pine continued its practice of uniform roof bolting. 

The citation involved in this case was issued in the bolting "as needed" 

demonstration drift. 

The administrative law judge held that White Pine violated section 

57.3-20 and he assessed a penalty of $250. !/ The judge based his 

finding of a violation on two grounds. The first ground was that the 

condition of the unsupported roof in the particular area of the mine 

cited -- the demonstration drift -- required roof support. 3 FMSHRC at 

2787: The second ground was that the "operating experience" of the 

White Pine mine also required roof support in the cited area, specifically 

uniform roof bolting. 3 FMSHRC at 2789. 

];/ The judge's decision is reported at 3 FMSHRC 2782 (December 198l)(ALJ). 

825 83-5-10 
We granted White Pine's petition for discretionary review and heard 

oral argument. 2/ For the reasons that appear below, we affirm the judge's 

finding of a violation. Our affirmance, however, is based solely on the 

first ground--that the condition of the mine roof in the cited demonstration drift required roof support. We do not concur in the judge's holding 

that the "operating experience" of the White Pine mine specifically 

required uniform roof bolting in that area. 

We begin our discussion of this case with an historical overview of 

White Pine's mining operation. Preliminarily, we note that White Pine 

operates an underground copper mine approximately nine square miles in 

size. It extracts the copper ore from the ore body by room and pillar 

mining. 3/ Accordingly, as part of the mining process, White Pine 

utilizes-pillars of ore as the primary means of roof support. Also, in 

mining by the room and pillar method White Pine generally employs one of 

two types of mining configurations. The first type is "full column" 

mining. Full column mining involves mining through the upper sandstone. 

It has a roof composed of shale strata, described as "laminated layers". 

The second type of mining configuration is "parting shale" mining. 

Parting shale mining utilizes the sandstone found in certain parts of the 

mine as both the mine roof and floor. 4/ 

2/ White 

It did not 

]_/ "Room 

Pine sought review of the judge's finding of 

seek review of the penalty assessment. 

and pillar" mining is explained in part as: 

violation only. 

A system of mining in which the distinguishing feature is the 

winning of 50 percent or more of the coal or ore in the first 

working. The coal or ore is mined in rooms separated by narrow 

ribs or pillars. The coal or ore in the pillars is won by subsequent working, in which the roof is caved in successive blocks. 

The first working in rooms is an advancing, and the winning of the 

rib (pillar) a retreating method. 

A Dictionary of Mining, Mineral and Related Terms, U.S. Department of 

the Interior (1968). 

4/ With regard to White Pine's use of different mining configurations, 

the miners' representative, United Steelworkers of America (Steelworkers"), 

notes that "White Pine does not mine into a massive ore body ••• where 

only one type of ground condition is encountered ••• [instead,] lfuite Pine 

follows an ore-bearing strata in which a multitude of ground conditions 

are encountered." Steelworkers' Br. at 2. Also, with respect to the 

particular mining configuration to be used, White Pine states: 

The mining horizon is determined by the resulting grade 

of ore that will be generated. The Geology Department 

makes the initial determination based upon diamond drill 

(Footnote continued) 

826 
Parting shale mining: The mid-1950's to the early 1960's 

White Pine began underground mining operations during the mid1950' s. From approximately the mid-1950's to the early 1960's, it 

engaged in parting shale mining. Albert Ozanich, the company Safety 

Director, stated that during the 1950's the normal mining cycle involved 

"primarily drilling, blasting, mucking ••• and some roof bolting." Vol. 

II, Tr. 51. Ozanich testified that the. sandstone roof was supported by 

pillars of ore and "[s ]upplemental support was do·ne by roof bolting in 

some areas where they encountered a small fault or if the back [i.e., 

the roof] was burned through upper drilling." Vol. II, Tr. 52. He 

added that White Pine would occasionally go back and bolt the "old 

workings" as necessary and, further, that he believed that the main 

entries to the mine were roof bolted several years after they were 

mined. Ozanich also testified that parting shale mining, with roof 

bolting only "as needed", was a practice that was continued at the 

White Pine mine into the early 1960's. 

David Charles, White Pine's Acting General Foreman, and Julio 

Thaler, its Mining General Superintendent, similarly testified that 

from the mid-1950 1 s to the early 1960's White Pine did not uniformly 

roof bolt. Both witnesses stated that the decision as to whether or 

not to roof bolt was left to the unit foreman. Charles noted, "Roof 

bolts were installed but generally as time and manpower permitted, 

behind the active front." Vol. II, Tr. 70. He estimated that the 

length of the unbolted roof ranged from 150 to 300 feet. In addition, 

Charles stated that uniform roof bolting was performed when the production unit advanced under less competent sandstone, but that bolting only 

"as needed" was resumed when the production unit moved under massive 

sandstone. 2./ 

Fn. 4/ continued 

borings. Vol. II, Tr. 3435. These diamond drill borings 

enable geologists to determine the thickness of the upper 

sandstone which is noncopper bearing strata. Vol. II, Tr. 34. 

Using diamond drill core samples, the Geology Department is 

able to plot the relative thickness of the upper strata to 

determine where the sandstone is so thick that it dilutes the 

ore grade to the point that parting shale mining should be 

performed to maximize ore grade. Vol.. II, Tr. 3436. 

White Pine Br. at 2. 

5/ In preparation for the hearing in this case, Charles inspected "a 

substantial portion.of the early mine workings around the main portal 

where parting shale mining was done. On the basis of that inspection, 

Charles prepared Exhibits 0-7 through 0-10, marking in red all the 

parting shale areas that were not roof bolted. On review, White Pine 

maintains that Exhibits 0-7 through 0-10 "show significantly large areas 

where mining without roof bolts occurred in all directions" and that 

those unbolted and otherwise unsupported areas "still stand". 

82'( 
Thaler likewise testified that during the time in question, White 

Pine would "very often" advance headings 150 feet to 200 feet without 

roof bolting. He stated that the headings were roof bolted "as manpower 

was available, and often times, they just were .not bolted." Vol. III, 

Tr. 6. Thaler also stated, "Often times, we stopped a shift by putting 

the bolter in, and they would bolt the entire stretch." Vol. III, Tr. 6-7. 

The Steelworkers called several miners as witnesses who testified 

that during the 1950's it was the practice at the mine not to work under 

unbolted roof. Some of the miners testified, however, that they had 

either worked under unbolted roof at times, or had observed other miners 

working under unbolted roof. 

The judge specifically found that uniform roof bolting was not practiced 

by White Pine during the 1950's. He also found that 60% to 70% of the area 

mined during that period was roof bolted. 3 FMSHRC at 2784. 

Full column mining: The early 1960's 

In the early 1960's, White Pine changed from parting shale mining 

to full column mining. E./ Thus, it mined through the upper sandstone 

and had a roof composed of shale. Julio Thaler, the Mining General 

Superintendent, testified that it was at that time that White Pine began 

to uniformly roof bolt as part of the mining cycle. He stated that 4-foot 

and 6-foot mechanical roof bolts were installed on 4-foot centers in the 

shale roof. 7/ David Charles, the Acting General Foreman, testified 

that "[i]n full column you will blast, muck and then bolt." Vol. II, 

Tr. 73 (Emphasis added). Throughout the 1960's White Pine continued to 

use the full column mining configuration and it continued to uniformly 

roof bolt. 

Return to parting shale mining 

In 1977, White Pine began mining Unit 56 of its mine using the 

parting shale configuration. White Pine chose to mine Unit 56 by the 

parting shale configuration because of the massive sandstone found 

there. (As noted earlier, parting shale mining utilizes the sandstone as the roof.) 8/ Roof support in the form of 4-foot and 6-foot 

mechanical roof bolts on 4-foot centers, earlier adopted in full column 

mining, was continued as part of the mining cycle in Unit 56. 

6/ White Pine continued to mine by the room and pillar method. It 

changed only the mining configuration. 

7/ Mechanical roof bolts are anchored in the rock strata. White Pine 

;tates that in full column mining the lengths of the mechanical roof 

bolts changed from a uniform 4-foot length to alternating lengths of 

4- and 7-feet, to 4- and 6-foot lengths. Except for Unit 56 of the 

mine, all areas of the mine presently use uniform 4-foot resin roof 

bolts that, in effect, are cemented into the rock strata. 

8/ White Pine continued to use the full column c9nfiguration in the 

remainder of its mine. 

828 
In 1979, White Pine changed its bolting practice in Unit 56 from 

the 4- and 6-foot mechanical roof bolts on 4-foot centers to 4-foot 

mechanical roof bolts on 4-foot centers. It continued the practice 

of uniformly bolting the sandstone roof in that.unit. White Pine's 

Mining General Superintendent testified that the practice of uniformly 

roof bolting was continued in Unit 56 only as a matter of "habit". He 

stated that the roof was uniformly bolted despite the fact that "we 

were getting back to parting shale mining where we have a very thick 

copper sandstone back [i.e., roof], so we are getting back to the similar 

conditions that we experienced in the early part of the White Pine mine." 

Vol. III, Tr. 41. It was under those earlier experienced conditions (the 

mid-1950's to the early 1960's) that White Pine maintains that the roof 

was bolted on an "as needed" basis only. 

The Unit 56 demonstration project 

In 1980, White Pine decided to mine Unit 56 without uniformly roof 

bolting. It believed that uniformly bolting the massive sandstone roof 

found in that unit was unnecessary. 9/ Instead, White Pine sought to 

bolt Unit 56 only "as needed" by the-particular condition of the mine 

roof. In order to support its claim that the sandstone roof does not 

require uniform roof bolting, White Pine initiated a demonstration 

project. White Pine sought to demonstrate to the Mine Safety and Health 

Administration ("MSHA") and to the Steelworkers that bolting the m~ssive 

sandstone roof in Unit 56 only "as needed" rather than uniformly was a 

safe and lawful mining practice. White Pine's Mining General Superintendent 

explained: 

[W]e developed a two-phase program, primarily 

to demonstrate and convince the Union and MSHA that 

mining without bolts in parting shale mining was 

a viable method worth doing. The first phase was 

to outline an area that was previously bolted with 

four-foot mechanical bolts and begin at one end 

and retreat and remove the bolts and measure convergence [i.e., the movement of the mine roof]. 

Following successful completion of that phase, our 

plans were to go to the active mining front and 

begin advancing the single drift without bolts 

under very close monitor, and again, it was a 

demonstration system to demonstrate to MSHA and 

the Union and to our employees that it is a safe 

method. 

Vol. III, Tr. 12. 10/ 

'}_/ At oral argument, counsel for White Pine stated that White Pine 

was not arguing that uniform roof bolting is unnecessary in full 

column mining. 

10/ William Carlson, the director of MSHA's Marquette, Michigan, subdistrict office testified that he was informed by White Pine (in 

February of 1980) that it intended to conduct a roof bolt removal 

evaluation project in Unit 56. Carlson also testified that he understood from White Pine that it would begin to mine Unit 56 without 

uniform roof bolting if the bolt removal test indicated that the 

unbolted roof was stable. 

829 
On February 4, 1980, White Pine initiated the first phase of its 

·unit 56 demonstration project -- the removal of the roof bolts from an 

earlier worked-out portion of that unit. The roof bolts were removed by 

White Pine foremen. Also, the newly unbolted roof was monitored by White 

Pine personnel for convergence (i.e., movement). 11/ 

On February 19, 1980, the roof bolt removal phase was halted when 

an MSHA inspector issued a withdrawal order under section 107(a) of the 

Mine Act. 30 U.S.C. § 817(a). The withdrawal order charged that the 

removal of the roof bolts constituted an imminent danger. At the time that 

the order was issued, the bolt removal phase was approximately 80% completed. 

Following a successful challenge by White Pine to the imminent danger withdrawal order (White Pine Copper Division, 3 FMSHRC 211 (January 198l)(ALJ)), 

the Unit 56 roof bolt removal demonstration phase was resumed on February 13, 

1981. 

11/ White Pine submits that a device known as an "extensometer" can 

measure downward roof movement to plus or minus .001 inch. White Pine 

explained its method for monitoring convergence as follows: 

Closely associated with the development of convergence 

monitoring has been the use of convergence lights and dial 

gauges in production mining •••• The light and gauge are 

mounted on a spring operated device with two extending poles 

which reach from the floor to the mine roof. The light can 

be set so that a ·few thousandths of an inch of roof movement will cause contact on the electrical connection in the light 

to occur turning the light on. Such movement warns the miner 

of early movement in the mine roof which could be indicative 

of developing instability. The dial gauge, when used 

simultaneously with the light, will measure the total convergence or total movement of the roof over a period of time. 

It is the increase in the rate of convergence over time ••• 

that warns both the miner and the ground control technician 

of potential instability before visible signs occur. 

Vol. III, Tr. 74-75. Under standard current mining practices, 

convergence lights are only used with drilling operations at 

the face. Roof bolting operations use both the convergence 

light and the convergence dial gauge. [Fn. omitted.] Vol. III, 

Tr. 26-28. 

White Pine Br. at 6 (White Pine's emphasis). The Secretary also offered 

the following explanation regarding convergence monitoring: 

Convergence monitoring is a recorded history of movement 

of the roof in a mine which is used to determine whether a 

roof has become stabilized or is accelerating towards 

failure. Measurements are made periodically between permanently anchored reference points in the roof and floor. 

Such data is then graphed and used to predict the future 

movement of the roof. Vol. I, Tr. 107. 

Secretary's Br. at 5 n.4. In addition, an expert witness testifying on 

behalf of the Secretary stated that White Pine is a "good practitioner" 

of the art of roof monitoring. Vol. I, Tr. 89. 

830 
With regard to the results of the roof bolt removal phase, White 

Pine's Director of Mines, Planning and Engineering stated that over 

90% of the roof bolts _removed "did absolutely nothing."- He described 

the roof bolts in the Unit 56 massive sandstone as "thumb tacks on a 

bulletin board" and concluded that "[t]he ultimate results of that bolt 

removal did confirm our suspicions that the bolts that were functioning 

did act primarily in pure suspension." Vol. III, Tr. 77. Roof falls 

ranging from "a couple of inches up to two feet1

' did, however, occur in 

the northern ("faulty") area of the bolt removal site. QI 

On February 27, 1981, White Pine began the second phase of its 

demonstration project by mining a drift in Unit 56 without uniformly 

roof bolting. White Pine also did not use any other type of supplemental roof support (e.g., steel sets and cedar posts). Instead, it 

intended to bolt the massive sandstone roof found in that unit only 

"as needed" by the particular condition of the mine roof. 

White Pine's Safety Director, Albert Ozanich, described Unit 56 as 

having "basically the same" sandstone composition as the area·of the 

mine worked in the mid-1950's. 13/ With respect to the particular area 

of Unit 56 where the demonstration drift was mined, Joseph Maher (White 

Pine's Director of Mines, Planning and Engineering) testified: 

The area that we selected in Unit 56 to attempt to 

demonstrate [that] our limited bol:ting.concept was 

a viable roof support method, we selected a drift 

that had a massive sandstone roof.... [T]he no bolt 

[mining] demonstration area, as it compares to the 

[demonstration] area we unbolted is probably better 

because the sandstone ••• is thicker. It has a 

very smooth, well-pronounced parting, well-defined 

parting at the base of the sandstone, so it generates a very smooth roof. It's very similar in its 

character to the roof in the southern development 

of our area that we unbolted, which was in a way, 

12/ White Pine's assessment of the roof bolt removal demonstration 

phase was to some extent disputed by William Letzens, the Secretary's 

expert witness. Letzens, an MSHA engineer, stated that he did not 

believe that White Pine totally expected the roof .fall in the northern 

part of the bolt removal demonstration area. Letzens also stated, 

however, that the southern part of the demonstration area appeared 

stable after the roof bolts were removed. 

13/ A White Pine geologist also testified that Unit 56 seems to be 

-;assive sandstone throughout "the whole thickness" and that except for 

the northeast portion, there are no shale partings (i.e., breaks in the 

sandstone). He added that it is "unlikely" that a massive sandstone roof 

that is not interrupted by joints or cracks would break off and fall. An 

expert witness on the subject of roof control similarly testified on behalf 

of White Pine that it was "most unlikely" in thick and massive sandstone for 

slabs of roof to fall. 

831 
very good sandstone. Now, because the sandstone 

there was five and a half or six feet thick, we 

knew that sandstone in the no bolt [mining] ar;;a 

is nine or nine and a half feet thick. I would 

say that it's a better roof. 

Vol. III, Tr. 82-83 (Emphasis added). 

White Pine used both convergence lights and dial gauges to monitor 

the movement of the roof in the bolting "as needed" demonstration drift. 

It was in this demonstration drift that the MSHA inspector issued the 

citation that {s the subject of this case. The circumstances surrounding 

the issuance of the citation are discussed below. 

The Inspection 

On March 3, 1981, an MSHA inspector conducted an inspection of 

Unit 56. The inspector was accompanied by two miners' representatives 

and a White Pine safety engineer. The inspector first proceeded to the 

North 103 drift, then to the North 101 drift, and from there to the 

North 98 drift. Each of those drifts in Unit 56 was uniformly roof bolted 

with 4-foot mechanical bolts on 4-foot centers. From the North 98 drift, 

the inspector proceeded to the West 57 drift. There, he noticed a sign 

that read, "Demonstration Area No Bolt Area." 

In the no bolt (i.e., bolting only "as required" by roof conditions) 

demonstration drift the inspector observed that approximately 32 feet of 

the roof was unbolted. 14/ That 32 feet of roof was the distance from the 

working face to the las~row of roof bolts in the drift. This indicated to 

the inspector that more than one mining cycle had been completed under 

unbolted roof. 15/ He stated that generally, bolts should be no farther 

than 4 feet fro;-the face. 

While in the demonstration drift, the inspector heard a "popping" 

and "snapping" noise in the unbolted roof. He also observed that some 

"loose material" had fallert from a three-foot diameter area of the roof 

where he had heard the noise. In addition, the inspector further observed 

a "slip" or a "crack" in the unbolted roof. The slip was approximately 

27 feet in length, with an "oily substance" around the edge. It began 

about five feet in front of the bolted portion of the roof and extended 

diagonally toward the working face. 

The inspector subsequently issued a citation alleging a violation 

of 30 C.F.R. § 57.3-20. The citation read: 

14/ As earlier noted, the demonstration area was also unsupported by any 

other type of roof support. 

];ii A mining cycle at the White Pine mine normally advances the unit 10 

feet. 

832 
Roof support was not provided in N-94 and W-53 intersection in Unit 56. Prior operating experience of 

the mine indicates that roof support is required. 

Miners were/had been working under the unsupported 

roof. 

(Emphasis added.) ~/ Although the citation referred to the "[p]rior 

operating experience of the mine" only, the case was tried by the parties 

on both that theory and the theory that the condition of the mine roof in 

the demonstration drift also required roof support. See 3 FMSHRC at 2786. 

(1) The condition of the mine roof in the bolting "as needed" demonstration drift 

We hold that substantial evidence supports the judge's decision 

that the condition of the mine roof in the Unit 56 demonstration drift 

required roof support. As already noted, the inspector testified that 

he heard a "popping" and "snapping" noise in the unbolted roof and that 

"loose material" had fallen from a three-foot diameter area of the roof 

where the noise was heard. Those conditions indicated to the inspector 

that the unsupported roof of the demonstration drift was "unsafe" and that 

there was a "possibility" of a roof fall. The inspector stated, "Movement, 

noise, that's the warnings for when there is loose material going to fall." 

Vol. I, Tr. 28. He described the "loose material" as: 

••• a brown granular material, which meant to me 

that there could be a parting up there, which is 

a seam in the sandstone, which in my opinion, 

their backs [i.e., the roof] was only as good as 

the six or eight inches of seam there. 

Vol. I, Tr. 30. 

William Letzens, the MSHA engineer and expert witness, testified 

that noise in the roof "normally" indicates that there is an unusual 

roof condition. He also testified that pieces of loose material falling 

from the roof further indicates that there is "substantial movement" in 

the roof and that a portion of the roof is "in a small state of failure". 

Vol. I, Tr. 91-92. J:2.I Letzens also stated that the popping and snapping 

16/ The N-94 and W-53 intersection was the only area of Unit 56 that the 

inspector found to be unbolted. 

12/ In that regard~ Letzens stated: 

Well, whenever a mine roof makes a noise, it might 

represent a redistribution of stress and a relaxation 

of the roof, a sag of the roof, or it might represent 

physical movement of the roof to such an extent that 

there could be a failure of the roof. 

Vol. I, Tr. 76. 

833 
noise indicates that the roof is "potentially unstable". He admitted, 

though, that a further evaluation of the roof would be required. 18/ 

In addition, Albert Goodreau, the White Pine safety engineer who 

accompanied the inspector likewise testified that he heard "some cracking 

and popping" in an area of the unbolted roof that measured 2-feet by 3-feet. 

He also observed loose material~on the mine floor measuring "[u]p to an 

inch maybe" and approximately 4 to 5 inches in diameter. Vol. II, Tr. 

114-15, 120-21. Edward Hocking, one of the miners' representatives who 

was with the inspector in the demonstration drift, described the roof 

fall as consisting of "small flakes". He stated that the biggest piece 

was approximately "four-by-six" and "[m]aybe an inch thick, maybe 

weigh[ing] three or four pounds, if that." Hocking estimated that the 

loose material fell from a height of 11 feet. Vol. IV, Tr. 48, 55. 

There was, however, testimony that the unsupported roof was safe 

and that roof bolts were not required. Goodreau stated that except for 

the area of the roof where the loose material developed and the line of 

discoloration that the inspector believed was a slip, the roof of the 

demonstration drift "looked good." Joseph Maher (White Pine's Director 

of Mines, Planning and Engineering) and Jack Parker (a self-employed roof 

consultant and expert witness testifying on behalf of White Pine) concurred 

in Goodreau's observation as to the general stability of the unit. Maher 

additionally testified that popping and cracking noises are normal underground occurrences and are not necessarily indicative of roof instability. 

He also stated that "loose" in the roof can result from several causes and 

can occur in either bolted or unbolted roof. 

Furthermore, with respect to the convergence data obtained through 

the monitoring of the demonstration drift roof, Maher testified that the 

unbolted roof exhibited "stable characteristics". In that regard, Maher 

stated that the bolted and unbolted roof in the cited drift behaved 

similarly. William Letzens, the Secretary's expert witness, did not 

review the convergence data collected from the bolting "as needed" 

demonstration drift. 

On balance, we hold that the testimony of the MSHA inspector, 

together with the testimony of William Letzens (the MSHA engineer), 

Albert Goodreau (the company safety engineer) and Edward Hocking (the 

miners' representative) regarding the popping and snapping sounds in 

the unbolted roof and the fall of loose material constitute substantial 

evidence supporting the judge's finding of a violation of 30 C.F.R. 

§ 57.3-20. The fact that the roof fall was not extensive in terms of the 

amount of loose material that fell, or the area of unbolted and otherwise 

unsupported roof involved, does not alter the fact that, as the judge found, 

18/ Letzens did not personally observe the unbolted demonstration drift 

roof. Because of that fact, he was unable to state that the roof was not 

stable. The thrust of Letzens' testimony on that point, however, concerned 

the presence of the slip in the demonstration drift.and not the fall of 

loose material. 

834 
roof support was required in the area cited by the inspector. 19/ We are 

unpersuaded by White Pine's argument that the fact that the inspector proceeded under the unbolted portion of the demonstration drift roof established 

that roof support was not needed. Whether the inspector walked under the 

unbolted roof is irrelevant to the question of whether roof support was 

required. 

Although we affirm the judge's decision on the preceding basis, we 

next address the broad question that is presented in this case. That 

question is whether the judge was correct in holding that the "operating 

experience" of the White Pine mine required uniform roof bolting in the 

Unit 56 demonstration drift. Because of the importance of that question 

to both White Pine and the miners, 20/ and because as the facts of this 

case suggest, it is a question that""""Is likely to recur, we believe that 

some Commission guidance as to what constitutes "operating experience" 

is necessary. 

(2) The "operating experience" of the White Pine mine 

The judge held that the "operating experience" of the White Pine 

mine requires uniform roof bolting in the Unit 56 demonstration drift. 

3 FMSHRC at 2789. He stated that the "most relevant evidence" regarding 

the miners operating experience is White Pine's "uninterrupted 20 year 

history of uniform roof bolting." 3 FMSHRC at 2788. 21/ On the basis 

of that 20-year period, the judge concluded that "thepertinent operating 

history of the mine requires the use of roof bolts in all areas of the 

mine." 3 FMSHRC at 2788-89. Jl:../ For the reasons that follow, we disagree 

with this conclusion of the judge. 

19/ Regarding this first issue, we note that the judge held only that 

roof support was required. Unlike the issue involving White Pine's 

"operating experience," the judge did not specify what type of roof 

support was required. We concur in the judge's treatment of this 

issue. The only question before the Commission is whether the 

particular conditions of the cited area required roof support, not 

which type of roof support. 

20/ The Steelworkers note in their brief on review that the issue as to 

White Pine's operating experience "has all White Pine underground miners' 

attention awaiting its resolve." Steelworkers Br. at 1. 

21/ The judge's reference is to White Pine's mining practice in the 

T960's and 1970's. He afforded White Pine's practice in the 1950's 

"little weight." 3 FMSHRC at 2789. 

lJ:.! The Steelworkers join the Secretary in arguing that the judge's 

holding is correct. On review, however, the Steelworkers appear to 

suggest that they might be agreeable to working under unsupported 

roof in parting shale mining if White Pine develops "a plausible and 

feasible standard operating procedure." Steelworkers' Br. at 5-6. 

See Oral Arg. Tr. 70-71. 

835 
First, we hold that the judge erred in taking into account White 

Pine's past practice in full column mining for the purpose of determining 

its "operating history" in this case. Here, the parting shale mining 

configuration was being used in the Unit 56 demonstration drift. Because 

parting shale mining utilizes the upper sandstone as the roof and 

because full column mining involves mining through the upper sandstone 

and has a roof composed of shale strata, we conclude that only White 

Pine's past practice in parting shale mining is relevant in determining 

its operating history under massive sandstone roof. 

Second, we hold that the judge also erred in determining White 

Pine's "operating experience" solely on the basis of its prior operating 

history and not present day experience. While we do not at this time 

seek to precisely .define the contours of the term "operating experience", 

in 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. !:1.f 

Thus, in addition to White Pine's past practice in parting shale 

mining, other relevant considerations in this case are the results of 

White Pine's roof bolt removal demonstration project that took place 

in an earlier worked-out portion of Unit 56, as well as its convergence 

monitoring results showing the rate of the movement of the roof in the 

23/ We note that the term "operating experience" is not defined in 30 

'"f:'"F.R. § 57.3-20. In that regard, section 57.3-20 states only that, 

"Ground support shall be used if the operating experience of the 

mine ••• indicates that it is required." (Emphasis added.) The rulemaking background of section 57.3-20 also fails to indicate what the 

Secretary of the Interior intended "operating experience" to mean when 

that standard was promulgated under the former Federal Metal and Nonmetallic Mine Safety Act. 30 U.S.C. § 721 et seq. (1976)(amended 1977). 

Also, the term "operating experience" is not defined elsewhere in 

section 57.3 (titled, "Ground control"). Accordingly, we 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 800 (unabridged 1971) 

(Emphasis added), 

836 
bolting "as needed" demonstration drift. 24/ The integrity of this sandstone as a roof material should also have"""been addressed more fully. 25/ 

In addition, the effect of the depth of the mine upon the sandstone roof, 

the width of the mine entries and the dimensions of the pillars of ore 

left standing to support the mine roof would also be pertinent 

considerations. 

Third, even assuming that the "operating experience" of the White 

Pine mine requires the use of roof support, we disagree with the judge's 

conclusion that White Pine must forever continue to uniformly roof bolt 

throughout its entire mine, Unit 56 included. 3 FMSHRC at 2789. Section 

57 .3-20 provides that if roof support is in fact required, it "shall be 

consistent with the nature of the ground and the mining method used." 

Accordingly, under the terms of section 57.3-20, where roof support is 

necessary White Pine is free to select the specific method of roof support 

to be U8ed, subject only to the restriction that it be consistent with the 

nature of the roof and mining method being used and is sufficient to 

accomplish the purpose of the standard, i.e., the protection of miners 

from roof falls. Thus, section 57.3-20 does not lock White P.ine into 

uniformly roof bolting in parting shale mining in the Unit 56 demonstration drift simply because it uniformly roof bolted in parting shale 

mining in the past. Instead, assuming that the operating experience of 

the mine requires the use of roof support, White Pine has the opportunity 

to develop and to implement another type of roof control method, so long 

as that method protects miners against roof falls as contemplated by 

section 57.3-20. 2:2_/ 

Our holding therefore is that substantial evidence supports the 

judge's finding of a violation of 30 C.F.R. § 57.3-20 insofar as it is 

based upon the "popping" and "snapping" sound in the unsupported roof of 

the Unit 56 demonstration drift and the fall of loose material from that 

area. 

24/ Although the judge in fact took the roof bolt removal and convergence 

monitoring results into account, ,he accorded those results "little weight" 

because White Pine failed to show'that mining without uniform roof bolting 

is "as safe as" mining with uniform roof bolting. 3 FMSHRC at 2788. That 

portion of the judge's decision is discussed, infra. 

25/ In that regard, an expert witness testifying on behalf of White Pine 

Stated that sandstone is a "good rock" with a comprehensive strength of 

approximately 15,000 PSI (i.e., four times stronger than concrete) and that 

it is more resistant to changes in the weather than shales and soapstones. 

Also, White Pine's Mining General Superintendent testified that in the past 

the massive sandstone roof has converged as much as "three or four feet" due 

to pillar deterioration without the main roof failing. 

26/ Similarly, we note that the first issue in this case involved 

the question as to whether the particular conditions of the cited 

Unit 56 demonstration drift required roof support. It did not involve 

the question as to what specific type of roof support was required. 

See n.19, supra. 

837 
We reject the judge's holding that the operating experience of the 

White Pine mine requires uniform roof bolting throughout the entire mine 

and, in particular, in the Unit 56 demonstration drift. While we do not 

in this case define the term "operating experience," we conclude 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. 

Accordingly, for the foregoing reasons the judge's finding of a 

violation is affirmed. l:2,/ 

L. Clair Nelson, Commissioner 

27/ Contentions of the parties not discussed herein have been fully 

considered and to the extent that they are inconsistent with this 

decision are rejected. 

838 
Distribution 

Ronald E. Greenlee 

Clancey, Hansen, Chilman, Graybill 

& Greenlee, P.C. 

Peninsula Bank Building 

Ishpeming, Michigan 49849 

Harry Tuggle 

United Steelworkers of America 

Five Gateway Center 

Pittsburgh, PA 15222 

Ernest Ronn 

United Steelworkers of America 

706 Chippewa Square 

Marquette, Michigan 49855 

John Cestkowski, President 

Local Union 5024, USWA 

Box 101 

Watersmeet, Michigan 49969 

Paul Gravedoni 

United Steel Workers of America 

936 Baldwin Avenue 

Megaunee, Michigan 49866 

Barry Wisor 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

839 
\ 

J 

/ 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 25, 1983 

Docket Nos. WEST 81-213-RM 

WEST 81-258-M 

GREAT WESTERN ELECTRIC COMPANY 

DECISION 

This case involves a contest of citation and a civil penalty proceeding 

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

§ 801 et~· (1976 & Supp. V 1981). The administrative law judge concluded that Great Western Electric Company violated 30 C.F.R. § 57.15-5 

(1980) and assessed a civil penalty. 1/ 4 FMSHRC 1645 (September 1982) 

(ALJ). The major issues before the Commission are whether the judge 

erred in his interpretation of the standard and, if not, whether his 

conclusions are supported by substantial evidence. For the reasons that 

follow, we affirm the judge's decision. 

On March 4, 1981, during an inspection of the FMC Mine in Green River, 

Wyoming, an MSHA inspector observed a miner installing a light fixture from 

a ladder without the use of a safety belt and line. The inspector issued a 

combined section 104(a) citation and a section 107(a) imminent danger order 

of withdrawal. 2/ In order to terminate the citation and order, the miner 

was brought down and told to wear a safety belt and line. 

l/ 30 C.F.R. § 57.15-5 provides in pertinent part: 

Safety belts and lines shall be worn when men 

work where there is danger of falling •••• 

lJ Citation and Order of Withdrawal No. 0576985 alleges: 

[A]n employee of Great Western Electric Company was 

observed working off a ladder 18 to 20 feet from the 

floor. [The] employee was installing a light fixture 

about 4 feet above head level. [The] employee did not 

have a safety belt and line on. This was ~n the one 

distribution building at W2102 screen level. 

83-5-19 
At the hearing, the parties stipulated to specific facts and procedures 

that would govern the case. They stipulated that the Commission has jurisdiction over the controversy. They stipulated that the employee of Great Western, 

a construction worker, was on a ladder 12 feet a.hove the ground and was not 

wearing a safety belt and/or line. The parties agreed that the body of the 

miner was not totally within the rails of the ladder; specifically, his shoulders 

were not within the rails of the ladder. The miner's arms were outstretched 

toward a light fixture and both of his hands were involved with installing the 

light fixture. Three photographic exhibits were submitted to show the approximate position of the miner on the ladder. 3/ To the extent that the exhibits 

depicted a different position, the stipulations of the parties were to govern 

the facts. The parties agreed that the miner was skilled and experienced in 

the use of ladders, that he used a ladder everyday, as many as twenty different 

times per day, and that a significant amount of his daily work was performed 

on a ladder. The ladder was secured at both the top and the bottom. The 

parties accepted the accuracy of MSHA's penalty proposal. They also agreed 

that if a violation of the Act sufficient to support the section 104(a) 

citation were found, then the section 107(a) order of withdrawal would also 

stand and the proposed penalty would be paid. !:_/ 

In his decision, the judge found that Great Western violated 30 C.F.R. 

§ 57.15-5 and assessed a penalty of $60. The judge determined that the 

pivotal issue in the case was whether there was a danger of falling· and he 

concluded that such a danger existed •. In addressing the correct test for 

determining whether this broad standard had been violated, he relied upon 

the application of an "objective 'reasonable' test". 4 FMSHRC at 1647. 

More specifically, the judge articulated a "conscientious safety expert" 

test, requiring that identification of a hazard be determined in light of 

common industry practices and that the precautions taken against a known 

hazard be those which a conscientious safety expert would take. 4 FMSHRC 

at 1647-48. The judge held that the skill of a miner is not a factor in 

determining whether a danger of falling exists, but stated that skill 

could be a factor in assessing a penalty as it would relate to the 

operator's negligence. 4 FMSHRC at 1649. On review, Great Western argues 

that the skill of a miner is a relevant factor in determining whether there 

is a danger of falling and that the stipulated facts do not support the 

judge's conclusion that there was such a danger. 

We first address the judge's discussion regarding the correct test to be 

applied for determining whether 30 C.F.R. § 57.15-5 was violated. In Alabama 

By-Products Corp., 4 FMSHRC 2128 (December 1982), the Commission interpreted a 

general standard by applying a "reasonably prudent person" test, stating: 

••• [W]e conclude that the alleged violation is 

appropriately measured against the standard of 

whether a reasonably prudent person familiar 

3/ The exhibits depict a man on a ladder using both hands to hold an 

industrial light fixture. One of his arms is between the upper two rungs 

of the ladder and aro~nd a vertical rail. 

4/ In light of this stipulation, no issue concerning whether the condition 

constituted an imminent danger under section 107(a) is before us. 

841 
with the factual circumstances surrounding the 

allegedly hazardous condition, including any 

facts peculiar to the mining industry, would 

recognize a hazard warranting corrective action 

within the purview of the applicable regulation. 

Id. at 2129. This approach was likewise followed in U.S. Steel Corp., 

S-FMSHRC 3 (January 1983), where we held that the adequacy of an operator's 

efforts to comply with a general standard should be evaluated by reference 

to an objective standard of a reasonably prudent person familiar with the 

mining industry and the protective purpose of the standard. Id. at 5. We 

conclude that the same interpretive course is appropriate in the present 

case. Applying this construction to the standard before us defines the 

applicability of the standard in terms of whether an informed, reasonably 

prudent person would recognize a danger of falling warranting the wearing 

of safety belts and lines. 

The administrative law judge's decision in this case was issued prior 

to our decisions in Alabama By-Products and U.S. Steel. The judge applied a 

version of the reasonably prudent person test to the standard, but his test 

incorporated a higher threshold, that of a conscientious safety expert. 

Although the test applied by the judge differed from that articulated by the 

Commission, applying the law to the facts, as we do below, leads us to conclude that the judge's use of a conscientious safety expert test constituted 

harmless error because substantial evidence supports the judge's finding of 

a violation under the Commission's less stringent test. 

Great Western argues that the skill of a miner is a relevant factor in 

determining whether there is a danger of falling because the miner's skill 

defines the scope of the hazard presented. We find that such a subjective 

approach ignores the inherent vagaries of human behavior. Even a skilled 

employee may suffer a lapse of attentiveness, either from fatigue or 

environmental distractions, which could result in a fall. The specific purpose of 30 C.F.R. § 57.15-5 is the prevention of dangerous falls. Kerr-McGee 

Corp., 3 FMSHRC 2496, 2497 (November 1981). By adopting an objective interpretation of the standard and requiring a positive means of protection whenever 

a danger of falling exists, even a skilled miner is protected from injury. We 

believe that this approach reflects the proper interpretation and application 

of this safety standard. 

That is not to say that the miner's skill is totally immaterial. The skill 

of a miner may be a relevant factor in determining an appropriate civil penalty 

for a violation. In making work assignments and giving instructions to its 

employees, the amount of reliance which an operator places on the relative 

skills of its employees may be an indication of the operator's negligence 

concerning the violation. A miner's skill may also influence the probability 

of the occurrence of the event against which a standard is directed, and so 

affect that element of gravity. 2_/ 

'ii The parties stipulated to the appropriateness of the proposed penalty 

if a violation were found. Therefore, we find no er~or in the judge's 

penalty assessment. 

842 
At the hearing, the parties elected to submit the case based upon 

stipulated facts. In arriving at his findings of fact and conclusions of 

law, the administrative law judge relied on the stipulations presented to 

him by the parties. 4 FMSHRC at 1646. It is undisputed that the miner in 

question was 12 feet above the ground and was not wearing a safety belt 

and/or line, although he could have been tied off. The miner's shoulders 

were outside the uprights of the ladder, arms outstretched, with both hands 

involved with installing the light fixture. The photographic exhibits 

indicate the size of the fixture involved. 

We conclude that, under the reasonable person test appropriately 

applied to the standard, substantial evidence supports the judge's finding 

of a danger of falling and a violation. The miner was standing on a ladder, 

his physical center of gravity was shifted to one side and both of his 

hands were preoccupied with installing a large light fixture. A slight shift 

in balance or lapse of attention might have resulted in a fall. In that 

event, the miner would not have been protected. His position twelve feet 

above the ground presented a substantial height from which to fall. 

By our decision, we do not hold that on every occasion when a miner 

works from or travels on a ladder he must be secured by a safety belt and 

line. If this is the Secretary's intended approach in addressing all falling 

hazards associated with the use of ladders, proper notice to the industry 

would be necessary before such a wide-ranging change in industrial work 

practices could be imposed. 

Accordingly, we affirm the judge's decision. 6/ 

• Collyer, 

6/ Commissioner Nelson did not participate in the consideration or disposition of this case. 

843 
Distribution 

Anna L. Wolgast 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

John A. Snow 

Van Cott, Bagley, Cornwall & McCarthy 

50 South Main Street 

Salt Lake City, Utah 84144 

Administrative Law Judge John Morris 

Federal Mine Safety & Health Review Commission 

333 West Colfax Ave., Suite 400 

Denver, Colorado 80204 

844 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SHAMROCK COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 26, 1983 

Docket No. KENT 80-292 

DECISION 

This civil penalty case arises under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq. (1976 & Supp. V 1981), and involves 

two alleged violations of a roof control standard for underground coal 

mines, 30 C.F.R. § 75.200. lf The administrative law judge held that the 

operator, Shamrock Coal Company, violated the standard and assessed 

penalties. !) We. granted review of Shamrock's petition for discretionary 

review on the issue of whether the operator violated its roof control 

plan, and thus the cited standard, by failing to (1) install appropriate 

roof support, and (2) drill a test hole. For the reasons that follow, we 

affirm in part and reverse in part. 

1_/ The standard provides in pertinent part: 

Section 75.200 Roof control programs and plans. 

[STATUTORY PROVISIONS] 

Each operator shall undertake to carry out on a continuing basis a program to improve the roof control system 

of each coal mine and the means and measures to accomplish 

such system. The roof and ribs of all active underground 

roadways, travelways, and working places shall be supported 

or othet'Wise controlled adequately to protect persons from 

falls of the roof or ribs. A roof control plan and revisions 

thereof suitable to the roof conditions and mining system of 

each coal min~ and approved by the Secretary shall be 

adopted and set out in printed form •••• The plan shall show 

the type of support and spacing approved by the Secretary. 

Such plan shall be reviewed periodically, at least every 

6 months by the Secretary, taking into consideration any 

falls of roof or ribs or inadequacy of support of roof or 

ribs. 

]j The judge's decision is reported at 3 FMSHRC 1858 (July 1981) (ALJ). 

83-5-22 
On October 30, 1979, a roof fall at Shamrock's No. 18 underground 

coal mine in Clay County, Kentucky, resulted in the death of Shamrock's 

second-shift foreman, Floyd D. Burke. After an investigation, a Mine 

Safety and Health Administration inspector issued a citation alleging 

two violations of section 75.200. The citation stated: 

The roof contror plan was not being complied 

with in that additional support such as timber or 

cribs was not being used along with metal straps 

where abnormal conditions were encountered in the 

No. 4 entry of 005 section, and a test hole was 

not drilled. 

Shamrock has a "full bolting" roof control plan. In addition to roof 

bolts, the plan also requires conventional support (e.g., crossbars, posts, 

etc.) under some circumstances. The pertinent provisions of Shamrock's roof 

control plan state: 

Crossbars to be used when pots, slips, horsebacks or hillseams are encountered. A minimum of 

2 crossbars to be used at each location. At least 

one post to be used under each end of the crossbars and the posts are not to be more than 14 feet 

apart. Crossbars to be installed on 4-foot centers, 

and the foreman in charge shall determine when the 

installation of crossbars is to be discontinued. 

Steel straps pre-drilled on not more than 4-foot 

centers and installed with roof bolts on not more 

than 4-foot centers may be used in lieu of wood crossbars, as stated above, in areas where the roof structure is of such nature that it will provide adequate 

anchorage for roof bolts. 

In areas where steel straps have been utilized 

in lieu of wood crossbars where abnormal roof conditions are encountered, the area shall be supported 

with cribs, and/or posts set on 4-foot centers on 

each side of a 16-foot wide roadway. 

Safety Precautions For Full Bolting and Combination Plans 

1. This is the minimum roof control plan and 

was formulated for normal roof conditions and the 

mining system(s) described. When subnormal roof 

conditions are encountered, indicated or anticipated, additional roof support such as longer and/or 

additional roof bolts, posts, or crossbars, shall 

be installed. 

* * * * 

12. During each production shift at least one 

roof-bolt hole in each active working place shall 

be drilled to a depth of at least 12 inches above 

the anchorage horizon of the bolts being used •••• 

846 
The roof fall occurred in the roof in the No. 4 entry. Prior to 

the accident, that roof was supported by 36-inch conventional roof bolts 

on four foot centers, and by 10 to 12 metal straps secured by additional 

roof bolts. These metal straps covered four hillseams, or cracks, in 

that entry. 3/ The entry was 20 feet wide in the immediate fall area. 

Shamrock installed the roof bolts and supplementary metal straps during 

the day shift immediately preceding the accident. As was its normal 

practice, it did not install any cribs or posts in the area prior to the 

accident, although it set them afterwards to permit recovery. 

There were numerous cracks and hillseams throughout the mine and in 

the fall area. Hillseams were more likely to be encountered and to pose 

a hazard the closer an entry was to the outcrop. 4/ The accident area 

was approximately 100 feet from the outcrop boundary. Three or four 

small falls had previously occurred in the accident area near the outcrop. 

There was disagreement as to the condition of the roof in the immediate 

accident area and the hazards posed by hillseams. Where roof control in 

the mine was difficult or impossible, Shamrock usually declined to mine, 

or abandoned, those entries. 

On the shift before the accident, James Napier, the day-shift foreman, observed the hillseams in the No. 4 entry. Toward the end of his 

shift, he instructed a roof bolter to drill a test hole in the entry, at 

what was later the accident site, to determine the extent of the hillseams. 

That test hole apparently was not drilled because the bolter had no 

drill steel. Whether a test hole in the No. 4 entry was drilled during 

the earlier part of the day shift is a major factual question in this 

case. (From the beginning of the second shift to the time of the accident, it is undisputed that no test hole was drilled.) 

At about 2:50 p.m., Napier also sounded the roof in the entry with 

a hammer (about 30 to 32 inches of the immediate roof could be sounded), 

and determined to his satisfaction that it was solid. At the end of his 

shift, Napier informed Burke, the second shift foreman, of the hillseams, 

but neither recommended particular action nor mentioned his order to 

drill the test hole. He warned Burke, however, "to watch that night and 

be careful." 

3/ There was some disagreement at the hearing as to the exact definition of a "hillseam." Everyone agreed that, basically, it is a crack 

in the roof, often filled with earth or mud. Some witnesses described 

it as a crack extending all the way to the surface. See also Dixie Fuel 

Co., 7 IBMA 71, 76-77 n. 3 (1976). 

4/ An outcrop is defined as the "part of a rock formation that appears 

on the surface of the ground." Bureau of Mines, U.S. Department of the 

Interior, A Dictionary of Mining, Mineral, and Related Terms 778 (1968) 

( "DMMR T") • 

84t/ 
The day shift had advanced the No. 4 entry about 70 feet from the 

beginning to the end of the shift. The second shift advanced approximately an additional 20 feet to the accident site. The accident occurred 

about 2-1/2 hours into the second shift, during normal mining operations, 

and without significant prior warning. As the continuous miner operator 

and the shuttle car operator loaded out a shuttle car of coal from the 

crosscut, they noticed mud and loose rock falling from the roof. Almost 

immediately the roof fell, killing Burke instantly. The area of the 

roof fall was approximately 20 feet wide, 40 feet long, and 20 to 36 

inches thick. The fallen mass weighed about 100 to 150 tons, and covered 

most of the intersection of the entry and crosscut where it occurred. 

The judge found two violations of section 75.200. First, he concluded that Shamrock violated its roof control plan because it continued 

to mine in the presence of abnormal conditions, i.e., hillseams, without 

using the type of roof support required by its plan under such conditions. 

Second, he concluded that Shamrock failed to drill a test hole in the 

No. 4 entry during the day shift as required by its plan. We affirm the 

judge as to the roof support violation, but reverse as to the alleged 

test hole violation. 

The roof support violation 

On review, Shamrock repeats arguments previously made before the 

judge. The operator stipulates that the roof in No. 4 entry was supported solely by roof bolts and metal straps secured by additional roof 

bolts. Shamrock argues that its roof control plan requires cribs and 

posts to supplement metal straps only where miners encounter abnormal 

conditions. Because, in Shamrock's view, hillseams are not per se 

abnormal conditions and because these particular hillseams were not 

abnormal, its failure to use cribs and posts did not violate the plan. 

It is clear that the first paragraph of the plan quoted above 

requires the use of crossbars supported by posts when "pots, slips, 

horsebacks, or hillseams are encountered." 5/ It is also clear that the 

second paragraph permits the use of metal straps secured by roof bolts 

as an alternative means of support, in lieu of the crossbars permitted 

by the first paragraph, when any of the conditions listed in the first 

paragraph are encountered. The parties do not dispute the meaning 

5/ A pot is defined as a round piece of shale separated from the rest 

of the roof by a crack. Tr. 68; DMMRT 850. Slips and horsebacks are 

defined as joints or faults in the roof, which may be slippery and likely 

to fall. Tr. 68-69; DMMRT 1027. See also definitions of kettle bottom 

(often a synomyn for slip or horseback): "A smooth rounded piece of rock, 

cylindrical in shape which may drop out of the roof of a mine without 

warning and sometimes causing injuries to miners"; and seam: "A joint, 

cleft, or fissure." DMMRT 609, 976. Seen. 4 for definition of a 

hillseam. The inspector testified that all these conditions were "abnormalities." Tr. 32-33, 68-69, 70-71. This evidence and these 

accepted definitions indicate that hillseams and the other listed 

conditions are generally regarded as abnormal roof conditions in mining. 

848 
of these two paragraphs. Rather, the dispute centers on the third 

paragraph. "In areas where steel straps have been utilized in lieu of 

wood crossbars where abnormal roof conditions are encountered, the area 

shall be supported with cribs, and/or posts set on 4-foot centers on 

each side of a 16-foot wide roadway." 

The judge rejected Shamrock's interpretation of the third paragraph. He construed the paragraph as requiring the supplemental use of 

cribs and posts whenever the second paragraph's metal strap alternative 

is utilized. He thus reasoned that the "abnormal conditions" referred 

to in the third paragraph are synonymous with the "pots, slips, horsebacks, or hillseams" referred to in the first paragraph. Stated otherwise, he concluded that hillseams are "abnormal" or "subnormal" conditions \within the meaning of Shamrock's plan. He further determined, 

relying in large part on the testimony of the inspector and Napier, that 

these particular hillseams in the No. 4 entry were abnormal. 

Under his construction of the plan and the evidence presented, the 

judge concluded that Shamrock "fail[ed] to comply with the ··~ plan by 

using steel straps to support the roof without supplemental cribs and 

posts being utilized." 3 FMSHRC at 1868-69. He also found, however, 

that there was not enough space to use cribs and posts while the continuous miner and the shuttle car were working in the cited area. He 

expressed the opinion that Shamrock could either have used crossbars 

instead of the metal straps, or declined to mine the area. Because 

the operator did neither, the judge concluded it had violated its roof 

control plan, and thus the cited standard. 3 FMSHRC at 1865-67. We 

agree with the judge that Shamrock violated its plan, but we do not 

endorse all of the judge's reasoning. 

We first construe the requirements of Shamrock's plan. We agree 

with the judge's determination that the third paragraph refers back 

to the first two and is to be read in conjunction with them. Read 

together, the three paragraphs require that when abnormal conditions 

such as hillseams are encountered, either crossbars or metal straps are 

to be used, but if the straps are used they must be supplemented by 

cribs and/or posts. Thus, hillseams and the other listed conditions 

are "abnormal" or "subnormal" roof conditions within the meaning of 

the plan. The plan uses the term "abnormal" in a qualitative not 

quantitative sense, and does not distinguish between serious and less 

serious roof abnormalities. In sum, regardless of the frequency or 

varying seriousness of hillseams in the mine, the plan requires the 

installation of the support indicated above when the hillseams are 

encountered. 

The foregoing construction is consistent with the plan's purpose, 

structure, and grammar. The plan makes clear that it is a "minimum roof 

control plan" and that when "subnormal" roof conditions are encountered, 

"additional roof support ••• shall be installed." The interpretation 

adopted by the judge, and affirmed by us, furthers this purpose. The 

sequential arrangement of the three paragraphs and their internal crossreferences also support reading them as an interrelated whole. As the 

849 
judge correctly reasoned, because the crucial phrase in the third paragraph 

("where steel straps have been utilized in lieu of the wood crossbars 

where abnormal roof conditions are encountered") has a comma only after the 

final word "encountered," the phrase must be read as a unit. It is merely 

a reference back to the first two paragraphs and does not add new qualifications. Finally, as noted above, the testimony in this case and 

accepted definitions show that conditions like hillseams and pots are 

regarded as roof abnormalities, and we reject Shamrock's contentions 

to the contrary. 

Applying the above construction of the plan to these facts, we 

first note Sh~mrock's concession that it did not provide cribs and/or 

posts to supplement the metal straps. The evidence overwhelmingly 

supports a finding that hillseams were encountered. The testimony of 

Napier, the day-shift foreman who was concerned about the hillseams, 

is decisive on this point. Because the hillseams were encountered 

and the metal strap alternative was used, the plan required supplementation by cribs and/or posts. In addition, Napier's actions--his 

sounding of the top, his ordering of the test hole, and his warning to 

Burke--all indicated his concern that these particular hillseams in the 

fall area were potentially dangerous. Shamrock offered no credible 

evidence in rebuttal. We also note that the No. 4 entry was near the 

outcrop, where hillseams were potentially most dangerous, and that other 

roof falls had occurred nearby. 

We agree with the judge that the evidence shows there was not enough 

space to use cribs in the same area as the continuous miner, but we 

disagree with his statement that crossbars were a feasible alternative. 

The first paragraph of the plan requires that crossbars be supported by 

posts no more than 14 feet apart. Thus, the crossbars arguably would 

present the same problem posed by the cribs. The third paragraph, 

however, allows the supplemental use of posts alone as an alternative 

to cribs. Contrary to the judge's rather general statements with 

regard to "cribs and/or posts," the evidence does not clearly show 

that supplemental posts on each side of a 16-foot roadway would have 

rendered continuous mining impossible. Thus, it may have been possible 

to supplement the metal straps with posts alone, as authorized by the 

third paragraph. We need not resolve that question. The operator did 

not try to use posts, and if it found its approved and adopted plan to 

be impractical, it could either have sought revision of the plan or 

declined to mine the area in question. Shamrock explored none of these 

alternatives and instead departed from the requirements of its plan. We 

therefore affirm the judge's conclusion that Shamrock violated the standard 

by failing to comply with its plan. ~/ 

6/ We merely construe Shamrock's plan, although we note that it may 

well have certain practical defects. For example, the plan does not 

distinguish between dangerous and minor hillseams, etc., but requires 

the designated support whenever these conditions are encountered. The 

plan also does not acknowledge practical difficulties of using certain 

types of support. The sole issue before us is whether Shamrock complied 

with its plan, not the plan's intrinsic merits. As noted above, Shamrock 

could have sought revision of the plan. Ue also note that the issue in 

this case is not whether extra or different support would have prevented 

the accident, but whether the plan was followed. 

850 
The test hole violation 

The judge determined that because the cited area, the No. 4 entry, 

was inby an active working place on the first shift, Shamrock's roof 

control plan required a test hole to be drilled in the No. 4 entry 

during that shift. 7/ He found that the test hole ordered by Napier 

toward the end of the first shift was not drilled. The judge, however, 

did not satisfactorily resolve the question of whether a test hole was 

drilled anytime during the day shift, i.e., whether a test hole had 

been drilled earlier in the day shift at some location in the No. 4 

entry other than the immediate fall area. 3 FMSHRC at 1861, 1863-64. 

Shamrock's plan requires: "During each production shift at least 

one roof bolt hole in each active working place shall be drilled •••• " 

The plan is unambiguous on its face, and the parties do not question 

its meaning. We therefore interpret the plan to require that, in an 

active working place as here (3 FMSRHC at 1863), Shamrock was required 

to drill at least one test hole "throughout the continuance or course 

of" or "at some point in the course of" the day shift. Webster's Third 

New International Dictionary 703 (1971). The plan does not specify 

where in the working place, or when during the shift, the test hole must 

be drilled, and thus grants the operator considerable flexibility in 

testing. Hence, drilling a test hole anywhere in the active working 

place, the No. 4 entry, during the day shift would have satisfied the 

plan. 

The question before us is factual. The Secretary did not establish 

Shamrock's failure to drill a test hole anywhere along the 70 feet of the 

No. 4 entry advanced during the day shift. Before the judge, the Secretary's 

evidence pertained only to the immediate fall area. See Tr. 38-39, 43-45, 

161-62. We reject the Secretary's unsupported assertion that Shamrock's 

employees checked the entire entry and could find no test hole; the evidence 

shows only that there was no test hole in the immediate fall area. We also 

reject the Secretary's speculative argument that, because the roof bolter 

had no drill steel at the end of the shift, he also had none earlier and 

could not have drilled a test hole. Given the Secretary's failure to 

establish a prima facie case, Shamrock was under no obligation to prove 

it actually drilled a test hole. Consequently, while the evidence supports 

2/ The citation did not specify on which shift the alleged violation 

occurred. The judge accepted Shamrock's argument that there could be 

no violation for any failure to drill a test hole on the second shift 

because.the plan merely required a test hole "during" each production 

shift, and it was conceivable that the operator could have drilled a 

hole sometime during the remaining five hours of the second shift. 

3 FMSHRC at 1863. We concur. (The Secretary does not dispute that 

determination, hut argues only that Shamrock failed to drill a test 

hole on the first shift). 

851 
the judge's finding that no test hole was drilled in the immediate fall 

area, we conclude that substantial evidence fails to support a finding 

that no test hole was drilled anywhere in the active working place during 

the first shift. ~/ 

Accordingly, on the bases discussed above, we affirm the judge's 

determination that Shamrock violated its roof control plan and thus 

the standard by failing to provide appropriate roof support in the 

presence of abnormal roof conditions. We reverse the judge's conclusion\ that the operator violated its plan by failing to drill a test 

hole in the No. 4 entry during the first shift, and vacate the $750 

penafty assessed for that violation. 

A. E. Laws 

~ ~on, Commissioner 

! 

\ ~/ We note that, on grounds remarkably simil~r to those articulated in 

this dec-ision, a Commission judge recently vacated a citation alleging 

that Shamrock failed to drill a test hole at another of its mines. 

Shamrock Coal Co., 4 FMSHRC 2037 (November 1982)(ALJ). Similar, or 

identical, test hole plan provisions were in effect. The judge 

concluded: 

It seems clear to me that on the facts of this case 

the inspector issued the citation [during his inspection on the second shift] because he found no test 

hole had been drilled on the first shift. He and 

the second shift foreman looked for the hole in an 

area where it would normally have been drilled. 

They apparently did not look at the area where the 

first shift foreman stated it was located. 

4 FMSHRC at 2041 (emphasis added). The Secretary must either require more 

specificity in Shamrock's plan as to exactly when and where test holes will 

be drilled, or must inspect more thoroughly for indications of test holes. 

852 
Distribution 

Ann Rosenthal 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Neville Smith 

P.O. Box 441 

Manchester, Kentucky 40962 

853 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703} 756-6210/11/12 t1AY 4 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Peti.tioner 

v. 

WESTERN COAL CORPORATION, 

Respondent 

DECISION 

Civil Penalty Proceeding 

Docket No. WEVA 83-41 

A.O. No. 46-05793-03503 

Mine No. 14 

Statement of the Case 

These proceedings concern civil penalty proposals filed by the 

petitioner against the respondent pursuant to Section llO(a) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. 820(a), seeking 

civil penalty assessments for five alleged violations of certain 

mandatory safety standards promulgated pursuant to the Act. 

Respondent filed a timely answer contesting the proposed assessments, 

and pursuant to notice the matter was scheduled for hearing in Logan, 

West Virginia, May 11, 1983. However, by motion filed April 15, 1983, 

pursuant to Commission Rule 30, 29 CFR 2700.30, the parties seek approval 

of a proposed settlement of the matter. The citations, initial assessments, 

and the proposed settlement amounts are as follows: 

Citation No. Date 30 CFR Section Assessment Settlement 

907844 12/8/81 50.10 $ 644 $ 112 

907845 12/8/81 50.12 644 112 

907845 12/8/81 77.1607(b) 259 250 

907846 12/8/81 77 .1605 (b) 192 98 

907847 12/8/81 77.1104 126 126 

$1865 $ 707 

Discussion 

In support of the proposed settlement, counsel for the petitioner 

states that she and respondent's counsel have discussed the six statutory 

civil pena_lty criteria found in section llO(i) of the Act. With regard 

855 
to Citation No. 907844, counsel states that it was issued because the 

respondent failed to notify MSHA of a nonfatal truck haulage accident 

that occurred on December 7, 1981. Counsel asserts that a further 

investigation has revealed that a reduction in the assessed civil 

penalty would be appropriate in that the gravity of the violation should 

be ra:luced to show that there was no likelihood that an event posing a 

risk of injury or illness would have occurred as a result of this 

violation. Additionally, counsel points out that the respondent's 

negligence should be reduced from reckless disregard to low negligence 

in that the respondent did in fact prepare a report for MSHA on the day 

of the nonfatal accident. However, the report was not officially 

received in the district MSHA office until the following morning because 

the respondent was under the impression that it had in fact complied 

with the regulation by filling out the report on the day of the incident. 

Counsel indicates that the inspector has deleted the "significant and 

substantial" finding in order to reflect low negligence and to show 

that an injury or illness was not reasonably likely to occur if the 

violation was not corrected. 

With regard to Citation No. 907845, counsel states that it was 

issued because the respondent had not taken measures to prevent the 

altering of the scene of the December 7, 1981 accident in that the scraping 

of the road resulted in the removal of tire tracks, and the lectro haul 

truck had been removed from the scene of the accident. Counsel asserts 

that a reduction in penalty would be appropriate as a result of further 

investigation which indicates that the gravity of the violation should 

be reduced to show that there was no likelihood that an event posint 

a risk of injury or illness would have occurred as a result of this 

violation. Additionally, counsel asserts that the respondent's negligence 

should be reduced from reckless disregard to low negligence in that it 

had altered the scene of the accident because a fuel truck had been 

involved and damaged, and the respondent wanted to prevent any further 

danger or incident from occurring. By removing the truck, the site was 

unintentionally changed, and in view of these subsequent findings, the 

inspector deleted his "significant and substantial" finding. 

Regarding Citation No. 907846, counsel asserts that it was issued 

because the truck driver of the lectro haul truck failed to maintain 

control of the truck in that it hit a fuel truck on a radius curve causing 

a nonfatal injury to the driver. Counsel states that the respondent's 

negligence was moderate in that the driver had been instructed by the 

respondent on how to maintain control of the vehicle, but due to excessive 

speed, a collision occurred. 

With respect to Citation No. 907847, counsel stated that it was 

issued because the parking brake on the fuel truck was inoperative. 

Counsel argues that a reduction in penalty would be appropriate in 

light of a further investigation which indicates that the driver of 

the truck revealed that he discovered that the parking brake had become 

856 
inoperative at the beginning of the shift, but he did not report it 

to management or to a mechanic, nor did he record it in the daily 

inspection book as he had been trained by the respondent to do whenever the brakes became inoperative. Under.the circumstances, counsel 

states that mine management had absolutely no knowledge of this condition, 

had no means for ascertaining this information prior to the inspector's 

observation of the condition, and had in fact taken reasonable steps 

during the training of the driver to avoid such a condition. Additionally, 

this condition was not present during the prior shift, and thus had not 

been recorded on the previous shift. Counsel concludes that the respondent's 

negligence should be reduced from moderate to very low, indicating that 

the respondent could not have known of this condition, but that the 

gravity of the violation was accurately assessed as reasonably likely 

in that injuries resulting in lost workdays or restricted duty to two 

miners could have occurred. 

Finally, petitioner's counsel states that Citation No. 907848 was 

issued because materials such as diesel fuel were present on the tank 

and bed of the fuel truck. Counsel states further that the violation was 

originally assessed at $126, that the respondent has agreed to pay the 

penalty in full, that one miner would be affected by any injury, but 

that the respondent's negligence was low. 

Petitioner's counsel has also submitted information reflecting 

that the respondent is a medium-to-small operator, that all of the citations 

were abated within the time fixed by the inspectors who issued them, and 

except for five prior citations of section 77.1104, and three for section 

77 .1605 (b ), 1±e respondent has no history of prior citations for infractions 

of the other standards which were cited in this case. 

After careful consideration of the arguments presented by counsel 

in support of the proposed settlement, I conclude and find that they 

support the proposed reductions in civil penalties as noted. ·However, 

with regard to Citation No. 907844, charging the respondent with a violation 

of section 50.10, Title 30 CFR, I take note of the fact that section 50.10 

requires a mine operator to innnediately contact the appropriate MSHA 

district or subdistrict office in the event of an "accident" as defined 

at section 50.2(h)(l) through (h)(l2). If contact with these local MSHA 

offices cannot be made, the regulation requires innnediate contact with 

MSHA's Washington, D.C.~office by a toll free telephone call to the 

number listed therein. 

I find nothing in section 50.10 that requires a mine operator to 

fill out a written form or to otherwise notify MSHA of an accident by 

submitting something in writing. Under the circumstances, I fail to 

understand the relevance of petitioner's assertion that a penalty reduction 

is warranted simply because thr respondent prepared a report the day 

of the accident but did not file it·until the next day because of its 

belief that it was in compliance when it filled out the report the day 

of the accident. The clear language of the cited standard requires an 

"innnediate contact" with MSHA, and not the preparation or filing of any 

written report. 

85? 
On the facts of this case, it seems obvious to me that the respondent 

failed to immediately contact MSHA as required by the cited section 50.10. 

As a matter of fact, in its answer to the petitioner's proposal for 

assessment of civil penalty for this violation, respondent "admits this 

violation and accepts the penalty assessed". In addition, I take note 

of the fact that even though the inspector who issued the citation stated 

on the face of his citation form that the respondent "failed to notify 

MSHA", in the termination notice issued by another inspector abating 

the violation, he stated that "MSHA has been notified on the proper forms, 

according to Part 50.10, 30 CFR". Thus, it would appear to me that this 

inspector believed section 50.10 required a written report, and that 

fact is what is relevant insofar as mitigating circumstances are concerned. 

In short, if an inspector believes that section 50.10 requires a written 

report to achieve compliance, then a mine operator should be able to 

rely on that representation in arguing that it too believed it. More 

importantly, for purposes of future application, as between these same 

parties, I suggest that petitioner's counsel take the necessary steps 

to insure that both the inspector and the mine operator are clear as to 

precisely what section 50.10 requires a mine operator to do when there 

is an accident at its mine. 

Conclusion 

After careful review and consideration of the pleadings, arguments, 

and submissions in support of the motion to approve the proposed 

settlement of this case, I conclude and find that the proposed settlement 

disposition is reasonable and in the public interest. Accordingly, 

pursuant to 29 CFR 2700.30, the motion IS GRANTED and the settlement IS 

APPROVED. 

ORDER 

Respondent IS ORDERED to pay civil penalties in the settlement 

amounts shown above in satisfaction of the citations in question, and 

payment is to be made within thirty (30) days of the date of this 

decision and order. Upon receipt of payment by the petitioner, these 

proceeding is dismissed. The scheduled hearing is cancelled. 

ArL G~~IKout~as a~· ~ . 

Administrative Law Judge 

Distribution: 

Covette Rooney, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

S. H. Johnson, Esq., Johnson & Johnson, P.O. Box 470, Paintsville, KY 

41240 (Certified Mail) 

853 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11 /12 MAY 9 1983 

DANNY HENDERSON, 

Complainant 

Complaint of Discrimination 

v. 

KING COAL COMPANY, 

Respondent 

Docket No. SE 82-62-D 

DECISION 

Appearances: Frederick T. Kuykendall, III, Esquire, Cooper, Mitch 

and Crawford, Birmingham, Alabama, for the complainant; 

Richard 0. Brown, Esquire, Constangy, Brooks & Smith, 

Birmingham, Alabama, for the respondent. 

Before: Judge Koutras 

Statement of the Proceeding 

This matter concerns a discrimination complaint filed by the complainant 

Danny Henderson pursuant to Section 105(c)(3) of the Federal Mine Safety 

and Health Act of 1977. Mr. Henderson is a miner employed by the respondent 

at the subject mine and he also serves as president of his local UMWA 

union. The complaint was initially filed pro se after Mr. Henderson was 

advised by the Secretary of Labor, Mine Safety and Health Administration, 

(hereinafter MSHA), that its investigation of his complaint disclosed 

no discrimination against him by the respondent. Mr. Henderson subsequently 

retained counsel to represent him, and pursuant to notice a hearing was 

convened in Birmingham, Alabama, on February 2, 1983, and the parties appeared 

and participated fully therein. Post-hearing briefs were filed by the 

parties and the arguments advanced in support of their respective positions 

have been fully reviewed and considered by me in the course of this decision. 

The Complaint 

The complaint filed by Mr. Henderson in this case concerns an assertion 

by him that the respondent violated the anti-discrimination provisions 

·of the Act when mine management decided to idle the mine for several days. 

As a result of this action, Mr. Henderson claims that since he was scheduled 

to work during all or part of this period that the mine was idled, the action 

859 
taken by mine management has resulted in his loss of pay. In addition, 

Mr. Henderson claims that the idling of the mine was a decision made by 

management to prevent or somehow inhibit the miners working at the mine 

from exercising their safety rights on matters concerning the work place. 

Issues 

The issue presented in this case is whether the decision by mine 

management to idle the mine in question was made in retaliation for 

miners exercising any protected rights under the Act, and whether that 

decision was motivated by management's desire to inhibit or otherwise 

interfere with. the right of miners in the exercise of any protected rights 

under the Act. Although Mr. Henderson's complaint was in the nature of 

a "class action" on behalf of a number of miners who signed a "petition" 

affixed to his .complaint, my pretrial rulings limited my adjudication of 

this case to the qvestion of whether Mr. Henderson's rights under the 

Act may have been violated. Additional issues raised by the parties are 

identified and discussed in the course of this decision. 

Applicable Statutory and Regulatory Provisions 

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

et~· 

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

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

3. Commission Rules, 29 CFR 2700.1, et ~· 

Complainant's testimony and evidence 

Danny Henderson confirmed that he is employed by the respondent as 

a bulldozer operator and serves as president of UMWA Local 1865. He 

confirmed that on Wednesday, April 21, 1982, he was at work removing 

overburden behind the dragline in an area known as "the pit", and he 

indicated that his work location at that time was "where the drill is 

and where the dragline is soon to be" (Tr. 27). He fixed the location 

of the dragline in relation to where the shots were being loaded as 900 

feet away from the shot area (Tr. 38). He confirmed that he was not working 

on Friday, April 23, becquse he was at an arbitration hearing in Birmingham. 

He was scheduled to w0rk~on Satu~day, April 24, but when he reported to 

the mine a security guard infornedhim that the mine had been idled. He 

observed the position of the dragline that day, and it was in the same 

location as it was on Thursday (Tr. 39). He was not scheduled to work 

Sunday, and did not work Monday because he was not called to come to work 

and the mine was still idle. He believed that partial crews were called 

back Monday, but that full production did not resume until 4:00 or 4:30 p.m. 

Monday or Tuesday (Tr. 40). 

Mr. Henderson stated that on Tuesday, April 27, respondent's VicePresident and Manager Lynn Strickland requested a meeting with him and the 

safety committee concerning the event of the previous Thursday and Friday. 

860 
Mr. Strickland did not advise those in attendance as to why he had ordered 

the mine idled, and stated that if "the problem we had with that 103" came 

up again he would idle the mine again until an inspector arrived. When 

asked how he took that statement, Mr. Henderson replied "if we got into 

the habit of filing 103s and we couldn't get an inspector, we would be 

idled until one came" (Tr. 41). 

Mr. Henderson confirmed that at no time while he was working at 

the pit area on Wednesday or Thursday, was he ever exposed to any hazardous 

or excessive dust (Tr. 42). He confirmed that the entire mining operation 

was idled on Friday, including reclamation work going on three quarters of 

a mile or a mile from the pit, welders working in the shop area approximately 

4 mines from the pit, and the dragline itself (Tr. 43). Referring to a 

chart labeled "exhibit C-1", Mr. Henderson identified these areas, and 

he confirmed that.- prior to and after April 21, the dragline had operated 

closer to where shots were being fired than the 900 feet where it was 

located at the time in question. He confirmed that as of February 1, 1983, 

the dragline was located approximately 11 27 to 29 steps" from.where a shot 

was put off, and he paced the distance off himself. However, he confirmed 

that the dragline did not operate all day since it was down for repairs 

(Tr. 48). 

On cross-examination, and in response to a question as to why he 

believed the respondent's action in idling the mine has adversely impacted 

on the miners' safety rights, Mr. Henderson replied "if you're in the 

habit of getting idled if you exercise your safety rights, you would soon 

learn that you are going to lose money by doing it, not to do it, some 

peopled would" (Tr. 49). Mr. Henderson confirmed that he lost three work 

days, namely Saturday, Monday and Tuesday, and he believed that five 

employees came back to work on Monday, and full production resumed on 

Tuesday (Tr. 51). He also confirmed that he is an alternate member of 

the mine safety connnittee (Tr. 52). 

Mr. Henderson stated that he estimated the 900 feet distance concerning 

the location of the dragline on Thursday, and that when he next observed 

it on Saturday it had not moved far, but believed it was closer to the shot 

area "by one day's tripping" (Tr. 56(a)). He confirmed that he was paid 

by the union for attending union business on Friday, and that he was 

called to come back to work at the mine either on the following Tuesday 

or Wednesday (Tr. 58). 

With regard to the meeting with Mr. Strickland, Mr. Henderson stated 

that Mr. Strickland said nothing about the dragline being too close to 

the loaded shot, and Mr. Henderson confirmed that he was not working 

around the dragline or the drills on Wednesday and Thursday, April 21 and 22 

(Tr. 60). He also confirmed that on the occasions when the dragline was 

closer to loaded shots than it was on Friday or Saturday, the mine was 

never idled, and he did not believe he was in any danger when he did 

work where the shots were fired on Thursday, and it is normal procedure 

to move away from the area where shots are fired (Tr. 62). 

861 
With regard to the shot which was loaded and fired on February 1, 1983, 

Mr. Henderson confirmed that he had no actual knowledge of how that shot 

was wired and shot, nor does he know whether the wiring and shot were 

accomplished "in an unsual manner" (Tr. 63). He also confirmed he actually 

met with Mr. Strickland on Tuesday, April 27,·and that was a scheduled 

work day, and his actual lost days of work were only two days (Tr. 65). 

Ronald Smith, testified that he has worked for the respondent for 

over seven years, that he is a certified Shooter, and that he was performing 

these duties on Wednesday, April 21, 1982. He described his duties that 

day, including the loading of shots after the holes are drilled by someone 

else. He stated that he was familiar with the Reed and Joy Drills, and 

he confirmed that on April 21, he requested other work due to the dust 

conditions, but that he did not request a section 103(g) inspection (Tr. 90). 

He did not work the next day, but returned to work Friday at 7:00 a.m., 

and the shot pattern had been drilled and he prepared to load th,e shots. 

However, he was instructed to load the holes which had been drilled with 

the Reed Drill, and since they were dusty he asked to see the safetty 

committee for the purpose of requesting a section 103(g) inspection. He 

was later advised that no MSHA inspector was available to come to the 

mine, and he was given other work. At that time the dragline was some 

800 feet from the loaded shot area (Tr. 92). Later that day, he was 

informed that the mine had been idled, and he was told to report back 

to work the following Monday, and he did so (Tr. 95). During the · 

intervening weekend, the dust problems were negated by the rain, but 

the shot was fired on Monday when he returned to work (Tr. 95). 

Mr •. Smith confirmed that he was at the safety committee meeting 

held with Mr.· Strickland on Tuesday, April 27, and he stated that 

Mr. Strickland stated that he had idled the mine because he could not put 

the shot off (Tr. 97). He also confirmed that the dragline has since 

operated closer to the shot, and in his opinion, no one would be in danger 

if it were operating within 500 feet of the shot (Tr. 98). 

Mr. Smith e:Xplained the drilling operation, the loading operation, 

and he explained the reasons for the presence of dust during these 

operations. He confirmed that approximately a month after April 26, 1982, 

he did in fact file a request for a section 103(g) inspection, and that 

MSHA investigated the alleged dust problem and its ruling was not in 

his favor. Since that time he has filed no other requests for section 

103(g) inspections (Tr. +06). 

Mr. Smith confirmed that the mine conditions on April 21 and 23 

were "unusual" in that there was an "abnormally high wind", ar.id while 

the respondent furnished him with a respirator, he did not wear it 

because he doesn't like them (Tr. 108,109). He confirmed that he had 

a respirator when he refused to work in the dust, but opted not to wear 

it and chose to request a section 103(g) inspection instead (Tr. 111). 

862 
Mr. Smith confirmed that during the time the most recent shot 

was loaded, the dragline was located some 100 feet of the shot on 

February 1, 1983 '(Tr. 115). He believed that was an unusual situation 

because the dragline was down and it could not be turned in a direction 

away from the shot (Tr. 115). Although he believed personnel were safe 

during this shot since everyone was removed from the pit, he did not 

believe that the equipment was safe because of the close proximity 

to the shot (Tr. 116). He confirmed that equipment has been damaged 

in the past by shots, but he could not recall how close to the shot 

the equipment was located (Tr. 118). 

Mr. Smith confirmed that the respondent has never been cited 

by MSHA for being out of compliance with the applicable dust standard 

(Tr. 127). When asked whether Mr. Strickland had ever told him 

that he had decided to idle the mine because someone had filed a 

section 103(g) complaint, Mr. Smith testified as follows (Tr. 129-132): 

A. He said that when we -- first of all he 

said he was disappointed in the Safety Committee 

because they d·id not file a 103 (g) and also 

he said that in the future that if we have 

this situation, a similar situation with the 

103(g) that he would idle the mines until someone higher than him told him to put the mines 

back to work. 

A. Well, when you saw fit to file your 103(g) 

Complaint a month later, did he idle the mines? 

A. No, sir. 

Q. Why not? 

A. I don't know. 

Q. Well, at th~ time you filed that complaint 

did you expect him to idle the mines? 

A. I didn't k~ow. 

Q. What was that subsequent complaint over, 

dust again? 

A. Yes, sir. 

Q. On this very same drilling device? 

863 
A. Yes, sir. 

Q. And did someone actually come out from the --

A. (Interposing) Yes, sir, the Federal Inspector 

came and run a dust sample. 

Q. On you? 

A. Yes, sir. 

Q. Hung a sampler on you? 

A. Yes, sir, me and the driller. 

Q. And the driller and found that they were in 

compliance? 

A. Right. 

Q. And they told you that that was the end of that. 

A. Right. 

Q. Did you, at that time, explain to him the problem 

you were having with the dust and everything? 

A. Correct. 

Q. Was that inspector aware of previous, of this 

particular complaint being filed? 

A. Yes, sir, I believe he was. 

Q. If you heard Mr. Strickland say that he was a little 

concerned about the 103(g)s, you weren't intimidated 

in any way, were you, a month later when you filed yours? 

A. (No response) 

Q. Did you feel intimidated or did you feel threatened by 

him that he would idle the mines if you did it again? 

A. Yes, sir, at the time he said that, but I went ahead 

because I felt like I wanted to know whether they were 

in compliance or not and if I could still see the difference 

and I didn't know if he would idle the mine. 

Q. But, that didn't prevent you from doing it? 

A. No, sir. 

864 
Q. Did you say anything to Mr. Strickland before you 

filed that 103(g) a month later? 

A. No, sir, I don't believe so. 

Mr. Smith testified that he had no reason to disbelieve Mr. Strickland's 

assertion that he could not fire the shot on Friday, because he could see 

that it was not loaded and ready to shoot that day (Tr. 133). However, 

Mr. Smith saw no reason to idle everybody, and were it his decision to make, 

he would not have idled the miners working on reclamation or those working 

in the shop (Tr. 134). He confirmed that the reason the shot was not 

loaded and ready .to fire on Friday was because he refused to do it (Tr. 138). 

Respondent's testimony and evidence 

Arthur W. Burks, respondent's resident engineer and safety director, 

testified that he is familiar with the complaint filed in this case. He 

confirmed that after being informed that Mr. Smith was having problems 

with dust on Wednesday, April 21, 1982, during the loading of a shot, 

he instructed the pit foreman to have him wear a respirator, and a call 

was placed to MSHA's office in Bessemer by mine management for the purpose 

of requesting an MSHA inspection of the asserted dust problem. MSHA 

informed the company that a section 130(g) inspection had to be requested 

by a miner or his representative and not the company (Tr. 146-150). 

No inspector came to the mine, and Mr. Smith requested, and was given, 

a union "benefit day" off and left the mine (Tr. 150). Mr. Dennis Myers 

was then called to the mine and assigned the shooter's duty the next day, 

Thursday. While on the phone with MSHA and mine management concerning 

a second request by management for a section 103(g) inspection, Mr. Myers 

stated that he was having no dust problems that day and he refused to 

request an inspection (Tr. 153). 

Mr. Burks identified a mine map, exhibit R-1, and testified as to 

where he believed the dragline was operating during the week in question. 

He indicated that by Monday, April 26, the dragline would have been within 

100 to 200 feet of the partially loaded shot (Tr. 156-159). He confirmed 

that the shot could not he put off because the holes could not be loaded, 

and he believed this pos~d a dangerous situation because the dragline 

was moving closer to the shot by Monday (Tr. 160-161). In light of this 

situation, and in view ot the fact that he did not believe he could get 

an MSHA inspector to the:mine over the weekend, he apprised Mr. Strickland 

that by Monday, the dragline would "be on top of that partially loaded 

shot", and Mr. Burks believed that this posed an unsafe condition (Tr. 161). 

On cross-examination, Mr. Burks confirmed that the position of the 

dragline was surveyed and plotted on a daily basis on the mine map, and 

that this is done for the purpose of determining the coal inventory 

in the pit area in front of the dragline, and he located the position of 

the dragline on the map (Tr. 164-169). He estimated that on Friday, 

April 23, the dragline was some 500 feet from the shot location (Tr. 169). 

He confirmed that at an advance rate of 100 feet a day, he and Mr. Strickland 

and Mr. Earnest believed that by Monday, the dragline would have been 

dangerously or periously close to where the loaded shot was located. 

865 
Mr. Burks stated that he did not know why Mr. Strickland idled 

the welders in the shops or the reclamation workers, and when asked 

whether the operation of the dragline affected their work he responded 

"nothing I don't guess" (Tr. 175). He confirmed that the personnel directly 

involved in operating the dragline in firing off the shot would be the 

dragline crew, the shooter, the benching dozers, and drills. The welders 

and mechanics would be involved in the event of equipment b.reak-downs. 

He confirmed that the dragline has been down in the past, but that mine 

policy does not necessarily dictate that everyone goes home. He did 

not know whether t~e same dragline had been idled in the past (Tr. 176-177). 

Mr. Burks testified that the Reed Drill was a new piece of equipment, 

and that salesmen and factory mechanics were present at the mine to 

demonstrate the drill to the miners (Tr. 179). He also alluded to the 

dust problems and generally described the operation of the drill (Tr. 180-

185). 

William Lynn Strickland, confirmed that he is the mine general manager, 

and that he was advised by a telephone call on Wednesday, April 21, from 

mine superintendent Earnest, t.hat there was a problem concerning the 

loading of certain holes which"tiad been drilled by the Reed SK-60 Rotary . \ Drill, and that the shooter Rona~d Smith had requested other work becomes 

of certain dust _problems (Tr. 187). Mr. Strickland confirmed that the 

dust control system on the drill in question met MSHA's standards and 

had been approved by MSHA (Tr. 188). He also confirmed that during 

the period April 21 through 23, 1982, the Reed Drill and a Joy Drill were 

both being operated in the pit, and that drill comparison tests were being 

conducted so that the company could decide whether to purchase the Reed 

Drill (Tr. 189). 

Mr. Strickland confirmed that the mine conditions were dusty during 

the week in question, and in view of the reluctance of the shooters to 

operate the Reed Drill, mine management made attempts to contact MSHA 

for an inspection of the drill, and no interruption in the work flow was 

anticipated prior to Friday, and the company had no objection whatsoever 

to an MSHA inspection (Tr~ 192). When he learned that MSHA could not 

send an inspector to the ~ine in response to a union request made on 

Friday, he met with Mr. Burks and Mr. Earnest at noon on Friday to discuss 

the fact that a shot had been partially loaded on Friday, but that it could 

not be fired (Tr. 194). ~He discussed the situation which he faced as 

follows (Tr. 194-195): 

A. Yes, sir. We discussed the situation that was 

in front of us; we had no reason to believe that 

we were going to be able to get an inspector 

available to us; we had every reason to believe 

that we had a problem with the shot there that was 

partially loaded that we were not going to be able 

to shoot; we had scheduled for the machine to run 

*/ The name "Strickland" is spelled "Stricklin" by respondent's counsel 

in his post hearing brief. 

866 
along with some of the other pieces of equipment, 

drillers, welders, I don't remember just exactly 

who had been posted to work; we knew that we would 

continue working that night and work on Saturday, we 

would have the shift come in on Sunday night, we 

would have another 8-hour shift there; we had no 

assurance that there would be an inspector on the 

property on Monday morning, we only knew that it had 

been requested, we had no guarantee that there would 

be an inspector there on Monday morning. 

* * * Well, _Mr. Burks, who was in charge of preparing 

the map, Mr. Earnest, who knew from looking at the 

map where the dragline was sitting, where the shot 

was, we addressed the fact of that if we continued to 

proceed with the dragline that there was a possibility 

that we would be endangering the machine. We realized, 

we felt like there was no safety danger as far as 

personnel was involved because we would move them out 

of the area of the shot, as that's our practice and 

custom, but we felt like we would be endangering the 

machine itself. 

And, at Tr. pgs. 196-201: 

Q. Did you hear Mr. Burks estimates of distances as 

far as where the shot area was located and where the 

dragline was located? 

A. Some 4-500 feet. 

Q. Do you agree with that? 

A. Yes, sir. 

Q. Is it an accurate reflection of the movement of 

the dragline as well as the other items which are 

noted on it? 

A. Yes, sir~ 

Q. It's kept in the normal' course of business? 

A. Everyday. 

Q. Do you depend on that map or maps like it? 

A. Yes, sir. 

Q. Did you depend on that map in making your decision 

in this instance? 
A. Yes, sir, it was utilized in the decision. 

Q. As I understand you listened to Mr. Earnest, 

you listened to Mr. Burks and you had personal 

knowledge of what had occurred, what was your 

conclusion? 

A. My conclusion was that each segment of the 

operation in the mining of King Coal Company is 

dependent upon the other segment, before the dragline 

could come through the area has to be drilled and 

shot; for a coal loader to perform his function the 

overburden has to be removed; so each segment is 

dependent upon each other, so if one function was 

not going to be able to operate, then it would 

subsequently, at some later time, cause a delay 

or a failure of the other functions to be able 

to operate. On that basis I determined to idle 

the entire mine. 

Q. Was that decision, in any way, based on any 

animosity that you held toward any miner or any 

action with respect to a safety complaint? 

A. No, sir. It was an economic decision. It costs 

us approximately $40,000.00 a day to operate that 

mine. 

Q. Where is most of that money spent? 

A. A certain portion in labor and that balance 

of it in materials. 

Q. If' the dragline were unable to operate as you 

have testified you assumed it would be, could you 

still operate the mining? j 

A. Yes, sir, we could have, certain segments of it. 

Q. Why did de~ide not to do so? 

A. In my determination at that time, that would have 

only created a situation at a later date that those 

segments would have been affected by the lack of 

being able to shoot on that day and they would have 

been idled at a future date. 

Q. So, in your mind at least in that point in time, 

it was inevitable that at some point in time all the 

functions of the operation would be affected? 

8G8 
A. Yes, sir. 

Q. . What did you do? 

A. Sometime around 1:00 I instructed at the pits to 

idle the mines. 

Q. Was that done? 

A. Yes, sir. 

Q. fild. anyone work on Saturday? 

A. No, sir. 

Q. Did anyone work on Sunday? 

A. No, sir. 

Q. Did anyone report to work on the third shift on Sunday? 

A •. Yes, sir. We discussed that Friday, that knowing that 

there had been a request made for an inspector, not knowing 

whether they were going to come or not and knowing that 

the problem at the mine, if there in fact was one, centered 

around the drilling and shooting functions, that it was our 

intention at that time to bring those people in and have 

them working so that in the event an inspector was there, 

a determination could be made if a problem existed. 

Q. Did you expect an inspector? 

A. Well, we knew they been requested, we could only hope 

that one would show up. 

Q. Who in fact worked? 

A. I don't remember just exactly who was sitting in the 

particular functions at that time; the driller would have 

been in, the ~tility man on third shift, I'm not sure if a 

dozer operato~ would have been or not, but Mr. Smith, the 

shooter, was assigned to work along with the dayshift driller. 

Q. How about Monday morning? 

A. The day shift persons associated with the drilling and 

shooting process of which Mr. Smith was one. 

With regard to the meeting of Tuesday, April 27, with the mine safety 

committee, Mr. Strickland confirmed that he requested the meeting, and 

he testified as follows as the discussion which took place (Tr. 203-204): 

869 
A. I requested Mr. Naramore, Mr. Henderson and Mr. Smith 

because those were the available people; Mr. Henderson 

as Local President; Mr. Smith because he was the most 

associated person with the problem; and Mr. Naramore as 

his Safety Committeeman, some of the other Safety 

Conunitteemen had gone and already left the parking lot. 

I told them at that time that I was disappointed with 

their actions as a Safety Committee, that I felt like 

that there had been reason for them to have made the 

request, we clearly understood that we could not make 

the request, and I told them that I was disappointed 

with their actions as the Safety Committee. Their 

response to that was that if they chose to call somebody out, an inspector, say on the day when Mr. Meyers 

was working, and that if he told them at that day or 

any other time that he didn't have a problem that they 

would look kind of foolish to have called somebody out, 

so they didn't. In their opinion it was not their 

responsibility to file on behalf of another employee. 

I told them at that time the reason that we had idled 

the mine, that I had idled the mine because it was my 

decision, I think I told them something to the effect 

that whatever it was a good decision or a bad decision 

and that it was because we had the partially loaded 

shot and we chose not to continue allowing the dragline 

to move toward it. 

Q. Did they respond to that? 

A. Well, just other than the fact that someone questioned 

or either I offered, I don't exactly remember the extent 

of this part of the conversation, but it was discussed 

if it came up again in the future and I advised them at 

that time, under the same given conditions and circumstances 

that I felt like that the same decision would need to be 

made to idle the mine until such time that we could give 

a resolution. 

Q. Did you ever, at any time, tell any of those individuals 

during this meeting or at any other point in time that any 

time they fil~d a 103(g) that you would idle the mine? 

A. No, sir, a 103 had not even been filed at this time, 

it had been requested for, but it had never been filed. 

Q. To your knowledge was it ever filed? 

A. No, sir. 

Q. Do you know why it was never filed? 

A. No, sir. 

870 
Mr. Strickland identified exhibits R-2 and R-3 as copies of MSHA's 

findings concerning subsequent 103(g) inspections requested by the shooter 

and driller for the Reed SK-60 Drill, and those·findings reflect that 

no violations occurred (Tr. 207). He denied that any retaliatory action 

was taken against the individuals who made those inspection requests 

(TR. 207-208). He expressed the following opinion as to why the miners 

objected to the use of the Reed SK-60 Drill (Tr. 210-211): 

A. Mr. Brown, I have my opinion as to why the 

classified employees took the position that they 

did in relation to the Reed SK-60 Metroplex 

dust control system. I assume that's where your 

question is leading, the result of King Coal Company 

utilizing that metroplex dust control system, one 

of the areas of responsibility for a utility person, 

classif.ied employee, a member of the bargaining 

unit at King Coal Company was to furnish water to 

the drill, that drill, being prior to April of 1982 

the Joy rotary drill. The end result of that was that 

when the Company purchased the drill and made a 

reduction in work force, the result was that its 

classified employees were reduced at the Ryan Creek 

Mine. This had to have had· an impact on the bargaining 

unit at King Coal Company. 

They had a loss in reduction of numbers, but this had 

no affect on the Company's decision to purchase the 

Reed SK-60. It was done for a means of controlling 

the dust which was approved and therein we made the 

decision to buy the Reed SK-60 drill. 

Q. So at the time you ·purchased the SK-60 with the 

metroplex system, you were aware or had investigated this 

system and MSHA's attitude.toward it, is that true? 

A. We only knew from the suppliers of the drill that 

the metroplex was an approved system. 

Q. Do you have any reason to doubt, at this point, 

particularly ~n light of the two subsequent 103 charges 

and investig~tions by MSHA that there is any problem 

with the Metroplex system? 

A. No, sir. 

On cross-examination, Mr. Strickland confirmed that on April 23, 1982, 

he was at his office some 18 to 20 miles from the pit location, but based 

on the mine map and log book, he could estimate that the dragline was 

some 400 to 500 feet from the location of the shot on that day (Tr. 219). 

871 
He confirmed that the work schedules posted at the mine site on Thursday 

called for drillers, dozers, and the dragline to work on Saturday, but 

he was not sure about the welders (Tr. 220). He confirmed that he was 

responsibile for determining who will work and who will not work, and 

he confirmed that welders normally work in the shop area some 3 or 3 1/2 

miles from the pit area, and that the mechanics would go around the entire 

operation (Tr. 222). He confirmed that the subject of the dragline working 

on Saturday was discussed with Mr. Earnest and Mr. Burks during their 

meeting on Friday, and while he personally did not see the posted work 

schedule, Mr. Earnest was instructed to schedule the dragline for work 

on Saturday (Tr. 223-228). However, he conceded that he did not know 

what was on t.he work schedule which was posted on Thursday because he 

did not see it (Tr. 224). No Sunday work was posted, and none is required 

to be posted (Tr. 228). He denied that Mr. Henderson was scheduled to 

work on Sunday (Tr. 229). 

Mr. Strickland again reiterated his reasons for idling the entire 

mine, and he conceded that the dragline had operated closer to the loaded 

shot in the past (Tr. 230). He did not know how many holes were loaded 

on April 23, 1982, and confirmed that it was a "partially loaded shot" 

(Tr. 230). He also indicated that each "shot situation" is different, 

and the question as to whether one would be more dangerous than another 

is dependent on a number of circumstances (Tr. 231-240). 

Stipulations 

The parties stipulated to certain facts (Tr. 33-34), and these 

are as follows: 

On Wednesday, April 21, 1982 King Coal was 

using a Joy Brand drill with a water dust 

control system and a Reed brand drill with 

a dry "metroplex" brand dust control system. 

The two drills were operating in the same 

area, drilling holes in parallel patterns 

for purposes of comparison. 

At approximately 1:30 p.m. on Wednesday, 

April 21, Mr. Ronald Smith, the shooter, complained about the dust which he stated was 

created by th~ dry dust control system, 

ref used to load the Reed drilled holes and requested work in a less dusty area. Mr. Smith's 

request was granted, and no further shooting 

was performed in the area. 

Late during the day shift of April 21 Hr. Ronald 

Smith came by the mine office and stated he was 

going to take a benefit day the next day. 

(Mr. Burks was present.) Mr. Dennis Myers was 

called in for the next day as shooter. 

872 
On April 22 at approximately 8:00 a.m., Mr. Earnest 

(in Mr. Burks' presence) asked Mr. Henderson to 

call the MSHA office and request a 103(g) inspection 

because the company's earlier request could not be 

honored. Mr. Henderson refused to make the call as 

requested and stated he had no problem with dust 

and the employee then working as shooter would not 

file. Mr. Henderson again refused to make the request. 

Later that day (in Mr. Burks' presence) Mr. Earnest 

and Mr. Danny Henderson, local union president, 

telephoned the MSHA office. Mr. Burks was present 

while Mr. Earnest and Mr. Henderson spoke with the 

MSHA officials on a telephone with an extension. 

Mr. Henderson told the MSHA officials that he did not 

have a problem with dust, that the safety committee 

did not have a problem with dust, and that Mr. Myers 

who was on the shooter's job that day would not file 

a 103(g), and that no 103(g) inspection was being 

requested. Mr. Earnest was again told that MSHA 

could not come out without a union or miner request. 

On the morning of Friday, April 23, Mr. Ronald Smith 

returned to the job of shooter. Mr. Smith refused to 

load the Reed holes and requested to see the safety 

committee and requested a 103(g) inspection. Smith's 

request for work in a less dusty area was granted. 

The safety committee, chaired by Mr. Naramore went 

to the mine office and Mr. Earnest called the MSHA 

office. No inspector was available, but a message 

was left for Jim Sanders to call as soon as possible. 

On Monday morning, April 26, no inspector arrived, and 

Mr. Strickland personally talked with Mr. Ronald Smith 

who stated that he had no problem that day because it 

had rained and there was no dust. Mr. Strickland 

went on the explain to Mr. Smith the basis for the 

original decision to shut down the operation. Mr. Smith 

loaded and shot the entire shot pattern. Mr. Strickland 

then ordered _that all miners be recalled and the mine 

be put back if1 operation. 

Complainant's post-hearing arguments 

In his post-hearing brief, complainant's counsel argues that the 

idling of the mine was totally unncessary and was done in retaliation 

to the filing of a section 103(g) complaint. Counsel asserts that 

Mr. Henderson was discriminated against because of a co-employee's 

attempt to exercise his rights under section 103(g)(l) of the Act, and 

as a result of the idling of the mine, Mr. Henderson lost several days' 

873 
wages. Counsel suggests that the clear message the respondent was sending 

to its employees was "Exercises your right under the law, and you will 

pay", and counsel submits that the respondent's idling of the entire mine 

not only violates both the letter and spirit of the Act, but has a chilling 

effect on the future exercise of the statutory rights of miners for a 

safe environment in which to work. 

In response to the respondent's arguments that the decision to idle 

the mine was based on safety considerations, complainant asserts that 

the record here clearly establishes that on the day the mine was idled 

the dragline was operating approximately 500 feet from the shot area, 

and that prior to and since that time, it has operated closer to a shot. 

Complainant's counsel asserts that this defense "is incredulous" and an 

"artificial defense set up by the Company at trial", and that no 

justification or rationale was offered by the respondent to explain why 

shop and reclamation workers miles from the pit area were idled. 

Counsel concludes that Mr. Henderson has made out a prima facie 

case of discrimination, and that the respondent has failed to rebut 

this fact. Counsel takes note of the fact that while the testimony 

in this case failed to establish the exact distance of the dragline on 

the day in question, records were available to the respondent which would 

have given the exact location of the dragline and the pit, and that the 

only inference that can be drawn from the respondent's failure to produce 

them is that it had something to hide. 

Respondent's post-hearing arguments 

In his post-hearing brief, respondent's counsel maintains (1) that 

Mr. Henderson is not a member of the class of persons Congress intended 

to protect when it enacted section 105(g) of the Act, (2) that he has 

offered no proof that he was ever singled out for retaliatory treatment, 

(3) that he has failed to establish any nexus between any of his actions 

and a retaliatory act by the respondent, and (4) there is absolutely 

no evidence of any intent to retaliate or any act of retaliation by 

the respondent in this case. 

Counsel argues that section 105(c)(l) of the Act provides protection 

to miners who either: (1) file or make complaints under the Act; (2) are 

the subject of medical ~valuations and potential transfer under section 101 

of the Act; (3) institute a proceeding under the Act; (4) testify or 

are about to testify in a proceeding under the Act; or (5) exercise a 

statutory right under the Act. Counsel maintains that a prima facie case 

under the Act is only perfected when a Complainant takes action which 

places him within one of the categories of persons protected by the Act, 

and the mine operator then retaliates by discriminating against him based 

on his protected status. Counsel concludes that on the facts of this case, 

Mr. Henderson has failed not only to show the nexus between his protected 

status and the purported harm suffered, but has also failed to show that 

he took any action which brought him within the Act's umbrella of coverage. 

874 
In response to Mr. Henderson's assertion that the idling of the 

mine on Friday, April 23 was an act of retaliation against him in that 

the respondent's actions were based on Ronald Smith's attempt to file a 

request for a section 103(g) inspection, respondent's counsel argues 

that if the respondent here had retaliated against Mr. Smith, Mr. Smith 

would have grounds to file a complaint. However, since Mr. Henderson 

did not even work on April 23, he was not even present to take any 

action against which the respondent could have retaliated. Further, 

counsel asserts that Mr. Henderson has provided no evidence of any 

action on his part which could conceivably be construed to bring him 

within the parameters of the coverage of the Act, and that he never complained 

or filed a compl~int on his behalf or as a miner representative. Counsel 

points out that Mr. Henderson refused to file a complaint. 

In response to Mr. Henderson's assertion that Mr. Strickland's 

statements made during the April 27 meeting with the safety committee 

somehow "chilled'i his rights under the Act, respondent's counsel argues 

that even assuming that Mr. Henderson's "tortured interpretation" of 

Mr. Strickland's remarks is credited, such a statement is not cognizable 

under the Act since actual interference with Mr. Henderson's. statutory 

rights is required. Further, counsel argues that Mr. Henderson offered 

no evidence of any chilling effect on himself or any other employee. 

Counsel points to the fact that Ronald Smith testified that he filed a 

section 103(g) complaint approximately one month after the incident in 

question in this case and that the respondent took no retaliatory action 

against him. Counsel also argues that evidence of subsequent section 103(g) 

complaints concerning the drilling and shooting operations was presented 

at the hearing (exhibits R-2 and R-3), and this evidence establishes that 

similar dust complaints were subsequently filed with MSHA and MSHA found 

no violations existed, and there was no retaliatory action or threat 

by the respondent because of these complaints. 

Respondent argues that the evidence in this case clearly establishes 

that it actually made numerous requests for a. section 103(g) inspection 

between April 21 and April 23, and on various occasions asked the substitute 

shooter, the head of the Union Safety Committee, and Mr. Henderson to 

request such an inspection. Given these efforts on its part to initiate 

such an inspection, respondent maintains that Mr. Henderson's contention 

that it threatened to take adverse action against any miner who subsequently 

filed a complaing "mus~ be viewed as absolutely incredible" • 

. With regard to the purported "safety issue" concerning the use of 

the Reed and Joy Drills, respondent asserts that although Mr. Smith testified 

that he requested and was granted reassignment based on the dust condition 

which was created by the use of the Reed metroplex dust control system, 

the totality of the evidence shows that Mr. Smith's complaint was not 

based on concern for his safety. In support of this conclusion, counsel 

points to Mr. Smith's testimony that, to his knowledge, the Reed Drill 

was the first one operated by the respondent without a water dust control 

system and that his complaint and the complaint of other employees was 

based on their disenchantment with the use of a waterless dust control 

system (Tr. 125-126). · 

875 
Respondent points out that on April 23, ~he Reed Drill was operated with 

an MSHA approved dust control system, an~ that the Joy Drill was operated 

. without a dust control system of any type'. Thus, while the Joy Drill 

presented an infinitely greater potential hazard, Mr. Smith refused to 

load the Reed drilled holes and testified that he did not and would not 

have refused to load the dustier Joy drilled holes. Furthermore, 

respondent maintains that even after repeated requests from mine manageme~t, 

Mr. Henderson, the Chairman of the Safety Committee, and the April 22 

substitute shooter refused to file a 103(g) inspection request, and denied 

both to mine management and to the local MSHA office that a dust problem 

existed for anyone but Ronald Smith. Under the circumstances, respondent 

concludes that the 103(g) inspection request was based on motivation other 

than the Safety Committee's concern over the dust problem. Since the 

purchase of the Reed drill with the metroplex dust control system resulted 

in the layoff of two classified employees, and the purchase decision was 

not subject to the grievance and arbitration provisions of the labor 

agreement, respondent concludes further that the safety complaint was 

used as a mechanism to prevent the purchase of the drill. 

In response to Mr. Henderson's contention that Mr. Strickland's 

decision to idle the entire mine was motivated by his desire to retaliate 

against the miners, respondent points out that Mr. Henderson's contention 

in this regard is based in part on his unreliable estimates of a cable 

which was spread between the dragline and the shot area, and in part on 

comparisons between the mine operating conditions on April 23 and the 

mine operating conditions on subsequent occasions when circumstances were 

in no way comparable. As an example, respondent refers to the shot 

detonated the day before the hearing in this case. Respondent maintains 

that Mr. Henderson ignored the fact that the shot detonated at close 

distance to the dragline involved both powder wHich had lost strength 

because it had been subjected to rain and a relatively shallow layer 

of overburden. Furthermore, respondent points ·to the testimony of 

Mr. Smith, an experienced certified shooter, who confirmed that flyrock 

could be thrown up to 1, 500 feet and that he ~as unabl.e to predict the 

distance such rock would travel on a given occasion. Mr. Smith also 

confirmed that each time a shot is put off judgment must be exercised 

to determine which areas are endangered. (Tr. 111-112). 

In response to Mr. Henderson's contention that Mr. Strickland's 

idling of the immediat~ly affected area would have been a more appropriate 

response, and that he went too far when he idled the entire operation, 

respondent maintains that it is unrefuted that every operation in the 

mine would have been ultimately idled by the shooter's refusal to put 

off the shot, and that Mr. Strickland's decision simply idled all functions 

at one time and thus avoided both the danger which would have been 

created by continued operation of the dragline and the economic loss 

which would have resulted from partial operation of the remaining mining 

functions. 

876 
Respondent asserts that 'in reality, after less than 23 days on 

the job as Vice President and General Manager, Mr. Strickland was 

presented with a problem he had not previously encountered. Between 

12:00 noon and 1:00 p.m. on April 23, all blasting was suspended 

because the only classified shooter refused to load and detonate holes 

drilled by a new piece of equipment. MSHA had not responded to an 

inspection request, and an MSHA inspector was not expected until the 

following Monday. The only dragline in the mine was 400 to 500 feet 

away and advancing toward the shot area. The dragline had previously 

been damaged by flyrock from a shot put off by the same classified shooter 

who refused to load and blast because of the dust. The Mine Superintendent 

and the Resident. Engineer/Safety Director advised Mr. Strickland that 

continuing to operate the dragline over the weekend would 

place the dragline in danger when the shot was finally detonated. A 

partially loaded ~hot endangered personnel and equipment operating in 

the area. Because of the integrated nature of the mining operation, every 

function -- including those not in the immediate blasting area -- would 

ultimately be affected by a cessation of the blasting. Thus, Mr. Strickland 

exercised his judgment and directed that the entire mining operation 

be idled. 

Finally, respondent concludes that Mr. Strickland's decision to idle 

the mine was based on sound business judgment, and not on any retaliatory 

motive. Respondent suggests that had retaliation been his mqtivation, 

Mr. Strickland would not have reassigned Mr. Smith (the only employee 

who complained about dust) and then scheduled him to work on the following 

Monday even though the mine was otherwise shut down. Respondent maintains 

that Mr. Strickland had no reason to retaliate against any other employee 

because no other employee had made a safety complaint. Mr. Strickland 

simply concluded that continued partial operation of the mine under the 

prevailing circumstances was neither safe nor economically feasible. 

Findings and Conclusions. 

Section 103(g)(l) of the Act provides in pertinent part as follows: 

Whenever a repr~sentative of the miners or a miner in 

the case of a coal or other mine where there is no such 

representativeJias reasonable grounds to believe that a 

violation of th_is Act or a mandatory health or safety 

standard exists, or an imminent danger exists, such 

miner or representative shall have a right to obtain 

an immediate inspection by giving notice to the Secretary 

or his authorized representative of such violation or 

danger. Any such notice shall be reduced to writing, 

signed by the representative of the miners or by the 

miner, and a copy shall be provided the operator or his 

agent no later than at the time of the inspection, except 

that the operator or his agent shall be notified forthwith 
if the complaint indicates that an innninent danger 

exists. * * * * Upon receipt of such notification, 

a special inspection shall be made as soon as possible 

to determine if such violation or danger exists * * *· 

There is no dispute as to the facts and circumstances ·which led 

to the filing of this complaint, and as correctly stated by the respondent 

in its post-hearing brief, the decision by mine management to idle the mine 

on Friday afternoon, April 23, 1982, is the focal point of the dispute. 

During the course of the hearing, complainant's counsel argued that the 

actions taken by mine management in this regard were overly broad and 

out of proportion to the risks involved in continuing the mining operation, 

and counsel characterized the idling of the mine as "a brash attempt to 

punish miners who were trying to exercise their rights under the Act" 

(Tr. 26). Counsel conceded, however, that the events of Wednesday and 

Thursday prior to the idling o"f the mine did not involve any discriminatory 

action on the part of the respondent, and he also conceded that the idling 

of the mine affected all miners, and that mine management did not selectively 

choose Mr. Henderson for any special treatment (Tr. 23-24). 

This case presents ·a rather unusual situation in that the respondent 

mine operator is essentially being accused of taking retaliatory action 

against the entire rank-and-file miners, and specifically Mr. Henderson 

in this case, because of a refusal by one of the miners complaining 

about certain dust problems, and Mr. Henderson, as president of the local, 

to file a request with MSHA for a section 103(g) inspection. At the same 

time, Mr. Henderson complains that the respondent mine operator discriminated 

against him when company Vice President and General Manager Lynn Strickland 

discontinued mining operations at approximately 1:00 p.m. on Friday, 

April 23, 1982, "idled the mine", thus reeulting in Mr. Henderson's losing 

two days' pay for the following Saturday and Monday, April 24 and 26, 1982, 

days on which he normally would have been scheduled to work. Mr. Henderson 

concludes that thfs action by Mr. Strickland was "a blatant act by the 

company to have us sacrifice our right to a safe place to work". 

Mr. Henderson confirmed that in the eight years that he has worked 

at the mine, while there have been differences with mine management over 

certain problems, they were all worked out through MSHA or through the 

Union's Safety Inspector.(Tr. 66). He also confirmed that under the Union 

contract, the respondent:may idle the mine "when he gets very well pleased 

to do so", and that the present controversy does not fall under the normal 

Union-Management grievance procedures (Tr. 67). He confirmed that at no 

time during the time periods Thursday through Tuesday, April 22 through 27, 

1982, did he ever personally attempt to register a section 103(g) 

complaint with MSHA (Tr. 71), and he confirmed that the respondent did 

nothing to intimidate or keep the miners affected by any dust conditions 

on Wednesday or Thursday from filing complaints (Tr. 83). Mr. Smith, 

who has worked at the mine for over seven years, and who serves as an alternate 

safety connnitteeman, testified that past safety differences with mine 

management have been resolved through mutual discussions, and that "sometimes we'd have to get the District to come up" (Tr. 137). 

878 
Mr. Henderson's complaints make reference to a "safety issue". 

His first complaint, sighed by him on May 5, 1982, at page 4, contains 

a statement .by Mr. Henderson that "the employees were upset over being 

idled because of a safety issue". At page 5 of that complaint of 

Mr. Henderson states "we do not want our fellow workers to compromise 

their safety rights in order to earn a living for themselves and their 

families." A second complaint, signed on May 25, 1982, on ·his own 

behalf, and on behalf of other miners listed in an attachment to his 

complaint, states that the idling of the mine "was done over a safety 

issue in which we strongly feel did not necessitate this type of 

discriminatory action against the employees of the Ryan Creek Mine." 

It seems obvious to me from the record in this case that the 

"safety issue" is directly related to mine management's decision to 

' i d i h II 1 II purchase a new Reed SK-60 Rotary Drill which was equ ppe w t a metrop ex 

brand dust control system. Although the drill had the capability for 

a water induced dust control system, mine management opted not to use 

the water method and believed that the "metroplex" system was more 

desirable for dust control purposes. In any event, the Reed Drill, as used 

at--the mine with· the "metroplex" dust control system, apparentiy had 

MSHA's stamp of approval, and there is no evidence to the contrary. 

The record in this case establishes that during the period April 21, 

1982, through April 23, 1982, the Reed Drill, with the "metroplex" 

system,was used with a Joy Drill equipped with a water dust control 

system, to drill certain holes in preparation for loading and firing a 

shot. The drilling process being conducted at this time with the Joy 

and Reed drills was under normal mining operations, and the drilling 

was being conducted at a time when mine management had under consideration 

the possible purchase of the Reed Drill. The two drills were operating 

in the same area, drilling holes in parallel patterns for comparison 

purposes in order to test the operational effectiveness of the two drilling 

devices. In short, the Reed Drill was being used for "on the job testing 

purposes", and its· effectiveness obviously met with mine management's 

approval since the drill was subsequently purchased and is still in 

operation at the mine. Conversely, it seems obvious from this case, that 

the decision to purchase that drill did not meet with the approval of 

some miners who had to wotk around it, and that is at the very heart of 

this discrimination case. 

The record in this case establishes that on two occasions when 

Mr. Smith was asked to load holes which had been drilled with the Reed 

Drill he refused and asked to be reassigned to work in a less dusty area. 

The first incident involving Mr. Smith occurred on Wednesday, April 21, 1982, 

at approximately 1:30 p.m., when he complained about the dust created 

by the Reed dry dust control system. Mine management granted his request 

for other work and no further shooting was performed in the area. Later 

that day, Mr. Smith informed mine management that he was taking a contract 

"benefit day" off the next day, Thursday, April 22, 1982, and he did not 

work that day. 

879 
The second incident involving Mr. Smith took place on Friday, 

April 23, 1982, when he returned to his shooter's job. He was instructed 

to load certain holes which had been drilled by the Joy and Reed drills. 

He refused to load the holes drilled by the Reed Drill, and requested 

and was granted other work. At the same time, he requested to see the 

mine safety committee and requested a section 103(g) inspection. The 

safety committee, chaired by Archie Naramore, went to the mine office and 

superintendent Earnest called the MSHA office. He was informed that no 

inspector was available, but a message was left for Inspector Sanders 

to call as soon as possible. 

Mr. Smith's reluctance to load and shoot the holes drilled by the 

Reed Drill stemmed from his belief that the drilling with that drill 

resulted in dry dust which had accumulated around the holes which had 

been prepared for_loading and shooting. Mr. Smith testified that when 

he attempted to walk around and shovel the dust into the holes after 

they were loaded, the dust was dispersed into the air, and coupled with 

the unusual wind conditions which the parties agreed prevailed on April 21 

and 23, 1982, created such a dusty environment around him, and resulted in 

his requests to be assigned other work. 

Mr. Smith confirmed that his reluctance to load and shoot holes 

drilled by the Reed Drill did not affect his decision to load and shoot 

holes drilled by the Joy Drill. He stated that the water induced dust 

control system on the Joy Drill rendered the dust moist and prevented 

it from being dispersed when he worked around the holes drilled with that 

drill. In short, Mr. Smith obviously was satisfied with the Joy Drill, 

but was- not too enchanted with the Reed Drill, even though it had an 

approved dust control device, namely the "metroplex" system. Although 

the "metroplex" system was designed to separate the respirable dust 

from other dust particles, Mr. Smith's reluctance to work around that 

drill was based on the fact that he could not visually distinguish the 

differences in the-dust which was present. In short, he obviously believed 

that holes drilled with the Joy Drill presented no dust problems, but 

that holes drilled with t~e Reed Drill did. I can only assume that 

had the Reed Drill been provided with a water suppression dust control 

system, Mr. Smith would nJt be reluctant to work around holes drilled 

with that drill. 

Although Mr. Smith refused to load the holes drilled with the Reed 

Drill, he confirmed that at the time of these refusals on April 21 and 22, 

he had available to him a dust respirator which had been furnished him 

by the respondent. However, Mr. Smith indicated that he did not use the 

company provided respirator because he "does not like to wear one." He 

also confirmed that when he was called back to work on Monday, April 26, 

he did not complain about any dust problems while loading holes drilled 

with the Reed Drill because it had rained and there were no dust problems. 

380 
The record in this case reflects that on at least three occasions, 

Mr. Henderson, when presented with certain facts indicating that miners 

were experiencing some problems with certain dusty mine conditions, 

opted not to file a section 103(g) inspection request with MSHA, and 

these are discussed below. 

The first opportunity for Mr. Henderson to file a section 103(g) 

complaint came on Thursday, April 22, 1982, when substitute shooter 

Dennis Myers, filling in for the regular shooter Ronald Smith, questioned 

Mr. Henderson about Mr. Smith's request for other work on the previous 

day, and asked for Mr. Henderson's advice. Mr. Henderson advised Mr. Myers 

that the decision to request a section 103(g) inspection was his to 

make, and that he should be the one to decide whether to go ahead and 

load the holes or file a complaint and request an inspection. Mr. Myers 

decided to go ahead and load and shoot the holes which had been drilled. 

Respondent's safety director Burks testified that after Mr. Henderson 

refused to request a section 103(g) inspection, Mr. Earnest called the 

MSHA office and spoke with Inspector James Sanders about the situation. 

While he was on the phone, Mr. Myers entered the office, and after being 

given the phone by Mr. Earnest, Mr. Myers advised Mr. Sanders that he had 

no problems with dust. Under these circumstances, MSHA refused to act 

on Mr. Earnest's request for a section 103(g) inspection. 

The second opportunity for Mr. Henderson to file a section 103(g) 

complaint came on Thursday, April 22, 1982, when mine superintendent 

Sammie Earnest asked Mr. Henderson to call the MSHA district office 

and request ari inspection. Mr. Earnest's request was made because a 

previous telephone request to MSHA by mine management the day before 

was denied by MSHA on the ground that a section 103(g) inspection could 

only be made upon request by a miner or his representative and not by the 

mine operator or mine management. Mr. Henderson refused to call MSHA 

as requested by Mr~ Earnest, and he did so because he personally had 

no problem with dust, and the substitute shooter Dennis Myers would not 

file a section 103(g) request on his own. 

The third opportunity for Mr. Henderson to request a section 103(g) 

inspection came later in the day on Thursday, April 22, 1982, when 

Mr. Earnest and Mr. Henderson placed a conference telephone call to MSHA 

officials, and Mr. Burks listened in on an extension phone. During 

that conversation Mr. Henderson advised the MSHA officials that he did 

not have a problem with dust, that the mine safety committee did not 

have a problem with dust, that Mr. Myers would not file a section 103(g) 

inspection request, and that no such inspection was being requested. 

Contrary to Mr. Henderson's assertion that miners are reluctant 

to file complaints, Mr. Ronald Smith confirmed that a month or so after 

the incident which precipitated the instant complaint, he did in fact 

381 
file a request with MSHA for a section 103(g) inspection, that MSHA 

conducted an inspection concerning his complaint of dusty conditions, 

but ruled against him (Tr. 106), and that the mine was not idled as 

a result of his request for an MSHA inspection (Tr. 130). 

Exhibit R-2 is an MSHA letter dated June 21, 1982, advising the 

respondent of the results of a s~ection 103 (g) (1) inspection· requested 

by the UMWA. The purpose of the inspection was to investigate a May 24, 

1982 complaint filed by a representative of the miners at the Ryan Creek 

Mine alleging that the driller and shooters work positions were exposed 

to too much dust. MSHA's findings were that the dust exposures for the 

two positions were tested and that the test results indicated that the 

respondent was in compliance and that no citations for noncompliance 

with the required dust levels were issued. 

Exhibit R-3 is an MSHA letter dated September 7, 1982, advising 

the respondent of the results of a section 103(g)(l) spot inspection 

requested by the UMWA. The purpose of the inspection was to investigate 

an August 18, 1982, complaint by a representative of the miners alleging 

a dust problem on the Reed SK-60 Drill work position and the shooters 

work position, MSHA's findings were that the results of its testing and 

sampling indicated that the respondent was in compliance with the applicable 

dust exposure requirements and that no citations for noncompliance were 

issued. 

In my view, on the facts of this case it appears to me that the 

respondent did everything humanly possible to meet the perceived safety 

concerns faced by the miners as a result of the use of the drill in question. 

Not only did mine management accomodate the miner who complained about 

the dusty conditions by assigning him other work, but management also 

provided him with a dust mask which he refused to wear. 

With the regard to the question of requesting section 103(g) inspections, 

I find nothing in this record to support a conclusion that mine management 

ever attempted to intimidate, harass, or otherwise prevent miners, or 

the safety committee, fro~ filing such requests. To the contrary, in 

the instant case, mine management asked the safety committee to request 

such an inspection, and e~en made the mine phone and office available 

to the committee, all to no avail. Further, as indicated above, on two 

subsequent occasions whe~ miners saw fit to file section 103(g) requests 

with MSHA, mine managemen~ did nothing to prevent them from doing so, 

and there is absolutely no evidence that management ever retaliated 

against anyone, or did anything such as again idling the mine, because 

of those complaints. As a matter of fact, the record here establishes 

that the inspections conducted by MSHA in response to the 103(g) 

complaints disclosed that the respondent was in compliance with the 

applicable MSHA dust standards in question. One of those complaints 

concerned the very same Reed SK-60 Drill which is involved in the instant 

case. 

Based on the testimony of Mr. Strickland, which I find credible, 

it would appear that the mine was idled from approximately 1:00 p.m. 

882 
Friday, April 23, 1983, until the third shift on Sunday when several 

workers were called back. By Monday, April 26, the day shift crew 

associated with the drilling and shooting process was called back 

to work, and by 4:00 or 4:30 that afternoon, the majority of the miners 

came back to work after the blast was completed (Tr. 202). Mr. Henderson's 

assertion that Mr. Strickland did not tell him why the mine was idled 

during the meeting held with the safety committee is contradicted by 

the testimony of Ronald Smith. Mr. Smith, who was present at that same 

meeting, testified that Mr. Strickland explained that he idled the mine 

because "he couldn't put the shot off" (Tr. 97, 117). In addition, 

contrary to the complainant's argument at page 4 of his brief that the 

respondent has offered no justification or rationale to explain why it 

was necessary to idle the shop and the reclamation workers who were far 

removed from the pit area, Mr. Strickland's testimony in this case 

includes an explanation as to why he made the decision to idle the entire 

mine. Therefore, the question is whether or not that explanation is 

believable. 

At the heart of the complainant's argument that there was unlawful 

discrimination in this case is the assertion that Mr. Strickland's 

explanation as to why he idled the mine, and in particular his statement 

that it was somehow dictated by safety concerns, is totally unbelievable, 

particularly in light of the fact that the dragline had been operated in 

close proximity to a shot before and after the incident in question and 

the mine was not idled on those occasions. 

While it is true that the dragline in question had in the past 

operated closer to a shot area, and in fact did so on February 2, 1983, 

the fact is that the circumstances which prevailed when Mr. Strickland 

decided to idle the mine on Friday, April 23, were not the same as those 

which may have been present on other occasions. For example, the 

complainant's assertion at page 4 of its brief that the dragline "could 

have been operated" on February 2d, is tempered somewhat by Mr. Henderson's 

own testimony that the machine did not run all day because it was down 

for repairs, and that he had no knowledge as to whether it was in operation 

on February 1st because he was at a meeting in Birmingham, and was not 

at work (Tr. 48). In addition, as testified to by Mr. Strickland, the I . 

question as to whether one shot is more or less dangerous than another is 

dependent on a number of circumstances, including the size of the shot, the 

number of holes loaded, ~roximity of men and equipment, and the like. 

Absent any credible showirtg by the complainant that the circumstances 

which faced Mr. Strickland at the time he made the decision in this case 

to idle the entire operation were the same as those which prevailed in 

the past when the operations were not idled, I cannot conclude that his 

decision was unreasonable or went too far. 

After careful consideration of all of the testimony and evidence 

adduced in this case, I cannot conclude that Mr. Strickland's decision 

to idle the mine was made for the purpose of intimidating or punishing 

the miners for their exercise of any rights protected under the Act. 

883 
-~ 

After viewing Mr. Strickland on the stand, I find him to be an honest 

and credible witness. I accept his explanation as to why he idled the 

entire mine, including the fact that this decision brought production 

to a grinding halt at a substantial economic loss to the respondent 

during the period the mine was idled. Since Mr. Strickland was responsible 

for the entire mining operation in question, he had the authority to take 

the action in question, and I conclude and find that his decision in 

this regard was a proper and legitimate management decision, and I reject 

the complainant's assertion that Mr. Strickland's explanation and justification 

for the.decision was somehow concocted to cover up his intent to punish 

the entire work force at the mine. 

Conclusion and Order 

In view of the foregoing findings and conclusions, I conclude and 

find that the record in this proceeding does not establish by a preponderance 

of any reliable, credible, or probative evidence that the respondent 

discriminated against the complainant because of any protected safety activities 

on his part. Under the circumstances, the complaint IS DISMISSED, and 

the relief requested IS DENIED. 

Distribution: 

Richard 0. Brown, Esq., Constangy, Brooks & Smith, Suite 1015, First 

Nat'l-Southern Natural Bldg., Birmingham, AL 35203-2691 (Certified Mail) 

Frederick T. Kuykendall, III, Esq., Cooper, Mitch & Crawford, Suite 201-409, 

North 21st Street, Birmingham, AL 35203 (Certified Mail) 

884 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

on behalf of 

GERALD D. BOONE, 

Complainants 

v. 

REBEL COAL COMPANY, 

Respondent 

May 9, 1983 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION, OR 

INTERFERENCE 

Docket No. WEVA 80-532-D 

HOPE CD 80-67 

INTERIM DECISION AND ORDER APPROVING SETTLEMENT 

AND SCHEDULE OF PAYMENTS 

This case was remanded to the undersigned on April 28, 

1983, to resolve the disputed issue of back pay and interest 

due the Complainant, G6rald Boone, for periods after October 9, 1981. The initial decision finding unlawful discharge of Mr. Boone was issued July 8, 1981, and damages 

were awarded by order dated January 11, 1982. The Secretary 

of Labor· subsequently intervened on behalf of the Complainant on a peti~ion for enforcement of the final commission 

order. 

The U.S. Court of Appeals for the Fourth Circuit 

granted the Secretary's petition for enforcement and directed the Commission to resume jurisdiction in the event 

the precise amount of back pay could not be agreed upon by 

the parties. The parties could not agree and expedited 

hearings were thereafter held on this matter in Charleston, 

West Virginia, on May 5, 1983. During the course of the 

hearings, the parties proposed a settlement agreement which 

included payment of $15~000 under a schedule of payments to 

be made by Respondent through January 1, 1984 (Exh. A). It 

was further agreed that the undersigned would retain jurisdiction in the matter until final payment is made under the 

agreement. Accordingly, this Interim Decision and Order is 

not the final disposition of the proceedings. See Commission Rule 65, 29 CFR § 2700.65. 

ORDER 

The proposed settlement is approved and Rebel Coal Company is Ordered to pay to Mr. Gerald Boone as back pay and 

885 
2 

interest for· periods after October 9, 1981, the following 

amounts in accordance with the following schedule: 

June 1, 1983 

July 1, 1983 

August 1, 1983 

September 1, 1983 

October 1, 1983 

November 1, 1983 

December 1, 1983 

January 1, 1984 

$1,000.00 

2,000.00 

1,000.00 

1,000.00 

2,000.00 

2,000.00 

2,000.00 

3,117.95 

It is further Ordered that thet\Rebel coal 

the amount of $882.05 for costs and\' xpenses t 

17, United Mine Workers of America,\ n January 

Distribution: 

I 

r 

Gary Melick: 

Assistant Cl\ ef 

\ 

\ 

l 

By certified 1

. ail. 

\ 

\ 

\ 

\ 

\ 

Company pay 

District No. 

1, \at. 

J\,, 

Law Judge 

Douglas D. Wilson, Esq., Gardner, Moss,'. rown & Rocovich, 

P.O. Box 13606, Roanoke, VA 24035 

Larry Harless, Esq., United Mine Workers of America, P.O. 

Box 1313, Charleston, WV 25325 

Mr. Gerald Boone, Robertson Subdivision, Prichard, WV 25555 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 ~ilson Boulevard, Arlington, VA 22203 

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

886 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MAY 13 l~ 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ENERGY COAL CORPORATION, 

Respondent 

DECISION 

Docket No. WEVA 83-62 

A/O No. 46-05793-03504 

Mine No. 14 

The parties move for approval of their amended motion to approve 

settlement of the five violations charged. The original motion (in 

the amount of $148.00) was denied by the trial judge on the ground 

that the amounts proposed for the backup alarm violations were 

insufficient to insure future compliance. 

The widely shared view that backup alarm violations are not 

significant and substantial in the absence of a showing that miners 

were actually endangered by the unsafe condition is erroneous. In 

Brown&. Root v. OSHRC, 639 F.2d 1289, 1294 (5th Cir. 1981), the court 

held the Secretary need not prove a specific employee was actually 

endangered by the operator's failure to provid"e an operable backup 

alarm, "but only that it was reasonably certain that some employee 

was or would be exposed to that danger." Thus, if the potential for 

contact with a piece of mobile equipment is reasonably forseeable a 

serious injury is probable. Because the consequences of such a 

preventable condition are so· grave, a penalty of $20.00 fails to 

reflect the proper regulator~ concern. As the court noted: "The 

goal of the Act is to prevent the first accident, not to serve as a 

source of consolation for the first victim or his survivors. Hence, 

no proof of specific instances where employees were exposed to the 

hazardous condition is necessary to support a finding of violation." 

Id. 

Accordingly, and in the exercise of his power and duty to ensure 

that settlements are in accord with the purposes and policy of the 

Act, the trial judge recommended the penalties for the two backup 

alarm violations be increased from $68 and $20 respectively to $200 

each. The amended motion accepts this. 

88'7 
Based on an independent .evaluation and de ~ review of the 

circumstances, I now find the settlement proposed is in accord with 

the purposes and policy of the Act. 

It is ORDERED, therefore, that the motion to approve settlement 

be, and hereby is, GRANTED. It is FURTHER ORDERED that the operator 

pay the settlement agreed upon, $460.0 on or before Friday, June 3, 

1983, and that subject to payment the ptioned matter be DISMISSED. 

Distribution: 

Thomas A. Brown, Esq., Office of the Solicitor, U.S. Department of 

Labor, 3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

William G. Francis, Esq., Francis, Kazee and Francis, 111 East Court 

Street, Prestonsburg, KY 41653 (Certified Mail) 

888 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 . 

MAY t 7 \983 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, ) 

) 

v. ) 

) 

OZARK LEAD COMPANY, ) 

) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~~ 

Appearances: 

Robert S. Bass, Esq., Office of 

Tedrick A. Housh, Jr., Regional Solicitor 

United States Department of Labor 

Kansas City, Missouri 64106 

For the Petitioner 

Gerald T. Carmody, Esq. 

Bryan, Cave, McPheeters & McRoberts 

St. Louis, Missouri 

For the Respondent 

Before: Judge John J. Morris 

DECISION 

DOCKET NO. CENT 81-269-M 

The Secretary of Labor, on behalf of the Mine Safety and Health 

Administration, (MSHA), charges respondent, Ozark Lead Company (Ofark), with 

violating Title 30, Code of Federal Regulations, Section 57.3-22 /, a 

regulation adopted under the Federal Mine Safety and Health Act, 30 U.S.C. 

801 ~~· 

1/ The cited regulation provides as follows: 

57.3-22 Mandatory. 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. 

889 
After notice to the parties a hearing on the merits was held on August 

9, 1982 in St. Louis, Missouri. 

The parties filed post trial briefs. 

Issues 

The issues are whether respondent violated the regulation and, if so, 

what penalty is appropriate. 

Admissions 

Ozark admits it is a large operator subject to the Act (Tr. 6). 

Petitioner's Evidence 

William Burich, Gene Cowsert, and Steve Barton testified for the 

Secretary. The evidence shows the following: 

William Burich, an MSHA inspector experienced in mining, inspected the 

Ozark lead and zinc mine on May 6, 1981 (Burich 11). Ozark was using the 

Roman Pillar mining method. The area inspected was a working section of the 

mine which was being mucked out at the time (Burich 11, 13, 18). There were 

no employees in the heading when the inspection party arrived. The loader 

operator had left about 30 to 40 minutes before they arrived, (about 10:55 

a.m.) (Barton 47, Burich 32). 

Since Gene Cowsert, the loader operator, was at lunch the inspector 

didn't see loader No. 179 under the loose. However, Cowsert had been working 

under the brow for four hours (Burich 19, 20). 

Inspector Burich didn't know if the loose had been present when the 

loader operator went to lunch. But in the inspector's view, Ozark violated 

that portion of the regulation requiring proper testing and observation 

before proceeding. (Burich 21). 

Burich was accompanied by Jack Cottrell and Mike Roderman, both management representatives, as well as other persons (Burich 17). 

Burich pointed out loose material in the brow of the drift. Roderman 

and Steve Barton (miner's representative) also saw the loose (Burich 17; 

Barton 38-39, 45). 

890 
Loose material (sometimes simply referred to as "loose"), is material 

that is detached from the host rock. It can be~ome unstable to a point where 

it cannot be supported by the surrounding mass_/ (Burich 13). 

The inspector photographed the loose which had a chalky appearance. 

Cracks usually develop and the chalky appearance occurs with the passage of 

time. Temperature variations cause this appearance (Burich 14, 15; P2). It 

is impossible to determine the exact amount of time loose takes to dry out 

and turn chalky in appearance (Burich 16). 

The citation was immediately terminated. Scalers brought down about 

half a ton of raw rock. In this area it was 18 feet from the ground to the 

brow (Burich 18). 

The loader operator, who had been mucking in the area, stated to the 

MSHA inspector that he didn't know the loose was there. He further stated 

that in any event he was working on the opposite side [of the passageway], 

away from the loose 3/ (Burich 24, 25, 29). The mucker operator (Gene 

Cowsert) had been assigned to work in this area at 7:30 a.m. and he returned 

from lunch at 11:45 a.m. (Burich 32). 

In the inspector's opinion the loose material he observed was in the 

state of drying out. But he didn't know how long the oxidation process had 

taken. It had been there more than a couple of minutes. It forms instantaneously and then dries out (Burich 34, 35). 

Gene Cowsert, the 179 Caterpillar loader operator, had been assigned to 

muck out the area that had been blasted in the morning of May 6th (Cowsert 

52). He arrived at the muck pile about 8 a.m. and checked the area. He 

didn't observe any loose material (Cowsert 54). 

The operator went to lunch about 10:45 a.m. and returned about 11:30 

a.m. The inspection team was then present (Cowsert 56, 57). Cowsert had 

looked at the area at the start of a shift and two or three times thereafter 

(Cowsert 59). Cowsert didn't observe any loose. He had been trained by 

Ozark to examine for loose (Cowsert 59). 

2/ A similar definition in an industry dictionary states: 

Loose ground. a. Broken, fragmented, or loosely cemented bedrock 

material that tends to slough from sidewalls into a borehole. Also called 

broken ground. Compare breccia, b. Long. b. As used by miners, rock that 

must be barred down to make an underground workplace safe; also fragmented or 

weak rock in which underground openings cannot be held open unless artificially supported, as with timber sets and lagging. Compare broken ground, 

b. Long. Bureau of Mines, U.S. Department of Interior, A Dictionary of 

Mining, Mineral and Related Terms (1968). 

3/ A credibility issue arises as to whether the operator knew he was 

operating his loader under the discolored loose. On this issue I credit 

Cowsert's testimony. He would know where he operated his loader on this 

particular day. Further, with 15 years experience, he appears to have a 

healthy respect for loose (Cowsert 61). 

891 
Cowsert told Roderman he hadn't seen any loose. Roderman asked Cowsert 

to confirm that fact in a written statement (Cowsert 57, 58). 

Respondent's Evidence 

Clifford Cauley, Mike Roderman, and Ronald Thomas (by deposition) 

testified for Ozark. 

Between 8 a,m, and 9 a.m. on the date of the inspection Ronald Thomas, 

Ozark's general foreman, inspected the area where the loose was discovered by 

the MSHA inspector (Thomas deposition 8-10). When he had inspected this 

precise spot earlier in the day there was no loose in the area except up 

close to the face (Thomas 9). Foreman Thomas and the Ozark drill blast 

foreman used a 12 volt light attached to their hard hats to make their daily 

inspections (Thomas 13, 15; Cauley 77). If Thomas sees cracks in the ground 

he sounds the area. He didn't use a scaling bar or a sounding bar at the 

time of his early morning inspecton on May 6 because the ground looked good 

to him (Thomas 16). Thomas agrees there was loose present at the time of the 

inspection (Thomas 16-17, 29). 

Cowsert had been assigned in this area before the day of the inspection. 

He would have traversed the area under the brow in operating his loader 

(Thomas 17, 19). 

Ozark's superintendents inspect the ground daily. Any loose ground is 

taken down before work is done. The production foreman had instructed . 

Cowsert, the loader operator, to examine and test the back, face and ribs 

(Thomas 9-11). 

The area, an active heading, had been shot four or five hours before the 

citation was issued (Thomas 9-10, 12). The blast could have caused the 

loose. Thereafter oxidization by the air could have caused it to become 

white or the oxidation could have been caused by the heat generated by the 

exhaust from the front end loader (Cauley 79, 80). 

Thomas has seen loose thousands of times, but he couldn't say how long 

it takes to develop. Heat will cause loose to form (Thomas 24). 

Clifford Cauley, Ozark's drill blast foreman, was responsible for this 

heading (Cauley 69). He inspected this area twice before he was called to 

the heading where the MSHA inspector and Ozark's safety team observed the 

loose (Cauley 69-70). Cauley's initial inspection of the area was about 7:45 

a.m. and his next inspection was about 10:30 a,m, (Cauley 71). 

When he inspected Cauley particularily looked for loose, cracks, or 

discoloration in the rocks (Cauley 70, 71). He observed no loose on his two 

early inspections (Cauley 72). Due to stress points and air flow loose has a 

tendency to form with a greater degree of frequency here than at our place in 

the heading (Cauley 72, 73). 

The loose was present on the third occasion which was at the time of the 

MSHA inspection (Cauley 71-72). 

89 ·~ 

~ 
-~ •. 

Loose, an everyday occurrence, can form instantly. Cauley had no 

opinion as to how long it took the loose in this heading to form (Cauley 73, 

74). It can exist before the chalky white coloring causes it to be noticed 

(Roderman 84). 

Cowsert, the loader operator, had been instructed to observe and scale 

down any loose material. Training classes stress this subject (Cauley 75). 

According to Cauley, in this particular heading, the miner examined and 

tested the back face and rib of the working place at the beginning of the 

working shift and thereafter (Cauley 75). 

Mike Roderman, Ozark's safety inspector, saw the loose for which the 

citation was issued (Roderman 81, 82). The loose was in the process of 

drying out and changing color (Roderman 82). At the time of the inspection 

the loose didn't have its characteristic noticeable white color to it. It 

didn't look like it had dried out over an [extensive] period of time 

(Roderman 83). 

Ozark enforces a policy to discipline a miner for working under loose. 

Ozark's discipline commences with a verbal reprimand. Then a written reprimand is followed by an additional written reprimand and suspension. Termination can result (Roderman 84, 85). 

Roderman was told by Cowsert that he didn't see the loose. When 

Roderman asked Cowsert for a written statement to that effect the operator 

initially agreed to do so. Later he changed his mind (Roderman 83, 84). 

Discussion 

The regulation, Section 57.3-22 imposes multiple requirements. A breakdown of the regulation indicates it imposes the following broad directives: 

"Miners are to examine and test the back, face, and rib of the working 

place at the beginning of each shift and frequently thereafter." 

Further, "supervisors shall examine the ground conditions during daily 

visits to insure that proper testing and ground control practices are being 

followed." 

Further, "loose ground shall be taken down or adequately supported 

before any other work is done." 

Finally, "ground conditions along haulageways and travel ways shall be 

examined periodically and scaled or supported as necessary." 

The pivitol evidence in the case arises in the testimony of Ozark's 

loader operator Gene Cowsert. The evidence clearly establishes that Cowsert 

visually inspected and checked the working place (Cowsert 54, 59, 60, 61, 

63-64). But there is no evidence that Cowsert met the additional requirement of the regulation that he "test" the back, face, and rib. 

The regulations themselves do not define "examine" or "test" § 57.2. 

But the ordinary meaning of these words would indicate that to examine is to 

"inspect closely", whereas "test" is "a critical examination, observation or 

evaluation" Webster's New Collegiate Dictionary, 1979. 

893 
In describing his activities involved in his initial inspection to 

determine the presence of loose the loader operator stated: 

I got off the loader, walked around the muck pile, underneath the brow, and checked in front and behind the brow. 

(Transcript at 66). 

Further, in the examination of Cowsert, the following question was 

directed to him: 

With respect to this particular heading on that morning, 

Mr. Cowsert, this regulation states, which is 57.3-22 that 

miners shall ·examine and test the back face and rim of their 

working places at the beginning of each shift and frequently 

thereafter." 

Did you do that? 

A. I visually inspected the back. I could not reach the back. 

(Transcript at 59-60). 

Since the terms "examine" and "test" are used in conjunction they both 

have a meaning. I consider that "examine" in the regulation means to "look 

at" and "test" in this factual setting means to sound out the area with a 

scaling bar or other such device. 

Ozark argues that no evidence establishes that work was performed while 

loose was present. 

I agree with Ozark's view of the evidence. No credible evidence 

establishes that work was performed in the presence of loose. But Ozark 

should only prevail if the "loose ground shall be taken down" after it is 

discovered eliminates the necessity of the miner "to examine and test." As 

previously indicated I believe the regulation imposes multiple and separate 

obligations. 

Further, on this record, it is quite possible that testing the working 

place might not have revealed any loose. But Cowsert's testimony establishes 

the reason for the testing requirement.. You can look at loose and not see it 

(Cowsert 67). In fact, while the scalers were barring down the loose after 

the violative condition was observed, an amount of loose that was not discolored, and could not be seen, also fell from the left side of the 32 foot 

brow (Barton 41-46, 49). 

It accordingly follows that Cowsert, the loader operator, did not comply 

with those conditions imposed on the "miner" as set forth in the first 

portion of the regulation. Having failed to do so, a violation is 

established. 

In arriving at the conclusion that a violation occurred, I necessarily 

reject that portion of the testimony of respondent's witness Cauley that "the 

miner (Cowsert) examined and tested the back, face and rib of this working 

place at the beginning of the working shift and frequently thereafter" (Tr. 

75). 

894 
I reject the foregoing evidence because Cauley's testimony on this point 

is somewhat hedged. Further, since he wasn't present at all times he 

wouldn't have any way of knowing what Cowsert did by way of examining and 

testing the back, face and rib. 

A violation also exists notwithstanding the testimony of mine 

superintendent Thomas and drill blast foreman Cauley to the effect that they 

checked for loose on the day the citation was issued. Thomas between 8 a.m. 

and 9 a.m. (Thomas 8); and Cauley at 7:45 a.m. and 10:30 a.m. (Cauley 71). 

The obligation of the supervisors arises under the second portion of the 

regulation. 

Ozark contends that the Secretary is attempting to establish strict 

liability for the existence of loose anywhere in a mine. Ozark focuses th"is 

argument because the Secretary claims that a violation exists regardless of 

whether a miner was in the area. Ozark argues such a position would work an 

injustice on a prudent, safety conscientious operator. 

As hereafter noted, I do not acquiesce in the Secretary's pos1t1on but 

I disagree with Ozark's argument. To the contrary I conclude the Secretary 

in this portion of Section 57.3-22 is merely attempting to require a miner to 

test for loose, in addition to visually inspecting for it. 

Ozark, in its post trial brief, cites several authorities in support of 

its views. These cases follow: 

Ozark Lead Company, CENT 81-102-M, 

unreviewed decision is not controlling. 

Melick charged "a violation of that part 

that provides that loose ground shall be 

be fore any other work is done." 

January, 1982 (unpublished): This 

The citation before Judge Gary 

of the mandatory safety standard 

taken down or adequately supported 

In this case the citation states as follows: 

There was loose material on the east side of the brow that lead to 

the 208-583 North Heading. Loader No. 179 had been operating under 

the loose material. There was sufficient loose involved that could 

cause serious injuries to persons under it in the event it fell. 

In short, Judge Melick's decision is not controlling because the issues 

raised in the case did not give rise to a violation of the "examine and text" 

portion of§ 57.3-22. 

Ozark Lead Company, 4 FMSHRC 539 (1982): There is such a paucity of 

facts in this unreviewed decision that I am unable to determine the relevent 

rule of law that may be involved. 

895 
Pennsylvania Sand Glass Corporation, 1 FMSHRC 1191 (1978): Ozark 

asserts this case stands for the proposition that the MSHA inspector must 

personally observe a violation to issue his citation. In this factual 

situation Ozark apparently would require the inspector to observe a 

non-event. That is, while observing the miner at work he must further 

observe that he failed to "test" the working place. 

The same point, that is, the "personal observation" issue was raised in 

Arch Mineral Corporation, 3 FMSHRC 468 (1983). In Arch Mineral respondent 

also relied on Pennsylvania Glass. The decision in Arch Mineral, applicable 

here, basically holds that Pennsylvania Glass is not controlling. 

In the instant case the MSHA inspector observed chalky white loose. 

Some (undetermined) time elapsed between when the loose formed and when it 

was seen by the inspector. These factors combined with the information that 

this was an active heading. These facts constitute sufficient probative 

circumstantial evidence to justify the inspector's belief that a violation 

existed. Section 104(a), now 30 U.S.C. 814(a). 

Homestake Mining Company, 2 FMSHRC 2295 (1980) is the only Commission 

decision that construes 30 C.F.R. § 57.3-22. Concerning this decision Ozark 

declares that the Commission's statement in its decision concerning exposure 

to hazard is dictum and therefore not persuasive (2 FMSHRC at 152). I agree 

that the Commission's statement is dictum but I do not agree that it is of no 

precedential value. In Homestake the Commission was considering the third 

requirement of§ 57.3-22, namely, that miners examine a working place for 

loose ground before commencing work. In this circumstance the Commission 

ruled that "the presence of loose rock in the working place establishes the 

violation regardless of whether the miners-were actually exposed to the 

danger exposed by the rock" (2 FMSHRC 157, footnote 7). 

The instant case, as previously discussed, involves a failure of the 

miner to test. I arrive at the same conclusion reached by the Commission: 

No exposure to the hazard is required. In fact, there need not be a hazard 

and there would be none if there is no loose. Simply restated, the regulation requires the workplace to be tested. 

Asarco, Incorporated, 2 FMSHRC 920 (1980): This case, authored by the 

writer, proports to establish an exception to the enforcement of§ 57.3-22. 

The exception: Miners are not required to expose themselves to an additional 

hazard of standing on a muck pile to bar down loose and unconsolidated 

ground, 2 FMSHRC at 924. ASARCO is an unreviewed decision. Assuming ASARCO 

establishes a permissible defense, Ozark failed to prove the defense. The 

drawing illustrating the testimony here indicates the loose ground was not in 

close proximity to the muck pile (Cowsert 53; Exhibit P3). 

I note that various unreviewed Judges' decisions have construed § 57.3-

22. The decisions include Magma Copper Company, 3 FMSHRC 345, 352 (1981); 

(Carlson, J). Held: No loose existed within the meaning of the regulation 

because it took fifteen minutes to bring down part of the wall. See also 

Climax Molybdenum, 2 FMSHRC 3158 (1980); Day Mines, Inc., 2 FMSHRC 1720 

(1980); and St. Joe Zinc Company, 1 FMSHRC 1699 (1979). 

888 
Finally, Ozark states that the interpretation urged by the Secretary 

overlooks the clear language of§ 57.3-22, namely: 

Loose ground shall be taken down or adequately supported 

before any other work is done. 

(Emphasis added) 

Ozark insists that the work only proceeded after the loose was scaled 

down. Therefore, Ozark states it complied with the regulation. 

Yes, Ozark complied with one of the requirement of§ 57.3-22. But Ozark 

failed to comply with the "test" portion of the regulation. 

Two additional matters concern the Secretary's arguments in his post 

trial brief. He petitions the Commission, based on Homestake to declare that 

"a violation is established by proving that loose was present in a working 

area" (Brief at 3). 

Such a broad and sweeping interpretation of this multif~ceted regulation 

is not warranted. The Commission recognizes that loose ground is a fact of 

everyday mining, especially after blasting. 

The Secretary's brief further states that the pertinent portion of 

§ 57.3-22 in this contest is the portion that reads: 

Loose ground shall be taken down or adequately supported 

before any other work is done. 

For the reasons previously indicated I do not find that the above cited 

portion to be pertinent in this factual setting. 

In sum, the citation should be affirmed. 

CIVIL PENALTIES 

Section llO(i) of the Act [30 U.S.C. 820(i)] provides for the criteria 

to be considered in assessing a civil penalty. 

Neither party urges any position concerning a civil penalty. After reviewing the record and in view of the statutory criteria I deem that the 

penalty proposed by the Secretary is appropriate. 

The Solicitor and Ozark's counsel filed detailed briefs. These have 

been most helpful in analyzing the record and defining the issues. I have 

considered these excellent briefs. But to the extent they are inconsistent 

with this decision, they are rejected. 

897 
Based on the foregoing findings of fact and conclusions of law I enter 

the following: 

ORDER 

Citation 543889 and the proposed civil penalty therefor are affirmed. 

Distribution: 

Robert S. Bass, Esq. 

Office of the Solicitor 

United States Department of Labor 

911 Walnut Street, Room 2106 

Kansas City, Missouri 64106 

Gerald T. Carmody, Esq. 

Bryan, Cave, McPheeters & McRoberts 

500 North Broadway 

St. Louis, Missouri 63102 

Judge 

898 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 HAY 17 l9'B 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

.Petitioner 

v. 

MISSOURI GRAVEL COMPANY, 

Respondent 

DECISION 

Civil Penalty Proceeding 

Docket No. LAKE 80-83-M 

A/O No. 11-01176-05005 

Barry Plant No. 8 

Dredge and Mill 

Statement of The Case 

Upon remand of this matter, the five guarding violations charged came on for hearing in St. Louis, Missouri on 

November 4-5, 1982. l/ After an evidentiary hearing, tentative bench decisions issued dismissing three of the citations. 

Whereupon, the Secretary stipulated that unless his position 

:wi.th .respe.ct t.o the app.licahle .standard .0£ liability is upheld 

on appeal all of the violations will be dismissed. ~/ 

17 In my sunnnary decision of July 8, 1980, I rejected the 

Secretary's claim that "iiny concei;vable exposure" to moving 

machinery parts is per se a violation of the uniform moving 

machinery parts standar~found at 30 C.F.R. 55/56/57.14-1 

and 75.1722(a) and 77.40~(a). I found that due to the presence 

of existing guards or physical location each of the nip or 

pinch points cited was so inaccessible that it was highly 

improbable that in the course of performing his routine or 

assigned duties any normally prudent miner was likely to 

come in-contact with moving machinery parts. The Commission 

reserved decision on whether I "properly interpreted and 

applied the standard" but reversed on the ground there was a 

genuine dispute of material fact with respect to the "potential 

for contact and injury." 3 FMSHRC 2470, 2471, 2473, n. 3 (1981). 

2/ See the parties' stipulation of April 7, 1983 and posthearing 

oriefs in support of and opposition to the tentative decisions. 

899 
The dispositive issue is whether, as the Secretary contends, 

the "use of machinery" standard imposes strict or absolute 

liability on an operator to provide expanded metal guards around 

pulleys where exposure to contact with nip or pinch points is, in 

any way, conceivable or possible, ll or whether, as the operator 

contends, such guards are not required unless it is reasonably 

predictable or forseeable that miners performing their routine 

or assigned duties in a normally prudent manner may accidentally, 

inadvertently or negligently be exposed to contact and injury. 

Operator's Br., p. 7. 

Prior to trial the Secretary vacated the finding that the 

violations were "significant and substantial" because, it was 

conceded, none of the conditions cited created a "reasonable 

likelihood that "the hazard contributed to [i.e. , a ·contact] 

would result in an injury . . . of a reasonably serious nature" 

(Tr. 105-108). Compare, Cement Division, National Gypsum Co., 

3 FMSHRC 822, 825 (1981) The Secretary also conceded the 

violations involved "only a minor.qegree of gravity." This 

was congruent with the inspector's finding, made at the time he 

3/ Trial counsel's articulation of the standard for liaoility was "any reasonable chance" for contact and injury. 

Secretary's Br. p. 5. In his earlier appeal, the Secretary's 

appellate counsel embraced a "reasonably forseeable" standard 

and eschewed an interpretation that would include liability 

for totally irresponsible or aberrational behavior that 

resulted in exposure to contact and injury (Tr. 143, 210-212). 

900 
issued each of the 104(a) citations, that the likelihood of 

contact and injury was "improbable," (GX 3, 5, 6) i.e., unlikely 

that even without the expanded metal guards contact would occur 

or that if it did it would necessarily result in an injury 

(Tr. 185-186). Over the objections of his counsel, the inspector 

said he evaluated the likelihood of contact as "improbable" 

because other inspectors had approved the guards previously 

installed by the operator and because he believed that while 

there was a "chance" that in the long run some one might be 

hurt there was just as good a "chance" that no one would get 

"caught" in the cited pinch points (Tr. 81-86). 

Having trivialized the charges, the Secretary proceeded 

to trial on the theory that the standard in question imposes 

strict liability for an operator's failure to guard pinch points 

so as to eliminate every "reasonable chance" or "possibility" 

of contact and injury, including the chance that such contact 

and injury may result from thoughtless, foolhardy, or even 

deliberate acts of misconduct or misbehavior unrelated to a 

miner's routine or assigned dutie~. I dismissed the charges 

on the ground that it was not reasonably forseeable that a 

miner performing his routine or assigned duties in a normally 

prudent fashion would be likely to accidentally, inadvertently, 

thoughtlessly or negligently contact the pinch points in 

question. 

901 
Findings and Conclusions 

Citation 367379 

On August 7, 1979, a federal mine inspector issued this 

citation for a violation of 30 C.F.R. 56.14-1. 4/ The charge 

was that the drive pulley on the main incline belt conveyor 

at the Barry No. 8 Plant, Pike County, Illinois, was not guarded. 

It was further charged that a start/stop switch or button 

was located approximately one and one-half feet (18 inches) 

from the pinch point of the pulley (GX-3). 

The evidence showed the pinch point in question was 

located atop a 50 foot high piece of equipment the main 

access to which was up a steep 200 foot ramp. None of the 

seven miners employed at the sand and gravel operation was 

regularly assigned to work or travel in the area near the pinch 

point. The undisputed photographic: evidence and testimony 

established that in order to abate a prior citation a guard 

in the form of a 2-inch aflgle iron railing or barrier 40-inches 

(waist) high and three and one-half feet (42 inches) from the 

47 This and the other use of equipment standards read as 

follows: 

Gears, sprockets; chains; drive, head, tail, and 

take-up pulleys; flywheels; couplings, shafts; 

sawblades; fan inlets; and similar exposed moving 

machine parts which may be contacted by persons, 

and which may cause injury to persons shall be 

guarded. 

902 
pinch point had been installed. ~/ In addition, the emergency 

stop-start switch was 26 inches from the protective railing 

(18 inches from the pinch point) and could easily be reached 

without going inside the barrier. The emergency switch could 

be activated without placing a miner's torso closer than 

42 inches and his hand closer than 18 inches to the pinch 

point. The inspector testified it would be "almost impossible" 

for a miner to contact the pinch point while standing outside 

the barrier (Tr. 121). The inspector thought the only way a 

miner might become entangled in the pinch point without going 

inside the protective railing was if he would "topple" or fall 

over the 40-inch waist-high barrier. I find this suggestion too 

unlikely, remote and speculative to rise to the level of a 

reasonably .forseeable probability, although it was, of course, 

a possibility. The inspector's imaginative suggestion was also 

at odds with the Secretary's and his concession that a contact 

was "improbable" or that if a contact did occur it would not in 

all probability result in an injury of a reasonable serious nature. 

5/ Assessment Office conference notes of October 1979 submitted 

as part of the Secretary's:prehearirtg submission stated that 

the penalty was reduced from $78 to-!;i36 because "Inspectors 

Rostler and Osborne had previously accepted this (2" angle iron 

barrier) as this had been used to abate Mr. Rostler's citation" 

for a chain and sign guard. The record does not show the date 

of Inspector Rostler's citation. An identical chain and sign 

guard was cited by Inspector Ogden on May 24, 1979, only two 

months before the inspection under review. On contest the violation charged was sustained by Judge Fauver on the ground that 

the guard was inadequate to prevent contact by miners who might 

slip and fall while performing their regularly assigned duties. 

Missouri Gravel Company, 3 FMSHRC 1465 (1981). 

903 
The citation was terminated after the operator installed 

an expanded metal screen around the front of the pulley nearest 

the stop-start switch (RX-1, 3). As the photographs graphically 

show the "guard" approved for abatement did not purport to 

enclose the pulley motor, gear box or sprocket. Thus, the 

partial screening provided would not prevent a miner from 

working near exposed moving machinery parts while the pulley 

was in motion (RX-1_, 3; Tr. 203-204). 

If, as the inspector believed, miners will take a chance 

and perform maintenance or other work on a pulley and its motor 

while it is in motion, the partial guard which the inspector 

required would only create a greater hazard as it severly 

constricted the area in which such work must be performed. For 

these reasons, I find the method of abatement required failed 

t,o ..p,rovide. the fa.il'Safe, ·:foolproof prot"ection for which the 

Secretary contends and, if anything, created a more serious 

hazard than existed before the protective railing barrier was 

outlawed. 

Returning to the question of the adequacy of the protective railing, the principle conflict in the testimony related 

to how often miners were required to go inside the protective 

railing to lubricate or do maintenance work on the drive pulley. 

The inspector, who had no personal knowledge, guessed a miner 

might have to go inside the barrier once or twice a day. On 

90<1 
the other hand, the plant superintendent, who had nine years 

experience as a supervisor at this plant persuasively pointed 

out that to his personal knowledge the pulley required lubrication and maintenance only once or twice a year ~/ but that in 

accordance with the company's safety policy which paralleled 

the mandatory safety standards, the conveyor belt and pulley 

were required to be deenergized and locked out while maintenance 

work was being performed. II I find there is no probative 

evidence to support a conclusion that the operator was evading 

or ignoring approved lockout procedures when maintenance was 

nerformed on this equipment. 

The inspector also testified that unidentified informants 

told him that they would on occasion go inside the protective 

railing to lubricate or do other maintenance work on the conveyor 

belt and the·pu:lley while the machinery was in motion. 8/ The 

inspector said these miners told him they sometimes did this on 

6/ The plant operated only seven or eight months a year from 

April to November. 

7/ See 30 C.F.R. 56.12-16, 56:-14-29, 56.14-34, 56.14-35. An 

exception to this is found in 30 C.F.R. 56.14-6 which permits 

machinery to be operated without guards during testing. In 

Union Rock and Materials Corp., 1 MSHC 2377 (1980), the trial 

judge held this exception applies to testing or repair of 

mechanical parts due to a malfunction. Nothing in Inspector 

Aubuchon's testimony in this case indicated a recognition of 

this exception. 

8/ Counsel refused to allow the witness to disclose the names 

of informants on the ground it was against departmental policy 

to do so. 
their own initiative but that at other times they were told 

to ignore company policy and the safety standards by their 

"boss" (Tr. 114-117, 126,-138). The inspector admitted he 

had never seen a miner working on the equipment while it 

was in motion and there is no evidence that a "hot line" or 

103(g)(l) complaint was ever received by MSHA about such a 

practice. Nevertheless, the inspector thought that because 

it was human nature to take chances, or because of the pressure 

for production, a miner might (1) on his own, (2) because he 

thought it was expected of him, or (3) because he was directed, 

go inside the protective railing or barrier to work on the 

pulley or other equipment while the machinery was in motion. 

I can, of course, give no weight or credence to an 

inspector's uncorroborated hearsay recitals of what unidentif ied informer-accomplices allegedly said or did or their 

motivation for doing so. ~/ These recitals are relied upon 

by the Secretary as proof that the protective railing did not 

9/ There is nothing in; the inspector's contemporaneous notes 

or other written statements to support his hearsay recitals. 

With respect to credibility, the record is replete with the 

inspector's flashes of hostility and resentment toward both 

his fellow inspectors and the operator over their differences 

with respect to the adequacy of the protective railing guard. 

806 
preclude work on the machinery while it was in motion. 10/ 

The Secretary argues that because miners are inclined, regardless of the personal risk, to work on machinery while it is 

in motion in the absence of failsafe, foolproof guards, "the 

operator must install a guard that will physically prevent the 

employee from contacting the machinery while it is in operation." 

Secretary's Br. p. 11. Because of the highly prejudici:al and 

incriminating nature of the informers' assertions, fundamental 

fairness required the Secretary identify and permit cross-examination 

of the miners who allegedly furnished this information. 

The informer's privilege is no excuse for the Secretary's 

refusal to identify these individuals. In Roviaro v. United 

States, the Supreme Court recognized that a limitation on the 

assertion of the informer's privilege arises from the dictates 

cff fundamental fairness. 352 U.S. 53, 60 (1957). There the 

Court held that where disclosure of the identity of an informer 

is relevant and helpful to the defense of an accused, or is 

essential to a fair determination of a criminal case, the 

privilege must yield to the re·quirements of due orocess and 

and the right of cross-examination. The same exception applies 

10/ As we have seen, even the guard installed to achieve 

abatement did not preclude work on the machinery while it 

was in motion. In fact, no guard will preclude access to 

machinery while it is in motion, since all guards are removable. The partial expanded metal guard installed to abate 

was merely bolted and wired to a frame mounted on the front 

of the pulley and was easily removed. 
to civil and administrative proceedings. United States v. 

Hemphill; 369 F. 2d 539, 542 (L?.th Cir. 1966); Massman-Johnson 

(Luling), 7 OSHC 1369, 1371 (1980). 

The exception is particularly applicable where, as here, 

the informers were themselves reputedly wrongdoers or were 

allegedly coerced to participate in or set up and carry out 

activity that, at least in the inspector's mind, rendered the 

protective railing, or indeed any removable guard, inadequate. 

Compare, U.S. v. Ayala, 643 F.2d 244, 246 (5th Cir. 1981); 

U.S. v. Varella, 692 F.2d 1352, 1355 (5th Cir. 1982); Supreme 

Court Standard 510(c)(2) (Reprinted in 2 Weinstein's Evidence, 

510-1, 1982). 

For these reasons, I found "extraordinary circumstances" 

for identification existed (Rule 59), and upon the Secretary's 

continued refusal ordered the hearsay recitals stricken. I 

see no reason to change that ruling now. 

- I am willing to co~cede t:hat it is reasonably predictable 

and f orseeable that miners will engage in isolated acts of 

conscious, knowing or willful self-endangerment. What I cannot 

find on this record is that the standard in question imposes 

upon an operator a duty to prevent such aberrational, abnormal 

or potentially self-destructive conduct by an employee. In 

fact, I cannot find and have not been advised of anything in 

the statute or the administrative history of the standard 

908 
that warrants the imposition of a duty to provide an 

absolutely risk free workplace. 11/ 

It is one thing to provide strict liability, i.e., liability without fault for reasonably forseeable and preventable 

acts of ordinary negligence or thoughtlessness by miners 

performing assigned duties in accordance with the mandatory 

safety standards," common sense, and safe mining practices. It 

is quite another to impose such liability for conscious acts 

of endangerment. Even miners with room temperature intelligence and a modicum of natural caution should have been given 

pause by the protective railing, the ready availability of 

the stop-start switch, their presumed knowledge of the mandatory 

requirement for shutting the machinery down before performing 

maintenance work, and their employer's instructions. The Secretary discounts these considerations and the protective railing 

because of the ease with which it could be circumvented. At 

the same time, the Secretary asks me to ignore the ease with 

which the metal screen can be removed while the machinery is in 

motion. As the photographs and testimony show the screen was 

only partially bolted to the angle iron frame. A twisted 

metal wire held the two components of the screen together and 

11/ The standard is an administrative not a statutory reguIation issued under the authority of section 6 of the Federal 

Metal and Non-Metallic Mine Act of 1966, 30 U.S.C. § 725 

(1976.ed.). See also 34 F.R. 12511 et seq. July 31, 1969. 

The administrative history indicates the standard was 

originally intended to prevent "inadvertant" or "accidental" 

contact with moving machine parts. See References 7 through 

10 attached to Secretary's Brief. 

909 
to the angle iron frame at a point just opposite the pinch 

point (RX-1, 3). It is obvious that maintenance or any other 

~ork could be performed on the pulley with or without removing 

the guard (Tr. 203). Consequently, if failsafe protection 

was the justification for requiring the new screen guard it 

was clearly not achieved. 

Reasonable men can and did disagree over the adequacy of 

the various methods of guarding the pulley. Inspectors Horn 

and Rostler thought the protective railing was adequate. Even 

Inspector Aubuchon admitted that a miner acting in a safetyconscious manner would not go inside the barrier while the pulley 

was in motion (Tr. 64). With the normative criteria in such 

disarray, unguided discretion cannot be accepted as affording the 

operator fair warning of what was required. As the Supreme Court 

has remarked, "Where, as here, there are no standards governing 

the exercise of discretion . . the scheme [of enforcement] 

permits and encourages arbitrary and discriminatory enforcement." 

Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972); 

2 Davis, Administrative Law Treatise, § 7:26 at 131 (1979) .. 12/ 

12/ Professor Davis contends that, 

Lack of standards or rules to guide discretion, in 

almost any setting, may encourage arbitrary and discriminatory action, as in the Papachristou case. 

Vagueness of enforcement policy or of any other 

policy may be unconstitutional because it permits 

arbitrary and discriminatory action; courts may 

accordingly require that the vagueness be corrected 

by guiding standards or rules. Id. 

DlO 
Aside from the suspicion of knowing evasion of the 

guards planted by the miner-informers, the inspector claimed 

to be privy to the fact that MSHA management had determined 

to upgrade the protection on pulleys because "they" believed 

the "barriers weren't doing the job" (Tr. 141). Because no 

objective or s_tatistical evidence was adduced to support 

this conclusion, I find such loose, anecdotal evidence is 

entitled to little or no weight. 13/ 

I do take notice of the fact that because of the policy 

and political difficulties that attend the protracted rulemaking process in an era of deregulation, MSHA has increasingly 

turned to adjudication as the best hope for improving or 

upgrading the mandatory standards, especially the general 

standards. 14/ In many instances it is easier to eschew the 

neg.at.fare policy .. p.i.tf.alls .of .r.ulemaking .. and .to . .p.rocee.d with 

ad hoc litigation because the choice is discretionary, largely 

unreviewable, and has been broadly approved by the Supreme 

Court, the courts of appeals and the Commission. SEC v. 

Chenery Corp., 332 U.S. 194, 202 (1947); NLRB v. Bell 

13/ The record in neither this nor the rulemaking proceeding 

snows any correlation between the frequency of citation of this 

standard and the incidence of fatal or disabling injuries 

attributable to contacts with pinch points. How MSHA decided, 

therefore, that the protective railing barriers are inadequate 

is somewhat of a mystery. The determined effort to "upgrade" 

this standard without empirical evidence to support the need 

therefor is another instance in which the regulators seem to 

be engaged in an unceasing effort to build an ever expanding 

and intrusive body of rules from what appear to be unproven, 

if not unrealistic, premises. 

14/ The metal and nonmetal standards are, however, the subject 

of a revised rulemaking proceeding that commenced in March 

n11 
Aerospace Co., 416 U.S. 267, 294 (1974); Voegele Co. v. 

OSHRC, 625 F.2d 1075, 1079 (3d Cir. 1980); Arkansas-Best 

Freight Systems, Inc. v. OSHRC, 529 F.2d 649, 654 (8th 

Cir. 1976); United States Steel Corp., 5 FMSHRC 3, 5 (1983); 

Alabama By-Products Corporation, 4 FMSHRC 2128, 2129 (1982). 

With respect to this standard MSHA is proceeding on 

both tracks. The_notice of rulemaking specifically notes 

that the "most frequent public criticism of the standard is 

the impreciseness of the language and lack of clear 

definition of the terms" in which it is couched. 47 F.R. 

10190, 10196 (March 9, 1982). 15/ Some of the more frequent 

of the public criticisms of the "imprecision" of the standard 

are to be found in the decisions of the Commission's trial 

judges and more recently the Commission itself. Mathies Coal 

.·:Company.,, .. 5 ,FMSHRC ·3-00. {1983)., ;appeal.ipending,; .»John P.eterson, 

fn. 14 (continued) 

1980. The proceeding reached the preproposal stage on 

February 11, 1983. Time for comment on the preproposals 

expired April 15, 1983. Comments on the preproposals will 

be considered and then an improved standard will issue to be 

followed by a further period for hearings and comment by the 

industry. Thereafter, ~inal revisions will be issued to become 

law. It is expected this is at least a year or more down the 

road. 

15/ In response to industry's expressions of concern over 

tne ambiguity in the standard, MSHA's preproposal draft of 

.14-1 would change the standard to state that "exposed 

moving machine parts which may be contacted and which could 

cause injury shall be guarded to prevent a miner from 

inadvertently contacting those parts. Guarding is not 

required where the exposed moving parts are physically 

inaccessible and located out of the reach of miners." Mine 

Safety & Health Reporter, Current Report, p. 444, 2/23/83. 

The industry continues to press for a "reasonably foreseeable" 

standard. Mine Safety & Health Reporter, Highlights, p. 572, 

4/20/83. 

912 
d/b/a Tide Creek Rock Products, 4 FMSHRC 2241 (1982); Basic 

Refractories, 2 MSHC 1597, 1598 (1981); Kincheloe and Sons, Inc., 

2 FMSHRC 1570, 1571 (1980); Applegate Aggregates, 1 MSHC 

2557 (1980); Texas Utility Generating Company, 2 MSHC 1028 

(1980); FMC Corporation, 2 FMSHRC 1315, 1320 (1980); Lone 

Star Industries, 1 MSHC 2520 (1979); Massey Sand and Rock 

Company, 1 MSHC 2111, 2112 (1979); Central Pre-Mix Contrete 

Co., 1FMSHRC1424, 1430-31 (1979). 

One need not agree with everything in these decisions 

to conclude there is a broad spectrum of concern on the part 

of the trial judges and among the commissioners over the 

imprecision of the language of the standard and the subjectivity of judgements made in citing guarding violations. 16/ 

Compare, Peabody Coal Company, 2 MSHC 1262-63 (1981). A 

.-.dis~tillati:on ·of .. :theS'e ·prece·dents ·leads me to conclude they 

foreshadow a holding by the Commission that the penumbra of 

liability does not extend to exposures that may result from 

16/ In Mathies Coal, supra, the Commission in circumscribing 

'Elie reach of the standard noted that: 

Like other statutes and regulations which allow 

monetary penalties against those who violate them, 

an occupational safety and health standard must 

give an employer fair warning of the conduct it 

prohibits or requires, and it must provide a reasonably clear standard of culpability to circumscribe 

the discretion of the enforcing authority and its 

agents. Quoting from Diamond Roofing Co. v. OSHRC, 

528 F.2d 645, 649 (5th Cir. 1976). Accord, Phelps 

Dodge Cor). v. FMSHRC, 681 F.2d 1189, 1193 (9th 

Cir. 1982 . 

913 
isolated, aberrational conduct or from a foolhardy or reckless 

disregard by a miner for his safety. Since such conduct is 

not forseeable or preventable, I find the condition cited 

fails to meet the reasonably prudent person standard fashioned 

by the Commission and the courts to save such charges from the 

void for vagueness ban. Mathies Coal, supra, and cases cited 

therein. 

While remedial legislation is to be liberally construed, 

it cannot be stretched to cover every imaginative contingency 

that an inspector or MSHA can conjure up. 17/ A close reading 

of the Commission's precedents show there is an overwhelming 

consensus for limiting liability under this standard to 

contacts .that may occur accidentally or inadvertently, i.e., 

negligently or thoughtlessly, by miners performing their 

routine or assigned duties in a reasonably, i.e., rationally, 

prudent manner. 

I have deliberately refrained from any hair-splitting 

discussion of the meaning of the terms "guard" and "may." I 

think it clear beyond doubt that the protective railing or 

barrier was a "guard" within both common and dictionary 

177 This does not mean that in an appropriate case upon 

competent evidence an operator may not be held liable for 

knowingly, or willfully ordering or authorizing a miner 

to expose himself to contact with moving machinery parts. 

See section llO(c), (d) of the Act. 

814 
understanding. 18/ I also find the word "may" connotes in 

the abstract the mere possibility of a contact. 19/ What 

I have been unable to find is that when read in the context 

of due process notice it connotes a possibility, no matter 

how unforseeable or unpreventable of a deliberate, intentional or foolhardy contact. On the contrary, I find the 

barrier in question would cause even the most absent minded 

miner to stop, look and think. If then his thought was to 

proceed through heedless of the risk, I would absolve the 

operator of all ~esponsibility in the absence of a showing 

that management had a hand in the action. It is, of course, 

reasonably forseeable that a foreman or other member of 

management may order or coerce a miner into disregarding any 

guard. Here, however, the Secretary failed to carry his 

18/ The applicable generic definition is a "fixture or 

attachment designed to piotect or secure against injury." 

Webster's 3d International Dictionary, p. 1006. 

19/ In Mathies Coal, sutra, Judge Merlin's decision (3 FMSHRC 

I998, 2002) found that t e phrase "may be contacted" meant "to 

be capable of being contacted" but that this did not include 

an "indeterminate degree of probability" and certainly not a 

"miner's aberrant behavior which could not be forseen or 

prevented by the operator anQ. which harmed only himself." 

The finding of liability by ~he trial judge was predicated 

on his determination that the condition cited was hazardous 

to a miner "while performing his regular duties in a 

prudent manner." Id. 2001. Liability for a forseeable 

hazard having beenestablished, the miner's "wantonly reckless and irresponsible behavior" served only to mitigate 

the operator's negligence and the amount of the penalty 

warranted. On appeal, the Commission reversed on the issue 

of liability finding the language of the standard too 

imprecise to cover the type of moving machine parts involved 

in the claimed violation. 

915 
burden of showing by competent evidence that such conduct 

on the part of this operator was forseeable or that the 

operator's standing safety instructions were a mere hollow 

mockery. The Secretary, of course, had the burden of 

showing the inadequacy of the barrier due to the likelihood of knowing or willful noncompliance by management. 

Strict liability for noncompliance in providing no guard 

should not be levitated into an insurer's liability for 

unforseeable, unpreventable isolated and, on.this record, 

wholly speculative incidents of idiosyncratic behavior by a 

supervisor. Compare, Ocean Electric Corporation v. OSHRC, 

594 F.2d 396, 401 (4th Cir. 1979); Mountain States Tel. & Tel. 

v. OSHRC,· 623 F.2d 155, 158 (10th Cir. 1980). This is not a 

case, therefore, for uncritical application of the rule that 

because the Mine Act is a strict liability statute it matters 

not that the mine operator exercised every reasonable precaution 

or that the violation was unforseeable. Domtar Industries, 

3 FMSHRC 2345, 2348 (1981). When a violation is unforseeable 

because the standard fails to provide fair notice of what is 

prohibited the contention that unforseeability is immaterial 

encounters a due process limitation. I do not, therefore, read 

the Commission's decisions upholding nofault violations as 

mandating a holding that.this standard imposes an open-ended 

liability to protect against .. t):le most remote, speculative and 

916 
aberrational kinds of conduct. Furthermore, if it does 

provide for such liability, I find the Secretary failed to 

carry his burden of showing that the new guard an improvement over the old guard or provided any greater protection 

against the real or imagined hazards testified to by the 

inspector. Finally, I find the Commission's decisions on 

strict liability 20/ can and must be harmonized with the 

fair warning requirement of the due process clause. 

For these reasons, I reject as contrary to the intent 

of the standard the Secretary's claim that the operator is 

absolutely liable for even the most remote possibility 

imaginable of a harmful contact with the pinch point in 

question. Such a position is too arbitrary, capricious and 

subjective to merit adoption as a universal rule on this recor.d. 

Instead, I find that under the Commission's decisions a rule 

of reason must prevail and that the Secretary must shoulder 

the burden of showing that an injurious contact is reasonably 

forseeable. The Secretary failed to carry that burden. I 

conclude, therefore, ~hat since the guard provided was 

adequate to prevent negligent or even thoughtless employee 

contact with the pinch point in question the violation cited 

did not, in fact, occur. 

20/ See, Nacco Mining Como an~, . 3 FMSHRC 848 (1981); El Paso 

Rock Quarrier, 3 FMSHRC 35, 3 (1981). 
Citation 362882 

The Secretary's evidence showed that a miner who stooped 

under the five foot high frame of the belt conveyor and then 

reached or stood up to a height of five feet five inches 

(65 inches) could bring his head, arms or some other part of 

his anatomy into contact with the self-cleaning tail pulley 

on the log washer conveyor. Based on this, the Secretary 

argues that whether or not it is reasonable to assume that a 

miner working in the vicinity of the conveyor frame would 

negligently or consciously contort himself so as to make 

contact with the pinch point a violation was shown because 

the pulley was not physically inaccessible. 21/ 

The operator's evidence showed that because the conveyor 

frame was only five feet high a miner could not thoughtlessly 

or negligently walk into the pinch point but would have to 

consciously stoop over and then reach or stand up to make 

contact. It further showed that when the pulley was in 

motion varying amounts of water, sand, and gravel fell off 

the end of the pulley and thus, in addition to the design 

of the equipment, this effluent provided a further natural 

deterrent against the likelihood that any miner acting 

21/ The inspector found that contact was improbable and the 

Secretary conceded the violation was not such as to create a 

reasonable probability of a reasonably sertous injury, supra 

p. 2. 

918 
rationally would negligently or inadvertently place himself 

under the five foot high frame of the belt conveyor while 

the pulley was in motion. 

There was no dispute about the physical dimensions 

involved in the alleged violation. Accordingly, I find that 

because of the design and particular location of the pinch 

point in question it was not reasonably forseeable that it 

would be contacted by a miner performing his routine or 

assigned duties in a reasonably prudent manner. I agree 

that as the operator contends there was no possibility·of a 

contact that might injure a miner when the machinery was not 

in motion and that to make a contact a miner would have to 

bend over to place himself under the five foot high frame 

(Tr. 2_79-280). 22/ I further find that while it was possible 

for a miner acting in a crazed or foolhardy manner to do 

this and to place his .head or arms in contact with the pinch 

point while the conveyor was in motion and while water, 

sand, and gravel was falling in his face it was not reasonably 

forseeable that this would occ~r (Tr. 283-284). 

22/ Where there was a conflict between the testimony of 

the inspector and the operator on the opportunity for 

contact and injury it was resolved in favor of the operator. 

I found the inspector's testimony too contradictory to lend 

credence to his speculation as to how contact and injury 

might occur (Tr. 282). 

919 
For these reasons, I find there was no reasonably forseeable potential for contact and injury. Compare Basic 

Refractories, 2 MSHC 1597, 1598 (1981); Duval Corp., 1 MSHC 

2520, 2521 (1980); Texas Utility Generating Company, 2 MSHC 

1028 (1980); Lone Star Industries, 1 MSHC 2167 (1979). 

As I have previously indicated, it is one thing to 

impose strict or no-fault liability for reasonably forseeable 

possibilities but quite another to impose such liability for 

unforseeable, unpreventable acts of idiosyncratic or aberrational behavior amounting to conscious or reckless disregard 

for one's personal safety. On the one hand liability is 

imposed for failure of an operator to recognize as hazardous 

a condition which a reasonably prudent person familiar with 

all the facts, including those peculiar to the mining industry, 

would have recognized. On the other, liability .is imposed 

on the basis of speculation that isolated, idiosyncratic 

behavior may occur. Again the Secretary seeks to subsume 

no-notice liability under the rubric of strict no-fault 

liability. The Secretary's attempt to impose no-notice 

liability under the guise of no-fault or strict liability 

violates fundamental tenents of fairness. The Secretary as 

enforcer of the Act has the responsibility to state with 

ascertainable certainty the outer limits of liability under 

a general standard. When he seeks to expand those limits 

920 
under the canon of liberal construction to no-notice 

liability he exceeds the limits of his authority and faces 

the salutary ban on arbitrary regulatory action erected by 

both administrative and constitutional due process. 2 

Davis, Administrative Law Treatise, § 3:19 at 180 et seq. 

(1978); NLRB v. Majestic Weaving Co., 355 F.2d 854, 859-61 

(2d Cir. 1966). 

Thus, even if the distinction between a reasonably 

forseeable and unforseeable potential for contact an·d injury 

does not make safety-sense it is the standard as written 

which must bear the blame. The purpose of the Mine Act is 

to obtain safe and healthful working conditions in the 

nation's metal and non-metal mines by telling operators what 

they must do to avoid hazardous conditions. To strain the 

plain and natural meaning of the phrase 11which may be contacted" 

to embrace any pinch point that is physically accessible for 

the purpose of alleviating a perceived lack of safetyconsciousness on the part of miners or management is to delay 

the day when the regulation will be written in clear and 

concise language that all operators will be better able to 

understand and observe. See, Diamond Roofing v. OSHRC, 

528 F.2d 645, 649-650 (5th Cir. 1976); Kroop Forge Co. v. 

Sect. of Labor, 657 F.2d 119, 122-124 (7th Cir. 1981); 

921 
Phelps Dodge Corp. v. FMSHRC, 681 F.2d 1189, 1192-1193 

(9th Cir, 1982); Mathies Coal Company, 5 FMSHRC 300 (1983). 

In Mathies Coal the Commission embraced the rule that 

the canon of liberal construction for remedial statutes does 

not override the requirements for "fair warning" citing the 

Phelps Dodge case supra. In Phelps Dodge the court applied 

the traditional ruie that regulations that apply penal 

sanctions are to be narrowly construed, notwithstanding the 

fact that they appear in remedial statutes. And in Kropp 

Forge the court held that "without adequate notice in the 

regulations of the exact contours of his responsibility" an 

operator cannot be held liable for violating a safety standard. 

Compare Dravo Corporation v. OSHRC 613 F.2d 1227, 1234 (3rd 

Cir. 1980). 

As I have indicated, I do not believe adjudication should 

be used as a substitute for rulemaking when it comes to 

promulgating substantive changes to the mandatory standards. 23/ 

Compare, Morton v. Ruiz~ 415 U.S. 199 (1974). The duty of the 

Commission is to "construe these regulations, not create them 

23/ The elaborate consultative procedures found in § 101 of the 

Act for the formulation of "improved" standards represented the 

Congressional answer to the fears expressed by industry and 

labor over the prospect of unchecked administrative discretion 

to make substantive changes. Zeirler Coal Company v. Kleppe, 

536 F.2d 398, 402-403 (D.C. Cir. 976). 

922 
ourselves." Marshall v. Anaconda Co., 596 F.2d 370, 377, 

n. 6 (9th Cir. 1979). Further I find it unreasonable to 

construe this standard as imposing strict liability for an 

operator's failure to provide failsafe, foolproof guards 

around the moving machine parts of drive, head, tail, and 

take-up pulleys. 24/ In language apropo of these circumstances, the Third Circuit noted that: 

In an adjudicatory proceeding, the Commission 

should not strain the plain and natural meaning 

of words in a standard to alleviate an unlikely 

and uncontemplated hazard. The responsibility 

to promulgate clear and unambiguous standards 

is upon the Secretary. The test is not what he 

might possibly have intended, but what he said. 

If the language is faulty, the Secretary has 

the means and the obligation to amend. Bethlehem 

Steel v. OSHRC, 573 F.2d 157, 161 (3d Cir. 1978). 

Finally I reject as a justification for an "expansive" 

reading of the standard the oft repeated refrain that because 

experience shows that mine operators treat their workforce 

as mindless automatons the principles of fair warning and 

24/ The comparable OSHA standard clearly and unambiguously 

requires pulleys be guatded by guards made of "expanded metal, 

perforated or solid sheet metal, wire mesh on a frame of angle 

iron,. or iron pipe securely fastened to floor or to frame of 

machine." 29 C.F.R. 1910.219(d)(m)(o). This comes much 

closer to describing the type of foolproof guard the Secretary 

contends for than anything in the existing MSHA standards. I 

would think that without doing undue violence to the territorial imperative of either bureauracy the Secretary of Labor, 

who presides over both, might persuade MSHA and OSHA to 

consider adopting a unitary standard. I may be wrong but I 

would assume that whether it appears in an MSHA or an OSHA 

facility a pinch point is a pinch point is a pinch point. 

923 
notice with opportunity to comply should yield to what 

amounts to a post hoc rationalization for imposing liability 

without fault and without notice. As the Supreme Court 

observed in American Textile Mfrs. Inst. v. Donovan, 452 U.S. 

490, 539 (1981), such post hoc rationalizations of an agency 

cannot serve as a sufficient predicate for an enforcement 

action. 

Citation 362889 

The undisputed evidence shows that in July 1976, Inspector 

Harvey Osborn cited the operator fo,r lack of a guard on the 

drive pulley of the dewatering screen--the same pulley involved 

in this citation which issued on August 9, 1979 some three years 

later (Tr. 376-377). Mr. Osborn suggested two pipe railing 

,baririe"J;s .be .installe& t'o bar ina-dvertan t acce·s·s to ·the drive 

pulley pinch point and when this was done the violation was 

deemed abated and the citation wa·s terminated; 

The adequacy of this gua~d was not questioned thereafter 

until Inspector Aubuchon decided the barrier approved by 

Inspector Osborn was inadequate and insisted it be replaced 

with two locked gates. The inspector's action was a selfinitiated effort to upgrade or improve the guard because 

neither the standard nor the nature of the hazard had changed 

924 
in any way in the intervening three years. What had changed, 

of course; was the inspector. 

Inspector Aubuchon sought to justify the requirement for 

the locked gates on the ground they would render the pulley 

area physically inaccessible, at least to his mind. He was 

wrong. Mr. Rhos, the plant superintendent, convincingly 

testified that neither the locked gates nor the pipe barriers 

would make the pinch point inaccessible. 25/ Each of the 

plant's seven employees had keys to the gates. Furthermore, 

the gates, like the pipe barriers, could easily be circumvented by climbing over, under or through them. Neither guard, 

therefore, provided failsafe, foolproof protection against 

thoughtless, foolhardy or wantonly reckless conduct by an 

employee. At best they would afford an employee an opportunity 

to .st.op .l.o.ok .and think aho.ut .the .r.i.sk .and .t.o .r.e.call tha.t . .the 

operator's standing safety instructions and the mandatory 

standards prohibited proceeding beyond the barrier while the 

machinery was in motion. 

25/ An expanded metal guard was impractical because of the 

neavy vibration of the aewatering screen. This vibration 

would shake loose the welds or bolts of such a guard within 

a very short time, necessitating a burdensome replacement 

requirement. Both inspectors obviously recognized the costbenefit of such a requirement could not be justified. Inspector 

Aubuchon found the potential for contact and injury was 

improbable and the Secretary conceded' there was no reasonable 

probability of a reasonably serious injury. 

925 
I find Mr. Aubuchon's testimony as to the claimed 

improvement in protection and diminution in the potential 

for contact and injury was impugned by the undisputed 

evidence as to the physical circumstances and therefore, 

of no probative value. 

For these rea~ons, I conclude the Secretary failed to 

prove by a preponderance of the reliable, probative and 

substantial evidence the violation charged. Compare, Basic 

Refractories, 2 MSHC 1597, 1598 (1980); Lone Star Industries, 

1 MSHC 2167 (1979). I further conclude that in the absence 

of proof that the ·operator had notice as to the claimed 

insufficiency of the original guard and an opportunity to 

contest or comply, the inspector's action in issuing this 

citati:on ·was in excess of statutory authority,· a cl·ear abuse 

of discretion, and a violation of the right to fair warning 

of prohibited conduct. Diebold, Inc. v. Marshall, 585 F.2d 

1327, 1335-1338 (6th Cir. 1978); Auto Sun Products, 9 OSHC 

2009, 2012 (1981). 

Opinion 

I fully realize .that a general standard like the guarding 

standard must be applied in a myriad of circumstances. But 

926 
·so must common sense. As the C9mmission has held "even 

a broad standard cannot be applied in a manner that fails 

to inform a reasonably prudent person that the condition 

or conduct at issue was prohibited by the standard." Mathies 

Coal Company_, 5 FMSHRC 300 (1983), appeal pending. 

In this case we have circumstances in which guards had 

either previously been approved as adequate or the design and 

placement of the equipment was such that no person acting in 

a rational manner could be endangered. Further, the record 

shows that the so-called "improved" guards provided no additional protection against individuals bent on foolhardy, 

wantonly reckless or deliberately self-destructive acts. For 

these reasons, I. ~onclude the standard as applied in each of 

these circumstances was so impermissibly imprecise as to fail 

to give t:he o·pera:tor fair warning of· the conduct or condition 

prohibited. 

The claim that the operator had notice of MSHA's change 

in the guarding requirement is without merit. The two 

publications identified in the record as Government Exhibits 1 

and 2 were issued long after the citatiorts in question. 

Government Exhibit 2-A, which issued a year before the 

challenged citations, was an internal memorandum directed to 

district and subdistrict managers. There is no evidence the 

operator was aware of this document which in any event 

927 
addressed only the adequacy of chain barriers and warning 

signs, not protective railings or pipe barriers. Inspector 

Aubuchon's alleged verbal warnings were so vague, indefinite 

and contradicted by other inspectors and the prior pattern 

of administrative enforcement as to be unworthy of credence by 

the operator. I find therefore that at the time of issuance 

of these citations, in August 1979, the operator was not 

aware, nor should he have been aware, of any authoritative 

administrative, Commission, or judicial interpretation of 

the standard as requiri~g failsafe, foolproof guards. 26/ 

In a closely analogous factual context, the court of 

appeals in Diebold, Inc., supra, 585 F.2d 1335-1337, held that 

if on the basis of a prior pattern of enforcement an employer 

is led to. believe that he i.s. in .compliance :with .a guarding 

standard, he cannot retroactively be held in violation of the 

standard in the absence of a showing that he was aware of an 

26/ Professor Davis has-preceptively observed that the true 

vice of an enforcement policy based on unannounced and 

uncontrolled discretion is that it encourages a regime of 

arbitrary and discriminatory enforcement of the law. The 

solution he suggests is judicially required rulemaking to 

the end that the "enormous power of selective enforcement" 

be brought under the intelligible control of a responsible governmental authority. 1 Davis, Administrative Law Treatise 

§§ 3:9, 3:15, pp. 180-181, 213-215 (1979). Section 101 of the 

Mine Act reflects an attempt by Congress to assure that 

enforcement policy is set in accordance with publicly announced policy to the end that operators be judged by 

uniform principles rather than administrative whim. 

928 
authoritative change in the enforcing agency's interpretation 

of the standard. Consequently, even if I were persuaded that 

the proffered interpretations of the standard are correct, that 

would not inexorably lead to the conclusion that the standard 

may be applied in the instant case. As the court noted: 

Among the myriad applications of the due process 

clause is the.fundamental principle that statutes 

and regulations which purport to govern conduct must 

give an adequate warning of what they command or 

forbid. In our jurisprudence, 

because we assume that man is free to 

steer between lawful and unlawful conduct, 

we insist that laws give the person of 

ordinary intelligence a reasonable opportunity to know what is prohibited, so that 

he may act accordingly. Grabned v. rity of Rockford, 408 U.S. 104, 1 8 (1972 . 

The p~inciple applies with special force to statutes 

which regulate in the area of First Amendment rights, 

but the due process requirement of fundamental fairness is-· hardly limited to that context. Even a r:egu...; 

lation which governs purely economic or commercial 

activities, if its violation can engender penalties, 

must be so framed as to provide a constitutionally 

adequate warning to ~hose who _activities are governed. 

See Joseph E. Sea5ram & Sons, .Inc. v. Hostetter, 

384 U.S. 35, 48-5 (1966); Boyce Motor Lines v. 

United States, 342 U.S. 337, 340 (1952). 

There is no doubt that the violation [charged] exposed 

Diebold to penalties . . . Our concern, therefore, is 

with the question whether the regulation gave Diebold 

sufficient warning that press brakes were within the 

scqpe of its point of operation guarding requirements. 

The question is to be answered, of course, 'in the light 

of the conduct to which the regulation is applied.' 

United States v. National Dair Products Cor . , 372 

U.S. 29, 36 (1963 . i Moreover, t e constitutional 

adequacy or inadequacy of tne warning must be 'measured 

by common understanding and commercial practice.' (Citations omitted.) · 

929 
The court then went on to hold that where an employer and 

an agency have agreed on a method of guarding it would "indulge 

a fiction having little relation to reality" to find it was 

proper to impose a duty on the part of the employer to inquire 

as to the adequacy of his compliance. Citing McDonald v. Mabee, 

243 U.S. 90, 91, the court held that "Great caution should be 

used not to let fiction deny the fair play that can be secured 

only by a pretty ~lose adhesion to fact." Id. at 1337. 

On the undisputed facts of this case, I am unable to 

find that a duty of inquiry on the part of this operator had 

been triggered. The evidence shows that the Secretary's written 

interpretations were either issued long after the alleged violations occurred, were not germane, or were not brought to the 

operator's attention. Further, the record shows there was sub-

-stantia:l ·d:i:s·pute between ·Inspector Aubuchon and his col.leagues 

over what constituted compliance. With the agency itself in 

such disarray over what the guarding requirement was in August 

1979, I conclude that it would indeed indulge a fiction having 

little relation to reality to find Missou~i Portland had 

received notice that MSHA had authoritatively determined that 

failsafe, foolproof guards were required as protection against 

the hazards presented by pinch points. 

It may be experience has shown the only way to insure 

.... - against fatal or disabling injuries as the result of miners 

930 
becoming entangled in pinch points is to require all such 

areas be guarded with foolproof enclosures. If that is so, 

advantage should be taken of the present rulemaking proceeding to promulgate an improved standard that specifically 

mandates failsafe, foolproof guards. This might be accomplished 

by incorporating the MSHA Guide to Equipment Guarding (GX-1). 

This guide, of course, was not in existence at the time the 

conditions challenged in this case arose. What is even more 

disturbing, however, is the fact that the preproposal standard 

issued February 11, 1983, long after this case was tried, makes 

absolutely no reference,to the MSHA Guide. Thus while the 

Secretary urges me on the one hand to hold the operator to the 

guarding requirements of the MSHA Guide he apparently thinks 

so little 9f it that he has not incorporated it into his •. 

proposal for an improved standard. It is this type of uncoordi-

>nated, incon'Sisitent," standardless. en£orcememt aci:i:C'n that leads 

to industry's cry for clarification, reform and more even handed 

treatment. Uncritical, some might say selective, enforcement 

serves only to discredit the entite regulatory program. 

In the case of each of these citations, it appears that 

neither the inspector nor the solicitor was fully acquainted 

with MSHA' s previous pattern of enforcement; .failed to 

appreciate the _fact that the so-called improved guards did 

not provide foolproof protection; and blindly assumed the 

931 
trial judge was required to find a violation because the 

pinch points were physically accessible. The solicitor 

should realize .he assumes a heavy burden of persuasion when 

he asks the trial judge to uphold redundant citations for 

conditions previously abated without change in the hazards 

addressed. Sucti prosecutions prima facie do violence· to the 

requirement of fundamental fairness and fair play. 

A violation of due process can occur as much by harassment 

as by other more obvious means. The Government is not a ringmaster for whom individuals and corporations must jump through 

a hoop at their own expense each time it commands. Vigorous 

enforcement is to be commended; vexatious enforcement must be 

curbed. 

Order 

The premises conside~ed, it is ORDERED that the challenged 

citations be, and hereby are, VACATED; the proposals for an 

assessment of penalties DENIED: an~ the captioned matter 

DISMISSED. 

932 
Distribution: 

Edward H. Fitch, Esq., Office of the Solicitor, U.S .. Department 

of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) . 

James A. Burstein, Esq., Chadwell & Kayser, Ltd., 8500 Sears 

Tower, Chicago, IL 60606 (Certified Mail) 

933 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY17lll3 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

UNITED STATES STEEL MINlNG CO., INC., 

Respondent 

Docket No. PENN 82-328 

A.C. No. 36-04281-03501 

Dilworth Mine 

DECISION 

Appearances: 

Before: 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department 

of Labor, Philadelphia, Pennsylvania, for the Petitioner; 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, for 

Respondent. 

Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

In this case, the Secretary seeks to have civil penalties assessed for 

two alleged violations of mandatory safety standards: one cited on April 19, 

19829 ·alleging a vicl~ftion of 3-0 C-.F~R. § 75·.316·; the uther c1:ted on June J.., 

1982, alleging a violation of 30 C.F.R. § 75.400. A notice of hearing was 

issued February 22, 1983, scheduling this case (and 5 other cases involving 

the same.parties) for hearing' commencing April 27, 1983, in Uniontown, 

Pennsylvania. 

On March 31, 1983, the Secretary filed a motion to approve a settlement 

agreement covering the two alleged violations. The motion stated that the 

"significant and substantial" tjlaracterizat:l,on on the two citations had been 

deleted and the penalty for eacji violation_was reduced pursuant to 30 C.F.R. 

§ 100.4 to $20 from the original assessments of $158 and $112 respectively. 

By order issued April 4, 1983, I denied the motion. 

The case was heard on the merits on April 29, 1983. James Lough and 

Robert Newhouse, Federal Coal Mine inspectors, testified on behalf of 

Petitioner. James R. Williams testified on behalf of Respondent. Respondent 

has submitted a posthearing brief on the issue whether the Commission is bound 

by MSHA regulations providing a $20 penalty for violations which are not 

significant and substantial. Petitio~er declined to file a brief on the issue. 

934 
FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The Respondent is a large operator. The parties have stipulated that 

the imposition of penalties will not affect Respondent's ability to continue 

in business. With respect to both citations, Respondent abated the violations 

promptly and in good faith. Between June 1980 and June, 1982, Respondent's 

history shows five paid violations of 30 C.F.R. § 75.316 and 10 prior paid 

violations of 30 C.F.R. § 75.400. 

CITATION 1144514 

On April 19., 1982, a citation was issued to Respondent alleging a violation 

of 30 C.F.R § 75.316. Respondent was cited for having a metal stopping separating the belt conveyor entry and the intake escapeway in violation of the 

approved ventilation plan. The condition was abated and the citation terminated 

by the construction of a masonry stopping between the two entries, within the 

3-day abatement time. 

There is no question but that the condition cited was a violation of the 

ventilation plan. The fact that it had existed for many years without being 

cited is not a defense. The inspector testified that the condition did not 

pose a hazard, and on the basis of his testimony, I find that the violation was 

not serious. However, the violation was known or should have been known to 

Respondent. Therefore, it was caused by Respondent's negligence. Based on a 

consideration of the criteria in section llO(i) of the Act, I conclude that an 

appropriate penalty for the violation is $75. 

CITATION 1146067 

On June' 1, '1982, a d.tation··was--i:ssued ·to Respondent aJ.leging a v.i>oJ.a;t,ion 

of 30 C.F.R. § 75.400 because of an accumulation of loose dry coal and float 

coal dust under and around the tailpiece. The accumulations were up to 

24 inches deep, 14 feet long and 6 feet wide. The mine was idle and the belt 

was not in operation. Twelve miners including a foreman were working in the 

area however. The section had been idle since March.24, 1982. Because of the 

absence of sources of ignition,~the inspector was of the opinion that the condition did not pose "a significant hazard" of injury. The condition was obvious 

to visual observation. It was _known or sho~ld have been known to Respondent. 

Therefore it resulted from Resp}>ndent's negiigence. Based on a consideration of 

the criteria in section llO(i) of the Act, I conclude that an appropriate penalty 

for the violation is $75. 

THE EFFECT OF 30 C.F.R. § 100.4 ON THE COMMISSION'S 

JURISDICTION TO ASSESS PENALTIES 

On May 21, 1982, MSHA adopted new regulations on the criteria and procedures 

for civil penalty assessment. 

935 

•. 
30 C.F.R. § 100.4 provides as follows: 

An assessment of $20 may be imposed as the civil penalty where 

the violation is not r·easonably likely to result in .a reasonably 

serious injury or illness, and is abated within the time set by the 

inspector. If the violat:iton is not abated within the time set by . 

the inspector, the violation will not be eligible for the $20 

single penalty and will be processed through either the regular 

assessment provisions (§ 100.3) or special assessment provisions 

(§ 100.5). 

The Respondent argues (1) that any violation not cited as "significant and 

substantial" comes under this provision and must be assessed as a "single 

penalty" at $20, and (2) the Review Commissl.on is bound by MSHA's assessment 

regulation. Respondent. asserts that in rejecting the proposed settlement in 

this case, I attempted to create a violation undefined and unknown to the law 

called a "token violation." In fact, the term token is a rather common adjective, the meaning of which is much more obvious than the term "single penalty." 

Neither term, however, is included in the criteria in section llO(i) of the Act 

by which I am bound in assessing civil penalties. 

I conclude as follows: 

1. Whether a cited violation is checked as a significant and substantial 

violation is per ~ irrelevant to a determination of the appropriate penalty to 

be assessed. As an aside, I believe it was a mistake for the Commission to 

review the propriety of a significant and substantial designation on citations 

in contested ·penalty cases. 

2. The Commission is not bound by the Secretary's regulations setting out 

'\:i)ow1<he'''t>TOpo'Se·s· 'to -assess l'enalties. · ·secretary v. 'Se1.1.ersburg "Stone, 'S 'FMSHRC 

287, 291 (1983): 

"Thus in a contested case the Commission and its judges are not 

bound by the penalty assessment regulations adopted by the 

Secretary. Rather, in a proceeding before the Commission the 

amount of the penalty to be assessed is a de novo determination 

based on the six statutory criteria specified~section llO(i) 

of the Act • • • • " 

3. My assessment of the penalties herein is based on the following 

criteria: 

(a) Respondent is a large operator; 

(b) Respondent was negligent in permitting each of the violations 

to occur; 

(c) a penalty will have no effect on Respondent's ability to 

continue in business; 

(d) the violations were not serious; 

(e) Respondent has a moderate history O'f previous violations; 

(f) Respondent showed good faith in attempting to achieve 

rapid compliance. 

936 
ORDER 

Based upon the above findings of fact and conclusions of law, Respondent 

is ORDERED to pay the sum of $150 within 30 days of the date of this decision 

for the two violations found herein to have occurred. 

·f ~ k8{/l?~Vl€' James A. Broderick 

. Administrative Law Judge 

Distribution: By certified mail 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department of Labor, 

Room 14480 Gateway Building, 3535 Market Street, Philadelphia, PA 19104 

Louise Q. Symons, Esq., 600 Grant Street, Room 1580, Pittsburgh, PA 15230 

937 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 t1AY 2 3 1983 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, ) 

) 

v. ) 

) 

RIO ALGOM CORPORATION, ) 

) 

Respondent. ) 

~~~~~~~~~~~~~~~~·> 

DOCKET NO. WEST 79-122-M 

MSHA Case No. 42-00677-05005 

MINE: Lisbon 

DECISION 

Appearances: 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department. of Labor 

1585 Federal Buildin~, 1961 Stout Street 

Denver, Colorado 80294 

For the Petitioner 

James M. Elegante, Esq. 

Parsons, Behle & Latimer 

79 South State Street 

P .o. Box 11898 

Salt Lake City, Utah 84147 

For the Respondent 

Before: Judge Virgil E. Vail 

STATEMENT OF THE CASE 

This proceeding arose through the initiation of an enforcement action 

brought pursuant to section 105 of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801~~· (1978), (hereinafter the "Act"). The Secretary 

of Labor, Mine Safety and Health Administration (hereinafter "the Secretary") 

seeks an order assessing a civil monetary penalty against the respondent for 

938 
its violation of 30 C.F.R. § 57.3-22. 1/ Specifically, the Secretary 

alleges that the part of the standard which was violated is that part which 

requires: "Ground conditions along haulageways and travelways shall be ••• 

supported as necessary" (Pet. Br. at 1). Rio Algom Corporation duly 

contested the proposed assessment, and a full hearing on the merits was held. 

Both parties filed post hearing briefs. To the extent that the contentions 

of the parties are not incorporated in this decision, they are rejected. 

PROCEDURAL BACKGROUND 

On January 29, 1979, in the course of an investigation of an unintentional roof fall at the respondent's Lisbon Mine, MSHA inspector Ronald 

Beason issued· Order No. 336661, pursuant to section 107(a) and 104(a) of the 

Act, alleging that respondent violated 30 C.F.R. § 57.3-22. 

Respondent filed an application for review of the order issued under 

107(a) of the Act and a hearing was held on September 5, 1979, before 

Administrative Law Judge Forrest E. Stewart. The sole issue considered and 

determined by Judge Stewart in that case was whether on January 29, 1979 an 

imminent danger existed in the Lisbon Mine which warranted a·withdrawal of 

the miners. Judge Stewart stated in his decision dated January 29, 1980· as 

follows: "A finding need not be made, therefore, as to whether a violation of 

section 57.3-22 existed. Such a finding would not be determinative of the 

issues in this case." Judge ·Stewart decided that the issuance of a 107( a) 

withdrawal order was the appropriate action taken in view of the facts 

presented. Rio Algom Corporation, 2 FMSHRC 187 (January 1980)(ALJ) Docket 

No. DENV 79-347. 

On September 18, 1979, the Secretary filed a petition for the assessment 

of a civil penalty based upon the Citation/Order No. 336661 issued January 

29, 1979 alleging respondent violated 30 C.F.R. 57.3-22 of the Act and 

proposing a civil penalty of $445.00. 

1/ Mandatory. 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. 

939 
On October 12, 1979, respondent filed an answer to the proposal for 

assessment of civil penalty stating that it had received the order of 

withdrawal No. 336661 but at no time was a citation issued. Respondent also 

alleged that all issues were litigated in the case involving Docket No. DENV 

79-374 before Judge Stewart and that petitioner is estopped from bringing 

this action to enforce a civil penalty and is barred by laches from seeking 

to issue a citation or impose a penalty based upon order No. 336661. 

On January 28, 1981, respondent filed a motion to dismiss the proposal 

for assessment of a civil penalty and to vacate the hearing based upon the 

grounds that No. 336661 was an order of withdrawal and not a citation and 

that the matter was so determined in the hearing before Judge Stewart. 

Petitioner filed a memorandum in opposition to respondent's motion wherein he 

contended an order and citation may be issued for the same facts and that 

respondent was issued a citation and order concurrently for the same 

conditions that gave rise to the 107 inrrninent danger order. Respondent filed 

its reply alleging that the petitioner had included factual inaccuracies with 

respect to the procedural background, that all issues concerning 336661 had 

been litigated and are res judicata, and that these proceedings under Docket 

No. WEST 79-122-M violated ·its rights. 

On February 11, 1981, petitioner filed a motion for partial summary 

decision requesting a decision be issued holding that respondent had violated 

30 C.F.R. 57.3-22 based upon the findings of facts and conclusions of law in 

Judge Stewart's decision and that only the amount of the penalty needed to be 

tried in the present case. Respondent filed a reply arguing that the motion 

was not timely filed and that genuine issues as to material facts remain in 

the present proceeding. 

On February 20, 1981, this Judge issued an order, having considered all 

of the above motions and arguments, finding that in the prior case, Docket 

No. DENV 79-347, Judge Stewart had denied a similar motion by respondent to 

dismiss and vacate the citation, or, in the alternative for a summary judgment and had proceeded to hear and decide that case on the sole issue of 

whether an inrrninent danger existed in the mine which warranted a withdrawal 

of the miners. Further, Judge Stewart did not consider or dispose of the 

issue as to whether a violation of a safety standard occurred. Also, the 

Federal Mine Safety and Health Review Commission had considered a similar set 

of facts and decided that the Act mandates assessment of a penalty for a 

violation of mandatory safety standard whether that violation is alleged in a 

citation issued under 104(a), or in a withdrawal order issued under section 

104(d) or other section of the Act. Island Creek Coal Company, 2 FMSHRC 279 

(February, 1980), Van Mulvehill Coal Company, Inc., 2 FMSHRC 283 (February, 

1980). Both respondent's and petitioner's motions were denied. 

810 
Upon commencement of the hearing in the present case, respondent made a 

motion in the nature of motion in limine to restrict the receipt of any 

evidence in this case related to a violation of a standard and renewed the 

arguments made in its earlier motions. I denied respondent's motion at that 

time for the same reasons stated in my prior order dated February 20, 1981. 

At this point, having had the benefit of hearing all of the evidence 

presented at the hearing, reviewing the record in the prior case heard and 

decided by Judge Stewart, and weighing the arguments of the parties presented 

in their pleadings prior to the hearing and arguments at the hearing, I 

conclude that my prior order of February 20, 1981 is valid and adopt its 

reasoning and authorities therefore without restating the full text herein. 

FINDINGS OF FACT 

1. At all times pertinent to this proceeding, respondent was the owner 

and operator of an underground uranitnn mine near LaSalle, Utah, known as the 

Lisbon Mine. 

2. The operator employed approximately 120 people including supervising 

personnel. The mine operated on a 24 hour basis with the day shift 

commencing at 8:00 a.m. 

3. On Wednesday, January 24, 1979 2/ at approximately 10:30 a.m., a 

roof fall occurred at the Lisbon Mine in-the 13 North and 18 North drift area 

near the 911 shop. This is part of the 1 and 11 contract areas where 

production of ore was in progress. The 911 shop was used to service and 

repair the 911 loader. 

4. The material from the roof fall extended for a distance of 40 feet 

down the drift and was of such a height that a miner standing on the floor 

of the drift could not see over it. It was as wide as the drift except for 

an area on the east side that was open to passage by reason of cribs that 

·remained standing after the fall (Tr. at 206). 

5. Miners continued working in the 1 and 11 contract area following the 

roof fall on January 24 until 10:00 a.m. on the following day January 25, a 

period of 23 1/2 hours (Tr. at 162). Some miners set additional timbers near 

the shop so that the 911 loader, tools, and equipment could be extracted. 

Other miners continued working at driving the 13 North drift and in 

production in the 18th North drift area. 

6. On Thursday, January 25, Charles B. Pearson, respondent's safety 

supervisor arrived at the mine and upon learning of the roof fal 1 proceeded 

underground to inspect the area. At approximately 10:00 a.m. all miners were 

withdrawn from the 13 North drift and 18 North drift area (Tr. at 216). 

2/ All dates are in 1979. 

941 
7. On Sunday, January 28, MSHA inspector Donald L. Beason received a 

report from a miner that a roof fall had occurred at the Lisbon Mine on 

January 24. This occurrence had not been reported by respondent to MSHA as 

of that date and time (Tr. at 29-30). 

8. On Monday, January 29, Reason arrived at the Lisbon Mine to 

investigate the reported roof fall and went underground accompanied by Mervyn 

Lawton, manager and president ~f Rio Algom, John Vancil, mine superintendent, 

and Charles Pearson. As a result of his inspection, Beason issued 

Order/Citation No. 336661 to respondent citing four areas in the mine as 

presenting an imminent danger to miners and a violation of mandatory safety 

standard 57.3-22. The four areas were 13 North 4 East Pillar, 13 North 6 

West, 13 North 7 West, and 13 North 7 West through 4 West. '!./ 

9. During his inspection Beason observed in the 13 North 4 East area 

ten 8 x 8 timber sets all showing caps pressed d.own into the posts with one 

cap deflected and showing a 3 3/4 inch gap in the center. Also, 25 roof 

bolts were without plates (Tr. at 38-39). At 13 North 6 West, Beason saw 

five sets of 8 x 8 timbers with caps pressed down into the posts and· 

"smashing" of the caps on the first set splitting the post (Tr. at 43-33). 

Also, 13 roof bolts· of the split set type were observed with rings broken and 

plates missing (Tr. It 45). At 13 North 7 West intersection, a caved area 

was encountered which was 10 to 12 feet in width and extended 25 feet into 

the 13 North drift. It occupied the full width of the drift but the 

inspection party could climb over the muck pile to get by. The rock that 

fell had extended above the anchor points of the roof bolts. This was not 

the roof fall that occurred near the 911 shop area on January 24 but was a 

fall that occurred sometime between January 25 and the day of the inspection 

(Tr. at 46-47). In the 13 North haulage drift between 7 West and 4 West 

crosscuts, Beason saw plates stripped off of the roof bolts and cracks in the 

plates. The wire mesh incorporated with the roof bolts for roof control was 

bowed out. This area is a travelway in the mine (Tr. at 49-50). Other areas 

cited by the inspector were access routes in this area o.f the mine (Tr. at 

51). 

3/ These areas were located on Petitioner's Exhibit No. 1 as follows: 

II A" 13 North 4 East pillar (Tr. at 41). 

"B" 13 North 6 West (Tr. at 43). 

"C" 13 North 7 West (Tr. at 46). 

"D" 13 North 7 West through 4 West (Tr. at 50). 

942 
10. On January 29, the day the imminent danger withdrawal order was 

issued, no miners were present in the area covered by the order as all miners 

had been withdrawn by the respondent four days prior thereto. 

11. Beason had inspected the Lisbon Mine several times prior to the 

roof fall on January 24. On August 1, 1978 he issued a citation and 

suggested that the area described as 18 South haulage drift located near the 

911 shop area should be monitored for roof support (Tr. 62 and Exhibit P-2). 

On January 11, 1979, Beason issued a citation to the respondent covering an 

area described as 18 South Main and 15 East Fuel drift and 5 East 11 North. 

This is an area 50 to 75 feet from the 911 shop on the same haulageway. The 

respondent was cited for loose unconsolidated material on the brow of 18 

South main and also 5 East needing attention (Tr. 6 and Exhibit P-3). On 

January 15, 1979, Beason returned to the 1 and 11 contract area of the Lisbon 

Mine and walked the travelway into 13 North drift near the 911 Shop. Based 

upon this inspection, he terminated the citation issued January 11 (Tr. at 

134, 140). 

ISSUES 

The issues in this case are whether the respondent violated mandatory 

safety standard 30 C.F.R. 57.3-22, and, if so, the appropriate amount of the 

civil penalty which should be assessed for such violation pursuant to section 

llO(a) of the Act. 

DISCUSSION 

The precise question before me is whether respondent violated that 

portion of section 57.3-22 which states that "Ground conditions along haulageways and travelways shall be ... supported as necessary." Petitioner 

contends that the roof fall in 13 North 7 West would not have occurred if the 

roof had.been adequately supported and that the inspector's observation of 

conditions in the other areas incorporated in the order/citation and a 

history of two roof falls within five days in the area cited as indicative of 

a lack of adequate support (Pet. Br. at ~). 

Respondent has challenged the citation in controversy for the following 

reasons: (1) the area affected by the citation did not involve a haulageway 

or a travelway; (2) that there is no evidence that ground support was inadequate; and (3) that petitioner cannot penalize respondent for conditions 

as they existed on January 29 when the inspector first observed them for the 

reason that all mining had ceased and miners withdrawn from the area on 

January 25. 

Based upon a careful review of the testimony of witnesses, exhibits, and 

arguments of counsel, I reject the respondent's arguments and find that a 

violation of the cited standard occurred. The most credible evidence of 

record shows that inspector Beason was experienced, both as a miner and mine 

inspector, having worked ten years as a miner and. supervisor in various mines 

and seven years as a mine inspector. Also, prior to the occurrence involved 

943 
in this matter, Beason had inspected the Lisbon Mine on several occasion~ and 

i~sued citations and warnings to the operator's management regarding loose 

ground along haulageways including the fuel drift near the 911 shop and the 

area near where the second roof fall was discovered (Finding of Fact No. 11). 

Beason testified that upon entering the mine on January 29 to investigate the first roof fall, he discovered that a second fall had occurred 

sometime between January 25 and 29 in what is considered an access route of 

the mine~ Also, he observed areas designated as 13 North 4 East, 13 North 6 

West, and 13 North 7 West through 4 West showing evidence of ground movement. 

This involved caps being mashed down on tops of posts, caps that were cracked 

and roof bolts.being stripped of their plates. 

Pearson, respondent's safety superintendent, testified that he accompanied Beason unde.rground on the January 29 inspection and observed a cap 

on a post cracked and caps compressed on posts in the 13 North 4 East area, 

the cave in the 13 North 7 West area which he hadn't seen before, roof bolts 

with plates stripped in the 13 North 6 West area, and split sets stripped of 

their plates in the 13 North 7 West area (Tr. 153-158). Pearson admitted 

that he withdrew miners from the 1 and 11 contract areas on January 25 because he was concerned about the difficulty that could be encountered evacuating an injured person due to the fall at the 911 shop and also because of 

the ground movement in the area (Tr. at 164). 

In light of the foregoing, I am persuaded that the conditions observed 

by Beason on January 29 and Pearson on January 25 indicated there was 

unstable ground conditions in the area cited which indicated additional 

support was needed in the travelways and haulageways. I have considered the 

testimony of respondent's witness Lawton wherein he testified that the 

conditions observed by Beason involving a "bent" cap or the cracked cap did 

not indicate the area was taking excessive weight or had he observed any roof 

bolts on split sets stripped of their plates or deflected caps along the 

route he traveled on January 24. Also, Lawton stated that the first roof 

fall had nothing to do with the second fall discovered on January 29 (Tr. 

361-382). From a review of this conflicting testimony, I find that the 

conditions observed and described by Beason on January 29 and Pearson on 

January 25 are more credible as to the conditions in the area involved in 

this citation. 

Respondent contends that the conditions observed by Beason on January 29 

should not be controlling as the miners had been withdrawn on January 25 and 

mining discontinued in the cited area, Admittedly, Beason was not in the 

mine on January 24 when the first fall occurred or January 25. However, I am 

convinced that the more credible evidence in this case supports the basis 

upon which the inspector issued the citation involved herein, Beason had 

prior experience inspecting this area and had previously issued citations and 

warnings for ground control. He had conversations with members of management 

as to the conditions existing on January 24 and 25 and the opportunity on 

January 29 to personally observe the conditions of the ground support in the 

area including the caps that were cracked and the plates stripped from the 

roof bolts. 

944 
The specific question is whether the travelways and haulageways in the 

cited area were adequately supported between January 24 at 10:30 a.m., when 

the first roof fall occurred at the 911 shop, and January 25 at 10:00 a.m. 

when Pearson ordered the miners with.drawn from the ·area. This was a period 

of time when miners continued working in the area in an attempt to cut 

through a drift in 13 West and also to remove tools and equipment from the 

911 shop area. Several of respondent's witnesses testified that.they were of 

the opinion that the area was properly supported during this period. 

However, I find that the most credible evidence shows that two reasons existed for the miners to continue to work in the area following the fall at 

the 911 shop. First, management wanted to complete the mining cycle in the 

13 North drift to meet the miners who were drilling through from the other 

side (Tr. 340). Second, management ~anted to remove the 911 machine and 

other equipment from the 911 shop area. Assuming, that there is some merit 

to respondent's contention that the area was closed by the operator on 

January 25 for the reason that there was inadequate access routes for 

removing an injured miner on a stretcher should an accident occur, the fact 

remains that for 24 hours men were permitted to work in an area where an 

unexpected roof fall had occurred in a travelway and where previous warnings 

and citations had been issued because of ground movement. Also, four days 

later, a second fall was discovered as well as other evidence involving un- · 

safe roof bolts and caps on posts in the area indicating ground movement. 

From the above circumstances, I conclude that from January 24 through 25, 

ground conditions along haulageways and travelways were not supported as 

necessary and the area presented the potential of an injury or death to 

miners working there. Respondent argues that because the area had been 

closed on January 25, the locations cited were not haulageways and travelways 

on January 29, the day of the inspection. The fact is though that for the 

period from January 24 through' 25, the cited areas were being used for this 

purpose and that is the time period pertinent to this violation. 

Supporting its case for vacating this citation, respondent cites the 

decision of Judge Boltz in Secretary of Labor v. Homestake Mining Company, 2 

FMSHRC 3630 (December 1980)(ALJ). In that case, it was found that the 

operator had taken steps to provide adequate ground support in the normal 

sequence of its mining operation and that the Secretary had failed to sustain 

the burden of proof to support a violation. I do not find any discrepancy 

between that decision and the findings made in this case. The question is 

one of weight of evidence and proof. In the Homestake case, the post that 

showed a crack was a "tie" and not used to support weight. In the present 

case, the timbers involved that showed evidence of taking weight were 

designed and installed as support and not as a "tie." 

I find no merit in respondent's argument that a citation should not be 

issued for a condition that existed during a period of time prior to the day 

of inspection. In this case, respondent argues that ,the conditions observed 

by the inspector on January 29 were different from those that existed four 

days earlier as the area had been closed and not maintained during this 

period. This argument, if strictly followed, would preclude much of the enforcement effect of the Act. As an analogy, often the determination of the 

945 
cause of an accident, such as an explosion in a mine, is predicated upon the 

reconstruction of events that led up to the occurrence in question. To do · 

this, it is necessary to rely upon known facts and testimony of witnesses 

whose knowledge is based upon an expertise in the matter involved. In this 

case, the knowlege, observations, and opinion of inspector Beason are believed to be most credible as to the alleged violation. In Old Ben Coal 

Compan v. Interior Board of Mine Operation Appeals, 523 F. 2d 25 0th Cir. 

1975 , the Court held that an inspector is entrusted with the safety of 

miners lives, and he must ensure that the statute is enforced for the 

protection of these lives. The decisions of the inspector, unless there is 

evidence that he has abused his discretion or authority, should be supported. 

In this case, I firid no evidence that the inspector either abused his 

discretion or authority and find that the respondent violated the cited 

standard. 

PENALTY 

Petitioner argued at the hearing and in his brief that the penalty 

originally proposed by the assessment office in the sum of $445.00 should be 

increased to $4,450.00. As a basis for this, petitioner argued that the 

respondent had received verbal and written warnings from the inspector prior 

to the first cave-in and still continued working the miners in a hazardous 

area following said roof fall. 

Section llO(i) recites that the Commission shall have the authority to 

assess all civil penalties provided in this Act. In assessing civil monetary 

penalties, we shall consider the operator's history of previous violations, 

the appropriateness of such penalty to the size of the business of the 

operator charged, whether the operator was negligent, the effect on the 

operator's ability to continue in business, the gravity of the violation, and 

the demonstrated good faith of the person charged in attempting to achieve 

rapid compliance after notification of the violation. 

History 

The history of prior violations in this case involve the citations and 

warnings that had been given to the respondent prior to the unexpected roof 

fall that occurred on January 24 (See Finding No. 11). Also, a citation was 

issued to respondent for failure to report the above roof fall which was not 

a part of this contested citation. Also, consideration must be given to the 

fact that the area involved had a good safety record, having one injury 

involving a broken leg reported in 1978 and no other lost time accident since 

that date (Tr. 219-222). 

Size 

The respondent employs approximately 120 miners at the mine which included supervisory personnel (Tr. 12 and Finding No. 2). I would consider 

this a medium sized mining operation. 

946 
Effect On Operator's Ability to Continue in Business 

The record does not reveal that the imposition of a reasonable penalty 

in this case would cause a hardshop on the operator's ability to continue in 

business and in the absence of such proof, it is presumed it would not. 

Negligence 

I am convinced that the respondent was negligent in this case in 

allowing miners to continue to work in the area cited following the roof fall 

on January 24. Respondent's witnesses testified that they did not believe 

there was a danger here following the first fall at the 911 shop and that 

they had monitored the area during this time. Also, that the reason for the 

respondent withdrawing the miners on January 25 was the lack of a proper 

access for removing an injured man should an accident occur and not because 

of the condition of the roof in the area. I will not recite In Haec Verba, 

the statements of respondent's witnesses on this matter, but find these 

statements to be at odds with the statements of Beason and Pearson. I find 

that the history of the area, the prior violations and warnings, the first 

roof fall on January 24, and conditions of the roof support as described by 

Beason to be evidence of negligence on the part of respondent. Also, in 

continuing to require the miners to work in the area to extricate equipment 

and tools and to continue drilling in 13 North drift is further evidence of a 

negligent attitude on the part of respondent. 

Gravity 

The gravity of the violation in this case involved the respondent's 

working miners for a period of 24 hours following a roof fall on January 24. 

Also, the area that the miners worked in had only two possible escape routes, 

one involving the fall at the 911 shop area which blocked most of the drift 

and a second route through areas earlier described in the citation as showing 

ground movement and where a subsequent roof fall was discovered on January 29 

(Tr. 167). I find that these practices were serious and posed a grave risk 

to these employees. 

Good Faith Compliance 

The record shows that the area had been closed and miners withdrawn on 

January 25, four days prior to the inspector issuing the withdrawal order/ 

citation involved in this case. The question of good faith compliance is not 

involved here as the respondent did not reopen the area for several months 

thereafter. 

I reject the petitioner's recommendation as to the amount of the 

proposed penalty. Commission Rule of Procedure 29(b) provides: 

In determining the amount of the penalty neither the judge 

nor the Commission shall be bound by a penalty recommended 

by the Secretary •••• 

947 
29 C.F.R. § 2700.29(b). Thus, in a contested case the Connnission and its 

judges are not bound by the penalty assessment regulations adopted bythe 

Secretary. Rather, in a proceeding before the Connnission the amount of the 

penalty to be assessed is a de nova determination based on the six statutory 

criteria specified in sectionllO(i) of the Act and the information relevent 

thereto developed in the course of the adjudicative proceeding. Sellersburg 

Stone Company, 3 FMSHRC 291 (March 1983). Although, I reject the amount of . 

increase in the penalty sugge~ted by the Secretary in this case, I find from 

the facts developed .during the hearing that some increase in the amount of 

the penalty over that originally proposed by the administration is warranted. 

I am persuaded by the evidence of record that some members of respondent's 

management evidenced a lack· of proper concern for the health and safety of 

miners required to continue working in the cited area for a 24 hour period 

following the roof fall at the 911 shop area. This area had been cited by 

MSHA on several previous occasions as showing evidence of an unstable roof 

and some ground movement. The unexpected roof fall occurred in a travelway 

regularly used by miners going to and working around the 911 shop area. 

Also, management had the opportunity to observe the roof in this area immediately prior to the fall and failed to perceive its potential for 

collapse, in spite of the support that had been installed to control it. 

This fall should have been a warning of the general conditions that existed 

throughout the 1 and 11 contract areas. However, management ignored this 

situation and continued to work miners in the area both in attempting to 

complete the mining cycle in the 13 North drift and in removing equipment and 

tools from the 911 shop. This work continued until the respondent's safety 

superintendent arrived underground to investigate the fall and determined the 

area should be closed and the miners withdrawn. I find that working miners 

in the area following the roof fall was gross negligence on the part of the 

respondent and is the basis for an increase in the amount of the penalty over 

that originally assessed in this case. 

Based on the above findings and discussion, I conclude that the appropriate penalty for the violation found is $800.00 

CONCLUSIONS OF LAW 

1. I have jurisdiction over the subject matter and the parties to this 

proceeding. 

2. Respondent violated 30 C.F.R. § 57.3-22 as alleged by the Secretary 

of Labor. 

3. The appropriate penalty for the violation is $800.00. 

ORDER 

Respondent is ORDERED to pay the sum of $800.00 within 40 days of the 

date of this decision. 

Virgijt,· Vail . Admin~rative Law Judge 

948 
Distribution: 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

James M. Elegante, Esq. 

Parsons, Behle & Latimer 

79 South State Street 

P.O. Box 11898 

Salt Lake City, Utah 84147 

949 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

KAY 251E 

SECRETARY OF LABOR, . Civil Penalty Proceeding 

MINE SAFETY AN.D HEALTH 

ADMINISTRATION (MSHA), 

Petitioner . v. 

TODILTO EXPLORATION & DEVELOPMENT 

CORPORATION, 

Respondent 

Docket No. CENT 82-101-M 

A.C. No. 29-01869-05001 H QU4 

St. Cloud Mine 

DECISION 

Appearances: Richard L. Collier, Esq., Office of the Solicitor, U.S. 

Department of Labor, Dallas, Texas, for Petitioner; 

George F. Warnock, President, Todilto Exploration and 

Development Corporation, Albuquerque, New Mexico, for 

Respondent. 

Before: Judge Melick 

This case is before me upon the petition for assessment of civil penalty 

filed by the Secretary of Labor, pursuant to section 105(d) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S. C. § 801 et ~·, the "Act" for 

one violation of the regulatory standard at 30 C.F.R. § 57.3-22. The general 

issue before me is whether the Todilto Exploration & Development Corporation 

(Todilto) has violated the cited regulatory standard and, if so, whether that 

violation was "significant and substantial" as defined in the Act and as 

interpreted by the Commission in Secretary v. Cement Division, National 

Gypsum Co., 3 FMSHRC 822 (1981). If it is determined that a violation has 

occurred, it will also be necessary to determine the appropriate penalty to 

be assessed. 

On February 23, 1982, MSHA inspector William Tanner Jr., issued a combined withdrawal order and citation under sections 107(a) and 104(a) of the 

Act respectively. The validity of the order is not in itself at issue in 

this civil penalty proceeding. See Secretary v. Wolf Creek Collieries Co., 

PIKE 78-70-P (March 26, 1979); Pontiki Coal Corporation v. Secretary, 

1 FMSHRC 1476 (October 1979). The order/citation alleged as follows: 

Loose material was hanging on the ribs and back from the 

No. 1 crosscut to the face which is 230 feet. The back where the 

loose was hanging ranges between 9 to 16 feet high. Four men 

working for the contractor and three men of the operator's were 

in this immediate area. 

The cited standard provides in relevant part as follows: 

950 
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. 

The essential facts are not in substantial dispute. It is the conclusion to be drawn from the facts primarily concerning the gravity of the violation that is at issue. Todilto admits that a violation occurred but contends 

that it was a minor violation of loose rock on the back and ribs and argues 

accordingly that the hazard was low in gravity not warranting even the $500 

penalty proposed by MSHA. 

In February 1982, Todilto was the primary contractor for the development 

of the St. Cloud Mine. At the time of the inspection at issue it had developed a decline tunnel to a length of approximately 1,650 feet. According to 

Inspector Tanner, he and Inspector Dennis Heater arrived at the mine at 

around 9:30 or 10:00 on the morning of February 23rd, 1982. They were met 

about 30 minutes later by Todilto president George Warnock and mine superin-· 

tendent Ron Ingimundson. The group proceeded to inspect the mine. Around 

1400 to 1500 feet into the mine, they observed a piece of rock about one 

cubic foot in size and weighing about 140 pounds protruding from the "back" 

or roof. Warnock directed a workman to bring the rock down and it was done. 

Further into the tunnel, Tanner saw another rock protruding from the roof. 

This one was about 6 inches thick and 18 inches in diameter located some 210 

to 230 feet from the face. Within this general area Tanner found seven 

places on the roof and nine on the ribs that consisted of sharp, abrasive and 

loose rock. It was all located at least 9 feet from the floor. 

. According to Tanner, eight employees were working in the general vicinity of these loose rocks. He opined that if such rock material should fall 

it could cause serious injuries or death. Indeed he cited an incident that 

had recently occurred at the St. Cloud Mine in which a rock only the size of 

a baseball struck a miner on the back of a hand cutting two tendons. In an 

incident at another mine a rock only about 18 to 20 inches in diameter and 

6 inches thick slid off a rib severing a miner's leg. 

Todilto President Warnock conceded that the first piece of rock seen by 

the inspection party was of the size described by Tanner. The 8 inch by 

5 foot by 3 foot piece located some 20 to 25 feet ·to the rear of the "jumbo" · 

was also as described by the inspector. Warnock testified that he personally 

barred down a small piece of that loose that hit the jumbo track. Warnock 

further admitted that there was "another big piece on the rib at the corner 

of the pillar" which he also thought "very definitely, should have been 

brought down." This was located about 20 to 30 feet ~rom the face. In an 

attempt to dispute the seriousness of the violation, Mr. Warnock also stated 

in a letter dated May 10, 1982, that, among other things, the piece on the 

right side of the track "was loose enough to be barred down and should have 

been" a~d that "this piece was, at the most, 50 pounds, and while it could 

have injured someone, it would not have been fatal." Warnock further 

admitted that "several larger pieces were barred off of the rib at two 

951 
different corners [and] they needed to be barred down and should have been." 

He argued only that they were not high enough on the rib to create a 

fatality ... -

Mine superintendent Ronald Ingimundson agreed with the other witnesses 

concerning the dimensions of the cited rock material. He agreed with Inspector Tanner that even a small rock weighing only 10 to 15 pounds falling from 

the roof of the mine could cause serious injuries. 

Within this framework of essentially undisputed evidence, I have no difficulty in concluding that the violation cited was indeed quite serious. 

There indeed existed a reasonable likelihood that the hazard of a rock fall 

would occur resulting in injuries of a serious nature. The violation was 

accordingly "significant and substantial" and of high gravity. Secretary v. 

Cement Division, National Gypsum Co., 3 FMSHRC 822 (1981). 

Mr. Warnock claims, in response to the allegations of negligence, that 

supervisory personnel did in fact instruct the miners at the beginning of the 

8 a.m. shift to bar down the loose rock and that such work had counnenced 

before other work in the mi,ne. While there is no dispute that some rock had 

indeed been barred down before counnen_cement of other work the undisputed evidence in this case also shows that much loose material still remained after 

supervisory personnel allowed other work to be performed. Accordingly, the 

operator was negligent. 

In determining the appropriate penalty to be assessed in this case, I 

have also taken into consideration the evidence that the operator herein is 

small in size and had no prior violations. Indeed the record shows that 

Todilto had received several awards from the State of New Mexico in ~982 

recognizing its "superior performance in promoting safety in the mining 

industry by achieving a zero frequency rate in their operations". In further 

mitigation Mr. Warnock pointed out that Todilto has never been cited for any 

violation since the citation and order at issue. However, because of the 

seriousness of this violation and the clear negligence of the operator, I 

find that a penalty of $350 is appropriate. 

ORDER 

The Todilto Exploration & Development Corporation is hereby ordered to 

pay a civil penalty of $350 within 30 days of the date of this 

Gary Melic 

Assistant hief Admin 

952 
Distribution: 

Richard L. Collier, Esq., Office of the Solicitor, U.S. Department of Labor, 

Suite 501,.555 Griffin Square Building, Dal_las, TX 75202 

George F. Warnock, President, Todilto Exploration & Development Corporation, 

3810 Academy Parkway, N.E., Albuuquerque, NM 87109 

953 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

ALBERT J. DICARO, Complaint of Discrimination 

Complainant 

Docket No. WEST 82-113-D 

v. 

UNITED STATES FUEL COMPANY, 

Respondent 

DECISION 

Appearances: David O. Black, Esq., for Complainant 

Barry D. Lindgren, Esq., for Respondent 

Before: Judge William Fauver 

This proceeding was brought by the Complainant under section 

105(c)(l) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

801 et~., seeking relief for alleged acts of discrimination. The 

case was heard at Salt Lake City, Utah. 

Having considered the contentions of the parties and the record as 

a whole,* I find that the preponderance of the relial>le, probative, and 

substantial evidence establishes the following: 

*The transcript contains a number of phonetic-in·terpretation errors. 

Most are self-evident and cause oo difficulty in following the testimony. 

I have corrected and initialed one error, at page 313 of the transcript, 

where the correct word is "Socrati§'S 4ather than ''autocratic." 
FINDINGS OF FACT 

1. At all pertinent times Respondent operated an underground coal 

mine, known as King Four Mine, near Hiawatha, Utah, which produced coal 

for sale or use in or substantially affecting interstate connnerce. 

2. Complainant was employed by Respondent from August 25, 1978, 

until October 23,° 1981, with an absence on sick leave from May 5, 1980, 

to August 9, 1981, because of an injury in a mine accident. 

3. The complaint charges that Respondent discriminated against 

Complainant because of safety complaints in that he was: 

(a) Given a disciplinary warning on S~ptember 22, 1981. 

(b) Suspended for 5 days without pay on October 13, 1981. 

(c) Given a disciplinary warning on October 21, 1981. 

(d) Suspended with intent to discharge on October 23, 1981, 

and this suspension was converted into a discharge. 

4. A Section 103(g) complaintl sign~d by Albert Dicaro, dated 

September 10, 1981, was received by the Mine Safety and Health 

Administration (MSHA) on September 11, 1981,. alleging that lighting on 

section equipment was not properly maintained. MSHA investigated the 

955 
complaint on September 22, 1981, and issued one citation on a roof 

bolting machine for an illumination violation of 30 CFR 75.179-3. 

5. A Section 103(g) complaint signed by Larry Shiner, United Mine 

Workers of America District Safety Inspector, dated September 10, 

1981, was received by MSHA on September 21, 1981. The complaint alleged 

that Albert Dicaro did not receive annual refresher training after his 

return to work ~n August 9, 1981. MSHA investigated this complaint on 

September 22, 1981. No citation was issued, since the inspector found 

that Dicaro had received the required training on September 19, 1981. 

6. A Section 103{g) complaint signed by Albert Dicaro, dated 

September 28, 1981, requested an inspection of the san.ders on the 

mantrips at the King Four Mine. MSHA investigated ~he complaint on 

September 30, 1981, and issued three citations on the sanders on 

mantrip jeeps. 

7. A 103(g) complaint signed by Albert Dicaro, dated October 7, 

1981, alleged float coal dust accumulations in the mine. MSHA 

investigated the complaint on October 9, 1981, and issued three 

citations for accumulations of coal dust. 

8. On another occasion after his return to work on August 9, 1981, 

Complainant complained to a supervisor, Kent Powell, that there was 

inadequate rock-dusting for an area of about 2800 feet. Powell agreed 

that a small area (about 5 feet long) needed to be rock-dusted, but did 

956 
not agree that the "whole section" needed to be rock-dusted. Powell 

ordered the small area to be rock-dusted, using bags of rock dust thac 

were near at hand, and told Complainant that if he wanted the rest 

rock-dusted he could hand-carry bags of rock dust and do the 

rock-dusting himself. Such work would have required Complainant to 

carry numerous heavy bags over an area of more than 2800 feet. 

9 •. From August 9, 1981, until his discharge on October 23, 1981, 

Complainant's safety-complaint activities were common knowlepge among 

his co-workers and mine management. Complainant's usual practice was to 

report a safety matter first to his supervisor and, if no corrective 

action was taken, he would file a complaint with MSHA. Mine management 

knew or had reasonable grounds to believe that the Section 103(g) 

complaints referred to in Fdgs. 4-7, above, were initiated by 

Complainant. 

10. Complainant was appointed to the Mine Safety Conunittee around 

October 1, 1981. 

11. Several weeks before his discharge, Complainant was threatened 

by a supervisor, Ken Powell, by words to the effect that Powell was 

going to have him fired. At another time, some weeks before 

Complainant's discharge, the mine foreman, Pat Jenkins, told Complainant 

that he wanted him to "leave the Federal Government out of company 

busine·ss," meaning that he did not want Complainant to file Section 

103(g) complaints ~ith MSHA and preferred that Complainant settle safety 

matters within the company. 

957 
12. From the time of Complainant's Sec~ion 103(g) complaints in 

September throughout the rest of his employment, mine management was 

hostile to Complainant because of his safety-complaint activites. 

Warning on September 22, 1981 

13. On September 22, 1981, the date that MSHA investigated the two 

Section 103(g) complaints dated September 10, 1981, Complainant's 

immediate supervisor, Jim Hanna, gave Complainant a disciplinary warning 

for "poor performance being that you broke between nine to twelve steels 

and put in ninteen roof bolts" on September 21 and 22, 1981. On 

September 22, Ken Powell, Maintenance Foreman, saw Complainant, a 

roof-bolt operator, break three drill steels in a period of about ten 

minutes, by moving the roof bolter while the drill steel was in the roof 

but still attached to the roof bolter. Powell reported this incident to 

Jim Hanna, who checked Complainant's records of broken steels and 

installed roof bolts for September 21 and 22, and issued the 

disciplinary warning. 

14. On September 26, 1981, Complainant filed a Section lOS(c) 

discrimination complaint with MSHA concerning the September 22 

disciplinary warning. Complainant "dropped all charges" when the 

complaint was investigated by MSHA. 

958 
Suspension on October 13, 1981 

15. On this date, at the start of the graveyard shift, Complainant 

and other miners told management personnel that the mantrip (equipment 

used to transport miners into and out of the mine) was unsafe because of 

inoperable warning bells or sanders. They requested that they be 

assigned other duties until the mantrip was repaired. Greg Mele, 

Foreman, ordered the crew to walk into the mine, about 2 to 2 1/2 miles. 

Complainant and his helper, George Brown, refused to walk into the mine, 

relying upon Complainant's interpretation of the following provision of 

the collective bargaining agreement (the "contract"): 

The Employer shall provide a safe mantrip for 

every miner as transportation in and out of the 

mines to and from the working section. [Art. 

III, Sec. 0(8).] 

16. About six members of the crew walked into the mine, two left 

on sick leave, and Complainant and George Brown refused to walk into the 

mine. Mele cautioned them that it would be direct insubordination to 

refuse to walk into the mine. 

17. Complainant and George Brown continued to refuse to walk and 

were suspended for 5 days. Later, Brown's suspension was reduced to 3 

days, on the ground that he did not have a prior disciplinary record, 

and Complainant was offered a reduction to 4 days suspension. 

959 
18. Complainant was aware that his refusal to walk into the mine 

was an act of direct insubordination. It was· not a safety issue but a 

contract dispute; that is, there was no contention by Complainant that 

it was unsafe to walk into the mine. As a matter of custom and 

practice, at various times Respondent required miners to walk into the 

mine. The union's interpretation of the contract was that such practice 

was appropriate if done occasionally, and that there was no violation of 

the contract in this incident. 

Warning on October 21, 1981 

19. Following his 5-day suspension, Complainant returned to the 

mine on October 20, 1981, and took a sick day. On October 21, he worked 

a full shift. Early in the shift, Comp~ainant phoned Roy Bonuales, 

Maintenance Foreman, and informed him the section had not been pre-shift 

examined. He based this statement on the fact that he could not find 

pre-shift markings in the section. Bonuales checked the examiners' 

book, told Complainant the section had been preshifted, 'and read to him 

the name and certificate number of the examiner •. After this call, 

Complainant told Foreman Mele that he (Complainant) was not sure about 

the regulations concerning pre-shift examinations and would work that 

night under protest, but he would check into the law the next morning. 

20. At the end of the shift, Complainant and his helper missed the 

mantrip. Their immediat·e supervisor, Martin Ernie, told them to walk 

960 
out of the mine. It would have taken about 5 to 8 minutes to walk out. 

Complainant refused to walk out of the mine. Ernie told him to walk 

out, and then left. After Ernie left, Complainant used the mine phone 

to call Pat Jenkins, Mine Foreman, and requested a ride for him and his 

helper. Jenkins provided a ride. When Ernie arrived on the surface he 

told Jenkins that Complainant had been insubordinate in refusing to walk 

out. Jenkins prepared a disciplinary warning to Complainant 

for insubordination and instructed Roy Bonuales to give it to 

Complainant when he reported to work the next day. 

21. Bonuales gave Complainant the written warning before the start 

of the graveyard shift on October 22. Upon receipt of the warning, 

Complainant told Bonuales that he was going home on sick leave. 

Complainant testified that he had "sick days coming" and had personal 

business to take care of. 

Complainant's Discussion with Union Safety Inspector 

22. Sometime between the end of his shift on Octobr 21 and the 

beginning of his shift on October 23, Complainant consulted Larry 

Shiner, Safety Inspector for the International Union of UMWA, to 

discuss MSHA's regulations concerning pre-shift markings and a miner's 

safety rights when ordered to work in an area that does not have them. 

Shiner told him a miner would have two options: 1) work in the area and 

later file a safety grievance or 2) refuse to work in the area, 

requesting alternative duties, until a certified examiner makes a 

961 
pre-shift examination. Shiner explained the purposes of a pre-shift 

examination and pointed out a number of serioμs dangers that could be 

undetected without a proper pre-shift examination, including black damp, 

inadequate ventilation, unsafe roof or ribs, and methane gas. 

Suspension with Intent to Discharge on October 23, 1981 

23. Complainant wprked the graveyard shift on October 23. His 

assignment was to roof-bolt in the first left entry of 8 North Section 

and then roof-bolt in the main entry of that section. 

24. Complainant found pre-shift markings in the first left entry 

but thought there was a discrepancy between the time shown by his watch 

and the allowable time (within 3 hours) for making a pre-shift 

examination. Re was on his way to the phone to call Bonuales, Foreman, 

about this question, when he saw Joe Montoya, a Mechanic, who told him 

he could find no pre-shift markings in the main entry. They both 

searched the main entry and could find no pre-shift markings there. 

Complainant then called Bonuales and requested a pre-shift examination 

of the main entry because there were no pre-shift markings there. 

Bonuales checked the examiners' book and told Complainant that the whole 

section, including the main entry, had been pre-shifted and read to 

Complainant the pre-shift report for the main entry. Complainant 

refused to do the roof-bolting work unless an examiner came in to 

pre-~hift, and he requested alternative duties until the area was 

pre-shifted. Bonuales ordered him to perform his assignment but, after 

962 
Complainant's repeated refusal, Bonuales assigned him to other duties, 

telling him to go with his helper to assist in a belt move in the main 

entry. 

25. Bonuales then phoned the pre-shift examiner, Ron Naccarato, 

a supervisor, who stated that he had pre-shifted the section and that 

the pre-shift markings in the main entry were on a brattice (ventilation 

curtain)~ 

26. When Complainant arrived at the belt he checked an inspection 

pad at the tailpiece which did not show pre-shift markings for the 

graveyard shift. He called Bonuales back and told him that the belt had 

not been pre-shifted and that he would not work on the belt move without 

a proper pre-shift examination. Bonuales told Complainant that the belt 

did not have to be pre-shifted for the graveyard shift and ordered him 

to go to work. Complainant continued to refuse to work on the belt move 

and requested alternative duties. Bonuales told him that he had called 

Naccarato, who assured him that the main entry had been pre-shifted. 

Complainant still refused to work on the belt move and requested other 

available work until a proper pre-shift exam~nation was made. Bonuales 

then ordered him out of the mine. At that point, Bonuales decided to 

suspend Complainant with intent to discharge. He told Mele to call Lee 

Heath, on the Mine Committee, because Complainant would be entitled to 

have a union representative present when Bonuales issued the suspension 

to him. Although Heath was also a member of the Safety Committee, 

Bonuales did not call him in that capacity and did not intend to discuss 

963 
or review the case with anyone before making a decision. He had already 

made up his mind to suspend Complainant with intent to discharge. The 

suspension was converted into a discharge, e~fective October 23, 1981. 

DISCUSSION WITH FURTHER FINDINGS 

Applicable Law 

Section 105(c)(l) of the Act2 -- its anti-discrimation provision 

is the centerpiece of a comprehensive statutory scheme to give miners an 

active role in the Act's enforcement for their safety and health 

protection.3 · 

Section 105(c)(l) does not expressly provide a right to refuse to 

work because of safety or health hazards, but its legislative history 

and case law show that in certain circumstances such a right exists. 

Protected activity under this section includes a miner's refusal to work 

in conditions that he or she believes in good faith to be unsafe or 

unhealthful and a refusal to comply with work orders that are violative 

of the Act or a safety or health standard promulgated under the Act. 

For example, the report of the Senate Committee that was 

responsible for drafting most of the 1977 Mine Act states in part: 

964 
Protection of Miners Against Discrimination 

If our national mine safety and health program 

is to be truly effective, miners will_have to pl~y an 

active part in the enforcement of the Act. The 

Committee is cognizant that if miners are to be 

encouraged to be active in matters of safety and 

health, they must be protected against any possible 

discrimination which they might suffer as a result of 

their participation. The Committee is also aware 

that mining often takes place in remote sections of 

the country, and in places where work in the mines 

offers the only real employment opportunity. 

Section 10[5](c) ••• prohibits any 

discrimination against a miner for exercising any 

right under the Act. It should also be noted that 

the class protected is expanded from the current 

Coal Act. The prohibition against discrimination 

applies to miners, applicants for employment, and 

the miners' representatives. The Committee intends 

that the scope of the protected activities be 

broadly interpreted by the Secretary, and intends to 

include not only the filing of complaints seeking 

inspection under section [103(g)] or the 

participation in mine inspections under section 

[103(f)] but also the refusal to work in conditions 

which are believed to be unsafe or unhealth·ful and 

the refusal to comply with orders which are 

violative of the Act or any standard promulgated 

thereunder or the participation by a miner or his 

representative in any administrative and judicial 

proceeding under the Act. 

*** 

The listing of protected rights contained in 

section 10[5](c)(l) is intended to be illustrative 

and not exclusive. The wording of section 

10[5](c) is to be construed expansively to assure 

that the miners will not be inhibited in any way 

in exercising any rights afforded by the 

legislation. *** The Committee intends to insure 

the continuing vitality of the various judicial 

interpretations of section 110 of the Coal Act 

which are consistent with the broad protections of 

the bill's provisions: See, e.g. Phillips v. IBMA, 500 

F.2d 772; Munsey v. Morton, 507 F.2d 1202. The 

Committee also intends to cover within the ambit 

of this protection any discrimination against a 

miner which is the result of the safety training 

provisions • or the enforcement of those 

provisions • • 

965 
[S. Rep. No. 95-181, 95th Cong., 1st Sess., at 

35-36 (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 

623-624 [(1978).) 

The right to refuse to work was also discussed on the floor of the 

Senate: 

MR. CHURCH. I wonder if the distinguished 

chairman would be good enough to clarify a 

point concerning section 10[5](c), the 

discrimination clause. 

It is my impression that the purpose of 

this section is to insure that miners will 

play an active role in the enforcement of 

the act by protecting them against any 

possible discrimination which they might 

suffer as a result of their actions to 

afford themselves of the protection of the 

act. 

It seems to me that this goal cannot be 

achieved unless miners faced with conditions 

that they believe threaten their safety or -

health have the right to refuse ·to work 

without fear of reprisal. Does the 

committee contemplate that such a right 

would be afforded under this secton? 

MR. WILLIAMS. The committee intends 

that miners not be faced with the Robson's 

choice of deciding between their safety and 

health or their jobs. 

The right to refuse work under 

conditions that a miner believes in good 

faith to threaten his health and safety is 

essential if this act is to achieve its goal 

of a safe and healthful work place for all 

miners. 

MR. JAVITS. I think the chairman has 

succinctly presented the thinking of the 

committee on this matter. Without such a 

right, workers acting in good faith would 

not be able to afford themselves their 

rights under the full protection of the act 

as responsible human beings. [Leg. Hist. at 

1088-1089.] 

966 
Representative Perkins, the chief House conferee and chairman of 

the House Co11DDittee that drafted the House bill, stated during the 

customary oral report to the House describing the bill agreed to by the 

conference committee: 

Mr. Speaker, this legislation also 

provides broader protection for miners who 

invoke their safety, rights. If miners are to 

invoke their rights and to enforce the act as 

we intend, they must be protected from 

retaliation. In the past, administrative 

rulings of the Department of Interior have 

improperly denied the miner the rights 

Congress intended. For example, Baker v. 

North American Coal Co., 8 IBMA 164 (1977) 

held that a miner who refused to work because 

he had a good faith belief that his life was 

in danger was not protected from retaliation 

because the miner had no "intent" to notify 

the Secretary. This legislation will wipe out 

such restrictive interpretations of -the safety 

discrimination provision and will insure that 

they do not recur. [Leg. Hist. at 1356.] 

The predecessor to the 1977 Mine Act included a provision 

prohibiting discrimination for "notif [ying] the Secretary or his 

authorized representative of any alleged violation or danger" (section 

llO(b) of the 1969 Federal Coal Mine Health and Safety Act). This 

provision was interpreted to protect miners from discharge or other 

retaliation if they notified their supervisor of an alleged unsafe or 

unhealthful condition and refused to work in that condition. Phillips 

v. Interior Board of Mine Operations Appeals, 500 F. '2d 772 (D.C. Cir. 

1974); Munsey v. Morton, 507 F. 2d 1202 (D.C. Cir. 1974). In pointing 

out the need for this application of the statute, the court in Phillips 

stated: 

[T]he miners are both the most 

interested in health and safety 

protection, and in the best 

967 
position to observe the compliance or 

non-compliance with safety laws. 

Sporadic federal inspections can never 

be frequent or thorough enough to 

insure compliance. Miners who insist 

on health and safety rules being 

followed, even at the cost of slowing 

down production, are not likely to be 

popular with [the] mine foreman or top 

management. Only if the miners are 

given a realistically effective 

ch.annel of communications re: health 

and safety, and protection from 

reprisal after making complaints, can 

the Mine Safety Act be effectively 

enforced. [500 F.2d at 778.] 

Citing Phillips as an example, the legislative history of the 1977 

Act, quoted above, expresses an intention "to insure the continuing 

vitality of the various judicial interpretations of section 110 of the 

Coal Act which are consistent with the broad protections of the bill's 

provision. • • • '

1 

The Commission has interpreted section 105(c)(l) as protecting a 

right to refuse to work if a miner has a good faith, reasonable belief 

that working conditions present a hazard to safety or health. See, 

e.g., Secretary of Labor ex rel. Pasula v. Consolidation Coal Company, 2 

FMSHRC 2786 (1980), rev'd on other grounds, Consolidation Coal Company, 

v. Marshall, 663 F. 2d 1211 (3rd Cir. 1981); Robinettee v. United Castle 

Coal Company, 3 FMSHRC 803 (1981); and Dunmire and Estle v. Northern 

Coal Company, 4 FMSHRC 126 (1982). 

Good faith simply means an honest belief that a hazard exists. · A 

reasonable belief does not have to be supported by objective proof, 

but the evidence must show that the miner's perception of a hazard was a 

reasonable one under the circumstances. Unreasonable, irrational or 

c'ompletely unfounded work refusals are not protected by the statute. 

Robinette, supra, at 810 - 812. 

968 
In Robinette the Commission further explained the 

"reasonable ·belief" rule: 

The relatively stringent "objective, 

ascertainable evidence" test mentioned in 

Gateway is usually satisfied only by the 

introduction of physical evidence, 

"disinterested" corroborative testimony, 

and--not infrequently--expert testimony. Cf. 

NLRB v. Fruin-Conlon Construction Co., 330 F.2d 

885, 890-892 (8th Cir. 1964), cited approvingly 

in Gateway, 414 U.S. at 387 (construing section 

502). We think that such a test may be better 

suited to the broad scope of section 502, 

particularly where, as in Gateway, a 

union's contractually prohibited strike is 

involved. For while "objective, ascertainable" 

evidence is always welcome, it may not be 

readily obtainable in mining cases. Unsafe 

conditions can occur suddenly and in remote 

sections of mines; the miner in question may be 

the only immediate witness; and physical 

evidence may be elusive. Situations are 

also bound to arise where outward appearances 

suggest a dangerous condition which closer 

subsequent investigation does not confirm. 

Furthermore, we believe that such a test 

would chill the miner's exercise of the right 

to refuse work, an outcome inconsistent with 

the Act's legislative history favoring a broad 

right in a uniquely hazardous working 

environment. Miners should be able to 

respond quickly to reasonably perceived 

threats, and mining conditions may not permit 

painstaking validation of what appears to be a 

danger. For all these reasons, a 

"reasonable belief" rule is preferable to an 

"objective proof" approach under this Act. 

More consistent with the Mine Act's 

purposes and legislative history is a simple 

requirement that the miner's honest 

perception be a reasonable one under the, 

circumstances.- Reasonableness can be 

established at the minimum through the miner's 

own testimony as to the conditions responded to. 

That testimony can be evaluated for its detail, 

inherent logic, and. overall credibility. 

Nothing in this approach precludes the 

Secretary or miner from introducing 

969 
corroborative physical, testimonial, or expert 

evidence. The operator may respond in kind. 

·The judge's decision will be made on the basis 

of all the evidence. This standard does not 

require complicated rules of evidence in its 

application. We are confident that such an 

approach will encourage miners to act 

reasonably without unnecessarily inhibiting 

exercise of the right itself. 

(3 FMSHRC at 811 - 812, footnotes omitted.] 

In Pasula, the Commission formulated the following test for "mixed 

motives" cases:· 

We hold that the complainant has established 

a prima facie case of a violation of section 

105(c)(l) if a preponderance of the evidence 

proves (1) that he engaged in a protected 

activity, and (2) that the adverse action was 

motivated in any part by the protected activity. 

On these issues, the complainant must bear the 

ultimate burden of persuasion. The employer may 

a.ffirmatively defend, however, ·by proving by a 

preponderance of all the evidence that, although 

part of his motive was unlawful, (1) he was also 

motivated by the miner's unprotected activities, 

and (2) that he would have' taken adverse action 

against the miner in any event for the unprotected 

activities alone. On these issues, the employer 

must bear the ultimate burden of persuasion. It 

is not su~ficient for the employer to show that 

the miner deserved to have been fired for engaging 

in the unprotected activity; if the unprotected 

conduct did not originally concern the employer 

enough to have resulted in the same adverse 

action, we will not consider it. The employer 

must show that he did in fact consider the 

employee deserving of discipline for engaging in 

the unprotected activity alone and that he would 

have disciplined him in any event. 

In W.B. Coal Co. v. Federal Mine Safety and Health Review Commission, et 

al (April 5, 1983), the Sixth Circuit rejected part of the test laid down by 

the Commission in Pasula. The court held that the "burdenshifting language in 

Pasula" is not a reasonable interpretation of the Act "because it conflicts 

with statutory language requiring proof of discrimination 'because of' 

970 
protected activities, 30 U.S.C. 815(c)(2), and language requiring the burden 

of proof to remain with the claimant, ~ 5 U.S.C. 556(C)." (Slip Op. at 14.) 

The Sixth Circuit distinguished the Supreme Court's decision in Mount Healthy 

Board of Education v. Doyle, 429 U.S. 274 (1977), on which the Connnission's 

Pasula burdenshifting test is based, and found the Supreme Court's decision in 

Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981) to be 

apposite. In Burdine, the Supreme Court stated, in considering the 

requirements of a prima facie case under Title VII and the applicable burden 

of proof: 

The nature of the burden that shifts to the defendant 

should be understood in light of the plaintiff's 

ultimate and intermediate burdens. The ultimate 

burden of persuading the trier of fact that the 

defendant intentionally discriminated against the 

plaintiff remains at all times with the plaintiff. 

* * * 

By establishing a prima facie case, plainti£f in 

effect creates a presumption that the employer 

unlawfully discriminated against the employee. If a 

trier of fact believes the plaintiff's evidence, and 

if the employer is silent in the face of the 

presumption, the court must enter judgment for the 

plaintiff because no issue of fact remains in the 

case. 

The burden that shifts to the defendant, 

therefore, is to rebut the pres·umption of 

discrimination by producing evidence that the 

plaintiff was rejected, or someone else was preferred, 

for a legitimate, non-discriminatory reason. The 

defendant need not persuade the court that it was 

.actually motivated by the proferred reasons. It is 

~ufficient if the defendant's evidence raises a 

genuine issue of fact •••• [450 U.S. at 253-255.] 

In W. B. Coal Co., the Sixth Circuit concluded: 

In suunnary, the proper test in considering mixed 

motives under the Mine Act is that, upon plaintiff's 

showing that an employer was motivated in any part by 

an employee's exercise of rights protected by the Act, 

971 
the employer has the burden only of producing evidence 

of a legitimate business purpose sufficient to create 

a genuine issue of fact. The plaintiff, who retains 

the burden of persuasion at all times, may of course 

rebut the employer's evidence 'directly by persuading 

the trier of fact that a di-scriminatory reason more 

likely motivated the employer, or indirectly by 

showing that the employer's proffered explanation is 

unworthy of credence.' Burdine, 450 U.S. at 256. The 

plaintiff's ultimate burden is to persuade the trier 

of fact that he would not have been discharged 'but 

for' the protected activity. * * * [Slip Op. 15-16.] 

The National Labor Relations Board adopted a test similar to the 

Mount Healthy test for labor discrimination cases, but the Circuit 

Courts appear split as to the burden-shifting portion of the test. See 

generally Note, Dual Motive Discharge, 58 Notre Dame L. Rev. 118 (1982), 

and cases cited in W.B. Coal (Slip Op. 10, fn 8). In declining to apply 

the Mount Healthy test to NLRA cases, the First Circuit discussed the 

difference between allocating the burden of proof to defendant and 

merely requiring defendant to rebut a presumption of discrimination 

(NLRB v. Wright Lin~, 662 F. 2d 899, at 905 (1st Cir. 1981), cert. 

denied, 455 U.S. 98): 

Professor Wigmore distinguishes between the 

burden of rebutting a prima facie case and the burden 

of persuading the trier of fact on the ultimate', issue 

in a case by a preponderance of the evidence as 

follows: 

'[A] prima facie case ••• need not 

be overcome by a preponderance of the 

evidence of greater weight; but the 

evidence needs only to be balanced, 

put in equipoise, by some evidence 

worthy of credence; and, if this be 

done, the burden of the evidence is 

met and the duty of producing further 

evidence shifts back to the party 

having the burden of proof • • • • ' 

9 Wigmore on Evidence [Sec.] 2487, at 282 (3d ed. 

1940), quoting Speas v. Merchants' Bank & Trust Co., 

188 N.C. 524, 125 S.E. 298 (1924). 

972 
* * * 

The imposition of this limited burden, however, 

does not shift to the employer the burden of proving 

that [a violation of the Act] has not.occurred. Rule 

301 of the Federal Rules of Evidence very aptly 

describes the scope of the duty involved in rebutting 

presumptions in civil cases as 'the burden of going 

forward with evidence to rebut or meet the 

presumption,' and distinguishes this duty from 'the 

burden of proof in the sense of the risk of 

nonpersuasion, which remains throughout the trial upon 

the party on whom it.was originally cast.' Fed. R. 

Evid. 301. Thus, the employer ••• has no more than 

the limited duty of producing evidence to balance, not 

to outweigh, the evidence produced by the general 

counsel. [NLRB v. Wright Line, 662 F.2d at 905.] 

Direct evidence of discriminatory motivation is not often 

encountered; more typically, the only available evidence is indirect. 

In Secretary of Labor ex rel. Chacon v. Phelps Dodge Corporation,, 3 

FMSHRC 2508 (1981), the Connnission identified the following factors as 

particularly relevant in proof of a circumstantial case: 

1) management knowledge of the complainant's 

protected activity; 

2) management hostility toward the protected 

activity; 

3) coincidence in time between the protected 

activity and adverse action against the 

complainant; and 

4) disparate treatment of the complainant 

Factor 4) is not a sine qua non, but another factor to consider. 

Section 7(c) of the Administrative Procedure Act:' which applies to 

adjudicatory hearings under the Mine Safety Act, sets minimum 

quality~of-evidence standards and a standard of proof. The provision 

directing the exclusion of "irrelevant, innnaterial, or unduly 

repetitious evidence" and the requirement that the decision of the trier 

973 
of fact be "in ~ccordance with" evidence that is "reliable" and 

"probative" mandate that the decision be premised on evidence of a 

certain level of quality. The further requirement that the decision be 

in accordance with "substantial" evidence implies quantity of evidence, 

and imposes the traditional preponderance-of-evidence standard. 

Steadman v. SEC, 450 U.S. 91, 98-101 (1980). This standard does not 

require proof to a certainty, proof beyond a reasonable doubt, or proof 

that is "clear and convincing" (Steadman, at 95, 99). Proof by a 

preponderance means only that proof that leads the trier of fact to find 

that existence of a contested fact is more probable than its 

nonexistence. Gardner v. Wilkinson, 643 F.2d 1135, 1137 (5th Cir. 

1981); and see generally McCormick, Evidence 794 (2d ed. 1972). The 

burden is not met, however, by evidence that creates no more than a 

suspicion of the existence of the fact. 

"Substantial evidence," when used to limit the scope of review 

for example, in section lO(e) of the APA, limiting judicial review of 

agency decisions, or in section 113(d) of the Mine Safety Act, limiting 

the Co11DJ1ission's review of administrative law judges' decisions -- means 

"'such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion."' Steadman, at 99-100, quoting Consolo v. ~' 

383 U.S. 607, at 620 (1966). 

Warning on September 22, 1981 

·complainant's proof made a prima facie showing of discrimination. 

as to this incident, in that: the warning was given on the same day 

th~t MSHA investigated two section 103(g) complaints initiated by 

Complainant (one signed by Shiner in Complainant's behalf), management 

knew that he was the source of the complaints (or had reasonable grounds 

974 
to believe he was), the record does not show prior discipline of a roof 

bolter for either breaking steel drills or installing too few roof 

bolts, and performance standards for the job of roof bolter were not 

clearly established either by written standards or oral training. 

However, Respondent proved by a preponderance of the evidence that on 

September 22 Co~plainant was observed breaking three drill steels by 

conduct (moving the roof bolter while a drill steel was connected to the 

bolter and still in the roof) showing either a deliberate intention to 

break .the drills or gross negligence in operating the equipment. 

Complainant did not persuasively rebut this evidence. He offered only 

an indirect explanation for the br.eakage, saying that reconditioned 

steels broke more easily than new steel, but he was uncertain whether he 

was working with reconditioned or new ste~l; he did not effectively 

rebut Respondent's evidence, .which I credit, that he was working with 

new steel on both dates, and his testimony was not probative in 

rebutting Powell's eye-witness testimony about his misuse of the 

equipment. As to the number of roof bolts installed by Complainant (19 

on two shifts), Respondent did not establish a recognized performance 

standard, but Complainant's testimony that, depending on conditions, a 

bolter would install from 20 to 50 bolts a shift and that he had put in. 

as many as 100 on one shift supported Respondent's evidence that 

Complainant's installation of only 19 bolts in two shifts was poor 

performance. 

I find that the preponderance of the evidence establishes 

legiti~te grounds for the warning on September 22 and does not 

establish a discriminatory motive~ Complainant has not shown, by a 

preponderance of the evidence, a reasonable probability that, but for 

975 
his prior safety complaints, the September 22 warning would not have 

been issued. 

- Five-Day Suspension on October 13, 1981 

Complainant did not meet his burden of proving discrimination as to 

this incident. 

At the start of his shift on October 13, Complainant and some other 

miners complained that the mantrip cars were unsafe because of defective 

or missing bells or sanders. After some discussion, the employees 

rejected management's proposal that time be allowed to abate the 

condition and that they ride on the mantrips pending abatement. Greg 

Mele, Foreman, then directed the crew to walk into the mine because 

transporation was not available. Complainant and his helper refused to 

walk in, based upon Complainant's opinion that the contract gave them a 

right to a mantrip ride. Some miners walked in, some went home ~n sick 

leave, and Complainant and George Brown refused to walk. Both were 

suspended for insubordination. Complainant testified that his refusal 

to walk into the mine was not a safety issue. The preponderance of the 

evidence establishes a legitimate basis for the discipline, and 

does not establish a discriminatory motive. 

Warning on October 21, 1981 

Following his five-day suspension for refusal to walk into the 

mine, Complainant returned to the mine on October 20 and, instead of 

reporting to work, took a sick day and went home. The next day he was 

assigned to roof bolt in A-seem (9 North Section). After setting up his 

machine, Complainant looked for the pre-shift markings and could find 

none. He then used the mine phone to call Bonuales, Foreman, and 

informed him that the section had not been pre-shifted. Bonuales 

976 
checked the examiners' book and told Complainant that the section had 

been pre-shifted, and read to him the examiner's report and gave him the 

examiner's name and certificate number. After this, Greg Mele, Foreman, 

had a conversation with Complainant concerning the pre-shift markings. 

Complainant stated that he did not understand the law regarding 

pre-shift markings and would work that night under protest, but would 

check into the law the following morning. 

At the end of his shift, Complainant and his helper missed the 

mantrip. Their immediate supervisor, Martin Ernie, told them to walk 

out of the mine. Walking would have taken about 5 to 8 minutes. 

Complainant testified that he refused to walk out and "asked Martin 

Ernie for a ride. I asked him to let us take the motor out because ft 

was because of him that we missed our ride." 7/13 Tr. 52. Ernie 

testified that, "I don't remember the reason, but we was late leaving 

the section that day, and Albert had another worker with him. *** I was 

on a motor and we're only allowed to have two people ride on the motor, 

so we was down at the mouth of A-seem at the end of the shift, and I 

told them to go ahead and walk out. *** He refused. He said that he was 

not going to walk out. And I told him that I wanted him to walk out, 

and he said no, he would not walk out. He was going to get a ride. And 

I says, 'Well, I want you to walk outside and I' 11 see you outside.' 

And I went ahead on the motor and headed towards the outside." 7/13 Tr. 

79-80. Complainant then used the mine phone to call Pat Jenkins, Mine 

Foreman, and told him he and his helper needed a ride. Jenkins provided 

them a ride. Ernie overheard Complainant's call to Jenkins and on the 

surface reported to Jenkins that he had told Complainant to walk out and 

977 
that Complainant had refused. Jenkins then wrote Complainant a 

disciplinary warning for insubordination. The written warning stated 

that due to Complainant's refus_al to follow a direct order on the first, 

day back to work after a five-day suspension, he was being put on notice 

that the next instance of insubordination would result in suspension 

subject to discharge. 

I find that the preponderance of the evidence shows a legitimate 

basis for the disciplinary warning and does not establish a 

discriminatory motive. 

Suspension and Discharge on October 23, 1981 

On October 23, 1981, Complainant worked on the graveyard shift, 

his usual shift. His assignment was to roof-bolt in the first left 

entry of 8 North Section and then to roof-bolt in the main entry of that 

section. 

Despite a thorough search in the main entry, Complainant and 

another miner could not find markings of a pre-shift exa~ination in the 

main entry. Complainant telephoned Bonuales, the outside foreman, to 

request a pre-shift examination of that area. Bonuales checked the 

examiners' book and told Complainant that the whole section had been 

pre-shifted, including the main entry, and he read· him the examiner's 

report of a pre-shift examination of the main entry. Bonuales then 

ordered Complainant to perform his roof-bolting assignment. Complainant 

refused to roof-bolt unless an examiner came in to conducted a proper 

pre-shift examination of the 1J18in entry, and requested an assignment to 

other duties until such an examination was made. Bonuales finally 

agreed to an assignment of alternative duties, and told Complainant to 

go with his helper to assist in a belt move in the main entry. 

978 
After arriving at the belt, Complainant checked an examination pad 

near the tailpiece and saw no evidence of ~ pre-shift examination of 

that area. He then called Bonuales and told him that the area needed to 

be pre-shifted. Bonuales told him that the belt did not have to be 

pre-shifted for the graveyard shift, and ordered Complainant to go to 

work, but Complainant ref~sed unless an examiner came in to make a 

pre-shift examination; he requested alternative duties until this was 

done. Part of Complainant's safety complaint to Bonuales, stated in 

this phone conversation, was the point that the belt was to be moved 

into the main entry area where Complainat had found no pre-shift 

markings, that is, the same pre-shift problem Complainant had just 

talked to Bonuales about in the prior phone call. Another part of his 

safety complaint, stated in the second phone conversation with Bonuales, 

was Complainant's contention that, if one working face in a section has 

not been pre-shifted, the entire section has not been properly 

pre-shifted. Bonuales again tried to get CQmplainant to go to work, but 

Complainant refused and requested alternative duties. Bonuales then 

ordered him out of the mine. It was at this point that Bonuales decided 

• 

to suspend Complainant with intent to discharge. He did not plan to 

discuss the matter further with anyone else. He called his supervisor 

to tell him of his decision• He also arranged to hav~ a member of the 

Mine Committee called, because Complainant would be entitled to union 

representation when the suspension was issued. This call, to Heath, was 

not for the purpose of discussing Complainant's safety complaint, but 

simply a formality of notifying the Mine Committee that a miner was 

about to be suspended with intent to discharge. 

979 
There is no question that pre-shift markings were not present in 

the main entry. There was a notation chalked on a brattice showing an 

examination for the previous shift, but there were no markings of a date 

and time for a pre-shift examination for the graveyard shift. Nor were 

there smudge marks that might indicate that pre-shift markings had been 

made but had been rubbed away. I find that the preponderance of all the 

evidence shows that pre-shift markings were not made in the main entry 

area for the October 23, 1981, graveyard shift. I do not credit the 

examiner's testimony that he had made pre-shift markings there. 

It is not necessary to resolve whether or not the main entry had 

actually been pre-shifted for Complainant's shift. The evidence that 

the pre-shift markings could not be found, despite a thorough search, is 

sufficient to establish a protected activity in Complainant's refusal to 

work without physical, on-the-site evidence of a pre-shift examination 

of the area where he was required to ·work. The absence of pre-shift . markings in the main entry also entitled Complainant to refuse to assist 

in the belt move, which would have required him to work in the main 

entry of 8 North Section. 

Mine management, through the testimony of Mr. Vrettos, acknowledged 

that a miner has the right to refuse to work in an area that has not 

been pre-shifted, but contends that Complainant was required to accept 

Bonuales' assurance that a pre-shift examination had been made based on 

the examiner's book and the examiner's statement to Bonuales. 

I conclude, however, that Complainant was entitled, without 

retaliation, to refuse to work in the main entry until there was a 

proper pre-shift examination of that area as evidenced by on-the-site 

pre-shift markings. He was also entitled to refuse to perform the 

980 
belt-move assignment, which would have involved moving the belt into the 

main entry of 8 North Section. It is not necessary to resolve whether 

or not the belt tailpiece was a part of the 8 North Section, or whether 

the belt was required to be pre-shifted before moving the belt on the 

graveyard stift. It is sufficient that Complainant was being ordered to 

perform work that would take him into the main entry of 8 North Section 

and that that area did not have markings of a pre-shift examination. 

I find that. Complainant had a reasonable, good faith belief that he 

confronted a threat to his safety when he refused to perform the 

roof-bolting assignment and later when he refused to assist in the belt 

move, because each of these asignments would require him to work in the 

main entry of 8 North Section, which did not have markings of a 

pre-shift examination. The danger he reasonably perceived was the 

uncertainty of working in an area that had not been properly preshifted. 

Mine management was in error in minimizing the importance of 

preshift markings and in requiring that Complainant point to actual 

present dangers as the only basis on which it would permit him to refuse 

to work in the main entry. The mandatory safety standard for preshift 

examinations5 requires that an examiner be trained and certified to 

conduct a series of specific, expert, and technical examinations, and 

have the necessary tools and -equipment to conduct th.em,, ,Among other 

important safety duties, the preshift examiner must examine for 

accumulations of methane and oxygen defic1ency, examine seals and doors, 

test ventilatio'n and the roof, face and ribs, and examine active 

roadways and travel ways, belt conveyors and other areas to ensure that 

the working area is free of detectable hazards and that various 

mandatory safety and health standards are being complied with before men 

981 
are taken into the area to work. The preshift regulation also requires 

that the e.xaminer make preshift markings in e{lch area inspected. This 

requirement is an important safeguard to ensure that the miners' safety 

and health are being properly protected by compliance with the statute 

and regulations. Complainant was entitled to see that this safeguard 

placing preshift markings in the area inspected -- was met before he 

could be required to work in the area. Complainant had neither the 

training, certification, nor the necessary tools and equipment to carry 

out the preshift examination himself. It was not his obligation to 

inspect the area and point out dangers to his supervisor. Indeed, 

miners should not enter a working area that has not been preshifted. 

Therefore, Complainant was protected by section 105(c)(l) in raising a 

safety complaint (failure to make a proper preshift examination as 

evidenced by appropriate preshift markings) to his supervisor and in 

refusing to work in that area. 

Respondent introduced a decision by an arbitrator upholding 

Complainant's discharge. However, this turns on issues under the 

contract and not the rights created by section 105(c)(l) of the Act. 

Work-refusal rights under the contract are limited to. a narrow class of 

cases in which a miner is ordered to work under "conditions he has 

reasonable grounds to believe to be abnormally and immediately dangerous 

to himself beyond the normal hazards inherent in the operation which 

could reasonably be expected to cause death or serious physical harm 

before such condition or practice can be abated" (Art. III, Section (i)). 

However, section 105(c)(l) of the Act extends protected activites far 

beyond this test and is the relevant standard here. The arbitration 

982 
decision is not binding in this proceeding. See, e.g., Alexander v. 

Gardner-Denver Company,. 415 U.S.36, 60 (1974). 

The discharge on October 23 was not a "mixed motives" case. 

Complainant's refusal to work was a protected activity under section 

lOS(c)(l) of the Act and his suspension and discharge were in 

retaliation of this protected activity. The.evidence thus establishes 

discrimination in violation of section lOS(c)(l). I find, also, that 

the evidence preponderates in showing a background of management 

hostility towards Complainant because of his safety-complaint 

activities, beginning with his section 103(g) complaints in September 

and continuing up to the time of his discharge; this evidence 

additionally raises a reasonable inference of specific hostility toward 

him because of his safety complaints on October 23, 1981. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction of this proceeding. 

2. Complainant did not meet his burden of proving a violation of 

Section lOS(c)(l) of the Act with the respect to any of the following 

incidents: 

(a) The disciplinary warning on September 22, 1981. 

(b) The suspension for 5 days without pay on October 13, 1981. 

(c) The disciplinary warning on October 21, 1981. 

3. Respondent violated Section lOS(c)(l) of the Act on October 23, 

1981, by suspending Complainant with intent to discharge and by 

discharging him effective that date. 

4. Complainant is entitled to reinstatement, back pay with· 

interest, and costs, including a reasonable attorney's fee_ and other 

litigation costs reasonably incurred in connection with this proceeding. 

983 
Other appropriate relief may be considered in formulating a final order. 

All proposed findings of fact and conclusions of law inconsistent 

with the above are rejected. 

PENDING A FINAL ORDER 

The judge retains jurisdiction of this proceeding pending the 

issuance of a final order granting relief. Counsel for the parties 

should meet in an effort to stipulate the amounts due and other elements 

of an appropriate order. Such stipulation will not preclude 

Respondent's rights to seek review of this decision. Complainant shall 

have 10 days from receipt of this Decision to file a proposed order 

granting relief. Respondent shall have 10 days to reply to 

Complainant's proposed order. If necessary, a further hearing will be 

held on issues concerning relief. 

Distribution: Certified Mail 

-tr)~~~.,~ WILLIAM FAUVER 

ADMINISTRATIVE· LAW JUDGE 

David O. Black, Esq., Biele, Haslam & Hatch, 50 West Broadway, 4th 

Floor, Salt Lake City, UT 84101 

Barry D. Lindgren, Esq., Labor Relations, Mountain States Employers 

Council, Inc., 1790 Logan Street, Denver, CO 80201 

984 
FOOTNOTES 

1/ Section 103(g)(l) of the Act provides: 

(g) (1) Whenever a representative of the miners or a miner 

in the case of a coal or other mine where there is no such rep- resentative has reasonable grounds to believe that a violation 

of this Act or a mandatory health or safety standard ~xists, or 

an imminent danger exists, such miner or representative shall have a right to obtain an immediate inspection by ~ving 

notice to the Secretary or his authorized representative of 

such violation or danger. Any such n-otice shall be reduced to 

writing,. signed by the representative of the miners or by the 

miner, and a copy shall be frovided the operator or his agent 

no later than at the time o inspection, except that the operator or his agent shall be notified forthwith if the complaint indicates that an imminent danger exists. The name of the 

person giving such notice and the names of individual miners 

referred to therein shall not appear in such copy or notification. Upon receipt of such notification, a special inspection shall be made as soon as possible to determine if sucli violation or danger exists in accordance with the provisions of this 

title. If the Secretary determines that a violation or danger does not exist, he shall notify the miner or representative of 

the miners in writing of such determination. . · 

!/ Section lOS(c)(l) of the Act provides: 

(c) (1) No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination 

against or otherwise interfere with the exercise of the statutory rights of any miner, representative of miners or appli-· cant for employment in any coal or other mine subject to this 

Act because such miner, representative of miners or applicant for employment has filed or made a comP.laint under or related to this Act, including a complaint notifying the operator or 

the operator's agent, or the representative of the miners at 

the coal or other mine of an alleged danger or safety or health 

violation in a coal or other mine, or because such miner, rep- resentative of miners or applicant for employment is the subject of medical evaluations and potential tr~nsfer under a 

standard published pursuant to section 101 or because such 

miner, representative of miners or applicant for employm~nt 

has instituted or caused to be instituted any proceeding under 

or related to this Act or has testified or is about to testify in 

any such proceeding or because of the exercise by such miner, representative ol miners or applicant for emplorment on 

behalf of himself or others of any statutory right afforded by this Act. 

985 
11 :Other provisions establishing an active role of miners in the 

enforcement of the Act include: . section l03·(g} ().} · (j:ight of miners' 

representative to obtain a government inspection whenever he or she 

"has reasonable grounds to believe that a violation of this Act or a 

mandatory health or safety standard exists, or an imminent da_nger exists"}; 

section 103(f) (permitting miners' representative to accompany MSHA 

inspectors on all inspections); section 103(c) (requiring government 

regulations permitting miners to observe the monitoring or me~suring 

of toxic materials.and harmful physical agents); section 103(~) (~nterested 

persons' access to accident reports); section 302(~) (~iners' access to 

roof control plan); sections 303(d) (1), (f), (g) and (w) (interested 

persons' access to records of operator's safety and health examinations); 

section 305(e) (miners' access to map of electrical system); section 305(g) 

(miners' .access to records of operator's electrical examinations); 

section 312(b) (miners' access to confidential mine map}; sections 

107 (e) (1) and 105 (d) (miners' right to challenge. the modification or 

termination of withdrawal orders and to contest the reasonableness of the 

abatement time aliowed by a citation or modification thereof); section 5(9) 

of the Act and.the Commission's rules of procedure (permitting miners to 

participate in proceedings under section 105 of the Act}, 

f!../ Section 7 (c) of the APA provides (5 USC 556 (d)): 

Except as otherwise provided by statute, the proponent of a rule or 

order has the burden of proof. Any oral or documentary evidence may be 

received, but the agency as a matter of policy shall provide for the 

exclusion of irrelevant, immaterial, or unduly repetitious evidence. 

A sanction may not be imposed or rule or order issued except on consideration of the whole record or those parts thereof cited by a party 

and supported by and in accordance with the reliable, probative, and 

substantial evidence. 

988 
~/ 30 CFR 75.303(a) provides: 

Ca> 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, face, and rib conditions 

in such working section; examine 

active roadways, travelways, and belt 

conveyors on which men are carried, 

approaches to abandoned areas, and 

accessible falls in such section for haz· 

ards; 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, a.S an 

authorized representative of the l::>ecretary may from time to time require. 

Belt conveyors on which coal is carried 

shall be examined after each coal-producing shift has begun. Such mine examiner shall place his initials and the 

date and time at all places he examines. If such mine examiner finds a 

condition which constitutes a violation 

of a mandatory health or safetl' standard or any condition which is hazardous to persons·who may enter or be in 

such area, he shall indicate such hazardous place by posting a "danger" 

sign conspicuously at all points which 

persons entering such hazardous place 

would be required to pass, and shall 

notify the operator of the mine. No 

person, other than an authorized representative of the. Secretary or a State 

mine inspector or persons authorized 

by the operator to enter such place for 

the purpose of eliminating the hazardous condition therein, shall enter such 

place while such sign is so posted. 

Upon completing his . examination, 

such mine examiner shall report the 

results of his e_xamination to a person, designat~d by the operator to receive · such reports at a designated station on 

the surface of the mine, before other 

persons enter the underground areas 

of such mine to work in such shift. 

Each such mine examiner shall also 

record the results of his examination 

with ink or indelible pencil in a book 

approved by the Secretary kept for 

such purpose in an area on the surface 

of the mine chosen by the operator to 

minimize tlie danger of destruction by 

fire or other hazard, and the record 

shall be open for inspection by interested persons. 

·987 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

HAY 2 6 \983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PLATEAU RESOURCES LIMITED, 

Respondent 

DECISION 

Civil Penalty Proceeding 

Docket No. WEST 82-114-M 

A/O No. 42-01150-05017 

Lucky Strike Mine 

After denial of the operator's interlocutory appeal from the 

trial judge's decision of March 30, 1983, 5 FMSHRC 605, this matter 

was set for an evidentiary hearing in Salt Lake City on May 19, 1983. 

When the operator's presentation created a credibility gap that 

could not be '(esolved without additional witnesses, the trial judge 

ordered production of two additional eyewitnesses. After inquiry, 

counsel for the operator advised these witnesses were no longer employed 

by the operator and had accepted other employment at points distant to 

the place of hearing. 

At the suggestion of the trial judge the hearing was recessed to 

afford the parties an opportunity to discuss settlement. Thereafter, 

the parties jointly moved to withdraw the challenge to the validity of 

the citation and to settle the explosives violation charge by increasing 

the amount of the penalty initially proposed from $32 to $500. 

After a consideration of the parties' motion in light of the record 

made, the trial judge granted the motion and ordered the operator to pay 

the amount of the penalty agreed upon, $500, within ten days. 

Accordingly, it is ORDERED that the bench decision issued May 19, 

1983, b~, and hereby is, CONFIRMED, that the operator pay the agreed upon 

penalty, $500, on or before May 31, 198 , and that subject to payment the 

captioned matter be DISMISSED. 

Joseph B. Kennedy 

Administrative Law Judge 

988 
Distribution: 

Phyllis Kirk Caldwell, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Bldg., 1961 Stout ·street, Denver, CO 80294 

(Certified Mail) 

James A. Holtkamp, Esq., Van Cott, Bagley, Cornwall & McCarthy, 

50 South Main, Suite 1600, Salt Lake City, UT 84144 (Certified 

Mail) 

'6-U.S. GOVERNMENT PRINTING OFFICE1 1983-381-569/5280 

989