NOVE~IBER 1986 

COMMISSION DECISIONS 

11-05-86 

11-07-86 

11-10-86 

11-13-86 

11-18-86 

Cathedral Bluffs Shale Oil Co. 

Kenneth W. Hall v. Clinchfield Coal Co. 

Asarco, Incorporated 

Columbia Portland Cement Company 

Mohave Concrete & Materials Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

11-06-86 

11-06-86 

11-06-86 

11-06-86 

11-06-86 

11-07-86 

11-10-86 

11-10-86 

11-12-86 

11-12-86 

11-12-86 

11-13-86 

11-14-86 

11-18-86 

11-21-86 

11-24-86 

11-25-86 

11-25-86 

11-26-86 

Sec.Labor for Yale Hennessee v. Alamo Cement 

Company, (Order of Temporary Reinstatement) 

Quarto Mining Company 

Quarto Mining Company 

Quarto Mining Company 

B D & J Coal Company 

Sec. Labor for M. Hogan & R. Ventura v. 

Emerald Mines Corporation 

Domtar Industries, Inc. 

Austin Power, Incorporated 

Bandas Industries, Inc. 

Consolidation Coal Company 

Thompson Coal & Construction, Inc. 

Homestake Mining Company 

U.S. Steel Mining Co., Inc. 

Mettiki Coal Corporation 

s·ec. Labor for Joseph Delisio, Jr., v. 

Mathies Coal Company 

U.S. Steel Mining Company, Inc. 

Iron Mountain Ore Company 

N.L. Baroid-Div./N.L. Industries 

Drilling and Blasting Systems, Inc. 

WEST 81-186-M 

VA 85-8-D 

WEST 84-48-M 

LAKE 86-38-M 

WEST 86-14-M 

CENT 86-151-DM 

LAKE 85-17 

LAKE 85-24 

LAKE 85-27 

VA 86-42 

PENN 83-141-D 

CENT 85-144-M 

CENT 86-40 

CENT 86-100-M 

WEVA 86-217-R 

WEVA 86-287 

CENT 85-61-M 

PENN 86-123 

YORK 86-11 

PENN 86-83-D 

PENN 86-203 

WEST 85-142-M 

WEST 85-173-M 

SE 86-84-M 

Pg. 1621 

Pg. 1624 

Pg. 1632 

Pg. 1644 

Pg. 1646 

Pg. 1649 

Pg. 1661 

Pg. 1662 

Pg. 1663 

Pg. 1664 

Pg. 1665 

Pg. 1670 

Pg. 1671 

Pg. 1733 

Pg. 1735 

Pg. 1748 

Pg. 1764 

Pg. 1766 

Pg. 1768 

Pg. 1772 

Pg. 1839 

1840 

Pg. 1852 

Pg. 1854 

NOVEMBER 

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

Secretary of Labor, MSHA v. Columbia Portland Cement Co., Docket No. 

LAKE 86-38-M. (Judge Merlin, Default Order vacated, October 3, 1986). 

Secretary of Labor, MSHA v. Mohave Concrete & Materials, Inc., Docket 

No. WEST 86-14-M. (Judge Merlin, Default Order vacated, October 9, 1986). 

Dillard Smith v. Reco, Inc., Docket No. VA 86-9-D. (Judge Broderick, 

October 17, 1986) 

Secretary of Labor for John Bushnell v. Cannelton Industries, Docket 

No. WEVA 85-273-D. (Judge Fauver, October 21, 1986). 

Review was denied in the the month of November: 

Secretary of Labor, MSHA v. Brown Brothers Sand Company, Docket No. 

SE 86-11-M. (Judge Merlin, Default Decision, October 3, 1986). 

COM.MISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CATHEDRAL BLUFFS SHALE OIL 

COMPANY 

November 5, 1986 

Docket No. WEST 81-186-M 

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

This civil penalty case is before us on remand from the U.S. Court 

of Appeals.for the District of Columbia Circuit. Brock v. Cathedral 

Bluffs Shale Oil Co., 796 F.2d 533 (D.C. Cir. 1986). At issue is the 

liability of a production-operator for a violation of a mandatory safety 

standard committed by its independent contractor. 

Cathedral Bluffs Shale Oil Company is a partnership between 

Occidental Shale Oil Co. ("Occidental") and Tenneco Shale Oil Co. 

Occidental contracted with the Gilbert Corporation ("Gilbert") to 

perform certain construction work at a mine at which Occidental is the 

operating partner. During an inspection of the mine, an inspector from 

the Department of Labor's Mine Safety and H~alth Administration cited 

Occidental for a violation of a mandatory safety standard committed by 

Gilbert. Occidental contested the citation and the civil penalty 

proposed by the Secretary. (Gilbert also was issued a citation for the 

same violation, but chose to pay the penalty instead of contesting.) 

Following a hearing on the merits, Commission Administrative Law Judge 

John J. Morris held the Commission's decision in Phillips Uranium Corp., 

4 FMSHRC 549 (April 1982), to be "dispositive", and, "on the authority 

of Phillips", he vacated the citation. 4 FMSHRC 902 (May 1982) (ALJ). 

On review, the Commission agreed with the judge's result. However, 

the Commission concluded that the judge had read Phillips too broadly 

and had misapplied it as directly controlling the disposition of the 

case. 6 FMSHRC 1871 (August 1984). The Commission noted that prior to 

1621 
citing Occidental for the independent contractor's violation, the Secretary 

published enforcement guidelines articulating his policy for issuing 

citations and orders when violations of the Act and mandatory safety and 

health standards are committed by independent contractors. The Commission 

concluded that "[T]he appropriate inquiry is whether the record reflects 

proper application of the Secretary's ••• independent contractor enforcement 

policy." 6 FMSHRC at 1873. Holding that the record did not support a 

conclusion that the Secretary acted within his enforcement guidelines 

when he cited Occidental, the Commission affirmed the dismissal of the 

citation. 6 FMSHRC at 1876-77. 

The Secretary appealed, and the court concluded that the Commission 

improperly viewed the Secretary's enforcement guidelines as a "'legislative 

(i.e., substantive) rule ••• which restricts his enforcement discretion.'" 

Cathedral Bluffs Shale Oil Co., supra, 796 F.2d at 537. The court 

stated: 

Because the Commission improperly regarded 

the Secretary's general statement of his enforcement policy as a binding regulation which the 

Secretary was required strictly to observe, its 

decision dismissing the citation of Occidental 

must be reversed and remanded for further action 

consistent with this opinion. 

796 F.2d at 539. 

Accordingly, the matter is remanded to the administrative law judge 

to determine the liability of Occidental for the violation of its independent 

contractor in light of the court's opinion. J:./ 

/~ 

~ ' 

Richard V. Backley, Commissioner~ 

James A. Lasto~, Commissioner 

~(l~ -xe_Q,~ :clair Nelson, Commissioner 

1/ Chairman Ford did not participate in the consideration or disposition 

of this matter. 

1622 
Distribution 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

James M. Day, Esq. 

G. Lindsay Simmons, Esq. 

Cotten, Day & Doyle 

1899 L Street, N.W. 

Suite 1200 

Washington, D.C. 20036 

Administrative Law Judge John Morris 

Federal Mine Safety and Health Review Connnission 

333 West Colfax Avenue, Suite 400 

Denver, Colorado 80204 

1623 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

KENNETH W. HALL 

v. 

CLINCHFIELD COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 7, 1986 

Docket No. VA 85-8-D 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This proceeding involves a discrimination complaint brought by . 

Kenneth W. Hall against Clinchfield Coal Company ("Clinchfield") pursuant 

to the Federal Mine Safety and Health Act of 1977, 30 U.s.c. § 801 et 

seq. (1982). Mr. Hall's complaint principally alleges that Clinchfield 

violated section 105(c)(l) of the Mine Act, 30 U.S.C. § 815(c)(l), by 

denying his request for a transfer from an underground mining position 

to a surface mining position and by subsequently discharging him. 

Following a hearing on the merits, Commission Administrative Law Judge 

James A. Broderick concluded that Clinchfield had not discriminated 

against Hall and dismissed his discrimination complaint. 7 FMSHRC 1477 

(September 1985)(ALJ). We granted Hall's petition for discretionary 

review, which he prepared without the assistance of counsel. For the 

reasons that follow, we conclude that the judge's findings are supported 

by substantial evidence and we affirm his decision. 

In September 1981 Hall was hired by Clinchfield to work at its 

McClure No. 1 underground coal mine as a section foreman in charge of a 

production crew. Among other duties, Hall's crew was responsible for 

ventilating the face areas and for bolting the roof of the sections 

mined by the crew. 

The ventilation plan and roof bolting procedures followed at the 

McClure mine are relevant to Hall's discrimination complaint. In 1982, 

because of a reduction in the height of the coal seam being mined, 

Clinchfield began to use line curtains as the primary method of ventilating the mine. Thereafter, as found by the judge, certain procedures 

were followed routinely while the roof in a section was being bolted. 

After the coal was cut, the roof bolters installed near the face area a 

1624 
roof bolt approximately three feet from the rib. During the installation 

of this roof bolt (referred to as a "rib" bolt), the line curtain was 

removed to the last row of permanent roof supports. Without such removal, 

the canopy of the roof bolter would have otherwise forced the line 

curtain into the rib and would have cut off ventilation to the face. 

Therefore, when cuts exceeded ten feet, the line curtain was not maintained to within ten feet of the face during the installation of the rib 

bolt as required by the approved ventilation plan that was in effect at 

the mine until March 5, 1984. 1/ Once the rib bolt was installed, 

however, the line curtain was advanced to the rib bolt and the center 

bolts were then installed. See 7 FMSHRC at 1478-79. 

During Hall's first year as a section foreman he questioned then 

General Mine Foreman Ron Sluss about the practice of removing the line 

curtain before completion of the roof bolting. Sluss told him that 

Clinchfield had received permission to use the procedure. Hall's crew 

continued to follow the procedure outlined above, and Hall did not raise 

additional questions concerning that procedure until early 1984. 

On June 23, 1983, Hall's brother was killed in an explosion at the 

McClure mine. After this tragedy, Hall took two weeks vacation and 

subsequently was given another two weeks off with pay. During this 

time, Hall received treatment at a mental health clinic to help him cope 

with the death of his brother. 

In February 1984, several miners on Hall's crew complained to him 

about Clinchfield's roof bolting practice. They contended that not 

enough air was reaching the face and, consequently, air in the affected 

section was not circulating properly. These complaints led Hall to 

question Clinchfield's general foreman, Johnny Kiser, about the bolting 

practice. Mr. Kiser repeated what Sluss had told Hall previously, 

namely, that Clinchfield had permission to remove the line curtain while 

rib bolts were being installed. Hall posed the same questions to two 

inspectors of the Department of Labor's Mine Safety and Health Administration (''MSHA"). According to Hall one inspector believed that the 

bolting procedure was permissible but the other inspector disagreed. 

In late February 1984, a few days after Hall had spoken to Kiser, 

Clinchfield's director, Wayne Fields, met with a number of shift 

foremen including Hall. The judge found that during this meeting, 

s ventilation plan reflected the provisions of 30 

75.302-1, a mandatory ventilation standard that addresses the 

use of line brattice (curtain). Section 75.302-1 provides in part: 

Line brattice or any other approved device used to provide 

ventilation to the working face from which coal is being cut, mined 

or loaded .•• shall be installed at a distance no greater than 10 

feet from the area of deepest penetration to which any portion of 

the face has been advanced unless a greater distance is approved by 

the [Department of Labor's Mine Safety and Health Administration] 

Coal Mine Safety District Manager of the area in which the mine is 

located. 

1625 
Fields instructed the foremen not to ask questions about bolting procedures in the presence of MSHA inspectors or union personnel. 7 FMSHRC 

at 1480. The foremen also were instructed to continue bolting in the 

usual manner until a formal revision of the mine's ventilation plan 

could be obtained. The record reflects th9t in late February 1984 there 

were contacts between MSHA and Clinchfield officials regarding a revision 

of Clinchfield's ventilation plan. Tr. 358-59. ]:_/ 

Because Hall thought that the bolting process was unsafe and illegal, 

his crew shortened its cuts to ten feet instead of the usual 15 feet, to 

avoid the need for the temporary repositioning of the line curtain. 

Hall's production reports, however, continued to show that his crew was 

making 15-foot cuts. 

Hall's last working day at the mine was March 2, 1984. On that 

date, he left the mine because of anxiety, hyperventilation, and other 

emotional problems. 7 FMSHRC at 1480. Hall went to see Richard Light, 

the mine superintendent, and explained that due to his psychological 

problems, he could not function as a mine foreman. Hall stated that he 

intended to see a psychiatrist. Hall also expressed concern about the 

safety of the roof bolting procedure. The judge found that, "Complainant 

was concerned about the procedure being followed which he felt was 

violative of the Mine Safety law •.• and claimed [to Mr. Light] that he 

could not work in part because of that situation." Id. Light instructed 

Hall to contact him after he had seen a doctor and tO-inform the company 

whether he would be returning to work or whether he would be quitting. 

Hall did not contact Light until after he had filed his discrimination 

complaint with MSHA in late 1984. 

Meanwhile, on March 5, 1984, Clinchfield submitted to MSHA a written 

request for revision of its ventilation plan so as to permit the temporary 

repositioning of the line curtain more than ten feet from the face 

during the installation of rib bolts. This revision was approved by 

MSHA one day later, on March 6, 1984. 

Hall obtained further psychiatric counseling and treatment. Hall 

was advised by a psychiatric social worker not to return to work at the 

mine unless he could control his emotional problems. He was also advised 

to transfer to a surface position. Hall testified that, on that advice, 

2/ The roof bolting procedures required to be followed in a mine are 

those set forth in the mine 1 s approved roof control plan. The record 

indicates that Clinchfield, with MSHA's knowledge, changed its procedure 

regarding placement of line curtains without first obtaining a written 

revision to its approved plan. Although the revision eventually was 

formally sought and granted, both Clinchfield and MSHA are well aware of 

the proper recourse when changed mining conditions necessitate a change 

in mining procedures and of the consequences that can ensue when such 

procedures are not followed. 

1626 
at some point in March 1984, he contacted Joseph Pendergast, Clinchfield's 

Manager of Industrial Relations, and requested a transfer to an aboveground 

position. Hall further testified that he was informed that there were 

no surface positions available to which he could be transferred. Pendergast 

denied that any such discussion occurred. 7 FMSHRC at 1483. 

From the day that Hall left the mine on March 2, 1984, until April 22, 

1984, he continued to be paid his salary by Clinchfield. From April 23 

through sometime in June 1984 Hall received benefits under Clinchfield's 

disability insurance program. From June forward, Hall was listed by 

Clinchfield as an employee on leave without pay. When Hall's disability 

benefits stopped, he applied to the Commonwealth of Virginia for workers' 

compensation. On August 29, 1984, his application was denied. 

At some point in August 1984, Hall learned that two miners had been 

transferred by Clinchfield to surface positions. Hall testified that he 

again contacted Mr. Pendergast who, according to Hall, informed him that 

he was not qualified for either position. Pendergast denied that such a 

conversation occurred. 7 FMSHRC at 1483. Because Hall could not find 

other employ~ent in the area, he and his family moved to Broken Arrow, 

Oklahoma, where he was employed as a school custodian. Hall remained in 

Oklahoma until September 30, 1984. He then returned to Virginia, and 

again contacted Clinchfield concerning a possible tranfer. He received 

a letter from Pendergast, dated November 7, 1984, informing him that he 

had been terminated because he had "secured work with another employer." 

Subsequently, Hall filed a discrimination complaint with MSHA. 

MSHA determined that a violation of the Mine Act had not occurred and 

declined to prosecute a complaint on Hall's behalf. Hall then instituted 

this proceeding before this independent Commission pursuant to section 

105(c)(3) of the Act. 30 U.S.C. § 815(c)(3) •. Hall's complaint alleged 

that Clinchfield unlawfully discriminated against him by: (1) causing 

his psychological problems as a result of ordering him to violate federal 

law; (2) failing to transfer him to a surface position; (3) terminating 

him because of his safety complaints; and (4) denying him certain fringe 

benefits. 

After an evidentiary hearing, Administrative Law Judge Broderick 

concluded that Hall had failed to establish a prima facie case of discrimination. The judge found that while Hall's complaints and inquiries 

regarding Clinchfield's roof bolting procedures were protected by the 

Mine Act, his emotional problems stemming from his brother's death "were 

not th~ result of his being 'order[ed] to willfully violate federpl 

law. "' 7 FMSHRC at 14 82. The judge further found that Clinch field's 

refusal to transfer Hall to a surface position, its final decision to 

discharge him, and the denial of insurance benefits and vacation pay 

were all adverse actions but were not motivated in any part by Hall's 

protected activity. 7 FMSHRC at 1482-84. Therefore, the judge dismissed 

Hall's discrimination complaint. 

1627 
On appeal, Hall essentially challenges the judge's factual findings 

and credibility resolutions. The Commission's role in reviewing a 

judge's decision is to determine whether the judge's findings are supported 

by substantial evidence and whether the judge correctly applied the law. 

30 U.S.C. § 823(d)(2)(A)(ii). After carefully examining the entire 

record, we conclude that the judge's decision is supported by substantial 

evidence and is consistent with applicable rulings of the Commission in 

prior discrimination cases. 

In order to establish a prima facie case of discrimination under 

section 105(c) of the Mine Act, a complaining miner bears the burden of 

production and proof in establishing that (1) he engaged in protected 

activity and (2) the adverse action complained of was motivated in any 

part by that activity. Secretary on behalf of Pasula v. Consolidation 

Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on other grounds 

sub. nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 

1981); Secretary on behalf of Robinette v. United Castle Coal Co., 

3 FMSHRC 803, 817-18 (April 1981). The operator may rebut the prima 

facie case by showing either that no protected activity occurred or that 

the adverse action was in no part motivated by protected activity. If 

an operator cannot rebut the prima facie case in this manner, it nevertheiess may defend affirmatively by proving that it also was motivated 

by the miner's unprotected activity and would have taken the adverse 

action in any event for the unprotected activity alone. Pasula, supra; 

Robinette, supra. See also Donovan v. Stafford Construction Co., 732 

F.2d 954, 958-59 (D.C. Cir. 1984); Baich v. FMSHRC, 719 F.2d 194, 195-96 

(6th Cir. 1983)(specifically approving the Commission's Pasula-Robinette 

test). 

As to the first element of a prima facie case, Clinchfield does not 

dispute the judge's findings that Hall's questions and complaints about 

Clinchfield's roof bolting procedures and his actions in shortening his 

mining cuts for safety reasons enjoyed the protection of the Mine Act. 

See 7 FMSHRC at 1482. As to the second elememt of a prima facie case 

judge determined that the following adverse actions were taken 

against Hall: (1) the refusal to transfer him to a surface position; 

(2) his discharge; and (3) the denial of certain fringe benefits. The 

judge found, however, that these actions were in no part motivated by 

Hall's protected activity. 7 FMSHRC at 1483. We agree. 

Concerning Clinchfield 1 s failure to grant Hall's request for a 

transfer to a surface position, the record·reveals that during August 

1984 Clinchfield transferred three miners to certain surface positions. 

Hall asserts that he should have been transferred to at least one of 

these positions because he had requested a transfer in March 1984 and 

was qualified for all three positions. He contends further that because 

of his safety complaints he was not transferred. 

1628 
As noted, Pendergast (Manager of Industrial Relations) denied 

discussing a possible transfer with Hall in either March or August 1984. 

The judge found that, regardless of whether such conversations occurred, 

Pendergast had no personal knowledge of Hall's safety concerns and did 

not refuse to transfer Hall because of those concerns. 7 FMSHRC at 

1483. The evidence supports these findings. Further, Pendergast 

testified that three miners -- Terry Robinson, Doug Ring, Jr., and Bob 

Harding -- were surface workers who were transferred to different surface 

positions in August 1984. He further testified that all were more 

qualified than Hall for these positions. Mr. Robinson, who worked as a 

billing clerk, was transferred to Clinchfield's Moss 3 Preparation Plant 

to prepare him to take over as manager of the shipping department. Mr. 

Ring, also a billing clerk, moved into Robinson's vacated position. 

This move was a lateral one for Ring, not a promotion. Finally, Mr. 

Harding, an employee with 30 years of service with Clinchfield, was 

moved into Ring's position because the position that he had held at the 

central warehouse was about to be terminated. Harding's move also was 

considered to be lateral. The proffered reasons for these transfers 

were not overcome during cross-examination, and we find no reason in the 

record to regard them as anything other than legitimate, good faith 

business decisions. 

Pendergast testified that Hall had not been excluded from any of 

these positions as a result of his having engaged in protected activities. 

Pendergast denied that Hall had discussed his safety concerns with him 

and denied +eceiving, prior to Hall's termination, letters prepared by 

Hall's psychiatric social worker referring to Hall's safety concerns. 

The judge credited Pendergast's testimony in this regard. As the 

Commission often has stated, a judge's credibility resolutions cannot be 

·overturned lightly (e.g., Robinette, supra, 3 FMSHRC at 813), and we 

discern nothing in the present record that would justify our taking this 

extraordinary step in this matter. We find that the judge's findings on 

the transfer issue are supported by substantial evidence and are grounded 

in credibility resolutions that he was in the best position to make. 

With respect to Hall's discharge, the judge found that Pendergast 

had no knowledge of Hall's protected activity at the time he prepared 

the notice of discharge and that he had not consulted with any other 

mine officials prior to terminating Hall. 7 FMSHRC at 1483. Again, the 

record supports these findings. Pendergast testified that he made the 

decision to discharge Hall after he received a notice, dated November 5, 

1984, from Clinchfield's insurance department stating that Hall could 

not prove his state disability claim and that he was working elsewhere. 

Pendergast also stated that he made the termination decision without 

conferring with any other management officials or anyone who knew of 

Hall's safety concerns. Pendergast further asserted that Clinchfield 

"routinely terminate[d]" anyone who obtained another job. Tr. 513. As 

discussed above in connection with the transfer issue, the judge specifically found that Pendergast had no knowledge of Hall's protected activity. 

This finding is a credibility determination and we find no grounds for · 

overturning the judge's resolution of this question • 

1629 
We also are persuaded by the fact that when Hall voluntarily left 

the mine in March 1984, Clinchfield's reaction was supportive, not 

disciplinary. The record reflects that Clinchfield extended Hall leave 

with pay and then provided insurance benefits. Moreover, the termination 

occurred in November 1984 -- nine.months after Hall's departure. There 

is no evidence in this record of hostility towards Hall or of retaliation 

for his safety concerns. In sum, the judge concluded that Hall left 

work voluntarily in March and was discharged for legitimate reasons in 

November. We find no persuasive reasons in this record to disturb the 

credibility resolutions and findings on which the judge's conclusions 

are based. 

Finally, with regard to Hall's claim that he was denied disability 

insurance, vacation pay, and benefits, the judge found that Hall's 

disability insurance payments were discontinued by Clinchfield's insurance 

carrier on the grounds that Hall could not establish that he was disabled 

and because he was working irt Oklahoma. 7 FMSHRC at 1483. The insurance 

carrier arranged for Hall to be examined by a physician, who determined 

that Hall was capable of working and was not disabled. There is no 

evidence in the record to indicate that Clinchfield requested that its 

insurance carrier deny Hall benefits because of his prior protected 

activity. As to the denial of vacation benefits, the judge found that 

this denial was not motivated by Hall's protected activity. This matter 

was not litigated in detail, and there is nothing in the record inconsistent with the judge's finding. We affirm the judge's findings on 

these issues. 

In sum, we agree with the judge that Hall failed to carry his 

evidentiary burden of proving that any of the adverse actions discussed 

above were motivated by his protected activity. 

For the foregoing reasons, the judge's decision dismissing Hall's 

discrimination complaint is affirmed. 

1630 
Distribution 

Kenneth W. Hall 

1215 West Birmingham Place 

Broken Arrow, Oklahoma 74011 

Louis Dene, Esq. 

206 East Main Street 

P.O. Box 1135 

Abingdon, Virginia 24210 

Administrative Law Judge James A. Broderick 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1631 
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 

November 10, 1986 

Docket No. WEST 84-48~M 

ASARCO; INCORPORATED-NORTHWESTERN 

MINING DEPARTMENT 

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

DECISION 

BY: Backley, Doyle, Lastowk.a and Nelson, Commissioners 

This· civil penalty proceeding arises under the Federal Mine Safety 

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

The issue is whether a miner's violation-Of 30 C.F.R. § 57.3-22 (1983), 

a metal-nonmetal underground safety standard regulating ground control, 

was properly attributed to the mine operator, Asarco, Inc. ("Asarco"). 1/ 

The administrative law judge found that Asarco violated the standard -

and assessed a civil penalty of S25. 7 FMSHRC 1714 (October 1985)(ALJ). 

For the reasons that follow, we affirm. 

1/ 30 C.F.R. § 57.3-22 (1983) provides: 

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. 

Following the Secretary of Labor's revision of the metal-nonmetal 

standards in January 1985, this standard is now found unchanged at 

30 C.F.R. § 57.3022 (1985). 

1632 
Asarco's Leadville Unit Mine, an underground metal mine located in 

Lake County, Colorado, produces lead and zinc concentrates. On September 28, 

1983, an inspector of the Department of Labor's Mine Safety and Health 

Administration (''MSHA") began a two-day inspection of the mine. The 

inspector, who was accompanied by Asarco's safety engineer, observed 

miners Alan Lysne and George Naranjo working in stope 15-25-300. (Stopes 

are excavated areas from which ore is mined in a series of steps.) The 

inspector determined that the ribs and back of the stope were loose and 

dangerous. The inspector suggested to the safety engineer that the 

stope be made safe by barring down 2/ the loose rock and by matting 3/ 

the area, prior to any further work-at the face. The safety engineer 

instructed the miners to bar down the loose rock and to make the area 

safe. Neither the inspector nor the safety engineer specifically mentioned 

barring down loose rock at the face of the stope because at that time 

the face was covered by muck (i.e., stone and dirt) and consequently was 

not visible. 

After Lysne and Naranjo received their instructions they proceeded 

to institute ground control measures. They barred down some loose rock 

and installed mats in areas of the stope away from the face. 

Continuing his inspection on the following day,·the inspector saw 

Lysne being carried from the mine on a stretcher. Lysne had been drilling 

in stope 15-25-300 when rock at the face fell, breaking his foot. The 

inspector, along with the safety director and the shift foreman, went 

immediately to the accident scene. 

Upon arriving at the stope, the inspector found that although the 

back of the stope had been secured properly, the face area was unsafe 

because of the amount of loose rock present. In order to secure the 

area, the shift foreman proceeded to bar down the stope. The barringdown procedure took approximately thirty minutes and yielded over one 

ton of loose rock, 

The inspector concluded that vibrations from Lysne's drill caused 

the loose rock to fall from the face. The inspector believed that the 

accident would not have occurred if the loose rock in the stope had been 

barred down as ordered the previous day. Consequently, the inspector 

issued a citation to Asarco alleging a violation of 30 C.F.R. § 57.3-22. 

Following an evidentiary hearing the judge concluded that the 

standard was violated and that Asarco was liable for the violation. The 

judge held that the face where Lysne was working was plainly unstable, 

2/ "Barring down" is defined as: "removing, with a bar, loose rock 

from the sides and roof of mine workings ..• prying off loose rock after 

blasting, to prevent danger of fall." Bureau of Mines, U.S. Department 

of Interior, A Dictionary of Mining, Mineral, and Related Terms 83 

(1968). 

]./ A "mat" is a piece of sheet steel that is used to hold loose ground 

or to keep ground from getting loose. 

1633 
that Lysne did not "examine and test" the face "frequently" as required 

by the standard, and that Lysne ignored the standard's command that 

"loose rock shall be taken down or adequately supported before any other 

work is done. 11 7 FMSHRC at 1716. Stating that "an operator is liable 

without fault for violations committed by its employees," the judge 

concluded that Lysne's "omissions must be imputed to Asarco under the 

strict liability doctrine inherent in the [Mine] Act." 7 FMSHRC at 

1716, 1717 (footnote omitted). 

In assessing a civil penalty for the violation, the judge made 

findings regarding all of the statutory penalty criteria in section 

llO(i) of the Mine Act, 30 U.S.C. § 820(i), but focused his attention 

primarily upon the criterion of negligence. In his brief to the judge, 

the Secretary of Labor ("Secretary") stated that "the effectiveness of 

Asarco's supervision and training is not in issue" and the judge agreed. 

7 FMSHRC at 1719. The judge found that barring down loose ground was 

"an ordinary and almost inevitable phase of the mining cycle" at the 

mine, and that in this regard Asarco's training and supervision of its 

miners, particularly of Lysne, were "adequate under all the circumstances." 7 FMSHRC at 1717. The judge noted that Lysne's supervisors 

had been at the stope on the day prior to the accident and had instructed 

Lysne specifically to "give his first attention to ground control the 

next day." 7 FMSHRC at 1718. The judge found Lysne's decision to begin 

drilling the unstable face "unforeseeable and idiosyncratic." The judge 

found no evidence of "supervisory dereliction" on Asarco's part and 

concluded that Asarco was not negligent. 7 FMSHRC at 1718. The judge 

stated that the other penalty assessment criteria were "overshadowed.by 

the negligence factor" and he assessed a civil penalty of only $25. 

On review there is no dispute that Lysne's conduct violated the 

standard. Asarco contends, however, that under the Mine Act it cannot 

be held liable for a violation of a mandatory standard when the standard 

places responsibility for compliance upon the miner. Asarco also contends 

that it cannot be held liable for a violation because it has taken all 

practicable measures to prevent the miner from violating the standard. 

In effect, Asarco is asking the Commission to re-examine the principle 

that under the Mine Act an operator is liable, without regard to fault, 

for violations of the Act committed by its employees. See Southern 

Ohio Coal Co., 4 FMSHRC 1459, 1462 (August 1982). 

We have examined the principle of liability without fault in the 

light of Asarco's arguments, the language and legislative history of the 

Mine Act, and relevant Commission ~nd court precedent. For the reasons 

set forth below, we reaffirm that under the Mine Act an operator may be 

held liable for a violation without regard to fault and, accordingly, we 

conclude that the judge did not err in holding Asarco liable for the 

violation of 30 C.F.R. § 57.3-22. 

The general principle that .an operator is liable for the violations 

of the Act committed by its employees has been stated frequently. 

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

1634 
Products Co. v. FMSHRC, 666 F.2d 890, 893 (5th Cir. 1982); Southern 

Ohio Coal Co., 4 FMSHRC 1459, 1462 (August 1982); American Materials Corp., 

4 FMSHRC 415, 419 n. 8 (March 1982); Kerr-McGee Corp., 3 FMSHRC 2496, 

2799 (November 1981); El Paso Rock Quarries, Inc., 3 FMSHRC 35, 38-39 

(January 1981). Cf. Ace Drilling Coal Co., Inc., 2 FMSHRC 790-91 (April 

1980), aff'd withO'Ut opinion, 642 F.2d 440 (3rd Cir. 198l)(construing 

1969 Coal Act). 

Asarco argues, however, that each of these cases can be distinguished 

because of the peculiar facts in this case and the fact that the mandatory 

standard at issue here expressly requires compliance by the miner himself. 

Citing section 104(a) of the Mine Act, 30 U.S.C. § 814(a), Asarco asserts 

that an operator can be cited for a violation only when an MSHA inspector 

believes that "an operator has violated [the] Act or any mandatory 

health or safety standard." (Emphasis added). Asarco notes that section 

104(a) is patterned after section 104(b) of the Federal Coal Mine Health 

and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976)(amended 1977)(the 

"Coal Act"), and that section 104(b) readas follows: "[I]f, upon any 

inspection of a coal mine, an authorized representative of the Secretary 

finds there has been a violation of any mandatory health or safety 

standard ... he shall issue a notice of violation to the operator." 30 

U.S.C. § 814(b) (1976). Asarco contends that by changing section 104 to 

require the inspector to issue a citation upon belief that the operator 

has violated the Act or a mandatory health or safety standard, Congress 

intended that operators and miners each be responsible for compliance 

and that an operator be cited only for its own violations. We do not 

find this argument persuasive. 

Section 104(a) sets forth the duties of mine inspectors in enforcing 

the Act. It does not define the scope of the operator's liability. The 

liability of an operator is governed by section llO(a), 30 U.S.C. § 820(a), 

which states: "The operator of a ••• mine in which a violation occurs 

of a mandatory health or safety standard ••. shall be assessed a civil 

penalty .••• " (Emphasis added), The occurrence of the violation is the 

predicate for the operator's liability. 

Further, section llO(a) of the Mine Act is comparable to section 

109(a) (1) of the Coal Act, 30 U.S.C. § 119(a) (1) (1976). ("The operator 

of a coal mine in which a violation occurs of a mandatory health or 

safety standard or who violates any other provision of this Act .•• 

shall be assessed a civil penalty •.•• 11 ) The legislative history of the 

Coal Act indicates that section 109(a)(l) imposed on the operator liability 

without fault for violations of the standards or the statute. In relevant 

pan:, the legislative history states: 

The Senate bill provided that, in determining 

the amount of the civil penalty only, the Secretry 

should consider, among other things, whether the 

operator was at fault. The House amendment did 

1635 
not contain this provision. Since the conference 

agreement provides liability for violation of the 

standards against the operator without regard to 

fault, the conference substitute also provides 

that the Secretary shall apply the more appropriate 

negligence test, in determining the amount of the 

penalty, recognizing that the operator has a high 

degree of care to insure the health and safety of 

persons in the mine. 

Conf. Rep. No. 761, 9lst Cong., 1st Sess. 81 (1969), reprinted in Senate 

Subcommittee on Labor, Committee on Labor and Public Welfare, 94th 

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

and Safety Act of 1969, Part I at 1515 (1975). See also Sewell Coal Co., 

686 F.2d 1066, 1071 (4th Cir. 1982); Ace DrillingGoalCo., Inc., 2 FMSHRC 

at 791; United States Steel Corp • .; 1 FMSHRC 1306, 1307 (September 1979); 

Peabody Coal Co., 1FMSHRC1494, 1495 (October 1979); Valley Camp Coal Co., 

1IBMA196, 200-01 (1972). Neither the Mine Act nor its legislative 

history reveals any indication that Congress sought to disturb the 

scheme of operator liability without fault as it existed under the Coal 

Act. S. Rep. 181, 95th Cong. 1st Sess. at 18 (1977), reprinted in 

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

2nd Sess., Legislative History of the Federal Mine Safety and Health 

Act of 1977, at 606 (1978). This Commission and several courts of 

appeal have interpreted the Mine Act as being consistent with the Coal 

Act on this issue of operator liability without fault. See Sewell 

Coal Co., 686 F.2d at 1071; Allied Products Co., 666 F.2d at 893; 

A.H. Smith Stone Co., 5 FMSHRC 13, 15 (January 1977); Southern Ohio 

Coal Co., 4 FMSHRC at 1462; American Materials Corp., 4 FMSHRC at 419 n. 

8; Kerr-McGee Corp., 3 FMSHRC at 2499; El Paso Rock Quarries, Inc., 

3 FMSHRC at 38-39. We find no basis for distinguishing the present 

case. As the court in Allied Products stated: "If the Act or its 

regulations are violated, it is irrelevant whose act precipated the 

violation ••• ; the operator is liable." 666.F.2d at 894. 

As the judge recognized, the operator's fault or lack thereof, 

rather than being a determinant of liability, is a factor to be considered in assessing a civil penalty. Sewell Coal Co., 686 F.2d at 

1071; Southern Ohio Coal Co., 4 FMSHRC at 1464; Kerr-McGee Corp., 

3 FMSHRC at 2499; El Paso Rock Quarries, 3 FMSHRC at 38-39. Here, when 

fixing the penalty the judge gave appropriate weight to Asarco 1 s lack of 

fault in considering the negligence criterion. !!_/ 

4/ Asarco also argues that imputing the negligence of Lysne to it for 

purposes of liability violates the equal protection clause of the Fifth 

Amendment to the United States Constitution, Asarco raises this argument 

for the first time in its brief on review. Commission Procedural Rule 

70(f) states: "If a petition is granted, review shall be limited to the 

questions raised by the ,petition." 29 C.F.R. § 2700.70(f), See also 

section 113(d)(2)(A)(iii) of the Act, 30 U.S.C. § 823(d)(2)(A)(ii~ 

Because the constitutional question was raised improperly, we decline to 

address it. 

1636 
Accordingly, the decision of the administrative law judge is 

affirmed. 

~-~CA:~~~· t:ichard v. Backley, Commissioner · · 

Lastowka~i:s~~ner 

~'--"~'-/. f (JL'tf-t:7-r\./ 

L. Clair Nelson, Commissioner 

Chairman Ford dissenting: 

1637 
Since the primary purpose of the Mine Act is to prevent fatalities, 

disabling injuries, and other injuries and illnesses among the Nation's 

miners, 1/ it is appropriate to weigh the disposition of every contested 

citation-in light of this fundamental public policy. 

From its inception the Commission has properly focused upon this 

statutory policy. Here, this policy is better served by a broader 

consideration of operator safety practices which effectuate this policy 

than by tr 0 ~ajority's reliance on the statutory language of section 

llO(a) of ._t1e 1977 Mine Act and a single legislative reference to the 

1969 Coal Act as precluding such consideration. Therefore, I would 

respectfully suggest that perhaps the Act and case law may not be as 

constrained as found by the majority with regard to Asarco's defense of 

"unforeseeable and idiosyncratic employee misconduct." 

The defense raised by Asarco has been uniformly recognized as 

legitimate by OSHRC 2/ and by OSHA appeals bodies under state plans 3/ 

and has been variously described as "unforeseen employee misconduct," 

l:_/ Section 2(c) entitled "Findings and Purpose" provides: 

There is an urgent need to provide more effective means and 

measures for improving the working conditions and practices in the 

Nation's coal or other mines in order to prevent death and serious 

physical harm, and in order to prevent occupational diseases originating in such mines; 

2/ Standard Glass Co., 1OSHC1045 (1972); Jensen Constr. Co., 7 OSHC 

l477 (1979). The OSHA Act of 1970, 29 U,S.C. section 651 et seq., does 

not expressly authorize the unforeseeable employee misconduct defense. 

The federal circuit courts have, however, uniformly adopted the defense 

on sound policy and legal grounds. As the Ninth Circuit observed in 

Brennan v. OSHRC, 511 F.2d 1139, 1145 (1975): 

Fundamental fairness would require that one charged with and 

penalized for violation be shown to have caused, or at least to 

have knowingly acquiesced in, that violation. Under our legal 

system, to date at least, no man is held accountable, or subject to 

fine, for the totally independent act of another. 

Accord: Penn Power & Light Co. v. OSHRC, 737 F.2d 350 (3d Cir. 1984); 

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

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

United States v. Park, 421 U.S. 658 (197 5) (analogous defense to criminal 

indictment implied under Federal Food, Drug and Cosmetic Act). 

3/ E.g., Davey Tree Surgery Co. v. Occupat. S&H App. Bd., 167 Cal. 

App. ~1232, 213 Cal. Rptr. 806 (1985). 

1638 
"employee independent act," "employee negligence,n and the like.!:_/ In 

finding for or against the employer when such defense is raised, the 

administrative law judges and appeals bodies have held the employer's 

evidence to a strict test. This test concentrates on the adequacy of 

the employer's general safety training program, the adequacy of the 

subject employee's specific job assignment safety training, the adequacy 

of the level of supervisory control, the employer's system of discipline 

and sanctions imposed on employees who contravene the employer's safety 

rules, the consistency in applying those sanctions, and the employee's 

knowledge that he or she has deliberately and knowingly contravened the 

employer's safety requirements. 5/ Where the employee has been 

~/ The Fifth Circuit's conclusionary rejection of this operator defense 

in Allied Products v. FMSHRC, 666 F.2d 890 (1982) fails to adequately 

consider the identity of enforcement and policy similarities between 

OSHA and the Mine Act. Both statutes require literal employer compliance 

with mandatory safety and health standards. Both statutes place primary 

emphasis upon pre-inspection compliance rather than upon post-accident 

sanctions a~ the means of achieving hazard free working conditions. 

Significantly, both statutes impose compliance responsibilities upon 

employees. Compare section 5(b) of OSHA with section 2(e) of the Mine 

Act. In light of these parallelisms, no persuasive legal or policy 

reason exists for denying mine operators the same defense uniformly 

recognized under OSHA which regulates excavation and flammable liquid 

processing work sites as hazardous as some mining activities, particularly, where adoption serves to promote the Mine Act's identical 

emphasis upon safe work practices by miners as the touchstone for 

reducing the risk of mine accidents. See S. Rep. No. 181 95th Cong. 1st 

Sess. at 18 (1977) ("It is the intention of the Committee that [the 

miner's duty to comply with the Act] will fo~ter the necessary cooperation between miner and operators ••• if the nation's mines are to be 

made truly safe"). 

5/ Here, Asarco has more than met any burden of showing the adequacy 

of its safety program. The majority agrees that Asarco's written safety 

rules, safety procedures with specific emphasis upon ground control, and 

the training and supervision of its miners were "adequate under all the 

circumstances." 7 FMSHRC at 1726. The administrative law judge specifically rejected the Secretary's "suggestion that the accident resulted 

from a supervisory failure." 7 FMSHRC at 1726. Indeed, the administrative 

law judge found that supervisory dereliction on this record would require 

a mine operator to provide one to one supervision of all miners at all 

times. "Nowhere does the Act or the standard in question suggest such a 

draconean requirement." 7 FMSHRC at 1726. Asarco comprehensively 

distributed its safety rules to all miners, including Lysne, who signed 

them acknowledging receipt, and these rules were reviewed in monthly 

safety meetings attended by all miners and supervisors including Lysne 

who began working for Asarco in 1972. Moreover, the administrative law 

judge also found and the majority agrees that Asarco "was not negligent" 

and that "Lysne's decision to begin drilling on an obviously unstable 

face must be regarded as unforeseeable and idiosyncratic."· 7 FMSHRC at 

1726. Neither acts of omission or commission by Asarco contributed in 

any way to Lysne's accident. 

1639 
incapacitated by the alleged misconduct, the cases have also turned on 

other evidence to satisfy this element. 

Since the advent of the "unforeseeable employee misconduct defense", 

there has been a salutary impact on the degree of excellence of employer's 

safety training programs within the jurisdiction of OSHA. As a result, 

safety and health compliance in the workplace has benefitted directly by 

entertaining this defense. An additional benefit has occurred - that 

is, the credibility factor throughout the employer community with concomitant heightened respect for the law which directly fosters voluntary 

pre-inspection compliance focused upon the detection and elimination of 

preventable hazards. 6 This is because the employer knows that due 

consideration will be given to his defense under. circumstances where he 

has done everything reasonably possible to insure a safe workplace, yet 

the act of an employee subjected him to a citation and that act could 

not be anticipated. 

To conclude, as does the majority, that the 1977 Mine Act and 

emerging case law preclude the raising of Asarco's defense would seem to 

detract from the fundamental purpose of the Act as noted above. Such. 

preclusion miscasts the Act in a punitive rather than in its intended 

preventive role. Certainly, it is incumbent upon all operators to 

comply fully with the training requirements of the Act and MSHA training 

regulations. But when the operator knows that its training and safety 

program will come under the strict microscope of administrative and 

judicial forums if an "employee negligence" defense to an alleged violation· 

is to be entertained, pure logic and history under OSHA, dictates that. 

the operator's safety training program and its worksite application will 

be vigorously honed to pass muster, thereby directly benefitting the 

overall safety and health of all miners. It would indeed be a surprise 

if, notwithstanding these benefits, Congress still intended to find the 

conscientious operator guilty of any infraction on the mine property 

entirely outside that operator's control. ]_/ 

6/ Anderson, Buchholz, and Allan, "Regulation of Worker Safety Through 

Standard- Setting: Effectiveness, Insights, and Alternatives, 11 37 Lab. 

L.J. 731 (1986) (creation of self-enforcement incentives better advance 

work place safety than detailed safety standards). 

7/ No provision of the 1977 Act expressly precludes application of the 

~nforeseeable employee conduct defen5e which had been adopted by the 

federal courts under OSHA prior to passage of the Mine Act. Here, the 

plain language of the Mine Act does not bar adoption of the defense. To 

be sure Congress in section llO(a) eliminated administrative discretion 

in assessing civil penalties for operator violations. But this is not 

equivalent to legislating that unforeseeable employee conduct can never 

be a factor in the violation determination. 

The Commission decisions cited by the majority purporting to foreclose the unforeseeable employee misconduct defense on the·basis of per 

~operator liability all involved degrees of operator negligence or--

(footnote 7 continued) 

1640 
With this observation in mind, buttressed by the 1977 legislative 

changes to the 1969 Coal Act in sections 2(e) and (g) emphasizing the 

"primary", in place of the "sole", responsibility of the operator to 

prevent unsafe and unhealthy conditions "with the assistance of the 

miners ••• ", coupled with the change in section 104(a) mandating a 

citation upon the inspector's "belief" rather than a "finding" that the 

operator has violated the Act or regulations adopted pursuant to the 

Act, I respectfully feel the statutory latitude exists to entertain and 

sustain the "unforseeable employee misconduct" defense advancedby 

Asarco in this case. On the record here, which exhibits not a trace of 

negligence by Asarco, as found by the majority, I would find no violation 

of 30 C.F.R. § 57.3-22, and absent a violation within the scope of 

section 104(a), section llO(a) imposing mandatory civil penalties cannot 

be reached and therefore no civil penalty can be assessed. 

This analysis is consistent with the statutory framework of the 

1977 Mine Act. Under sections 104(a) and 105(a), no citation is issued 

or civil penalty proposed unless the Secretary "believes" a violation 

has occurred. In making this determination the "belief" standard of 

section 104(a) contains well within its parameters latitude for reasonable 

belief and thus for consideration of the "unforeseeable employee misconduct 

defense." As in any contested case, the Secretary's belief of a violation 

is not always upheld. And in such cases, the mandatory penalty provision 

of section llO(a) is inapplicable because no violation has been found. 

Thus, it follows that the procedural priority accorded sections 104(a) 

and 105(a) over section llO(a) precludes reliance upon section llO(a) as 

per se foreclosing a defense raised in response to the Secretary's 

initial belief that a violation exists, particulary where, as here, such 

defense is not ruled out by specific statutory language. 

In the mining industry there are varying degrees of excellence in 

mine safety and health training. There are operators who have successfully 

avoided any disabling miner injuries over literally millions of man 

hours worked. Yet, when an operator showing far less attention to 

health and safety matters suffers a tragic accident, the whole industry 

suffers. Similarly, the United Mine Workers of America, the Steelworkers, 

and other labor organizations, including independent company unions and 

employee groups who have earned respect for their excellent safety and 

health training and miner compliance programs, all strive to ensure that 

their co-workers do not, through any aberrant act, reflect adversely on 

these continuing efforts to maintain a safe and healthy workplace. 

Footnote 

acts of omission within the operators control either creating or perpetuating the hazard subject to the citation •. In each of these cases 

that defense, even if entertained, could not be sustained because the 

operator failed to meet the strict requirement of an adequate safety 

program. Compare H.B. Zachry Co. v. OSHRC, 638 F.2d 812 (5th Cir • 

. 198l)(defense fails because employee skipped scheduled safety meetings 

and was given ~nadequate work supervision). 

1641 
Permitting the defense of "unforeseeable employee misconduct," 

measured against the stringent standards required herein, will advance 

significantly the cause of healt.h and safety in the Nation's mines, and 

will complement and encourage the legitimate extra efforts of the majority 

of operators and employee organizations to work towards a hazard free 

mine environment to the greatest extent possible. In contrast, the lack 

of recognition of these cooperative efforts integral to the defense put 

forward here will act to preclude the realization of the additional 

benefits to mine health and safety noted herein. I would allow and 

sustain Asarco's defense and, therefore, dismiss the citation. §_/ 

8/ Accordingly, I find it unnecessary to reach Asarco's claim of 

denial of constitutional equal protection. 

1642 
Distribution 

Earl K. Madsen, Esq. 

Bradley, Campbell & Carney 

1717 Washington Avenue 

Golden, Colorado 80401 

Jerald S. Feingold, 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

1643 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

COLUMBIA PORTLAND 

CEMENT COMPANY 

November 13, 1986 

Docket No. LAKE 86-38-M 

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

Commissioners 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. section 801 ~ 

~ (1982). On October 3, 1986, Chief Administrative Law 

Judge Paul Merlin issued an Order of Default finding respondent 

Columbia Portland Cement Company ("Columbia") in default, 

affirming the citation in issue, and assessing a civil 

penalty of $2000. Thereafter, Columbia filed a timely petition 

for discretionary review with the Commission, requesting 

that the Order of Default and the penalty assessed against 

Columbia be reversed. On November 4, Columhia filed a 

supplementary Memorandum in Support of Petition for Discretionary 

Review specifically addressing its failure to respond to the 

July 7, 1986 Order to Show Cause which resulted in the 

October 3, 1986 Order of Default, 

Default is a harsh remedy, and if a defaulting party 

can make a showing of adequate or good cause for a failure 

to respond to an order, the failure may be excused and 

proceedings on the merits permitted. M.M. Sundt Constr. 

Co., 8 FMSHRC 1269 (Sept. 1986). Columbia asserts that its 

ailure to respond to the July 7, 1986 Order to Show Cause 

is attributable to the mistake or neglect of a former employee. 

In the interests of justice we conclude that Columbia should 

have the opportunity to present its position to the judge. 

1644 
Accordingly, we vacate the Order of Dismissal and remand the 

case for further proceedings consistent with this Order. 

Fife Ro~k Products Co., 8 FMSHRC (October 1986). 

Distribution 

John C. Ross, Esq. 

Ross & Robertson 

Suite 200, Renaissance Centre 

4580. Stephen Circle, N.W. 

Canton, Ohio 44718 

Marcella L. Thompson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

881 Federal Building 

1240 East Ninth Street 

Cleveland, Ohio 44199 

Ann Rosenthal, Esq. 

Office of the .Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

·X.~irman /I . 

. . ,,,C<,_£,f-t.t:- .. ~~ 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K St., N.W., Suite 600 

Washington, D.C. 20006 

1645 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

November 18, 1986 

Docket No. WEST 86-14-M 

MOHAVE CONCRETE AND MATERIALS 

INCORPORATED 

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

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under tbe Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). On October 9, 

1986, Chief Administrative Law Judge Paul"""Merlin issued an Order of 

Default finding respondent, lv""'°have Concrete and }{.aterials, Inc. ("Mohave") 

in default, for its failure to respond to the judge's August 20, 1986 

Show Cause Order, and assessing civil penalties totalling $1,231. 

Thereafter, on October 22, 1986 Mohave sent a letter to the judge requesting the judge to vacate the Order of Default and to reopen the · 

case. We consider Mohave's letter to the judge to be a timely Petition 

for Discretionary Review. 29 C.F.R. § 2700.S(b) and 2700.?0(a). 

Default is a harsh remedy, and if a defaulting party can make a 

showing of adequate or good cam'!e for a failure to respond to an order, 

the failure may be excused and proceedings on the merits permitted. 

M.M. Sundt Constr. Co., 8 FMSHRC 1269 (September 1986). Mohave asserts 

that its failure to respond to the August 20, 1986 Order to Show Cause 

is attributable to the mistake or neglect of a former bookkeeper. 

1646 
Accordingly, we vacate the Order of Defaui~ and remand to the judge 

for such further proceedings as he deems appropriate as to either the 

sufficiency of the cause asserted or the underlying merits of the 

case. '};./ 

<royce A. Doyle, Commiss /. ner 

]j Commissioner L. Clair Nelson believes that Mohave has not shown 

good cause for failing to comply with the Chief Administrative Law 

Judge's Show Cause Order of August 20, 1986, and in the absence of any 

argument concerning due.process·in this proceeding he would affinn the 

judge's order of default. 

1647 
Distribution 

Mr. Quinto Polidori, President 

Mohave Concrete & Materials, Inc. 

450 Highway 85 North 

Lake Havasu City, Arizona 86403 

Marshall P. Salzman, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

P .o .. Box 36017 

San Francisco, California 94102 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

1648 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 6 1986 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

Docket No. CENT 86-151-DM 

MSHA Case No. MD 86-35 

YALE E. HENNESSEE, 

Complainant 1604 Quarry and Plant 

v. 

ALAMO CEMENT COMPANY, 

Respondent 

Appearances: 

Before: 

ORDER OF TEMPORARY REINSTATEMENT 

Frederick w. Moncrief, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for Complainant; 

David M. Thomas and Roberts. Bambace, Esqs., 

Fulbright & Jaworski, Houston, Texas, for 

Respondent. 

Judge Koutras 

of the 

This proceeding concerns an Application for Temporary 

Reinstatement filed by MSHA on September 10, 1986, pursuant 

to section 105(c)(2) of the Federal Mine Safety and Health 

Act of 1977, and Commission Rule 29 C.F.R. § 2700.44(a), seeking the temporary reinstatement of the complainant Yale E. 

Hennessee to his position as an electrician at the respondent 1 s 1604 Quarry and Plant. MSHA has concluded that the 

complaint of discrimination filed by Mr. Hennessee is not 

frivolous. In support of this conclusion, MSHA has filed an 

affidavit executed by Wilbert B. Forbes, Chief of Special 

Investigations, Metal and Non-Metal Division, MSHA, Arlington, 

Virginia, a summary of the alleged discriminatory action, and 

a hand-written statement by Mr. Hennessee in support of his 

complaint. 

1649 
The respondent filed a request for a hearing pursuant to 

29 C.F.R. § 2700.44(b). By agreement of the parties, a hearing was scheduled for October 15, 1986, but it was cancelled 

because of certain budgetary constraints. It was subsequently 

rescheduled and held in San Antonio, Texas, on October 23, 

1986, and the parties appeared and participated fully therein. 

Issue 

The issue presented in this proceeding is whether or not 

MSHA 1 s complaint on behalf of Mr. Hennessee is frivolous. 

MSHA's Testimony and Evidence 

Yale E. Hennessee, confirmed that until his discharge on 

April 17, 1986, he was employed by the respondent as a instrumentation technician or electrician. In his opinion, he was 

discharged because "I refused to be bullied" into doing something which he believed was unsafe, namely, the removal of a 

motor from the bottom of clinker dome 2 which was littered 

with clinker and which presented a slip and fall hazard. 

Mr. Hennessee stated that on the afternoon of April 17, 

1986, production foreman Frank Garcia requested Damon Smith 

to repair a burned out motor on a feeder located at the No. 2 

clinker dome. Mr. Smith asked him to assist in the repairs, 

and they took a replacement motor to the area with a hand 

truck. The motor was taken down a sloping concrete walkway 

or ramp tunnel which was sloped at approximately 30 degrees. 

The ramp had handrails on both sides~ and Mr. Smith had one 

hand on the rail and one hand on the truckv as did 

Mro Hennesseeo The motor weighed approximately 100 to 

110 poundsv and the ramp was littered with 8 to 10 inches of 

clinker ranging from "small marble" size to "golf ball" size. 

Mro Hennessee stated that while taking the motor down 

the rampv he and Mro Smith lost their balance several times 

because of the clinkeru and had some difficulty in transporting the motor down the ramp because of the slippery footing. 

He stated that the belt had been buried the evening before 

with spillage, and that the normal practice is to clean up 

and remove the clinker from the belt. 

Mr. Hennessee stated that after the burned out motor was 

changed out, he and Mr. Smith decided to leave the old motor 

in the dome and they placed it out of the way. They decided 

not to take it out because of the trouble they had in bringing it in, and they did not believe that they could have 

removed it safely. They also considered the fact that there 

were two other motors in the warehouse, and they did not 

1650 
believe it was necessary to immediately remove the burned out 

motor from the area. Mr. Hennessee stated that had the old 

motor been needed, he would have removed it. 

Mr. Hennessee stated that after replacing the burned out 

motor, he left the dome area to remove his lock-out device 

from the motor breaker and that the slippery footing condition 

of the ramp still existed as he exited the area. Mr. Smith 

remained behind to replace the motor guard and to check out 

the motor rotation. Mr. Hennessee then called the control 

room and informed Foreman Homer Zapata that the motor had been 

repaired and that he should check the feeder belt flow. He 

did not inform Mr. Zapata that the burned out motor had not 

been removed. 

Mr. Hennessee stated that at approximately 3:45 p.m., he 

and Mr. Smith were in the shop cleaning up. Their work shift 

ended at 4:30 p.m. Mr. Garcia came to the shop and informed 

them that the motor which they had installed was not operating 

properly, and that they had not replaced the guard or removed 

the old motor. Mr. Hennessee stated that Mr. Garcia was belligerent and accused them of not doing the job right. He also 

indicated that Mr. Garcia told them if they could not do the 

job right he no longer needed them and that they could "punch 

out." Mr. Hennessee stated that he attempted to explain the 

situation to Mr. Garcia but that he would not listen. 

Mr. Hennessee stated that after the confrontation with 

Mr. Garcia, he and Mr. Smith went to see their supervisor Bob 

Pratt. Mr. Garcia and plant manager Ed Pierce were there, 

and Mr. Hennessee informed Mr. Pierce that he did not have to 

put up with Mr. Garcia's abuse and harrassment. He also 

informed Mr. Pierce that unless the dome walkway ramp was 

cleaned up, he would not remove the old motor. He also 

informed Mr. Pierce that the walkway ramp was unsafe. 

Mr. Pierce asked him to "cool off" and advised him that he 

would go to the dome ramp area to check it out. 

Mr. Hennessee stated that Mr. Pierce and Mr. Garcia then 

left to check out the ramp. Upon their return, Mr. Pierce 

advised him that he and another employee had removed the 

burned out motor by carrying it out of the dome by means of a 

rag placed through the motor eyelet. Mr. Pierce also informed 

him that the ramp walkway was "totally cleaned" and safe. 

Mr. Hennessee stated that Mr. Pratt then told him to go 

home and "cool off." Mr. Hennessee left the mine and took 

his tools with him. He did so because he believed his dismissal was "imminent." Mr. Hennessee stated that he advised 

1651 
Mr. Pratt that he did not remove the old motor because he 

believed it could not be removed safely. 

Mr. Hennessee stated that he later spoke with Mr. Pratt, 

and he was asked to write a letter stating his position and 

to meet with Mr. Pratt on April 18, 1986, to discuss the 

matter further. Mr. Hennessee was then summoned to a meeting 

on April 22, 1986, and present were Mr. Pratt, Mr. Pierce, 

and personnel manager Galindo. 

Mr. Hennessee stated that when he went to the April 22, 

meeting he assumed he would be reprimanded. In fact, he was 

terminated for insubordination because of his refusal to 

remove the burned out motor. 

Mr. Hennessee confirmed that since his termination he 

has not had regular employment, but has done contract labor 

and sub-contracting work. He also confirmed that he felt 

some loyalty to the respondent because they took care of him 

when he was previously injured on the job. He also indicated 

that the respondent sent him for training at a G.E. school in 

Virginia, in January, 1986, and that he was always available 

and willing to work overtime, and responded to requests to 

work evenings to solve problems as required by the respondent. 

On cross-examination, Mr. Hennessee conceded that in his 

April 20, 1986, statement to the respondent he did not mention 

his prior injury or that this was a consideration in his 

refusal to remove the motor from the dome area. He confirmed 

that he filed his discrimination complaint with MSHA on 

April 23r the day following his termination. He confirmed 

that he was angry on April 17 1 and that he was "carried away" 

and "let his mouth get away from him" over the incident with 

Mr. Garcia. He also confirmed that after his termination, he 

made up his mind to do what he could to save his job. 

Mr. Hennessee reiterated that the dome walkway ramp area 

was unsafe when he went down with Mr. Smith with the motor, 

and that it was unsafe when he left the area after changing 

out the motor. He stated that he did not clean up the ramp 

area before taking the motor down because he had never been 

expected to do so in the past. 

Mr. Hennessee confirmed that the plant is non-union, and 

that the respondent has rules requiring persons who perform 

work to clean up their work areas when the work is completed. 

He also confirmed that he did not request anyone to clean up 

the ramp area before he and Mr. Smith took in the replacement 

motor. 

1652 
Mr. Hennessee reiterated that Mr. Garcia was belligerent 

and accused him of failing to repair the motor, failing to 

replace the motor guard, and failing to remove the old motor. 

He confirmed that he advised Mr. Pratt that he would not work 

if he had to take abuse, and would instead quit. He confirmed 

that Mr. Pierce heard his comments in this regard. 

Mr. Hennessee confirmed that he never returned to the 

ramp area on April 17, after he was told to go home, and 

could not have known that the area was unsafe. He also confirmed that his prior statement made no reference to running 

the hand-truck with the motor into the ramp wall, and that he 

had not notified anyone that he had left the burned out motor 

in the dome. 

MSHA Inspector Paul Belanger confirmed that he conducted 

the investigation of Mr. Hennessee's complaint. He confirmed 

that.he found no basis for concluding that Mr. Hennessee violated any company rules, and no one related to him that there 

were other times when equipment was left at work sites after 

the work was completed. 

Mr. Belanger stated that when he inspected the walkway 

ramp area in question it was in good condition and safe. He 

confirmed that management personnel seemed to be aware of the 

fact that the ramp area had spillage problems. He stated 

that when he walked the ramp he made certain to hold onto the 

handrail. Although he observed some clinkers on the ramp and 

lost his footing, the ramp condition did not warrant the 

issuance of a citation. 

Mr. Belanger confirmed that no one from mine management 

denied the existence of clinker spillage on the walkway ramp 

in question, nor did they deny Mr. Hennessee's assertions 

that he believed the condition of the ramp was unsafe. 

Mr. Belanger also confirmed that his irtvestigation revealed 

that Mr. Hennessee was an exemplary employee and that he had 

never refused any work in the past, and had no prior personnel 

actions taken against him. 

Mr. Belanger confirmed that the respondent was cooperative during his investigation and provided access to its 

employees. 

1653 
Respondent's Testimony and Evidence 

Frank Garcia, production superintendent, confirmed that 

on April 17, 1986, he assigned Damon Smith the task of changing out a burned out motor on the feeder in the Number 2 

.clinker dome. Mr. Smith said nothing to him about the condition of the ramp walkway. After completion of the work, Homer 

Zapata advised him that the walkway ramp had been swept and 

cleaned and that a "path" had been cleared of clinkers. 

Mr. Zapata also informed him that the motor guard had been. 

left off, that the old motor had not been removed from the 

area, and that the feeder motor was still not working properly. Mr. Garcia then confronted Mr. Smith and Mr. Hennessee 

a.nd told them "if they couldn't do the job right to punch 

out." 

Mr. Garcia stated that he believed that the walkway ramp 

was safe on April 17, and that the old motor could be safely 

removed. He confirmed that he did not participate in the 

decision to terminate Mr. Hennessee from his employment with 

the respondent. 

On cross-examination, Mr. Garcia stated that when he 

confronted Mr. Smith and Mr. Hennessee they said nothing to 

him about any safety concerns. He reiterated that the ramp 

had been cleaned and that there was a clear 3-foot wide 

"pathway" extending the length of the 4-foot wide ramp. 

Mr. Garcia confirmed that when Mr. Pierce brought out 

the motor, he had to.hold onto the walkway railing, and that 

he did so because he may have considered it unsafe. He 

expressed agreement with Mr. Pierce's statement of April 17, 

1986, including the statement by Mr. Hennessee that he would 

still not remove the motor the day after it was removed by 

Mr. Pierce. Mr. Garcia stated that it was his opinion that 

the walkway ramp was not unsafe on April 17, and that not no 

slip hazard existed. 

Ed Pierce, respondent's works manager, confirmed that he 

is in charge of all plant production. He stated that 

Mr. Hennessee was a good employee and that he spoke with him 

on April 17, at approximately 3:30 p.m. He stated that he 

encountered Mr •. Gare ia, Mr. Hennessee, and Mr. Smith at that 

time and that they were talking at the same time with regard 

to .the motor repairs in question. Mr. Hennessee stated that 

"you can get someone to punch in for me in the morning," and 

Mr. Pierce asked him to quiet down. Mr. Garcia was complaining that Mr. Smith and Mr. Hennessee had not done their job 

of changing out the motor, and Mr. Smith insisted that they 

1654 
had. Mr. Hennessee stated that he and Mr. Smith did not 

remove the old motor because they believed it would have been 

unsafe to do so. 

Mr. Pierce stated that he and -Mr. Garcia proceeded to 

the ramp area, and Mr. Pierce observed that a "path" had been 

cleared on the ramp walkway, and he believed that it was safe. 

He and another employee brought out the old motor with no 

problems. Mr. Pierce confirmed that clinker was present 

under the hand rail on the left side of the ramp, and under 

the conveyor belt on the right side of the ramp. 

Mr. Pierce stated that the motor guard was off, and that 

the new motor appeared to have been installed properly.but 

was vibrating excessively. After removing the old motor from 

the area, he returned to the second floor break room, and 

continued his discussion with Mr. Hennessee. He informed 

Mr. Hennessee that he considered the ramp to be safe, and 

Mr. Hennessee informed him that even so, he would not go to 

the dome area the next day to remove the motor. 

Mr. Pierce stated that the decision to terminate 

Mr. Hennessee was a "group decision" reached on April 21, 

1986, by himself, Vice President Jim Gordon, President Hopper, 

and Mr. Galindo. Mr. Hennessee was informed of the decision 

on April 22, 1986, when he was issued the "warning" and termination notice (exhibit C-1). Mr. Pierce stated that 

Mr. Hennessee was terminated for insubordination because of 

his statement that he would not on the next day remove the 

motor from the clinker dome area in question. Mr. Pierce 

confirmed that Mro Smith was not insubordinate, and no action 

was taken against himv and he is still employed with the 

respondent. 

Gregory Fuentesv yard supervisor, stated that he was 

responsible for plant housekeeping. He confirmed that he was 

aware of the dispute of April 17v between Mr. Garcia, 

Mr. Hennessee, and Mr. Smith with regard to the replacement 

of the motor in the clinker dome. Mr. Fuentes stated that at 

l2 noon on that day he assigned contract employees Davis and 

Hickey to clean up and sweep the ramp walkway area in question. He stated that they finished this work at 3:00 p.m., 

and that he went to the area and confirmed that it had been 

cleaned up. Mr. Fuentes estimated that it took 2 hours to 

clean up the area. He stated that Mr. Davis and Mr. Hickey 

cleared a path down the ramp by sweeping the clinker under 

the belt, and that when the belt was rendered operational 

again the clinker would have been loaded on the belt and 

taken out of the area. 

1655 
By agreement and stipulation, of the parties, respondent's counsel preferred the testimony of electrical supervisor Robert Pratt, Foreman Homer Zapata, and supervisor Rene 

Chevera. 

The parties stipulated that if called to testify, 

Mr. Pratt would confirm his discussions with Mr. Hennessee 

concerning the circumstances which prompted his encounter 

with Mr. Garcia, and Mr. Hennessee's reluctance to remove the 

burned out motor in question from the clinker dome, including 

Mr. Hennessee's statement that he would not remove the motor 

the day following the incident in question on April 17, 1986. 

The parties stipulated that if called to testify, 

Mr. Chevera would confirm that he and Mr. Pierce removed the 

burned out motor in question after Mr. Hennessee's refusal to 

do so, and that the dome walkway ramp area was cleaned up and 

safe to travel. · 

The parties stipulated that if called to testify, 

Mr. Zapata would confirm that after being informed by 

Mr. Hennessee that he and Mr. Smith had completed the job of 

changing out the burned out motor, Mr. Zapata found that the 

old motor had not been removed from the work area, that the 

motor guard was not in place, and that the replacement motor 

was not operating properly. 

Documentary Evidence 

The following documents were tendered by the complainant, 

and received in evidence in this proceeding: 

1. The Employee warning Record and Termination Notice 

issued to Mr. Hennessee by the respondent terminating his 

employment on April 22, 1986, for "Insubordination." 

(Exhibit C-1). 

2. A copy of a work order dated April 15, 1986). 

(Exhibit C-2). 

3. Eight copies of Respondent's No. 1 Finish Mill 

Inspection/Checklists dated April 15, 16, 17, 1986. (Exhibit 

C-3). 

4. Four copies of Respondent's Safety and Health 

Inspection Checklists dated April 15, 17, 18, 1986. (Exhibit 

C-4). 

1656 
5. April 17, 1986, statement by respondent's Works 

Manager Ed Pierce. (Exhibit C-5). 

6. Statement incorporated in exhibit C-1, under 

"Company Remarks." (Exhibit C-6). 

7. Copy of respondent's "Work Rules." (Exhibit C-7). 

8. Copy of respondent's safety policy (exhibit R-1). 

Findings and Conclusions 

As stated earlier, the issue in this limited proceeding 

at this time is whether or not MSHA had made a reasonable and 

credible showing that the discrimination complaint filed on 

behalf of Mr. Hennessee is not frivolous. 

Webster's New Collegiate Dictionary defines the term 

"frivolous" as "of little weight or importance." Black's Law 

Dic~ionary, Revised Fourth Edition, 1968, defines the term as 

follows: 

- - - "lacking in legal sufficiency" 

- - - "clearly insufficient on its face" 

- A "frivolous appeal is one presenting 

no justiciable question and so readily 

recognizable as devoid of any merit on 

face of record that there is little 

prospect that it can ever succeed" 

Mr. Hennessee's testimony regarding the existence of 

clinker spillage material on the walkway ramp at dome No. 2 

on April 17, 1986, is corroborated by the respondent's inspection checklist reports (exhibits C-3 and C-4). In addition, 

in his statement of April 17, 1986, Mr. Pierce admitted that 

"there was some clinker in the walkway going to the bottom of 

the dome" (exhibit C-5). Although Mr. Pierce states that the 

walkway could be travelled safely, he qualified his statement 

by indicating that it could be safely trav.elled "if you used 

the handrails." The statement.also reflects that when 

Mr. Pierce and Mr. Garcia retu"rned to the dome to retrieve 

the old motor left by Mr. Smith and Mr. Hennessee, Mr. Pierce 

had to hold on to the handrail so that he would not slip on 

the clinker. Mr. Pierce's statement contains no assertion 

that the walkway had been cleaned or swept so as to leave any 

"pathway" clear of clinker. 

Mr. Pierce testified that when he and Mr. Garcia returned 

to the dome area, he observed that a npath". had been cleared 

1657 
of clinker. However, he conceded that clinker material still 

existed under the handrails and the belt. 

Although Mr. Garcia testified that the walkway ramp was 

clear of clinker, he indicated that a "pathway" 3-feet wide 

had been cleared, but he did not indicate that the entire 

width of the ramp had been swept or cleared of the clinker. 

He also indicated that Mr. Zapata informed him that the ramp 

had been swept clean, but that this information was given to 

him after the completion of the work by Mr. Smith and 

Mr. Hennessee. 

Mr. Fuentes testified he assigned employees Davis and 

Hickey to clean the walkway at 12 noon, and that it took them 

2 hours to do the work. He stated that the work was completed 

at 3:00 p.m., when Mr. Fuentes went to the area to confirm 

that the cleanup had been done. However, Mr. Fuentes confirmed that all of the clinker had not been removed from the 

ramp, and that only a "pathway" had been provided, and that 

the clinker had simply been swept under the belt and that it 

would be completely loaded out when the belt was again 

operational. 

The respondent's safety inspection checklist for 

April 17, 1986, reflects that upon an inspection of the plant 

conducted between the hours of 2:00 p.m. and 10:00 p.m., a 

hazard existed on "ramp to dome No. 2 clinker spillage." The 

checklist report for April 18, 1986, reflects that an inspection conducted at 3:00 a.m., reflected tripping hazards under 

Dorne No. 2 by the belt feeder, and that scattered clinker may 

have been present at that same location (exhibit C-4). 

Another report for the first shift on April 17, 1986, reflects 

spillage at the L-27 belt, and another report for the 10:00 

p.rn. shift reflects spills at the L-27 belt, and spillage at 

Dome No. 2 along the L-27 belt and catwalk (exhibit C-3). 

Mr. Hennessee's testimony and his prior statements 

reflect a consistent belief on his part that his reluctance 

to remove the burned out motor after the completion of his 

repair work on April 17, 1986, was based on his belief that 

the existence of clinker material on the ramp walkway rendered the ramp unsafe to traverse with the motor. Further, 

Mr. Pierce's statement of April 17, 1986 (exhibit C-5), and 

his testimony, support Mr. Hennessee's contention that he. 

communicated his safety concerns to Mr. Pierce as the reason 

why he was reluctant to initially remove the burned out motor 

from the dome after the completion of ·the job. 

1658 
Mr. Garcia's testimony that Mr. Smith said nothing to 

him about the condition of the ramp walkway is contradicted 

by Mr. Hennessee's statement to Inspector Belanger during an 

interview on May 1, 19.86. A copy of· the interview was 

reviewed by me in camera, and it contains a statement by 

Mr. Hennessee that Mr. Smith informed him that he told 

Mr. Garcia that the walkway was littered with clinker spillage, and that Mr. Smith wanted Mr. Garcia to be aware of this 

fact in the event that Mr. Hennessee and Smith were held 

responsible if they were to fall on the ramp. 

Mr. Garcia's assertion that he was not made aware of any 

clinker on the ramp is also contradicted by the narrative 

"Company Remarks" portion of the warning and termination 

decision of April 22, 1986 (exhibit C-1). That statement 

reflects that Mr. Hennessee informed Mr. Garcia that he would 

not return to take the motor out of the dome because it was 

unsafe with spilled clinker on the ramp and that he had 

nearly fallen when he and Mr. Smith went down the ramp to 

install the new motor earlier. 

After careful review of the testimony, evidence, and 

pleadings filed in this matter, I conclude and find that it 

raises a viable issue as to whether or not the incident which 

prompted Mr. Hennessee.'s termination, that is, his statement 

to Mr. Pierce that he would not go to the dome and remove the 

motor, justified his termination, or whether his refusal or 

reluctance was in any way prompted by his asserted belief 

that to retrieve the motor in the circumstances then presented, was the result of a reasonable belief on his part 

that to do so would expose him to an injury, hazard, or 

danger. 

In view of the foregoing, I conclude and find that the 

complaint filed in this matter has merit and is not frivolous. 

Accordingly, I further conclude that pursuant to Commission 

Rule 44, 29 C.F.R. § 2700.44(d), MSHA's application for the 

temporary reinstatement of Mr. Hennessee pending a final 

determination of his complaint on the merits should be 

granted. 

ORDER 

Respondent IS ORDERED to immediately reinstate 

Mr. Hennessee to his electrician's position at the prevailing 

wage rate for that position and with the same or equivalent 

duties as assigned to him immediately prior to his discharge. 

1659 
During the course of the hearing, MSHA's counsel stated 

that MSHA will soon file its discrimination complaint. The 

respondent will have a full opportunity to respond, and the 

parties will be afforded an opportunity to be heard on the 

merits of the complaint. They will be notified further as to 

the time and place of the hearing. 

/l,/ :;.v.:_ .. !;e'~<fje 

.. _>:;!~/\~ Kou ~ tr a A>~~ Adminis rative Law Judge 

Distribution: 

Frederick w. Moncrief, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

David M. Thomas, Robert S. Bambace, Esqs., Fulbright & 

Jaworski, 1301 McKinney Street, Houston, TX 77010 (Certified 

Mail) 

/f b 

1660 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

QUARTO MINING COMPANY, 

Respondent 

NOV 6 1986 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 85-17 

A.C. No. 33-01157-03673 

Powhatan No. 4 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On October 30, 1986, the Secretary filed a motion for 

approval of a settlement reached by the parties in this case. 

The violations were originally assessed at $2700 and the parties 

propose to settle for $800. 

Two violations are charged in this Docket, both charging 

violations of 30 C.F.R. § 70.lOO(a) because based on dust 

samples collected, the average concentration of respirable 

dust in the working environment of two designated occupations 

exceeded 2 milligrams per cubic meter of air (the first 

violation charged that the average concentration was 4.9 mg/m3; 

the second that it was 2.3 mg/m3). 

The motion states that the penalty reduction is based 

on the fact that Respondent was in the process of revising 

its dust control plan at the time the citations were issued 

(June 14, 1984). A new plan was submitted in July 1984, and 

it has been successful in reducing respirable dust violations. 

Respondent has a favorable history of prior violations at 

the subject mine. I.have considered the motion in the light 

of the criteria in section llO(i) of the Act, and conclude 

that it should be approved. 

Accordingly, the settlement is APPROVED and Respondent 

is ORDERED TO PAY the sum of $800 within 30 days of the date 

of this order. 

11?~ fa3nJ~d J James A. Broderick 

Administrative Law Judge 

1661 
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, NOV 6 198c§:VIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA} , 

Petitioner 

v. 

QUARTO MINING COMPANY, 

Respondent 

Docket No. LAKE 85-24 

A.C. No. 33-01157~03680 

Powhatan No. 4 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On October 30, 1986, the Secretary of Labor filed a 

motion for· approval of a settlement reached by the parties 

in this case. The violations were originally assessed at 

$2850 and the parties propose to settle for $1324. 

This docket contains two alleged violations, one of 

30 C.F.R. § 70•.lOO(a) because the average concentration of respirable 

dust in the environment of a designated occupation exceeded 

2.0 mg/m# (it was 3.3 mg/m3) ;;the other alleged violation was 

of 30 C.F.R. § 75.400 because of an accumulation of loose 

coal along a belt conveyor the firs.t named violation was 

assessed at $1000; the second at $1850. The settlement 

agreement reduces them to $424 and $900. 

The motion states that the operator was in the process 

of revising its dust control plan at the time the citation 

was issued. A revised plan was submitted in July 1984 and 

it has been successful in reducing respirable dust violations. 

With respect to the accumulations violation, the motion states 

that it resulted from intermittent spillage due to a 

misalighed belt and would be cleaned up in accordance with 

its clean up plan. Respondent has a favorable history of 

prior violations. 

I have considered the motion in the light of the criteria 

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

approved. 

Accordingly, the settlement is APPROVED and Respondent 

is ORDERED TO PAY the sum of $1324 within 30 days of the date 

of this order. 

1 vv-t~S /f f!J hJd&/f/; /!/._ 

,j James A. Broderick i I , 

v Administrative Law Judge 

.1662 
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 

ADMINIS'l'RATION (MSHA) I 

Pe ti 

v. 

QUARTO MINING COMPANY, 

Respondent 

NOV 6 1986 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 85-27 

A.C. No. 33-01157-03682 

Powhatan No. 4 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On .October 30, 1986, the Secretary of Labor filed a 

motion for approval of a settlement reached by the 

this case. The violations were originally assessed at 

$1000 and the parties propose to s for $450. 

One violation charged, of 30 C.F.R. § 70.101, because 

the average respirable dust concentration in the working 

environment of a designated occupation exceeded. The limit 

of 1.6 mg/m3 (the dust contained more than 5% quartz). The 

samples showed an average concentration 3.4 mg/m3. 

The motion states that the operator was in the ss 

of revising dust control plan at the time the citation 

was issued. A sed plan was submitted in July 1984 and 

it has been successful in reducing respirable dust violations. 

I have cons 

in section llO(i) 

approved. 

the motion in the light of the criteria 

the Act, and conclude that should be 

Accordinglyr the settlement is APPROVED and Respondent 

is ORDERED TO PAY the sum of $450 within 30 days of the date 

of this order. 

ll~ · C/JVZ/dt_,1/r--~ f /f I 

James A. Broderick 

v Administrative Law Judge 

1663 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 6 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

B D & J COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. VA 86-42 

A.C. No. 44-06211-03508 

No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On November 4, 1986, the Secretary filed a Response to 

my orcier of October 20, 1986, denying a motion to approve 

a settlement agreement in this case. With the response, 

the Secretary renewed its motion to approve settlement. 

The five violations involved here were originally assessed 

at $1955. The parties propose to settle for $1755. 

With respect to three of the violations, the settlement 

amount is the amount originally assessed. Each of the other 

two was originally assessed at $800, and the parties propose 

to settle for $700 each. The Secretarv's response states 

that after the citations were issued, Respondent's president 

visited the MSHA Subdistrict Office and discussed the roof 

control and pillar recovery methods at the subject mine. 

The section foreman responsible for the section where the 

violations occurred and two roof bolters were terminated 

for failure to properly install roof bolts in the section. 

MSHA's Subdistrict Office has stated that better supervision 

and the hiring of more competent personnel should result 

in greater compliance with safety regulations at the mine. 

I have considered the motion in the light of the criteria 

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

be approved. 

Accordingly, the settlement is APPROVED and Respondent 

is ORDER~D TO PAY the sum of $1755 within 30 days of the 

date of this order. 

jcv{;WZ-~ Af3vo~ (J James A. Broderick 

Administrative Law Judge 

1664 
FEDERAL MINE SAFETY AND HEAL"rH 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) , 

ex. rel. MICHAEL HOGAN 

and ROBERT VENTURA, 

NOV 7 

Complainants 

v. 

EMERALD MINES CORPORATION, 

Respondent 

1986 

DISCRIMINATION PROCEEDING 

Docket No. PENN 83-141-D 

MSHA Case No. PITT CD 83-3 

Emerald No. 1 Mine 

SUPPLEMENTAL DECISION AND ORDER 

Before: Judge Koutras 

Statement of the Case 

On July 31, 1986, the Commission issued its decision in 

this matter and reversed my decision of December 20, 1983, 

dismissing the complaint. Secretary of Labor, et al., v. 

Emerald Mines Corporation, 8 FMSHRC 1066 (July 1986). At 

8 FMSHRC 1075, the Commission noted that "There is no dispute 

that the five-day suspension of Hogan and Ventura was motivated 

by the complainants' protected activity," and it remanded the 

matter to me for determination of appropriate remedies. 

In response to my orders issued subsequent to the remand, 

the parties have filed a stipulation and agreement as to the 

issues of back pay and other remedies, and they are in pertinent 

part as follows: 

1. The parties agree and stipulate herein as 

to the appropriate amounts of back pay, hearing and 

litigation expenses and civil penalties. The parties 

also agree that this stipulation contains any and all 

remedies which might be considered appropriate, that 

no further hearings are necessary in this matter and 

that an order pertaining to Complainants' remedies 

may be entered. 

1665 
2. By entering into this stipulation Emerald 

does not admit any violation of the Act, that it is 

liable for any penalties or remedies contained 

herein, or that Messrs. Hogan and Ventura are 

entitled to any relief as set forth herein. Emerald 

fully intends to seek review of the Commission's 

decision finding it liable for such penalties and 

remedies and enters into this stipulation principally 

to expedite that process. 

3. Michael Hogan would have earned the following amounts of pay for the days he was suspended from 

work and for days he sought excusal from work pertaining to the litigation of this matter: 

Straight Lunch 

Date 'rime Overtime Total 

December 28, 1982 38.83 9.96 47.79 

December 29, 1982 95.58 8.96 104.54 

December 30, 1982 95.58 8.96 104.54 

December 31, 1982 95.58 8.96 104.54 

January 3, 1983 93.18 8.74 101. 92 

January 4, 1983 93.18 8.74 101. 92 

January 11, 1983 93 .18 8.74 101.92 

August 2, 1983 68.78 9.26 78.04 

August 23, 1983 101. 98 9.56 111.54 

August 24, 1983 101. 98 9.56 111.54 

4. The total amount of back pay for Mr. Hogan 

is $968.29. Total interest on the back pay through 

October 31, 1986 is $386.63. 

5. In addition, Mr. Hogan incurred expenses of 

$42.12 for telephone calls. 

6. Mileage expenses for Mr. Hogan would be 

92 miles for two trips to Washington, Pennsylvania 

for the hearing and 26 miles for one trip to 

Waynesburg, Pennsylvania to meet with the MSHA 

special investigator. The applicable rate of 

reimbursement at the time was 20.5 cents a mile 

a total mileage expense of $24.19. 

7. Robert Ventura would have earned the following amounts of back pay for the days he was suspended 

from work and for days he sought excusal from work 

pertaining to the litigation of this matter: 

1666 
Date 

December 28, 1982 

December 29, 1982 

December 30, 1982 

December 31, 1982 

January 3, 1983 

January 4, 1983 

January 11, 1983 

August 2, 1983 

August 23, 1983 

August 24, 1983 

Straight 

Time 

38.83 

95.58 

95.58 

95.58 

93.18 

93.18 

93.18 

80.52 

107.32 

107.32 

Lunch 

Overtime 

8.96 

8.96 

8.96 

8.96 

8.74 

8.74 

8.74 

10.37 

10.07 

10. 07 

Total 

47.79 

104.54 

104.54 

104.54 

101.92 

101.92 

101.92 

90.89 

117.39 

117.39 

The total amount of back pay for Mr. Ventura is 

$992.84. Total interest on the back pay is $394.93. 

8. Mileage expenses for Mr. Ventura would be 

60 miles for two trips to Washington, Pennsylvania 

for the hearing and 50 miles for one trip to 

Waynesburg to meet with the MSHA special investigator. 

The applicable rate of reimbursement at the time was 

20.5 cents per mile for a total mileage expense of 

$22.55. 

9. The parties would agree upon civil penalties 

in the amount of $100.00. 

10. Emerald stipulates that the disc ine 

Mr. Hogan and Mr. Ventura received arising out of this 

incident will be considered by it to have no future 

effect and null and void (unless the Commission's 

decision is reversed by the Circuit Court of Appeals). 

Emerald will, however, maintain such records of this 

matter as would be appropriate to any litigation. 

Any such records will not, however, be contained in 

the personnel files of Mr. Hogan and Mr. Ventura. The 

attendance records of each individual will be modified 

to remove any reference to their suspensions. Emerald 

also agrees that it 11 not communicate any information pertaining to the suspensions which Mr. Hogan and 

Mr. Ventura received and which are.the subject of this 

litigation or any other information pertaining to this 

tigation to any person who makes inquiry of Emerald 

concerning employment of Mr. Hogan or Mr. Ventura. 

1667 
In view of the fact that the stipulations by the 

parties included interest computations through 

October 31, 1986, the parties agreed by letter dated 

October 30, 1986, that interest accrues on the back 

pay for Michael Hogan at the rate of $0.24 a day and 

the back pay for Robert Ventura at the rate of $0.25 

a day until their awards are paid. 

ORDER 

In view of the aforesaid stipulations and agreements, IT 

IS ORDERED THAT: 

1. Respondent pay to complainant Michael Hogan 

back pay in the amount of $968.29, plus interest in 

the amount of $386.63, through October 31, 1986, and 

interest in the amount of $0.24 a day thereafter 

until paid. 

2. Respondent pay to complainant Michael Hogan 

hearing and litigati.on expenses in the amount of 

$42.12 for telephone calls, and $24.19 for mileage 

expenses. 

3. Respondent pay to complainant Robert Ventura 

back pay in the amount of $992.84, plus interest in 

the amount of $394.93, through October 31, 1986, and 

interest in the amount of $0.25 a day thereafter until 

paid. 

4. Respondent pay to complainant Robert Ventura 

mileage expenses in the amount of $22.55. 

5. Respondent pay a civil penalty assessment in 

the amount of $100 for a violation of section 105(c) (1) 

of the Act. 

6. Respondent will forthwith comply with the 

requirements of Stipulation No. 10 with respect to the 

personnel records and other matters stated therein 

concerning the employment status of Mr. Hogan and 

Mr. Ventura. 

IT IS FURTHER ORDERED that all payments of back pay, 

interest, and miscellaneous expenses noted above be paid to 

1668 
Mr. Ventura and Mr. Hogan within thirty (30) days of the date 

of this Supplemental Decision and Order, and that respondent 

remit to MSHA within this same period the sum of $100 as a 

civil penalty assessment for the violation in question. 

Distribution: 

Catherine Oliver Murphy, Esq., Off of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certi Mail) 

R. Henry Moore, Esq., Rose, Schmidt, Dixon & Hasley, 

900 Oliver lding, Pittsburgh, PA 15222-5369 (Certif Mail) 

/fb 

1669 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 NOV 101986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) / 

Petitioner 

v. 

DOMTAR INDUSTRIES, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 85-144-M 

A. C. No. 16-00358-05538 

Cote Blanche Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Maurer 

The above civil penalty case, involving two§ 104(a) 

citations issued subsequent to a fatal accident at the subject mine, is before me upon a petition for assessment of 

civil penalties under section lOS(d) of the Federal Mine 

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

Petitioner has filed a motion to approve a settlement 

agreement and to dismiss the case. I have considered the 

representations and documentation submitted, and I conclude 

that the proffered settlement is consistent with the criteria in section llO(i) of the Act. 

ORDER 

WHEREFORE IT IS ORDERED that the motion for approval 

of settlement is GRANTED and respondent shall pay the approved penalties in the amount of $2,000 within 3o days of 

this decision. Upon payment, this proceeding is DISMISSED. 

urer 

ative Law Judge 

Distribution: 

Allen R. Tilson, Esq., Office of the Solicitor, u. S. Department of Labor, 525 Griffin St., Suite 501, Dallas, TX 75202 

Michael G. Durand, Esq., Onebane, Donohoe, Bernard, Torian, 

Diaz, McNamara & Abel, P. o. Drawer 3507, Lafayette, LA 

70502 (Certified Mail) 

yh 

1670 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 101986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

AUSTIN POWER, INCORPORATED, 

Respondent 

AUSTIN POWER, INCORPORATED, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 86-40 

A.C. No. 41-01192-03503 

Big Brown Strip 

CONTEST PROCEEDINGS 

Docket No. CENT 86-59-R 

Citation No. 2339411; 8/20/85 

Docket No. CENT 86-60~R 

Citation No. 2339412; 8/20/85 

Docket No. CENT 86-61-R 

Citation No. 2339413; 8/20/85 

Big Brown Strip 

DECISIONS 

Appearances: 

Before~ 

Robert Fitz, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for 

the Petitioner/Respondent~ 

Steven Ro McCown 1 Esq. 1 Jenkins & Gilchrist, 

Dallas, Texas, for the Contestant/Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of 

civil penalties filed by MSHA against Austin Power, Inc., 

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 total,ling $10,000, for three alleged violations 

of mandatory safety standards 77.1607Cg), 77.1710(g), and 

77.404(a) or 77.205(e). Docket No. CENT 86-40 is the civil 

1671 
penalty proceeding, and Docket Nos. CENT 86-59-R, 

CENT 86-60-R, and CENT 86-61-R, are the contests filed by 

Austin Power challenging the legality of each of the section 

104(a) "significant and substantial~ (S&S) citations. 

Austin Power filed timely answers and contests, and the 

cases were consolidated for a hearing which was held in 

Dallas, Texas. The parties filed posthearing proposed findings and conclusions, and the arguments presented therein 

have been considered by me in the course of these decisions. 

Issues 

The issues presented in these proceedings are (1) whether 

the cited mandatory safety standards are applicable to the 

alleged fact of violations; (2) whether the alleged violations 

were "significant and substantial;" and (3) the appropriate 

civil penalties which should be imposed for the violations in 

question. Additional issues raised by the parties are identified and disposed of in the course of these decisions. 

Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 20 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties stipulated to the following (Tr. 8-10): 

1. Austin Power, Inc. was incorporated 

under the laws of the State of Texas on 

June 10, 1976. 

2. Among other things, Austin Power, 

Inc. has been an independent contractor, 

engaged in construction at the Big Brown 

Strip, a surface coal mine owned and operated 

by Texas Utilities Company in Freestone 

County, Texas. 

1672 
3. The Big Brown Strip is a "mine," 

within the meaning and definition of Section 

3 (h) of the Federal Mine Saf'ety and Heal th Act 

of 1977, hereinafter referred to as the Act. 

4. Austin Power, Inc. is an "operator" 

within the meaning and definition of Section 

3(d) of the Act. 

5. on Monday, August 19, 1985, Jeff 

Arent, Kevin Saulsburg, and Steve Smith were 

employed by Austin Power, Inc. at the Big 

Brown Strip and were "miners" within the meaning and definition of Section 3(g) of the Act. 

6. The products of the Big Brown Strip 

enter or affect interstate commerce. 

7. Citation Nos. 2339411, 2339412, and 

2339413 and the modifications thereof, were 

served upon Sydney Woodson, respondent's superintendent, by authorized representatives of 

petitioner on the dates and at the times and 

places stated therein, and may be admitted 

into evidence for the purpose of establishing 

that they were so issued, but not for the purpose of establishing the violations alleged 

therein. 

8. The miners employed by respondent 

worked a total of 41,012 hours in all mining 

activity in 1985. 

9. Respondent demonstrated good faith in 

attempting to achieve rapid compliance after 

being notified of the alleged violations. 

During the course of the hearing, Austin Power's counsel 

stipulated that the proposed civil panalties assessed by MSHA 

for the violations in question will not adversely affect 

Austin Power's ability to continue in business (Tr. 188). 

Discussion 

This case concerns a fatal accident which occurred at 

the Big Brown Strip Mine construction site on August 19, 1985. 

The mine is a surf ace coal mine owned and 6perated by the 

Texas Utilities Company. ·Austin Power is an independent contractor subject to the Act who at the time of the accident 

1673 
was in the process of constructing and erecting a cross-pit 

spreader at the site for Texas Utilities. The spreader was 

manufactured by DeMag Company, a German concern, and Austin 

Power was under contract with that firm for the construction 

and erection of the spreader at the mine site. 

At the time of the accident, three employees of Austin 

Power were engaged in certain work on a 20-meter boom, an 

integral part of the spreader. The employees were engaged in 

work connected with the placement of certain counter weights 

on the boom and the installation of a wire rope choker on the 

boom for the purpose of facilitating the movement of the boom 

in a lateral direction by means of a 518 link belt crane and 

cherry picker. While performing their work from a walkway or 

catwalk located on one side of the boom, the boom was subjected to a sudden and unexpected "whiplash" action caused by 

the failure of an eyelet located at the back end of the boom. 

The boom raised up and propelled the three employees off the 

walkway where they were standing in an upward direction into 

the air, and one employee, Steven Smith, fell to the ground 

below and suffered fatal injuries. The other two employees 

managed to come down on the walkway structure which they 

grabbed as they came down, and they subsequently walked off 

the boom to safety and were not injured. 

MSHA Inspector Donald R. Summers conducted an accident 

investigation on August 20, 1985, and prepared a report 

(exhibit P-5). Based on the information received by Inspector Summers during the course of his investigation, he issued 

a section 107(a) imminent danger ordeiv and three section 

104(a), S&S citations. The imminent danger order is not in 

issue in these proceedings, but the citations are. The narrative description of the cited conditions or practices as 

stated in the citations issued by Inspector Summers are as 

follows: 

Citation No. 2339411, August 20v 1985, 30 C.F.R. 

§ 77.1607(g). "The Link Belt 518 operator was not notified 

by signal or other means that all persons were not in the 

clear before starting or moving equipment in that 3 employees 

were on the 20-meter cross p spreader boom which was being 

moved by the link belt." 

Inspector Summers subsequently modified the citation on 

October 8, 1985, to include the following condition or 

practice: "The linkbelt 518 operator was not certain that 

all persons were in the clear before he put his machine into 

operation. Three (3) employees were on the 20 meter cross 

1674 
pit spreader boom which was being moved by the linkbelt 

operator. 11 

Citation No. 2339412, August 20, 1985, 30 C.F.R. 

§ 77.1710(g). 

Three (3) employees were on the 20 meter 

cross pit spreader boom was (sic) wearing 

safety belts but the lines was---f sic) not tied 

off. Due to equipment failure the boom flip 

(sic) upward. The three (3) employees were 

thrown from the platform, one fell to his 

death. The two remaining employees managed to 

grab hand rails and climb (sic) to safety. 

Citation No. 2339413, August 20, 1985, 30 C.F.R. 

§ 77.205(e} or 77.404(a). 

The elevated walkway along the left side 

of the 20 meter boom on the cross pit spreader 

was not maintained in good condition in that 

the hold downs for the floor plate had been 

removed. The boom flip (sic) upward due to 

equipment failure, the floor plates came loose 

and fell to the ground. One Cl) of the three 

employees on the walkway fell to his death. 

MSHA's Testimony and Evidence 

MSHA Inspector Donald R. Summers, testified as to his 

background and experience, and he confirmed that he conducted 

an investigation of the circumstances surrounding the fatal 

accident. He identified copies of the citations he issued as 

a result of the investigation, and also identified a copy of 

the investigation report and certain photographs which he 

took during the investigation (Tr. 15-38). He confirmed that 

he began the investigation on the morning of August 20 (Tr. 

17). 

With regard to photographic exhibit P-16, of the cited 

walkway and the clamps which Mr. Summers claimed were not 

secured, he conceded that he did not know the condition of 

the walkway prior to the accident, nor did he know whether 

the walkway was secured prior to that incident (Tr. 33). 

Mr. Summers stated that company representative Woodson 

accompanied him on a "quick walk through look" of the accident area and explained that the 518 linkbelt crane was 

connected to the end of the 20 meter boom in order to move 

1675 
the boom from a westerly direction to an easterly direction 

to facilitate the loading of certain counter-weights on the 

machine, and that the machine could not move under its own 

power (Tr. 40, 44). Mr. Summers confirmed that Mr. Woodson 

identified the three employees who were on the boom, but he 

could not state whether Mr. Woodson explained what the three 

were doing on the boom. Someone else advised him that one of 

the employees was on the boom securing a choker on the end of 

the boom, and he pointed out the choker in question in photographic exhibit P-7, in the center, hooked on the right-hand 

lower corner of the beam on the end of the boom. He was told 

that the accident victim had secured this choker at the location shown in the photograph (Tr. 41-43). 

Mr. Summers was of the opinion that none of the employees 

should have been on the boom while it was being moved, but he 

saw no reason why they cou;J.d not be there prior to its being 

moved (Tr. 49). He saw no reason why the choker in question 

could not have been installed while the boom was stationary 

and not being moved (Tr. 50). · 

Mr. Summers stated that his investigation revealed that 

the accident victim was in the process of placing the choker 

over a brace on the end of the 20-meter boom in order for a 

cherry picker to receive the boom when it passed under 

another 70-meter boom. The linkbelt crane could not pass 

under the 70-meter boom, and another piece of equipment was 

to be used to connect onto the boom in order to pull it in a 

westerly direction. Mr. Summers stated further that it was 

his understanding that the victim was standing on the lefthand walkway at the end of the boom as shown in photographic 

exhibit P-7, and while he was inside the walkway hand rail, 

he was leaning over the hand rail connecting the choker. 

Mr. Summers stated that if the victim was leaning over the 

hand rail, he should have been tied off by a safety lanyard 

(Tr. 51-52). Although the investigation revealed that the 

victim was wearing a safety belt, it was not secured (Tr. 

5 2) n 

Mr. Summers stated that his investigation revealed that 

while the. boom walkway was secured within the hand rails, 

sometime during the construction phase af the cross-pit 

spreader, the left-hand walkway had been removed in order to 

allow access to the electrical cable located in a tray under 

the walkway and for painting purposes. The walkway had been 

removed and not secured back in place (Tr. 52). All of the 

walkway had clamps removed or either not secured back in 

place (Tr. 52). 

1676 
on cross-examination, Mr. Summers confirmed that he has 

inspected the mine site at least once a month, and that aside 

from the citations issued in the instant proceedings, he has 

issued only two prior citations at the site in the past 

3 years. He agreed that the company makes a good faith effort 

to comply with the law. He also confirmed that he had previously inspected the cross-pit spreader and linkbelt crane 

and never issued any citations for any violations on that 

equipment. He also observed the crane operators operating the 

equipment, and had no problem with the manner in which they 

did their work (Tr. 56-57). 

Mr. Summers stated that he issued the citations to Austin 

Power because it was in charge of the erection site for the 

cross-pit spreader. He confirmed that the DeMag Company 

designed the manufactured the spreader and the 20-meter boom, 

and he could not state whether that company had supervisors on 

the site to insure that Austin Power was erecting the spreader 

in compliance with their specifications (Tr. 59). 

Mr. Summers stated that the failure of an eyelet used to 

connect a hydraulic device used to lower and raise the 

20-meter boom to the boom's structure was a contributing 

factor to the accident (Tr. 61). The failure of the eyelet 

caused the boom counter weight to take over and resulted in 

the sudden and unexpected raising of the end of the boom. 

Mr. Summers confirmed that he had previously observed the 

eyelet before the accident, and saw nothing which caused him 

any concern. He also confirmed that from his prior inspections of the equipment, including the eyelet, no one could 

have foreseen that the eyelet would fail (Tr. 63). 

The 20-meter boom is one part of the entire cross-pit 

spreader machine. The boom was described as a conveyor which 

received dirt that was removed or stripped from the ground. 

The 70-meter boom also digs dirt from the ground, but from 

another area of the open pit mine. The excavated materials 

from both booms are received by the spreader and discharged 

in other locations. Mr. Summers described the booms as 

movable conveyor systems which receive the materials which 

are dug by the bucket wheel escalator part of the spreader. 

Although the digging apparatus and booms are separate pieces 

of equipment, they are connected together electrically (Tr. 

66). The two cranes in question were simply used to reposition one portion of the 20-meter boom while the counterweights were being loaded (Tr. 65). 

Mr. Summers stated that the 20-meter boom has walkways 

or catwalks on both sides of the boom conveyor. The walkways 

1677 
are equipped with a standard guard rail consisting of a top 

rail approximately 42 inches off the walkway surface, and a 

midrail. It also has a toeboard constructed of angle iron. 

Although the boom is designed to move up and down and left 

and right, .Mr. Summers was of the opinion that employees 

should not be on the walkway while the boom is in operation. 

He believed that a chain should be across the access to the 

walkway, with a sign indicating that no one should be on the 

boom while it is in operation (Tr. 69). Mr. summers confirmed 

that no one from Austin Power, DeMag, or Texas Utilities ever 

informed him that employees were not to be on the boom while 

it was in operation, and that this is simply his opinion (Tr. 

71). 

Mr. Summers confirmed that the cross-pit spreader moves 

on tracks, and that when it moves, the 20-meter boom also 

moves because it is attached to the spreader. He did not 

know how many employees would be on the spreader while it was 

in operation, and he assumed that one employee would have to 

operate the spreader, and two others would have to operate 

the bucket wheels at the end of the 20 and 70 meter booms 

(Tr. 72). He described the cross-pit spreader as a .structure 

approximately a half a mile long and 500 to 600 feet high, 

and the super structure looks "much like a large ship out in 

the middle of the mine," with catwalks and walkways all over 

it (Tr. 74). 

Mr. Summers stated that on the day of the accident, five 

counter weights, approximately 24,000 pounds each, were being 

loaded onto the boom, and the boom did not have any independent power while this was being done because the power had 

not been connected <Tr. 76-78). 

Mr. Summers confirmed that the crane in question was 

used to lift the boom in order to remove some cribbing from 

under it, as well as moving it from left to right, or from 

east to west. The only lifting action of the crane would be 

for the purpose of removing the cribbing, and onca this was 

done the linkbelt crane was to be used to rotate the 20-meter 

boom back under the 70-meter boom. Since the linkbelt crane 

could not move the 20-meter boom completely under the 70-meter 

boom, a cherry picker was to be used for this task, and he saw 

nothing wrong with this entire procedure {Tr. 81). 

Mr. Summers stated that Austin Power has a safety 

program, and he confirmed that it has a mandatory policy 

requiring employees to be tied off if they are in danger of 

falling. He stated that during the time he has inspected the 

facility he has never previously cited Austin Power for a 

1678 
violation of section 77.1710(g). He confirmed that he had 

been on the same cited 20-meter boom walkway in the past 

while inspecting the spreader and did not wear a safety belt 

(Tr. 103). With regard to his application of section 

77.1710(g), Mr. Summers stated as follows (Tr. 104-106): 

Q. Thank you. Now, let's take a hypothetical, 

that you were inspecting the 20-meter boom and 

you were walking out to the end of the boom, 

but you weren't performing construction work. 

Is that right? 

A. That is right, sir. 

Q. And you didn't have to be tied off in that 

situation, did you? 

A. If I was walking out there, you couldn't 

tie off and walk down the boom. 

Q. Okay, let's say you were walking out there 

and you were inspecting it and the eyelet 

failed. 

A. Okay. 

Q. And you weren't tied off. And the same 

thing might have happened to you that has 

happened to Mr. Smith, wouldn't it? 

Ao If the floor plate and all that hadn't 

been secured, more than likely would have. 

Q. And would you have been, then, in 

non-compliance with 1710(g)? 

A. No, sir. 

JUDGE KOUTRASi 

THE WITNESS: 

to the other. 

that would be 

hand-rail. 

Why not? 

I was travelling from one area 

I wasn't performing any work 

requiring me to be outside the 

JUDGE KOUTRAS: So that pre-supposes that this 

particular individual at the time of the accident was outside the hand-rail? 

1679 
THE WITNESS: Yes, sir. 

MR. MCCOWN: So the point of your issuance of 

a citation, which I assume that since these 

other gentlemen, Mr. Cameron and other people 

-- your supervisors -- aren't here, the whole 

point on the citation is that a man was outside the hand-rail, and therefore, that was 

the danger. Right? 

THE WITNESS: And performing work at a 

elevated area. 

MR. MCCOWN: So 

THE WITNESS: He should have been tied off. 

MR. MCCOWN: So the other two employees that 

were pp there, if they were just standing 

around, they didn't need to be tied off? 

THE WITNESS: They wouldn't have to be tied 

off, sir. 

MR. MCCOWN: But for the fact that they were 

able to grab hold of the side of the catwalk, 

they would have been killed just as much as 

Mr. Smith had, wouldn't they? 

THE WITNESS: Rather fortunate. 

In response to further questions, Mr. Summers stated 

that had it not been for the sudden jerking of the boom 

caused by the eyelet failing the other two employees on the 

boom were not in danger of falling. He conceded that he 

issued the citation because of his concern that the three 

employees were on a piece of moving equipment and his belief 

that they should not have been there in the first place. 

Mr. Summers knew of no mandatory standard that specifically 

prohibits work on a moving piece of equipment. Assuming he 

saw three employees on a catwalk 36 feet above ground on a 

moving piece of equipment, he would issue a section 107(a) 

imminent danger order because of the danger of falling even 

though they may be protected by a hand rail, because the walkway would be unstable (Tr. 108-109). 

Mr. Summers stated that no employees would be required 

to be on the end of 20-meter boom while the counter weights 

are being loaded, and that they would be positioned at the 

1680 
rear of the boom giving hand signals to the crane operator. 

He conceded that he has never observed counter weights loaded, 

and assumed that since they cannot be observed from the 

ground, someone had to be there (Tr. 111). He suggested that 

no one should be on the end of the boom while it is being 

moved, and that there would be less of a danger if they were 

at the rear of the boom because the movement would be slower 

(Tr. 112). He conceded that at some point in time someone had 

to go the end of the boom to disconnect the linkbelt crane and 

hook the cherry picker to the boom in order to move it under 

the 70-meter boom, and that the eyelet could have failed at 

that point in time before the boom was moved (Tr. 113). 

With regard to the walkway grating citation, Mr. Summers 

stated that while it was his opinion that section 77.205(e) 

applies to the condition that he cited, section 77.404(a) and 

77.1606 were equally applicable (Tr. 114). He confirmed that 

he did not issue the amended citation, and still believes 

that section 77.205(e), is the better standard (Tr. 114). 

Mr. Summers confirmed that he had nothing to do with the civil 

penalty assessments in this case, and that he had no communication with anyone in MSHA's office of assessments (T:r:. 120). 

Mr. Summers believed that the conditions he cited as violations were contributing factors to the fatality which occurred 

in this case (Tr. 123). 

With regard to the walkway grating fasteners, Mr. Summers 

stated that if they were properly connected to the grating, 

they would have prevented the grate from moving in either 

lateral or vertical directions. He stated that in photographic exhibits P-15 and P-16, the clamps are not extended 

all the way under the walkway or under the piece of angle 

iron, but only halfway. He pointed out that the right-hand 

walkway was properly secured with the clamps and none of the 

grating was thrown off or disrupted when the accident 

occurred. He assumed that the reason that all of the grating 

on the left side of the boom was not thrown off was the fact 

that the raising of the boom was less violent at that location (Tr. 124). He confirmed that the 20-meter boom was 

still under construction at the time of the accident, and 

that a few adjustments were still to be made before it was 

placed into operation (Tr. 124). 

Mr. Summers confirmed that the location where the eyelet 

failed was the same side as the walkway on which the accident 

victim was standing. His investigation revealed that the 

grate clips or fasteners were not broken off by the force of 

the eyelet breaking, but were simply loose and unsecured. He 

had no way of knowing whether the force of the boom moving 

1681 
because of the failure of the eyelet caused the fasteners to 

come loose, and that he was informed by Mr. Woodson and 

Mr. Arent that the floor grating had been removed and not 

secured back down (Tr. 126). Mr. Summers stated that there 

was a difference of opinion as to whether the accident victim 

fell through the openings that were left when the walkway 

grating flipped up, or whether he went over the top of the 

hand railing (Tr. 127). Had the walkways been fastened down, 

the victim could possibly have come down on the walkway when 

he was catapulted into the air rather than down between the 

opening (Tr. 127}. 

Mr. Summers stated that the information he received during his investigation through the interviews with the survivors indicated that the three employees on the 20-meter 

boom at the time of the accident were instructed to go out on 

the boom to tie the choker on in order to facilitate the moving of the boom under the 70-meter boom. The breaking of the 

eyelet had a "whiplash effect," and when the end of the boom 

flew up and settled back down, six or eight of the walkway 

plates came out of the channel and fell to the ground (Tr. 

129)0 

Russell Crowell, testified that he is presently employed 

by Erection and Rigging Inc., White Oak, Texas, and that at 

the time of the accident in question he was employed by 

Austin Power at the Big Brown Strip as an iron worker-rigger 

and crane operator. He stated that he has 9 years of experience as a crane operator, and confirmed that he was operating 

l nkbelt crane on August , 1985. He described what 

was doing as follows (Tr. 132-134}~ 

About 10~00 I was instructed to bring the 

rig up to the 20-meter receiving boom, to tie 

onto it, and ter I tied onto it, .we picked 

it up five, six inches, enough to get the shor-

~ng out from underneath it; tracked backwards 

th the rig; which swung the 20-meter boom 

from the westerly to the easterly position; 

s in a dogged off position for around 

five and a half hours, while they loaded 

counter weights with another crane from the 

other side" 

Q. What time, or can you give us a·n approximate time that you finished, or that the shoring was removed from the 20-meter boom so you 

were able to swing it around? 

1682 
A. That wasn't maybe 45 minutes. It wasn't 

very long. 

* * * * * * * 

A. After the fifth counter weight was loaded 

and into position, I was instructed to slack 

off, which I slacked the rig off. It was suspended by itself; they checked for movement on 

the boom; there wasn't any. I was instructed 

to pick back up enough just to get my chokers 

taut. The rigging was taut and I walked the 

rib back into position, just a reverse procedure to what we had done that morning. 

And just prior to getting, oh, 30-foot or 

so from coming up to transferring the rigging 

from the 518 to cherry picker, the pin failed 

and the load went up and Steve came down. 

Q. Who was giving you the instructions on 

what to do that day? 

A. There were several people involved, among 

one Alvin, the German; Woody and Pat Patterson. 

At one time, Jim White may have even relayed 

signals. 

Q. Now, Woody is Sydney Woodson, the job 

superintendent. Is that right? 

A. Yes. 

Q. And who is Jim White? 

A. At that time was general foreman on the 

project. 

Q. Now, I understand that you were attempting 

to swing the 20-rneter boom under the 70-rneter 

boom so it could be tied onto with a cherry 

picker. Is that correct? 

A. Yes. 

Q. Was anybody on the 20-meter boom when you 

were attempting to swing it around so it could 

be tied onto the cherry picker? 

1683 
A. Yes. 

Q. Who was on it? 

A. Jeff Arent, Kevin Saulsburg and Steven 

Smith. 

Q. Do you know why they were on it? 

A. They had work to do out there; they had to 

be out there to transfer the rigging. 

Mr. Crowell stated that he did not actually see the accident, but saw the accident victim Steven Smith in the air. 

He explained that his view was obstructed by the boom and 

that Mr. Smith was on the back side of the boom. He confirmed 

that he was not present when the three employees were told to 

go up on the boom (Tr. 136). 

On cross-examination, Mr. Crowell stated that in addition to instructions by an employee of DeMag Company, he also 

received instructions from Mr. Woodson with respect.to the 

lifting of the 20-meter boom with the crane for the purpose 

of removing the cribbing. The boom lifted just enough to 

remove the cribbing, and he denied that his operation of the 

crane had anything to do with the failure of the eyelet, or 

that the crane put any undue stress on the boom (Tr. 140). 

He experienced no difficulty in moving the 20-meter boom 

laterally and indicated that it was "free-swinging" (Tr. 141). 

With regard to the movement which was experienced, he stated 

as follows (Tr. 141-142)~ 

Q. Now you testified that there was a movement between the loading of the third and the 

fourth counter weight. At that time, when 

that happened, did you feel like there was any 

problem with any part of the construction 

process that was going on? 

A. No, I didn't. I couldn't see what was 

going on the back side, and at the time of 

these counter weights being loaded, when they 

would lower them into the framework, they 

would bump counter weight framework that 

they set in, and I was getting bumps and 

shocks all day long. But that was when there 

was counter weights being loaded. And at this 

time I could tell from the position of the 

other rig that he wasn't coming in with a 

1684 
counter weight. He was swung out the other 

way. 

Q. So, this particular movement that you felt 

was unrelated to a loading of a counter weight. 

Is that correct? 

A . Yes , it was • 

Q. And that is the one that you also feel, in 

your opinion, Mr. Smith noticed, too? 

A. Yes, he asked me if I had done anything, 

was I still dogged off. And I said yes, I am 

dogged off, I didn't -- haven't touched 

anything. 

Q. Did you report this movement that you felt 

between the third and fourth counter weight to 

anyone? 

A. No, not until the 20th, in retrospect. We 

got to thinking about it. 

Q. Do you know if Mr. Smith reported it to 

anyone? 

A. No, he did not. He turned around and went 

right back to loading the counter weights. 

Mr. Crowell confirmed that he considered Mr. Smith to be 

a good and safe worker 1 and that they worked together as 

riggers. Mr. Crowell confirmed that when he began to swing 

the 20-meter boom back into position just before the accident 

he knew that the three employees in question were still on 

the walkways, but did not consider them to be in any danger 

because the boom or load was not freely-suspended, but was 

pinned to the main frame with the eyelet which failed, as 

well as by big pins at the fulcrum (Tr. 144). In his view, 

no part of his crane posed a danger to the three employees 

who were on the boom. He believed that all three individuals 

were clear and free from any danger from the boom or the 

crane he was operating (Tr. 144). 

Mr. Crowell stated that when the eyelet failed, and the 

load went up, he had eye contact with Mr. Smith as he fell to 

the ground below, and that he noticed Mr. Saulsburg's legs 

dangling out from "underneath the off side" of the boom (Tr. 

14 5). 

1685 
In response to further questions, Mr. Crowell confirmed 

that he had in the past worked on the walkway at the end of 

the boom in question adjusting chokers or tension on the 

belt, or doing a number of other things. He confirmed that 

Mr. Smith was rigging a choker at the end of the boom, and 

while he could not see the side of the boom where Mr. Smith 

was working, he assumed he was rigging one of two chokers 

shown in photographic exhibits P-10 and P-11, but was not 

certain as to which one he was working on at the time of the 

accident (Tr. 147). He believed that the choker located at 

the end of the boom was installed earlier in the day while 

the boom was still in its original position on the cribbing. 

Assuming that Mr. Smith installed that particular choker, 

Mr. Crowell believed that he could have done it while on his 

hands and knees by reaching through the walkway mid-rail. He 

believed the other choker could have been installed by pulling up a piece of the grating and wrapping it. He confirmed 

that he had installed chokers in this fashion in the past, 

but that he used a safety belt and was tied off. He confirmed 

that he always tied off "when you stand a chance of falling." 

He explained that if a piece of grating were removed, there is 

a chance of falling because "that leaves an open hole, and you 

are bent over into it" (Tr. 150). When asked why Mr. Smith 

was not tied off at the time of the accident, Mr. Crowell 

responded 11 He felt there was no danger, I am sure. The grating was - must have been in place, or something. I know Steve 

just wouldn't jump right out there and take a chance" (Tr. 

150). 

Mr. Crowell believed that the failure of the eyelet was 

a "freak design," and that he had never experienced this 

before. He confirmed that he saw some of the grating fly off 

the walkway and that it hit the ground just prior to 

Mr. Smith. He stated that "it all happened at once, * * * it 

was raining grating and one body" (Tr. 150). With regard to 

the grating in question, Mr. Crowell stated as follows (Tr. 

151-152): 

THE WITNESS: It is secured grating. It is in 

there. The only way that it could have come 

out would be the way that it -- to have had a 

pin failure and that thing have such a whiplash attitude. The grating -- for it to come 

out of those channels -- had to come straight 

up, turn on edge and then go through the hole, 

because the catwalk framework is made out of 

angle iron that is turned in toward each 

other. 

1686 
The only movement of these -- and especially these here are fitted pieces of grating; they are mitered in. So you don't have 

any clearance left or right in this angle iron 

frame, and as long as all pieces of grating 

were in, you have no forward and back movement. 

The only movement that you could have would be 

straight up. And when the pin failed, it 

catapulted everything. It threw the grating 

straight up. 

JUDGE KOUTRAS: Would you have any -- as a 

rigger, would you have any problem with walking on some grating that wasn't pinned or 

secured the way it was supposed to be? 

THE WITNESS: No, not in that type of design. 

* * * * * * * 

JUDGE KOUTRAS: Let me ask you this. As a 

rigger, let's assume -- this is a hypothetical. 

Let's assume that a couple of pieces of walkway are removed, and you had to go up and walk 

on the supporting steel structure to do some 

work, without any walkways under it. Would 

that cause you any problem. 

THE WITNESS: No" 

JUDGE KOUTRAS~ Why wouldn 1 t it? 

THE WITNESS: It is an acceptable risk. Whenever you hire in in this business and putting 

a rigging belt onv it is high risk. You 

better know what you are doing. 

JUDGE KOUTRAS: Would you be tied off? 

THE WITNESS: Not while I was moving, I 

wouldn 1 t. 

JUDGE KOUTRAS: While you were walking along 

that structure, you wouldn't be tied off? 

THE WITNESS: Not while I was moving. 

1687 
JUDGE KOUTRAS: When would you tie yourself 

off? 

THE WITNESS: When I stopped and got to my 

work station. 

Mr. Crowell stated that he was not familiar with the 

safety standards cited as violations in this case. When 

asked to explain his understanding of section 77.1607(g) 

requiring equipment operators to be certain, by signal or 

other means, that all persons are clear before starting or 

moving equipment, he replied as follows (Tr. 154-157): 

THE WITNESS: Yes, it is your responsibility 

not to jump into a rig, crank it up and run 

over the mechanic that is changing your oil. 

JUDGE KOUTRAS: Very well put. Very well put. 

What kind of instruction do you get with 

regard to.that safety standard? 

THE WITNESS: I was flagged to propel the rig. 

JUDGE KOUTRAS: Did it ever dawn on you on 

this day that, with these three people being 

on that 20-meter boom, that you may have been 

violating some safety standard by moving that 

rig while these three fellows were on there? 

THE WITNESS: No, it was not a freely-suspended 

load. Had it been a freely-suspended load, I 

may have had some thoughts on the matter, but 

it is not like riding a connector up on a ball, 

which happens frequently in the construction 

business. It wasn't that type. It was a main 

structural component. You know, in retrospect, 

sure they shouldn't have been there, but then 

again 

JUDGE KOUTRAS: Why do you say they shouldn't 

have been there? 

THE WITNESS: 

happened is 

easily have 

failed. It 

rigger. 

Well, you know, the accident 

why. But they could have just 

been there, had that pin not 

was an acceptable risk to the 

1688 

as 
JUDGE KOUTRAS: What do you mean by a 

freely-suspended load? 

THE WITNESS: One where the crane is in total 

control of it, that I am not pinned off, as I 

was with that. One end was pinned off. I 

wasn't applying any lift. I was applying 

lateral movement, left and right, just 

swinging. 

JUDGE KOUTRAS: Now, what are your instructions 

as a crane operator to look out for that 

mechanic that you just mentioned when you 

defined the standard for me here? If you are 

lifting a free-load, so to speak, do you stop, 

look, see if anybody is on it or clear of it 

before you attempt to move it, or just what 

procedure there do you do? 

THE WITNESS: Yes, you use your years of 

experience and common sense and judgment call 

on all lifts. I have shut lifts down in the 

middle of a lift because I knew it was going 

to be unsafe. And I am not afraid to. That 

is part of my responsibility. Had I had any 

-- had I known my rig would have been in any 

bind or anything like that, somebody would 

have definitely known about it. 

JUDGE KOUTRAS: How about blind lifts? Have 

you ever had occasion to lift lifts that were 

totally out of sight? 

THE WITNESS: Yes. 

JUDGE KOUTRAS~ Well, what procedure did you 

use there to ascertain whether or not there 

was anyone --

THE WITNESS: Well, you can either use 

walkie-talkies, you can use headset with 

radio/telephone, or you can telegraph signals 

by hand signals. 

JUDGE KOUTRAS: But in this case, you knew 

three men were up there, right? 

THE WITNESS: Yes. 

1689 
JUDGE KOUTRAS: Because one had signalled to 

you, Mr. Smith himself? 

THE WITNESS: That -- prior to the accident. 

That was two hours before. 

JUDGE KOUTRAS: Oh, I see. 

THE WITNESS: It wasn't just before it 

happened, no. This was two hours earlier, 

when we were loading between three and four. 

And we put in four and five. 

JUDGE KOUTRAS: Were they up there when you 

were doing the slight lifting to get the shoring out? 

THE WITNESS: No. 

JUDGE KOUTRAS: You indicated in response to 

questions by Mr. Fitz that when you were maneuvering that 20-meter boom, that these three 

men were out there, and one of your responses 

was, well, they had to be there because they 

had some work to do. 

THE WITNESS: Uh-huh. 

JUDGE KOUTRAS: So you were aware that they 

were out there doing something? 

THE WITNESS~ Yeso 

JUDGE KOUTRAS: And they were kind of out of 

your line of sight? 

THE WITNESS: They were in the blind on my 

side, yes. I knew they were up there. 

JUDGE KOUTRAS: And you say it is not unusual 

for there to be this lateral movement with 

people on it doing work? 

THE WITNESS: No, not unusual. 

Mr. Crowell stated that he did not know how close he 

would bring the 20-meter boom to the cherry picker so as to 

transfer the boom from the 518 crane to the cherry picker and 

that this would have been a "supervisor's call shot." He 

1690 
indicated that he would have manuevered his c.rane as close as 

possible, and that the choker would have been passed and 

installed by hand from the boom to the cherry picker. He 

believed that this could have been dpne by someone on the 

walkway while inside the hand rail (Tr. 158). 

Jeffrey D. Arent, testified that he no longer works for 

Austin Power, but was so employed as a helper for approximately 6 months, including August 19, 1985, the day of the 

accident. He confirmed that he, Mr. Smith, and Mr. Saulsburg 

had been working on the boom all day installing counter 

weights. Mr. Smith summoned him to go to the end of the boom 

to see if it was stable, and they determined that it was and 

that it had no movement. Mr. Arent confirmed that Mr. Smith 

placed a choker on the end of the 20-meter boom. He identified photographic exhibits P-7 and P-8 as the boom walkway 

location where they were located at the time of the accident, 

and he stated that Mr. Smith was at the end of the boom and 

that he (Arent) was at the other end where there is a bend in 

the walkway as shown in exhibit P-8. Mr. Arent stated that 

he observed Mr. Smith tie the choker onto the end of the boom 

by bending over the hand rail "not very far out," and he 

observed that Mr. Smith "wrapped the choker around the beam 

and put the eye through the other eye." He stated that 

Mr. Smith "just had his head just barely out and his hands 

were out there" (Tr. 163). 

Mr. Arent stated that he could not recall whether the 

boom was stationary or was being moved in a lateral direction 

while Mr. Smith was installing the choker. When the eyelet 

failed, Mr. Arent stated "all I remember is that I went up 

and hit my head" and that he came down in that same spot 

where there was an extra beam. Mr. Arent stated that he hit 

his head on the overhead walkway roofing, and when asked 

whether he was aware that the walkway grating was not fastened 

down before he went there with Mr. Smith, he responded "we 

didn't pay no attention to it" (Tr. 164). He stated that 

Mr. Saulsburg was between him and Mr. Smith on the walkway. 

When the eyelet failed, Mr. Saulsburg also went up in the air 

and hit his head, but came down and caught himself. He confirmed that he and Mr. Saulsburg were able to come off the 

boom by walking down the sides. When the eyelet failed, he 

did not see what happened to Mr. Smith and Mr. Saulsburg 

because "I was worried about myself" (Tr. 166). 

On cross-examination, Mr. Arent examined photograph 

exhibit P-7, and stated that the choker at the end of the 

boom which is circled in blue in the photograph was not the 

one that Mr. Smith was installing at the time of the accident. 

1691 
He stated that Mr. Smith had installed that choker prior to 

the accident, and that the one he was installing at the time 

of· the accident was the choker which is shown around the walkway structure outby the end of the boom. Mr. Arent marked an 

"X" where he believed Mr. Smith was located installing the 

choker just before the accident. He then stated that the "X" 

mark is where he observed Mr. Smith putting on the choker 

that he testified to on direct examination, but then stated 

that he did not know whether that was the choker "that we are 

talking about" (Tr. 169). He stated further that he did not 

observe Mr. Smith install the choker which is circled in 

exhibit P-7, and explained as follows at (Tr. 167-168): 

A. Well, I don't know. I think he put it up 

there earlier. He was doing that before he 

did the other one that was over at -- it 

should have been out here where he was putting 

it, though, because that is where he was at, 

unless he dropped that choker when he -- that 

he was working on. 

Q. So the choker that is circled on P-7 -- did you see him put that choker on? 

A. No. 

Q. You did not? So the testimony that you 

gave before about him standing and leaning 

over the rail or doing anything, that doesn't 

apply to this particular choker that is 

circled? 

A. No. 

Q. If anything, it applies to the one that 

is 

A. He was out over here. 

Q. At the end of the catwalk? 

A. Yes, he was out in this area. 

Mr. Arent identified a smaller second choker, as shown 

in photographic exhibit P-8, and confirmed that it appeared 

to be wrapped around the angle iron on the catwalk. When 

asked whether this was the choker that Mr. Smith was working 

on, Mr. Arent replied "Could have been" (Tr. 170). He further 

explained as follows (Tr. 170-171): 

1692 
Q. Could it have -- if he was applying it at 

the end of the -- where you have him marked as 

an x at P-7, would the fact that it goes 

around the back side, where you have marked on 

P-8 -- would that prevent it from being pulled 

all the way to the end of the --

A. Yes. 

Q. It would? So does that mean -- would you 

agree then, that probably is not the choker 

tha.t he was putting on? 

A. I don't -- it don't seem like that would 

be the one, because he was out on the end. 

Q. And was Mr. Smith kneeling down? 

A. Yes. 

Q. was he on all fours? 

A. On his knees, not his hands. 

Q. Okay. And when you saw him where you have 

marked on P-7 with an X, was he reaching 

through the mid-rail, between the mid-rail and 

the grating, or between the mid-rail -- just 

and the top-rail? 

A. Between the middle and the bottom. 

Q. He was reaching between the mid-rail and 

the bottom, where the grating would be, where 

the toeboard is? 

A. Yes. 

JUDGE KOUTRAS: Mr. Arent, I thought you said 

on direct that he was reaching over the top, 

slightly not too far over it. And now it is 

the middle and the bottom? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: What was it? 

THE WITNESS: The bottom. 

1693 
JUDGE KOUTRAS: What moved you to say the top, 

when asked on direct? 

THE WITNESS: I don't know. Just the way the 

question was asked. 

Mr. Arent stated that if Mr. Smith was standing on the 

grating and reaching over the hand rail there would be a 

danger of falling because he could lose his balance and go 

over the top of the railing. If he was reaching over, he 

should have been tied off, but if he was kneeling, he would 

be more balanced and did not need to be tied off (Tr. 174). 

Mr. Arent stated further that when he observed Mr. Smith on 

his knees reaching through the hand rail, he believed his 

head was outside the mid-rail, but his shoulder was not (Tr. 

173). 

Mr. Arent confirmed that he was wearing a safety belt at 

the time of the accident, but that he was not tied off because 

he moved around so much and was not tied off all of the time. 

He would tie off if he had a wrench in his hand and was using 

it. He also confirmed that he had his lanyard line with him 

and that it is part of his regular safety equipment, and that 

Mr. Smith also had his line with him (Tr. 175). 

Mr. Arent stated that when he and Mr. Smith were on the 

boom, Mr. Smith was his supervisor and he would do what 

Mr. Smith told him. Mr. Arent did not know who Mr. Smith's 

supervisor was, but he confirmed that general foreman Jim 

White told him (Arent) where he was to work that morning (Tr. 

177). Mr. Arent stated that he was not familiar with the 

safety standards which are in issue in this case, but confirmed that he knew he was supposed to wear a safety belt and 

tie off and that he learned this at weekly safety meetings 

conducted by Mr. White (Tr. 177). 

Austin Power's Testimony and Evidence 

Inspector Summers was recalled, identified several photographs of the eyelet which failed, and the scene of the accident, and described some of the damage to the eyelet (Tr. 

183-184). He also testified as to certain statements and 

conclusions which appear in MSHA's "narrative assessment" 

concerning the supervising of the work being done on the boom 

at the time of the accident, and he confirmed that the statements were not obtained from him (Tr. 185-187). 

1694 
James c. "Pat" Patterson, testified that he is employed 

by Austin Power, and was the rigging foreman at the time of 

the accident. He stated that at the time of the accident he 

was not aware of any movement of the 20-meter boom between 

the third and fourth counter weight loading process, but 

learned about it the following day. Immediately prior to the 

accident, he was on the ground and approximately 35 to 40 feet 

from the end of the boom. Mr •. smith was kneeling on the catwalk putting a choker around the framework under the grating. 

The choker was to be used to lead the boom around with the 

cherry picker, and his feet were at the place marked with an 

"X" on exhibit P-7. Mr. Smith was reaching underneath the 

mid-rail, but Mr. Patterson did not see how much of his body 

was through the rail. Based on his experience as a rigging 

foreman, and 30 years of construction experience, 

Mr. Patterson did not believe that Mr. Smith was in danger of 

falling (Tr. 197). 

Mr. Patterson stated that company policy required 

Mr. Smith to have his safety belt on at all times he is off 

the ground, and if he is outside the handrails, he is required 

to be tied off. The safety belt also serves as a tool belt, 

and it has a lanyard attached to it. Mr. Patterson did not 

believe that Mr. Smith was required to be tied off at the location that he was in at the time of the accident (Tr. 197). 

Mr. Patterson stated that after Mr. Smith fell to the 

ground, he saw that he had a head injury, and when he later 

examined the boom, it was his opinion that Mr. Smith struck 

his head on a "load cell" located above where his feet had 

been on the catwalk. Mr. Patterson described the "load cell" 

as the round white object shown by an arrow on exhibit P-7, 

and he stated that he observed that the object was bent. 

That led him to believe that Mr. Smith's head struck it as 

the boom raised up (Tr. 199). 

On cross-examination, Mr. Patterson stated that he did 

not see Mr. Smith pick up the grating to maneuver the choker 

under it, and that he could swing the choker under the grating and reach and catch it with his hand on the other side. 

The choker consists of a wire rope, and he likened it to 

swinging a piece of rope under the walkway grating. The 

choker was not in place at the time, and Mr. Smith was preparing to get it in place to attach it to the cherry picker (Tr. 

20 0). 

Mr. Patterson stated that he was not aware that the walkway grating was not bolted or clamped down at the time of the 

accident, but that "I know that it had been at one time." He 

1695 
was not made aware of the fact that the grating had ever been 

removed after it was initially installed until discussions 

which took place after the accident occurred. He stated that 

the grating could have been removed for numerous reasons, and 

that a painter, an electrician, or some other craftsman could 

have done it. Although he could not specifically identify 

who may have taken up the grating, he stated that it was not 

unusual to do so (Tr. 201-202). He confirmed that normal 

procedures, specifications, or verbal directions required 

that the grating be clamped at each corner and fastened down 

(Tr. 202). 

In response to a question as to whether he believe the 

walkway grating was in good condition, regardless of whether 

it was clipped down or not, Mr. Patterson responded that he 

considered it to be safe to walk on (Tr. 203). Mr. Patterson 

explained that while he was on the ground before the accident 

occurred, he was primarily flagging the crane operator and 

also supervising Mr. Smith's work on the end of the boom. He 

identified the choking device as the one depicted in photographic exhibits P-10, P-11, and P-14, and confirmed that it 

appeared to be tied off around the steel member of the catwalk structure in all three photographs. He stated that 

Mr. Smith had tied the choker on and intended to loop it 

under the catwalk to the other side and then catch it. He 

would have then placed the two eyes of the choker onto the 

crane lifting hook in order to maneuver the boom around. No 

lifting was required, and the crane would simply lead the 

boom with a lateral movement. 

Mr. Patterson stated that he did not specifically 

instruct Mr. Smith or the other two men as to what they were 

to do, and that Mr. Smith knew that the cherry picker would 

be used to guide the boom around, and knew that a choker was 

required for this task. The other two men simply followed 

Mr. Smith out to the end of the boom because "they were 

naturally eager also." Mr. Patterson stated that Mr. Smith 

was a journeyman and a good worker, and that he (Patterson) 

felt "felt completely comfortable as far as any safety 

aspect" (Tr. 205). 

Mr. Patterson was of the opinion that the fact that the 

grating was not tied down and Mr. Smith was not tied off 

would not have prevented the fatal accident in question. He 

stated that by striking his head on the overhead cell, 

Mr. Smith was not able to grasp the hand rail as he came down 

after the boom raised, and he pointed out that Mr. Arent 

caught himself, and Mr. Saulsburg caught himself after falling through the area where the grating was gone and pulled 

1696 
himself back up. He conceded that had the grating been 

secured, it probably would not have popped out with the jerking of the boom. 

Although he believed that it was conjecture that the 

walkway on the other side of the boom which did not pop out 

was subjected to an equal amount of movement when the eyelet 

failed and the boom raised up, he conceded that it was probably true {Tr. 207). Mr. Patterson could not explain why the 

other walkway did not pop out when subjected to the "whiplash" 

movement of the boom when the eyelet failed, and when asked 

whether anyone speculated that it did not pop out because it 

was secured, he responded "probably, Yes sir" (Tr. 208). 

In response to further questions regarding company 

policy and the use of safety lines, Mr. Patterson stated as 

follows (Tr. 208-209): 

JUDGE KOUTRAS: You say that the company 

policy is that when any employee is required 

to be off ground-level that he is to have a 

belt on? 

THE WITNESS: At this jobsite, sir, that is 

project policy by my boss. 

JUDGE KOUTRAS: And then if his work has 

occasion to take him outside of the area of a 

guard-rail, he is required to be tied off? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: Is this policy written, or how 

is it communicated to the employees? 

THE WITNESS: Through regular gang box, tool 

box safety meetings. 

JUDGE KOUTRAS: But do you know whether or not 

it is a written policy of any kind? Do you 

all have written work rules there? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: Is it part of the written work 

rules? 

1697 
THE WITNESS: Yes, sir. We have written 

safety books and I don't think it is worded as 

such in our safety rule book. 

JUDGE KOUTRAS: Why isn't it? 

THE WITNESS: I don't know. It could be. I 

couldn't swear that it is or isn't. But at 

any time you are in an unsafe area, we know 

that we are supposed to tie off. That is in 

the book. But as far as wearing a belt when 

you are off the ground on a catwalk with 

hand-rails and toeplate, I don't know. 

Sidney S. "Woody" Woodson confirmed that he is employed 

by Austin Power as a project general superintendent, and was 

so employed at the time of the accident. He was the superintendent of the Big Brown Strip Mine, and approximately 30 

employees were employed at this job site. The mine is owned 

by Texas Utilities and the cross-pit spreader was designed 

and manufactured by the DeMag Company from Germany. DeMag 

had a representative on site for the purpose of overseeing 

Austin Power's erection of the spreader, and Austin Power had 

a contract with DeMag for this purpose, and not with Texas 

Utilities. As general.superintendent, Mr. Woodson was 

responsible for compliance with all safety regulations at the 

site, and he is certified for the safety training courses 

given by MSHA (Tr. 210-213). 

Mr. Woodson identified a copy of the company safety rule 

book given to all new employees at the job site, and copies 

of the minutes of 12 "tool box" safety meetings held with 

employees, including Mr. Smith, during the period June 3, 

1985 to August 19, 1985. Mr. Woodson stated that the meetings included a discussion of the use of safety belts and 

lines, and that the meetings are conducted by company supervisor Jim White. Mr. Woodson stated further that he selects 

the topics for discussion at the meetings, and that he 

usually discusses them with Mr. White (Tr. 213-221). 

Mr. Woodson reviewed several photographic exhibits, and 

described the location of certain electrical conduit and 

boxes located outside the boom walkway. He also identified a 

recent photograph he took depicting a chain and a sign across 

the boom walkways installed after the accident. The sign 

states "Authorized Personnel Only." Mr. Woodson confirmed 

that he inst~lled the chain, and Texas Utilities installed 

the sign, but he could not explain who ordered them installed 

(Tr. 228-231). 

1698 
Mr. Woodson identified photographic exhibit R-8, as a 

photograph of the catwalk on which Mr. Smith was working at 

the time of the accident. He confirmed that he took the 

pictures several days prior to the hearing, and when asked 

whether it depicts the condition of the catwalk as it 

appeared at the time of the accident, he responded as follows 

(Tr. 232-235): 

Q. Is this the catwalk that Mr. Smith was 

working on at the time of the accident? 

A. Yes, it is. 

Q. And was the -- was there any difference in 

your understanding as to the condition of the 

catwalk as you found it in your picture last 

Friday and how it was during the time that the 

accident happened? 

A. The grating is laying inside that framework, identically like it was. 

Q. So does it --

A. At the time of the accident, with the 

exception of maybe a few of these grating 

clips not being clipped down. I can't 

honestly tell you how many of them was and how 

many wasn't. 

Q. So R-8 fairly and accurately depicts the 

way that the grating was laying into the catwalk structure at the time of the accident? 

A. Yes, it does. 

* * * * * * * 

Q. Now, let me direct your attention to 

Respondent's Exhibit number 8, the photograph. 

Would you explain to the ,Judge what Respondent's Exhibit 8 depicts to you, insofar as 

the four sections of grating that are shown in 

that catwalk, and how they are installed and 

. secured. 

A. Well, of course, being four or however 

many pieces it is down through there, from 

1699 
this elevation right here, this catwalk goes 

off, drops down 90-degrees, bends 90 and takes 

off again. There is an angle iron frame which 

is approximately, now, four-inch angle by 

four-inch angle iron. It is millimeter type, 

but it approximately that, which makes the 

framework down this side and across the front· 

and up the other side, which this grating is 

laying down in there. 

Q. So all of the four pieces which are 

depicted in Respondent's Exhibit 8 at the 

coming from the photograph and looking into 

the distance, the last four pieces are inside 

what is in effect a box of angle iron? 

A. Well, you could 

frame angle iron. 

you could say a box 

Q. Was the angle iron higher than the grating 

itself? 

A. It is some higher, yes. 

Q. Was there any way that that grating, if it 

was all in place, could move, either left or 

right or in any way laterally? 

A. Not under normal conditions. Just as long 

as it is laying out there flat, no, it can't 

come out of there. Something has got to 

disturb it. 

Q. Would you consider, in your opinion and 

years of experience that you have had in construction industry, for that walkway to be in 

good condition? 

A. Well, in my years of construction, we had 

let lots of grating like this go unclipped 

down, because we felt like that it was safe 

grating. It couldn't come out of that type of 

framework, because you had to go back there 

and do work later. Now, we had clipped this 

grating down at one time because we had extra 

people that didn't have nothing to do, and we 

put them and got all the grating clipped down. 

It is a good policy to get it all clipped 

down. 

1700 
Q. Did you consider it unsafe to work on that 

grating in that particular condition, the day 

of the accident? 

A. No, sir, I didn't. 

And, at (Tr. 238): 

Q. Mr. Woodson, with regard to the grating, 

in your opinion was it necessary to have the 

clips in place for the walkway, the grating, 

to be in good condition? 

A. Not all 100-percent, I wouldn't say. As 

long as your grating was laying in the box 

frame and laying all down in there properly 

and fit down and not any of it pulled up or 

anything, where it accumulated a tripping 

hazard or some way you could kick some of it 

up in the air and cause it to fall. No, not 

if it was all 100-percent uniform laying in 

that grating. 

Mr. Woodson stated that he was not aware of any movement 

of the boom between the loading of the third and fourth 

counter weights until after the accident occurred (Tr. 234). 

On cross-examination, Mr. Woodson, testified as follows 

with regard to the walkway clips (Tr. 238-239): 

Q. Mr. Woodson, was it Austin Power's policy 

to have the grating clipped down on the 

cross-pit spreader at the Big Brown Strip? 

A. To my knowledge, there is not anything in 

writing that tells you that it is -- needs to 

be clipped down. It just says grating needs 

to be proper secured by means of, and it goes 

-- I think there is some stuff somewhere that 

tells you, you know, that it needs to be tied 

down by means of number 9 wire or grating 

clips. There is some place we tie it down 

with number 9 wire, sometimes we put it down 

with grating clips and sometimes we weld it 

down. 

Q. Did you know prior did you know on 

August 19, 1985, prior to the accident that 

1701 
afternoon, that the grating on what has been 

ref erred to as the left side of the 20-foot 

boom was not clamped down? 

A. No, sir. I can't honestly say 100-percent 

I didn't know that. 

Q. Do you know of any reason why the grating 

would not have been clipped down on the left 

side of the 20-foot boom, on August 19, 1985? 

A. Well, it could have been the painters took 

the clips up, it could have been anybody that 

took the clips up. I had been in that area a 

couple of three days before that and some of 

this grating was clipped down I know, because 

I don't recall seeing any of the clips off in 

that area when I went in there. Of course, I 

don't think I went plumb to the end of the 

boom that -- two or three days prior to that. 

Mr. Woodson confirmed that the walkway areas are required 

to be inspected at least daily during the work shift, and he 

stated that he tries to walk the area at least once a day 

unless he is busy doing something else (Tr. 241). He confirmed that the walkway grating was required to be secured in 

order to abate the citation, and in response to additional 

questions, he stated as follows (Tr. 242-243): 

JUDGE KOUTRAS: * * * What I am trying to 

understand is -- these plates, these walkway 

plates are put in there with items that secure 

it down. Isn't that true? There is a reason 

for having it. 

THE WITNESS: Yes, sir, that is true; but the 

reason for having these on these particular 

points is because they are moving booms up and 

down and sideways, and clods and stuff is falling on it during operation that could knock 

the grating out of there -- that 99-percent of 

-- or 99 chances out of 1, that there ain't 

nothing going to fall on it and knock the grating out in that condition as you are erecting. 

JUDGE KOUTRAS: Once you get it erected and 

completely constructed and built and ready to 

go, are you telling me that you are still not 

required to have the tie down plates on? 

1702 
THE WITNESS: No, I am not saying that. I am 

saying that during erection -- during erection. 

JUDGE KOUTRAS: So my question is that once 

erected and constructed, if inspector Summers 

walks in there and find one of them not tied 

down, you are likely to get a citation, aren't 

you? 

THE WITNESS: Yes, sir, that is true. 

JUDGE KOUTRAS: You are not maintaining it in 

good condition, or in safe condition, or 

whatever. 

THE WITNESS: Yes, sir, that is true. 

Mr. Woodson agreed with MSHA's assertion that had the 

walkways been secured, Mr. Smith may not have suffered fatal 

injuries because when he was thrown in the air he may have 

been able to land on them and not have continued his fall 

(Tr. 247-248). 

With regard to the citation for moving equipment without 

insuring that employees are in the clear, Mr. Woodson 

believed the cited regulation applied to the 518 crane and 

not the boom of the cross pit spreader, and that the regulation prohibited anyone from being on a load that is being 

picked up off the ground by the crane and lifted into the air 

(Tro 249f 252)0 

Mr. Woodson stated that after the counter weights were 

installed he instructed the crane operator to slack off his 

chokers, and since he had only one foot of clearance between 

the boom, he had the three employees in question walk out on 

the boom to see if the boom would "set down anyway." When it 

didn 1 t he instructed the employees to go to the other end of 

the boom, and he described what happened next as follows (Tr. 

250-253): 

* * * Well, we started walking the thing 

around and we got the thing nearly around 

there in place, these three people that was 

out there on the boom, fixing to hook this 

choker bn ~hat cherry picker come down the 

other side to go out there. They was back 

here at the back at one time. But they seen 

that the boom was getting around here close, 

1703 
that some point you had to go out there and 

hook it on. Some point you had to go out 

there. There was no choice. 

So they went up this side, which is the 

right-hand side, went around the back, come 

down the left-hand side to put this other 

choker on, to hook on the cherry picker. So 

they had been out there once before the load 

started moving and they was instructed to go 

back. And they went back. 

JUDGE KOUTRAS: And then the load started moving again? 

THE WITNESS: Then the load started to moving, 

which he moved the load probably 80-percent of 

the distance that he was going with it. And 

Mr. Smith had already been told to put a 

choker on there, prior to us even start moving 

the boom back into position. He was told to 

put the choker on the front of the boom, here, 

but it ended up around the catwalk there. 

JUDGE KOUTRAS: Now, the gentlemen in the back 

there that operated this particular crane that 

day saw nothing wrong with people being out 

there when it was moved. They had some work 

to do out there. 

THE WITNESS: Well, I can't either, because 

there is conditions you get in where you have 

no choice. You have to be on it. Now, you 

don't want to put a man out there where you 

can see a hazard, but I could not see a hazard 

at the time that they went out there, because 

I didn't know that something was going to go 

wrong. If I had of, I sure wouldn't have sent 

them boys up on there. 

* * * * * * * 

JUDGE KOUTRAS: And in this particular case, 

that 20-meter boom, in your eyes, wasn't being 

moved? 

THE WITNESS: Yes, sir, only on one end. It 

was rigid on -- I mean, it was fixed on the 

other end. 

1704 
JUDGE KOUTRAS: And which end was it being 

moved on? 

THE WITNESS: It was moved out on the live end 

of it. 

JUDGE KOUTRAS: Where the three men were at. 

Is that true? 

THE WITNESS: Part of the time, yes, sir. 

They was out there part of the time. But at 

the biggest move of the period, they was not 

out there. They was out there nearly right at 

the end of the move. 

JUDGE KOUTRAS: Mr~ Patterson is sitting there 

watching these fellows going back and forth? 

THE WITNESS: Well, Mr. Patterson seen them 

walk down this catwalk on one side, yes, sir. 

MSHA Arguments 

Citation No. 2339411 

MSHA argues that as the danger increases, the equipment 

operator's duty to assure clearance of persons also increases, 

and the operator must be certain that no one will be endangered by star ng or moving equipment. Texas Industries, 

Inc., v. FMSHRC, 694 F.2d 770 {5th Cir. 1982), 2 MSHC 1915 

(1982). MSHA submits that section 77.1607(g) requ that 

the equipment operator must be certain that all persons both 

are clear of the equipment and are not on the load before 

starting the equipment and moving the load. MSHA notes that 

section 77.1607(k) prohibits persons from working or passing 

under the buckets or booms of loaders in operation. In the 

instant case, MSHA concludes that the crane operator knew that 

three employees were on the far side of the 20-meter boom when 

he began to swing it under the 70-rneter boom. 

Citation No. 2399412 

MSHA asserts that the facts in this particular case are 

similar to the facts in BCNR Mining Corporation, 3 MSHC 2015 

(1985), where a violation of section 77.1710(g) occurred when 

a worker, without wearing a safety belt and line, placed his 

body between the top rail and middle rail on the fourth 

floor, lost his balance, and fell through the railings to his 

1705 
death. MSHA submits that a reasonable employer should know 

there is a danger of falling when an employee is assigned a 

task which requires him to lean over or between the guard 

rails on an elevated walkway, Great Western Electric Company, 

2 MSHC 2121 (1983); Southwestern Illinois Coal Corporation, 

3 MSHC 1066 (1983). 

Citation No. 2339413 

MSHA submits that the cited elevated walkway was not 

maintained in good condition since its expanded metal floor 

plates were not fastened to its frame to prevent them from 

becoming dislodged if the elevated walkway moved or jumped 

because of some unexpected external force. 

Austin Power's Arguments 

Citation No. 2339411 

Austin Power contends that mandatory safety standard 

30 C.F.R. § 77.1607(9), does not apply to the circumstances 

which existed at the time of the accident. In support of 

this argument, Austin Power states that the accident was 

caused by an unexpected failure of an eyelet on the cross pit 

spreader which resulted in a quick, unforeseeable movement of 

the 20-meter boom, and that at the time of the accident, the 

crane operator was pulling the 20-meter boom because the 

electricity was not connected to allow the boom to move on 

its own power. The crane operator was well aware of the fact 

that the three employees were working on the boom as he was 

swinging it around. When in operation, the boom is designed 

to slowly move vertically and horizontally, and it is 

designed to allow employees to work on the walkways. Austin 

Power maintains that the inspector's contention that the 

three employees should not have been on the boom during its 

operation goes against the design and purpose of the machine. 

Austin Power maintains that the crane operator was in 

fact receiving signals throughout the day, and that the situation presented is not one in which the crane operator backed 

over an individual because he failed to receive signals that 

all individuals were in the clear. Austin Power points out 

that the crane itself posed no danger to the three employees 

on the 20-meter boom because the crane did not and could not 

come into contact with the employees. Austin Power argues 

that MSHA's position that the 20-meter boom was the load of 

the crane and as such was an extension of the crane is refuted 

by the evidence and any logical interpretation of section 

1706 
77.1607(g). The 20-meter boom was a separate piece of equipment which was being "walked around" by the crane, and the 

crane operator was putting no stress on the boom and his 

actions had nothing to do with the eyelet failure. Austin 

Power concludes that the three employees were not "riding the 

load" at the time of the accident and were clear of the crane, 

and even if they were, the inspector admitted that there is no 

prohibition against working on moving equipment or on the boom 

of machinery. 

In response to MSHA's contention that the three employees 

should not have been working on the boom while it was moving, 

Austin Power asserts that the equipment was designed to allow 

employee access at all times, and that the inspector admitted 

that the failure of the equipment was just as likely to have 

occurred while the boom was stationary. Austin Power concludes that the fact that the crane operator was moving the 

boom at the time of the accident is totally irrelevant. 

Austin Power argues that the only relevant factor is 

whether the crane operator failed to receive notification 

that all persons were in the clear before moving the crane. 

Austin Power maintains that the evidence specifically shows 

that the operator knew where the employees were standing and 

that they were in the clear, the operator was given operating 

signals from various individuals, and the operator did not 

put the employees in any danger through the operation and 

movement of the Link-Belt crane. Therefore, Austin Power 

concludes that MSHA has failed to establish a violation of 

30 C.F.R. § 77.1607(g). 

Citation No. 2339412 

Citing Southwestern Illinois Coal Corporation, 3 MSHC 

1066 (1983), Austin Power states that the phrase "shall be 

required to wear" found in 30 C.F.R. § 77.1710(g), has been 

interpreted to require miners to wear safety belts under 

appropriate conditions, but does not make operators guarantors that safety belts and lines will be worn by its miners. 

Austin Power also cites Peabody Coal Co., 1 MSHC 2076 (1979), 

in support of the proposition that mine operators have a duty 

to establish a clear and understandable safety system designed 

to assure that employees wear safety belts and lines on appropriate occasions and to enforce the established system with 

due diligence. 

Austin Power argues that the fact that the three 

employees in question did not secure their lanyards when they 

were working on the 20-meter boom did not create a hazardous 
situation. Austin Power points out that while the citation 

stated that all three employees were in violation of section 

77.1710(g), MSHA acknowledged at the hearing that the two 

employees who were not applying the choker when the accident 

occurred did not need to be tied off, and that the inspector 

in his deposition stated that he based his citation upon his 

beli that the employees were riding on moving equipment 

(20-meter boom) and therefore needed to be tied off. However, 

the inspector acknowledged that there is no standard which 

prohibits employees from working on a piece of moving 

equipment. 

Austin Power states that MSHA based its case upon the 

belief that the deceased employee was leaning over a handrail 

on the walkway of the 20-meter boom while connecting a choker. 

Austin Power maintains that the evidence clearly established 

that the deceased employee was not leaning over the rail and 

was in no danger of falling due to his actions. In support 

of this conclusion, Austin Power asserts that MSHA's own 

witness, employee Jeffrey Arent, testified that Mr. Smith was 

not leaning over the top rail but was kneeling on his knees 

reaching between the middle and bottom rails while applying 

the choker, and that he was in no danger of falling. 

Austin Power states that the three employees were standing on the 20-meter boom at the time of the accident~ 

boom was equipped with a standard guard rail which included a 

top rail, a mid-rail and a toeboard made of angle iron~ and 

the boom was covered by a metal housing. Austin Power points 

out that in the Southwestern Illinois Coal Corporation case, 

a violation of section 77.1710(g), was found because no guard 

rails or protective devices surrounded the employees work 

area and a danger of falling existed. However, in the instant 

case, the employees in question were in a protected area and 

were in no danger of falling. Under the circumstances, Austin 

Power concludes that section 77.1710(g) is inapplicable to the 

facts in this case. 

Citing Great Western Electric Co., 2 MSHC 2121 (1983), 

Austin Power points out that in reviewing an analogous 

standard (30 C.F.R. § 57.15005), the trial judge supplied a 

test to in the phrase "danger of falling." In that 

case, the Commission applied a "reasonably prudent person" 

test previously applied in Alabama By-Products Corp., 2 MSHC 

1918 (1982), which is as follows: 

[W)e conclude that the alleged violation is 

appropriately measured against the standard of 

whether a reasonably prudent person familiar 

1708 
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 2122. 

Applying this test to the safety belt standard, the 

Commission defined the test in terms of whether an informed, 

reasonably prudent person would recognize a danger of falling 

warranting the wearing of safety belts and lines. Austin 

Power suggests that an informed, reasonably prudent person 

would not have recognized a danger of falling on the protected 

walkway of the 20-meter boom. Austin Power quotes the crane 

operator's description of the situation: "They were in a catwalk grating area that was covered with a shed. It would be 

like sitting in this chair tied off." Austin Power also 

points to the admission by the inspector that he does not wear 

a safety belt while inspecting the 20-meter boom, and the fact 

that these inspections took place in the same area where the 

same inspector now contends that safety belts are required. 

Austin Power argues that the evidence in this case 

clearly establishes that Mr. Smith was not leaning over the 

rail while applying the choker, but was crouched on his knees 

within the handrail. However, Austin Power asserts that at 

most, Mr. Smith's head was outside the rail, but not his 

shoulder, and that he was as protected and balanced as the 

other two employees which MSHA acknowledged did not need to 

be tied off. Aus n Power concludes that since all three 

employees were in situations in which there was no danger of 

falling, they did not need to be tied off, and the fact that 

a "freak accident" occurred does not change the fact that the 

employees were in a protected area. In further support of 

its conclusion, Austin Power cites the belief by rigging 

foreman Patterson that Mr. Smith's injury was caused by a 

blow to the head from a load cell gauge, and that being the 

case, a tied-off safety belt would have provided no additional 

protection from the unexpected equipment failure. 

Austin Power argues that in the Southwestern Illinois 

Coal Coro. case, a danger of falling existed, and the mine 

operator was found to have violated section 77.1710(g), when 

it left the decision to wear safety belts largely to the disc on of the miners and failed to offer or cite any specific 

guidelines and supervision on the presence of actual fall dangers. Austin Power suggests that if no danger of falling is 

present, then the issue of safety instructions and enforcement 

is irrelevant. On the facts presented in the instant case, 

1709 
Austin Power argues that it has proved that it has a clear 

safety system which insures that its employees are aware of 

the necessity of safety belts under appropriate circumstances 

and that it enforces the established system with due diligence. 

Au~tin Power concludes that its testimony established that it 

has a stated and enforced policy that employees are to wear 

safety belts if they are off the ground and are to tie off 

with their lanyard if they are outside of the guardrails or in 

danger of falling. 

Austin Power maintains that the determination as to when 

to wear a safety belt and tie off is not left to the 

employee's discretion but is specifically set out in its 

written safety manual and in tool box safety meetings. In 

this case, Austin Power points out that the minutes of the 

tool box safety meetings in which safety belts and lines were 

discussed show that they were signed by Mr. Smith, and that 

his coworker Crowell, who worked with him on a regular basis, 

testified that Mr. Smith was an extremely safe and good 

worker who wore a safety belt and tied off when the situation 

called for it. 

Austin Power asserts that Mr. Smith was killed due to a 

highy unexpected equipment failure, and that a tied-off 

lanyard may or may not have protected him under these circumstances. Austin Power concludes that at the time of the accident, there was absolutely no foreseeable danger of falling 

and that this is the standard by which its actions and · 

policies should be judged. 

Citation No. 2339413 

Citing Sunbeam Coal Corp., 1 MSHC 2314 (1980), and 

Peabody Coal Co., 1 MSHC 2422 (1980), Austin Power argues 

that in order to establish a violation of 30 C.F.R. 

§ 77.205(e) or 77.404(a), MSHA must prove that elevated walkways and stairways are unsafe. A lack of reliable and substantial evidence that an actual equipment defect affecting 

safety and resulting in an accident justified dismissal of a 

section 77.404(a) citation, B.S.K. Mining Co., 1 MSHC 2447 

(1980). 

Austin Power asserts that MSHA failed to establish by a 

preponderance of the evidence that clips were actually missing from the walkway grates.· Assuming the clips were in fact 

missing, Austin Power maintains that MSHA has not established 

that the walkway was in an unsafe condition. In support of 

its arguments, Austin Power states that the evidence merely 

proved that grating clips were lying on the ground following 

1710 
the accident, and that the witnesses, including the inspector, 

admitted that they did not know whether the walkway on the 

20-meter boom was clamped prior to the accident. Although 

rigger foreman Patterson testified that he knew the grating 

had been clamped at one time, MSHA based its case on an assumption that the walkway was unsecured, and that this belief is 

based upon speculation rather than fact because no one acknowledged ng the grating unsecured at any time. 

Austin Power asserts that the testimony established that 

the side of the eyelet which broke was on the left side of 

the 20-meter boom, the side on which the employers were standing, and that the inspector admitted that he did not know the 

amount of force involved in the eyelet failure, nor did he 

know whether the force was evenly distributed on the left and 

right sides. Further, MSHA offered no evidence to discount 

the possibility that the failure of the eyelet distributed 

greater force to the left side of the boom, causing the clips 

on the left to be knocked loose. It is entirely possible 

given the facts and circumstances that the force of the accident went down the left side of the boom. The clips are not 

substantial pieces of equipment and are not designed to withstand the type of force which they were subjected to in this 

accident. 

Alternatively, Austin Power maintains that MSHA has 

failed to prove that a walkway without clips is unsafe. A 

finding that the walkway was unsafe is requireu in order to 

establish a violation of section 77.205(e) or section 404(a), 

Sunbeam Coal Corporation and Peabody Coal Co., supra. 

Austin Power argues that the standard.s in issue do not 

state, and no case has held, that walkways must be clipped; 

they merely refer to maintaining walkways and machinery in a 

good, safe condition. In the case at hand, Austin Power 

points out that there appears to be a dispute between MSHA 

and the inspector as to the proper standard to apply. 

Although MSHA amended the citation to allege a violation of 

section 77.404(a), the inspector believed that section 

77.205(e) is the more accurate standard. Austin Power suggests that this confusion and disagreement underscores the 

inapplicability of the citation to the conduct at hand. As 

an example, Austin Power states that most cases referring to 

section 77.404(a) relate to bulldozers and heavy equipment, 

Peabody Goal Co., 3 MSHC 1404 (1984). 

Austin Power asserts that the design of the walkway 

secured the grating from lateral movement due to the angle 

iron device which was cut to hold the grates in a tightly 

1711 
secured position, and that the walkway was of a substantial 

steel construction, as opposed to cases such as The Hoke Co., 

1 MSHC 2455 (1980), in which the walkway was found to violate 

section 77.205(a} because the guardrail was merely a rope. 

Further, Austin Power maintains that the testimony established 

that the only way for the gratings to come out of the channels 

was from the unforeseeable whiplash effect which occurred om 

the eyelet failure, and that its employees testified to their 

belief that the walkway was maintained in a good condition and 

that no safety concerns existed with walking on unclipped grating given the design characteristics. Additionally, the 

20-meter boom was still under construction at the time of the 

accident, and a highly unlikely effect from a "freak" accident 

should not be the measure of whether a wa.lkway is maintained 

in a good condition. Austin Power concludes that the walkway 

on the 20-meter boom, with or without clips, was maintained in 

a good, safe condition, thereby meeting the requirements of 

sections 77.205(e} and 77.404(a). 

Austin Power maintains that even if the grates had been 

clipped down, the evidence suggests that the fatality may 

still have occurred. First, if clips were affixed to the 

grates, the clips quite possibly would have come loose upon 

such a severe impact. Second, MSHA admits that no one knows 

whether Mr. Smith was flipped over the guardrail or fell 

through an area where the floor grates were missing. In 

response to MSHA's assertion that "it is :i:."easonble to assume 

that he was flipped up and came back down, as did the other 

two employees," Austin Power points out that no one saw 

Mr. Smith fall through the handrail. The inspector stated 

that one witness told him that Mr. Smith went over the top 

rail. Additionally, Mr. Smith was closer to the end of the 

boom than the other employees and could easily have been 

catapulted over the edge. Third, foreman Patterson testified 

to his belief that Mr. Smith suffered his injury when his 

head hit the load cell gauge on the 20-meter boom; the gauge 

was bent upon review after the accident. Under this scenario, 

Austin Power concludes that secured grating may not have prevented the fatality, and that MSHA has failed to prove that a 

hazard existed due to the condition of the walkway. 

Proposed Civil Penalty Assessments 

With regard to MSHA's proposed civil penalty assessments 

for the alleged violations in question, Austin Power argues 

that the accident which resulted in the death of Mr. Smith 

was an unforeseeable failure of an eyelet on the cross pit 

spreader, and that this totally unexpected failure was so 

unusual that it goes beyond what is anticipated even by 

1712 
MSHA's system of liability without fault. Austin Power maintains that it and its employees did not and could not recognize a hazard when trained individuals were working on a 

well-maintained, guarded walkway outside of the zone of danger 

from the 518 Link-Belt crane, and that the standards cited are 

not applicable to the facts and circumstances which existed at 

the time of the accident. Austin Power concludes that the 

accident was due to a situation beyond Austin Power's control, 

and that the facts presented should not have led to the three 

citations and the accompanying penalties. 

Austin Power states that whether it knew or should have 

known of any unsafe conditions is relevant in determining the 

appropriate penalty. Peabody Coal Co., 1 MSHC 2215 (1979). 

It believes that it is apparent that Austin Power had absolutely no notice that the equipment was defective, and that 

the alleged violations did not contribute to the accident, 

nor would further actions by Austin Power employees have prevented the accident. Austin Power believes that its lack of 

negligence is relevant criteria in the assessment of penalties. Peabody Coal Co., 1 MSHC 2422 (1980). 

Austin Power takes issue with MSHA's Narrative Findings 

for a Special Assessment which led to the proposed civil penalty assessments for each of the alleged violations. Austin 

Power points to the inspector's acknowledgement that he had 

nothing to do with the narrative findings made by MSHA's 

Office of Assessments, and that he was not given an opportunity to review those findings prior to the proposed penalty 

assessments. 

Austin Power maintains that the narrative findings do 

not correlate with the evidence presented at trial in terms 

of the citations and proposed penalties. Although the narrative findings state that the three citations contributed to 

the severity of the fatal accident, Austin Power maintains 

that the evidence has shown to the contrary. In addition, 

the narrative findings state that the violations resulted 

from "operator negligence," which has not been established. 

The findings state that management knew that employees were 

not in the clear while the 20-meter boom was being moved. 

Austin Power asserts that the evidence shows that the 

employees were actually in the clear and the crane operator 

and supervisors were aware of this fact. 

In addition, the findings state that the operator was 

negligent in allowing the employees to work on the boom without tying off. Austin Power asserts that the evidence shows 

no negligence on its part, as the employees were working in 

1713 
an area with standard guardrails which presented no danger of 

falling. The findings further state that the operator was 

negligent because it knew or should have known that the walkway floor plates were not secure. Austin Power points out 

that there was no definitive testimony that the walkway was 

unclipped. In addition, the evidence established that the 

walkway with or without clips was of substantial construction 

and maintained in a good, safe condition. Austin Power concludes that the sole cause of the accident was the defective 

machinery; any theory to the contrary is unsupported by the 

evidence. 

Finally, Austin Power states that the record is replete 

with evidence of its extensive safety program and commendable 

safety history. Additionally, MSHA stipulated to Austin 

Power's good faith effort toward compliance in relation to 

the accident and imminent danger order, and the inspector 

testified to the cooperation he received from Austin Power 

and the good working relationship he maintains with them. 

Austin Power points to the fact that it has received only two 

prior citations at the Big Brown strip mine, neither of which 

related to a violation of a standard in issue in this case. 

Austin Power also cites its safety training for employees on 

a regular basis, including weekly toolbox safety meetings, 

and concludes that its safety history, good faith effort 

toward compliance, and cooperation are relevant to the assessment of penalties. It concludes that the proposed penalties 

are grossly excessive and not supported by the totality of 

the evidence. 

Findings and Conclusions 

Fact of Violation - Citation No. 2339411 

Austin Power is charged with a violation of mandatory 

safety standard 30 C.F.R. § 77.1607(g), because the crane 

operator was not signalled, notified, or certain that the 

three employees on the 20-meter boom were in the clear before 

using the crane to move the 20-meter boom in a lateral direction. Section 77.1607(g) provides as follows: "Equipment 

operators shall be certain, by signal or other means, that 

all persons are clear before starting or moving equipment." 

Although Inspector Summers stated that there was no regulatory standard specifically prohibiting employees working on 

moving equipm~nt, he also stated that if he ever observed 

employees on a walkway 36 feet above the ground while a piece 

of equipment was moving, he would issue a section 107(a) imminent danger order, even though the employees were protected 

1714 
by a handrail, because there would be a danger of falling 

from the unstable walkway while the equipμient was moving. 

Further, the fact that the boom design was such as to permit 

free access to employees while performing work on or from the 

walkway cannot serve as a def ens~ for failure by the employees 

to adhere to any applicable mandatory safety standards while 

at their work stations. By analogy, simply because a conveyor 

belt drive mechanism is d~signed to permit free access to an 

employee while servicing the belt does not absolve an operator 

from insuring that the drive mechanism is guarded pursuant to 

the applicable guarding standards. 

Superintendent Woodson believed that section 77.1607(g) 

applied to the crane but not to the boom, and his interpretation of the standard is that it prohibited anyone from being 

on a load that is lifted off the ground by a crane and into 

the air. The crane operator was of the same opinion, and 

stated that at the time of the accident, the boom was being 

moved laterally left and right, and he was attempting to position it close to the cherry picker. 

The crane operator testified that the boom was lifted by 

the crane some 5 to 6 inches to facilitate the removal of 

shoring, and that after "tracking it" in a westerly direction, 

the boom remained "dogged off" for approximately 5 hours while 

the counter-weights were being lowered in place by another 

crane. After the loading of the fifth counter-weight, he 

slacked the crane off and then picked it up again to get his 

chokers taut. 

In referring to the boom, foreman·Patterson stated that 

"I try to keep people off of anything like that, you know, as 

much as possible" (Tr. 249). Mr. Patterson also indicated 

that when the boom was lowered after the counter-weights were 

installed, he instructed the three employees to walk down the 

walkway on the opposite side of the boom where the accident 

occurred to check the clearance, and then ordered them back 

to the end of the boom. The boom was then "walked around" 

with the crane, and while it was moving, the three men proceeded down the walkway where the accident occurred following 

their previous instructions to hook the choker to the cherry 

picker. Mr. Patterson indicated that the three employees 

"had no choice" but to be there to install the choker. 

Austin Power suggests that the crane operator was constantly monitoring the movement of the employees while on the 

moving 20-meter boom and that he was receiving signals 

throughout the day. While it is true that the crane operator 

was receiving instructions, and some hand signals were given 

1715 
during the course of the day, the crane operator testified 

that the last signal he received from Mr. Smith was some 

2-hours before the accident occurred (Tr. 156). Further, 

although the crane operator confirmed that he knew the three 

employees were on the moving boom while he was attempting to 

swing it around to the cherry picker, he confirmed that his 

view was obstructed by the boom, and that the employees were 

on the back side of the boom and out of his line of sight 

while he was moving the boom with the crane. The crane operator also admitted that he was unfamiliar with any of the 

safety standards cited in these proceedings, and while conceding in retrospect that the three employees should not have 

been on the moving boom, he believed that their presence there 

was an "acceptable risk." 

Austin Power's arguments that section 77.1607(g), does 

not apply to the facts of this case are rejected. I conclude 

that the standard must be construed to insure the safety of 

the men while on the moving boom which was being lifted and 

maneuvered about during the course of the work shift in question. Based on the evidence presented in this case, it seems 

clear to me that the operator of the crane had the boom under 

load and under his control whi it was being lifted, lowered, 

and maneuvered about laterally during the performance of the 

work. Under the circumstances, I conclude and find that the 

crane operator had a duty under the standard to be certain 

that the men were clear of the boom which was attached to the 

crane before he moved it, particularly in this case where the 

men were out of his line of sight. I also 6onclude and find 

that foreman Patterson had a duty to instruct the men to leave 

the end of the boom before the crane operator proceeded to 

move it. Mr. Patterson admitted that the men "had been out 

there once before the load started moving and they were 

instructed to go back (Tr. 250). Under the circumstances, I 

believe that Mr. Patterson recognized the hazard presented 

while the men were on the moving boom, and while it is true 

that someone had to be there to install the choker, I believe 

that Mr. Patterson should have instructed the men to remain 

clear of the boom until it stopped its movement, and then 

allowed them to walk out to install the choker. 

In view of the foregoing, I conclude that MSHA has established a violation by a preponderance of the credible evidence 

adduced in support of its case, and the citation IS AFFIRMED. 

Fact of Violation - Citation No. 2339412 

Austin Power is charged with a violation of mandatory 

safety standard 30 C.F.R. § 77.1710(g), because three 

1716 
employees who were working on the elevated 20-meter boom walkway some 36 feet off the ground were not tied off with safety 

lines. Although the evidence establishes that the three 

employees had safety belts and lines with them, none of them 

were tied off or secured. Section 77.1710(g), provides as 

follows: 

§ 77.1710 Protective clothing; requirements. 

Each employee working in a surf ace coal 

mine or in the surf ace work areas of an underground coal mine shall be required to wear 

protective clothing and devices as indicated 

below: 

* * * * * * * 

(g) Safety belts and lines where there 

is danger of falling; a second person shall 

tend the lifeline when bins, tanks, or other 

dangerous areas are entered. 

During the course of the hearing, the inspector and 

MSHA's counsel conceded that the two employees who were not 

engaged in instaliing the choker at the time of the accident 

were not required to be tied off pursuant to sections 

77.1710(g). Accordingly, I will confine my findings and conclusions to the circumstances surrounding the positioning of 

the accident victim on the walkway and whether or not he was 

in any danger of falling requiring him to be tied off. 

Two precedential cases involving the interpretation and 

application of an identical safety belt standard as that presented in this case (30 C.F.R. § 57.15-5), are relevant in 

these proceedings. In Kerr-McGee Corp., 3 FMSHRC 2496, 2497 

(November 1981), the Commission held that the purpose of the 

standard is the prevention of dangerous falls. In Secretary 

of Labor v. Great Western Electric Company, 5 FMSHRC 840 

(May 1983), the Commission followed a previously enunciated 

"reasonably prudent person" test applied in A.labama 

By-Products Corp., 4 FMSHRC 2128 (December 1982), and U.S. 

Steel Corporation, 5 FMSHRC 3 (January 1983). In the Great 

Western Electric Company case, at 5 FMSHRC 841-842, citing 

Alabama By-Products Corp., at 4 FMSHRC 2129, the Commission 

stated as follows: 

[W]e conclude that the alleged violation is 

appropriately measured against the standard of 

whether a reasonably prudent person familiar 

1717 
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. 

The Commission also stated as follows in the Great 

Western Electric Company ~ase, at 5 FMSHRC 842 and 843: 

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. 

* * * * * * * 

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. 

Although crane operator Crowell believed that the choker 

located at the end of the boom was installed by Mr. Smith 

1718 
earlier in the day while the boom was resting on the cribbing, 

he was not sure which one Mr. Smith was installing when the · 

accident occurred. Assuming Mr. Smith installed the choker at 

the end, Mr. Crowell believed he could have done it while on 

his knees reaching through the walkway mid-railing. Assuming 

Mr. Smith installed the other choker, Mr. Crowell indicated 

that it could be installed by lifting out the walkway grating 

and wrapping the choker around the walkway framing. However, 

if it were done in this fashion, Mr. Crowell believed that 

there was a chance of falling through the walkway opening left 

by the removal of the grating, and the person would be bent 

over into the opening. He confirmed that he had installed 

chokers in this manner in the past, but used a safety belt 

which was tied off. 

Austin Power cited Mr. Crowell's testimony indicating 

that the employees on the walkway were protected by a 11 shed," 

and that they "would be like sitting in this chair tied off." 

While it is true tht the walkway had an overhead roof, the 

fact remains that the employes were not in a "shed" as that 

term is familiar to me, but were on a walkway 36 feet off the 

ground protected by a hand-rail which had openings between 

the railings. With regard to Mr. Crowell's characterization 

of the positioning of the employees as somewhat akin to 

sitting in a chair, he also indicated that they would be tied 

off. He suggested that if one were tied to the hypothetical 

chair and the leg broke, the fall would not be great because 

"I would still be tied to it." In the case at hand, the 

evidence establishes that while the employees were wearing 

safety belts, none of them were tied off to prevent them from 

falling off the walkway. As a matter of fact, Mr. Crowell 

conceded that while he would not tie himself off while simply 

walking along the boom walkway in question, he would do so 

once he stopped and reached his work station. 

With regard to Austin Power's comments regarding the 

inspector's admission that he never wore a safety belt while 

inspecting the boom, the inspector believed that such a belt 

was only required while one was in danger of falling while 

performing a particular job task placing himself outside the 

protective handrails and not while merely walking down the 

walkway. Under the circumstances, the inspector's admission 

is not particularly relevant. The issue here is whether the 

accident victim Smith placed himself in a precarious position, and whether he was in danger of falling while performing work without being tied off or secured with a safety line. 

Since MSHA has conceded that the other two employees on the 

walkway were not required to be tied off, my findings and 

1719 
conclusions here will be limited to the facts and circumstances regarding Mr. Smith. 

Foreman Patterson testified that immediately prior to 

the accident he observed Mr. Smith kneeling on the walkway 

installing a choker around the walkway framing and under the 

grating. Mr. Patterson stated that he did not observe 

Mr. Smith actually.lift the walkway grating, but saw him 

reaching under the mid-railing. He could not state how much 

of his body was actually through the railing, and he confirmed 

that company policy requires an employee to be tied off if he 

is outside the handrails. In these circumstances, and based 

on his 30 years of experience, Mr. Patterson did not believe 

that Mr. Smith was in any danger of falling, nor did he 

believe that he was required to be tied off. 

Mr. Arent, one of the employees on the boom with 

Mr. Smith at the time of the accident, testified for MSHA on 

direct-examination that he observed Mr. Smith bending over 

the top of the handrail, with his hands beyond the railing 

and his head "just barely out," as he was installing the 

choker on to the end of the boom. On cross-examination, he 

changed his testimony and indicated that Mr. Smith was on his 

knees reaching between the middle and bottom handrail while 

tying another choker around the framing of the walkway inby 

the end of the boom. Mr. Arent believed that Mr. Smith's 

head was outside the handrail, but that his head and shoulders 

were not (Tr. 173). Mr. Arent was of the opinion that 

Mr. Smith would have been in danger of falling and needed to 

be tied off if he were leaning over the rail, but if he were 

on his knees reaching between the handrails he would be better 

balanced and would not need to be tied off because he would 

not be in any danger of falling . 

. !'.\. review of Mr. Arent' s testimony reflects a degree of 

uncertainty as to precisely where Mr. Smith was positioned 

immediately prior to the accident, and his direct testimony 

that Mr. Smith was at the end of the boom leaning over the 

railing while installing a choker, is contradicted by his 

statement on cross-examination by Austin Power that Mr. Smith 

was at another location on his knees while installing a 

second choker. Austin Power's counsel attributed Mr. Arent's 

contradictory testimony to the fact that he was a.subpoenaed 

MSHA witness, that he had never testified in cases of this 

kind, and that he was nervious. When asked to explain his 

contradictions, Mr. Arent responded "I don't know. Just the 

way the question was asked" (Tr. 171). I have reviewed the 

trial transcript and find that Mr. Arent's initial response 

1720 
was in answer to a straightforward question asking him to 

describe what he observed (Tr. 163). 

Mr. Arent is a young man who impressed me as a creqible 

witness, and I find nothing in ~is demeanor to suggest that 

he lied as to where Mr. Smith was positioned at the time of 

the accident. Since he no longer works for Austin Power, and 

only worked there for 6 months, he had nothing to gain by 

lying. Mr. Arent was extremely nervous during his testimony, 

and considering the fact that the accident occurred a year or 

so earlier, I find his uncertainty and confusion understandable. Further, Mr. Patterson's testimony that he observed 

Mr. Smith on his knees near the choker which was tied to the 

walkway frame outby the end of the boom corroborates and lends 

credence to Mr. Arent's belief that Mr. Smith was not at the 

end of the boom, but at the location further inby where the 

second choker was tied to the walkway framing. Under the circumstances, I conclude and find that the evidence adduced in 

this case establishes that at the time of the accident, 

Mr. Smith was not at the end of the boom leaning over the railing, but was on his knees inby the end of the boom at the location where the choker had been tied to the wal~way frame as 

described by Mr. Arent and Mr. Patterson. 

Mr. Patterson testified that Mr. Smith was on his knees 

installing the choker around the walkway framing and under 

the grating, but he did not see Mr. Smith actually pick up 

the grating. Mr. Patterson also observed Mr. Smith reaching 

under the mid-railing, but could not state whether his body 

was actually through the railing. Mr. Arent testified that 

he observed Mr. Smith on his knees and believed that his head 

was through the railing, but that his shoulders were not. He 

also confirmed that Mr. Smith had his safety line with him 

but was not tied off. Crane oparator Crowell testified that 

he often installed chokers in the manner attributed to 

Mr. Smith, and he indicated that one method of installing the 

choker would be to lift out the walkway grating. However, if 

this were done, Mr. Crowell confirmed there would be a danger 

of falling through the walkway opening and he would be tied 

off. 

In describing the method for installing the kind of 

choker that Mr. Smith was inst'al ng while not tied off on 

the walkway, Mr. Patterson likened it to the swinging of a 

piece of rope under the walkway. He stated that Mr. Smith 

had tied the choker on and intended to loop it under the walkway to the other side and then catch it. He admitted that he 

was supervising Mr. Smith's work on the boom from ground 

level, and while he did not give Mr. Smith step-by-step 

1721 
instructions as to how to go about the task of rigging the 

choker to the cherry picker, he conceded that Mr. Smith knew 

that the choker was required to facilitate the movement of 

the boom. 

After careful examination of the photographic exhibits 

and the testimony in this case, I conclude that Mr. Smith's 

position on the walkway while in the process of installing 

the choker in question placed him in danger of falling. While 

on his knees, Mr. Smith's hands were obviously occupied in 

attempting to swing or loop the choker cable under the walkway 

to the other side. Mr. Patterson indicated that Mr. Smith 

intended to catch the cable on the other side. Mr. Smith 

would have had to act swiftly to swing the cable over the edge 

of the walkway and then move quickly to the other side to 

catch it. The testimony establishes that Mr. Smith was reaching under the middle railing of the walkway and that his head 

was beyond the railing. Mr. Smith was some 36 feet off the 

ground while performing the choker task, and I believe one can 

reasonably conclude that in the course of the work being performed as testified to by Mr. Arent and Mr. Patterson, 

Mr. Smith's body was partially outside of the railing. Since 

Mr. Smith was on his knees reaching under the middle railing, 

I find that the railing afforded him little protection and 

that he could have lost his balance while attempting to swing 

the choker under the walkway and fallen to the ground. 

Under the circumstances here presented, I believe it 

should have been clear to a reasonably prudent person that a 

danger of falling existed and that Mr. Smith should have been 

tied off. This is particularly true here, where the evidence 

establishes that Mr. Smith was under the direct observation 

and supervision of rigging foreman Patterson. I conclude 

that a reasonable and prudent person in Mr. Patterson's position would have instructed Mr. Smith to tie off while performing the work of installing the choker in question. 

Employees Arent and Crowell expressed ignorance of the 

MSHA safety standards cited in these proceedings. Mr. Arent 

stated that he knew he had to wear a safety belt and tie off 

and he learned this from weekly safety meetings conducted by 

Mr. White. Although Mr. Crowell indicated that he would tie 

off while at his work station, he further indicted that if he 

were up on a steel structure walking around without any walkway under him he would not tie off while moving about on the 

structure (Tr~ 152). When asked why, he responded that "it 

is an acceptable risk." When asked his opinion as to why 

Mr .. Smith was not tied off, Mr. Crowell responded that he was 

1722 
sure that Mr. Smith did not believe he was in any danger CTr. 

150). 

Foreman Patterson testified that company policy dictates 

that all employees who are required to perform work off ground 

level must have their safety belts on. However, he was not 

certain as to whether the policy requires the wearing of such 

belts while on a catwalk with handrails and toeboards. With 

regard to any policy requiring an employee to be tied off when 

his work takes him outside the guardrail, Mr. Patterson stated 

that this policy is communicated to employees through regular 

tool box safety meetings. However, he did not know whether 

this tie-off policy is in writing as part of the company 

safety rules, but that the policy requires anyone in an 

"unsafe area" to be tied off. 

Superintendent Woodson confirmed that he is responsible 

for safety compliance at Austin Power's job site, and he 

identified copies of the tool box safety meetings conducted 

by company supervisor Jim White, and a copy of Austin Power's 

safety rules. However, Mr. Woodson confirmed that he does 

not personally conduct the meetings, and Mr. White did not 

testify. Although Mr. Woodson generally alluded to the fact 

that the use of safety belts and lines are discussed at the 

safety meetings, he offered nothing specific as to what 

detailed discussions ~ay have taken place, particularly with 

respect to the circumstances under which e~ployees are 

instructed to be tied off when working off the ground. A 

review of the records of the safety tool box meetings conducted by Mr. White simply reflects that safety lines, lanyards, and lifelines were included as topics of discussion. 

With regard to the company safety rules (exhibit R-6), 

references to the use of safety belts and lines are found at 

the following places indicated: 

III A. 3 (pg. 2) - PERSONAL SAFETY EQUIPMENT -

Wear safety belt and tie 

off in elevated areas not 

protectad by guard rails. 

VII B. 1 (pg. 14) - SAFETY BELTS are required 

to be worn and tied off 

when working on: (g) 

Generally any elevated 

work area that is without 

protection to prevent you 

from falling. 

1723 
VII D. 2 (pg. 16) - SCAFFOLDING - Personnel 

must wear safety belts, 

properly tied off, on any 

scaffold platform not 

equipped with standard 

handrails or not 

completely decked. 

X E. 1 (pg. 28) - STABILITY CONTROL-PERSONNEL, 

MATERIALS, and EQUIPMENT. 

You must insure that your 

person, your material and 

your equipment are safe from 

unexpected movement --

falling, slipping, rolling, 

tipping, blowing or any 

other uncontrolled motion. 

1. Use Safety belts as 

required. 

I find nothing in the company written safety rules that 

speci cally requires employees to be tied off when ·they are 

working outside of handrails on an elevated walkway. As a 

matter of fact, the rules which require the wearing of safety 

belts and lines are only applicable l.n cases where an employee 

is working in an area not protected by handrails, and while 

Rule X E. 1 requires ai1°employee to insure that he is safe 

from falling, it only requires that he use a safety belt as 

required. No mention is made of being tied off or secured by 

a lanyard" Further, while Rule E 7 requires the securing of 

toolsv equipment and wrenches against falling when working at 

heights, the securing of the individual person against falling 

is not included. When viewed as a whole, I conclude and find 

that an employee working on an elevated walkway protected by 

handrails 36 feet off the ground can reasonably conclude that 

under the company safety rules as published he is not required 

to be tied off while performing work on the walkway. Since 

the rules provide no specific requirements that he tie off 

when his work requires him to lean over the railing or reach 

through the railing, the decision to tie off in those situations appears to be left to the discretion of the employee. 

In view of the foregoing, and on the facts of this case, 

I find an absence of any specific guidelines or supervision 

on the part of Austin Power with respect to the subject of 

actual fall dangers confronting an employee while performing 

work outside of the confines of the protective railing of the 

walkway in question. Under the circumstances, I conclude 

that Austin Power may not avail itself of the defenses noted 

1724 
in North American Coal Corp., 3 IBMA 93, 107, 1 MSHC 1130, 

1134 (1974), and Southwestern Illinois Coal Corporation, 

5 FMSHRC 1672 (1983), and its defense in this regard IS 

REJECTED. 

In view of the foregoing findings and conclusions, I 

conclude and find that section 77.1710(g) is applicable in 

this case and that MSHA has established a violation. The 

citation IS AFFIRMED. 

Fact of Violation - Citation No. 2339413 

In this instance, Austin Power is charged with a violation of mandatory standards 30 C.F.R. § 77.205(e) or 

77.404(a), for allegedly removing the 20-meter boom walkway 

floor plates or grating clips or "hold-downs," thus rendering 

the walkways in less than good condition. The cited standards 

provides as follows: · 

77.404(a) Mobile and stationary machinery 

and equipment shall be maintained in safe opera ting condition and machinery or equipment in 

unsafe condition shall be removed from service 

immediately. {Emphasis added.) 

77.205(e) Crossovers, elevated walkways, 

elevated ramps, and stairways shall be of substantial constructionl provided with handrails, 

and maintained in good condition. Where necessary toeboards shall be provided. (Emphasis 

added.) 

Superintendent Woodson suggested that during the construction of the spreader in question, the boom walkway 

grates need not be fastened or secured, but that once construction is completed, they do. In my view, the evidence 

here has established that the grating clips are necessary to 

preclude the walkway from popping up or moving out of its 

track. Mr. Woodson indicated that the grates are normally 

clipped, wired down, or welded in place to insure against any 

movement. Under the circumstances, I conclude that any failure to clip or secure the walkway grating may indicate that 

the walkway is not being maintained in good condition as 

required by section 77.205(e), notwithstanding the fact .that 

the grates are positioned in a track and held in place laterally by angle iron. By the same tbken, failure to maintain 

the walkway grates in a clipped or tied down position could 

also result in the walkway being maintained in less than a 

safe operating condition as required by section 77.404(a.). 

1725 
Austin Power's suggestion that the walkway is not "a piece of 

equipment" within the meaning of section 77.404(a), is not 

well taken. The 20-meter boom·is an integral part of the 

spreader, and both the spreader and boom fall within the category of "mobile and stationary machinery and equipment." The 

boom walkways are an integral part of the boom, and they also 

fall within this broad category as encompassed by the 

standard. 

Austin Power maintains that the. walkway grates were 

inherently saf.e simply by resting in place within the steel 

walkway framing protected from movement by angle irons which 

are an integral part of the framework, and that the lack of 

hold-down clips did not render the walkways unsafe or in less 

than good condition. In support of this conclusion, Austin 

Power cites the collective testimony of all of its witnesses 

who were of the opinion that even if the walkway grates were 

not clipped or secured in place, they were nonetheless safe. 

Austin Power maintains that MSHA has advanced no credible evidence to support the charge that the clips had been 

removed, and argues that it was just as likely that.the clips 

were dislodged along with the grates after being subjected to 

the violent whiplash force of the boom when it suddenly 

raised up and propelled the men into the air after the eyelet 

cable failed. 

Before reaching any conclusions as to whether or not the 

lack of grating clips rendered the walkways unsafe or in less 

than good condition, a determination must first be made as to 

whether or not MSHA has advanc.ed any probative or credible 

evidence to support the charge that Austin Power removed the 

grating clips, and that they were in fact removed and not in 

place at the time of the accident. 

In support of its allegation that the clips were removed 

by Austin Power, MSHA relies on the testimony of Inspector 

Summers and the investigation report which he authored. However, the report is not evidence. The inspector's testimony 

regarding the alleged removal of the walkways and clips, and 

the alleged failure to resecure them, is based on his recitation of the results of his investigation as found under the 

"Discussion and Evaluation" portion of his report. 

Mr. Summers confirmed that he took no written statements from 

any of the individuals he interviewed during his accident 

investigation, and simply took notes (Tr. 137-138). 

In his deposition of April 25, 1986, Inspector Summers 

stated that prior to the accident, it was his understanding 

1726 
that "the walkway grating and the rest of the material that 

forms the catwalk, angle iron and everthing, were in place" 

{Dep. Tr. 68). He also confirmed that during histinvestigation after the accident he found walkway clips on the ground. 

When asked how he knew that the grates which fell were not 

clipped prior to the accident, he responded "from looking at 

the other grating along the left-hand walkway" ( Dep. Tr. 75) .. 

Referring to deposition exhibit S-7, he then explained that 

the "other grating" which was not clipped down was the grating located from "the end of the picture back to the pivot 

point of the machine." He stated that this grating was not 

totally secured by clips, and while it did not fall to the 

ground when the accident occurred "some kind of moved out of 

place" (Dep. Tr. 76). 

Referring to his notes, deposition exhibit S-2, 

Mr. Summers identified the 14 sections of walkway grating 

after the accident and away from the scene of the accident 

which either had clips, no clips, or clips which were not 

secured (Dep. Tr. 105-107). Since the walkway grating on the 

right side of the boom was clipped and not thrown to the 

ground, Inspector Summers simply concluded that the•walkway 

grates on the left side of the boom which fell to the ground 

were not secured by clips CDep. Tr. 77). 

Mr. Summers testified that during his investigation, 

Mr. Woodson, Mr. Arent, and the third person on the boom, 

Kevin Saulsburg, told him that the walkway grates at the location where the accident occurred had been removed and not 

resecured (Tr. 126-127). I have reviewed Mr. Summer's deposition and find no mention of any of these individuls. I have 

also reviewed the notes incorporated as part of the deposition, and find no mention of any of these individuals. Nor 

do I find any references as to who may have told Mr. Summers 

that the walkways and clips had been removed and not 

resecured, or that they were removed for painting. The only 

specific reference in the deposition on this question is a 

statement by Mr. Summers that he was told that the electrical 

people had removed the walkway or the clips in order to have 

access to certain electrial equipment under the walkway (Dep. 

Tr. 76). 

Mr. Summers apparently made no effort to identify or 

contact the individuals who may have done any electrical work 

or painting, and MSHA's counsel apparently made no effort to 

call any of these individuals to testify. I find it rather 

amazing that the best evidence available during the investigation or hearing with respect to the removal of the walkway 

1727 
grating and the failure to resecure it was not even pursued 

or developed. 

Inspector Summers confirmed that representatives of the 

designer and manufacturer of the cross pit spreader were 

available at the site during his investigation, but that he 

did not interview or discuss the matter with them (Dep. Tr. 

47). I assume that these representatives were available for 

depositions or subpoenas, and their testimony would be relevant to the issues concerning the effectiveness of the grating clips, whether they in fact secured the walkway to the 

steel framework of the boom or simply tied one piece of walkway grating to the other, and whether or not the force of the 

accident would have propelled the grating out of its channel, 

regardless of any clipping. However, none of these representatives were contacted by Mr. Summers during his investigation, and none were called to testify at the hearing. 

Neither Mr. Arent or Mr. Woodson testified that they 

told Inspector Summers that the walkway grates were taken up 

by electricians or painters and not resecured. Mr. Arent 

testified that while on the walkway, he paid no attention to 

the grates and he could not state whether they were tied down 

or not (Tr. 164, 178). Mr. Patterson alluded to past 

instances in which the walkway grates may have taken up by 

electricians or painters, but in the case at hand, he stated 

that he was not aware that any electricians had any work to 

do in the accident area, and was not aware that the grates 

had been taken up (Tr. 201-202). Although he conceded that 

the grates "probably" would not have popped out if they were 

secured, and that someone "speculated" that the plates on the 

other walkway did not pop up because they were secured, he 

described the breaking of the eyelet cable as a "gigantic 

whiplash effect, or like a fishing pole" (Tr. 207-208). 

Mr. Woodson admitted that during the course of construction, the grates are not always clipped down because ready 

access is required to complete the construction and the 

grates are inherently safe while snuggled into the iron framework channels. He also stated that all of the grating in 

question was clipped down "at one time" by put ting extra 

people on this work and he indicated that "it is good policy 

to get it all clipped down" (Tr. 235). Mr. Woodson also 

stated that he was on the walkway 2 or 3 days before the accident and could not recall seeing any of the clips removed. 

However, he did not walk to the end of the boom at that time 

(Tr. 239). He indicated that when the grating is lying 

within its framework "it is just like one of those manholes 

in the street that you drive across every day" (Tr. 248). 

1728 
Austin Power's counsel maintained that the grating clips 

are not designed to withstand major forces such as occurred 

in this case when the eyelet cable broke. He stated that the 

clips are not substantial pieces of equipment, and that they 

"are just to keep the things from moving one way or the 

other~ (Tr. 246-247). He also indicated that no one knows 

what was clipped and what was not. 

Inspector Summers characterized the sudden raising of 

the boom after the eyelet failed as a "sling shot" which 

tossed the three men and the walkway plates into the air 

(Dep. notes, exhibit S-2). He confirmed that he had no idea 

as to whether the £orce exerted by the boom was evenly distributed on both sides, and no such determination was apparently 

·made during the investigation of the accident (Tr. 125). 

When asked why the remaining grating on the left walkway 

further back from the accident location did not fall to the 

ground (even though some were clipped down and others were 

not), he stated that this back area was subjected to a less 

violent action of the boom when the eyelet failed, and that 

is why they did not fall out (Tr. 124). This lends.credence 

to Austin Power's argument that the violent action of the 

boom at the end of the walkway where the accident occurred 

may have caused the clips to be knocked loose. 

After careful review and consideration of all of. the 

testimony and evidence with respect to this citation, I conclude and find that MSHA has failed to produce any credible 

probative evidence to support the charge that Austin Power 

removed the walkway clips in question or that the walkways 

where the accident occurred were not secured by clips immediately ore that accident. Under the circumstances the cita~ 

tion IS VACATED. 

History of Prior Violations 

Exhibit P-4, is a computer print-out listing Austin 

Power's civil penalty assessment record for the period 

August 19, 1983 through August 18, 1985. That record reflects 

that Austin Power paid civil penalty assessments in the amount 

of $450 for two citations, none of which are for violations of 

any of the standards cited in these proceedings. I conclude 

that Austin Power has a good safety compliance record, and I 

have taken this into account in assessing the civil penalties 

for the citations which have been affirmed. 

1729 
Size of Business and Effect of Civil Penalty on Austin 

PQwer's Ability to Continue in Business 

Superintendent Woodson stated that 30 employees were 

employed at the mine site in question (Tr. 210), and the 

parties stipulated that 41,012 man-hours were devoted to 

Austin Power's mining activities in 1985. Although Austin 

Power's counsel indicated that 700 employees work for the 

company, he explained that Austin Power's principal business 

is the construction of power plants, which is not normally 

considered "mining activities" under the Act (Tr. 13). Under 

the circumstances, for purposes of these proceedings, I conclude that Austin Power is a small mine operator, and this is 

reflected in the civil penalties assessed for the violation 

in question. Austin Power stipulated that the penalties proposed by MSHA will not adversely affect its ability to continue in business (Tr. 188). I conclude that the penalties 

assessed by me for the citations which have been affirmed 

will likewise not adversely affect Austin Power's ability to 

continue in business. 

Good Faith Compliance 

The parties stipulated that Austin Power demonstrated 

good faith in achieving rapid compliance after notification 

of the violations in question. I adopt this as my finding 

and conclusion on this issue, and it is reflected in the 

civil penalty assessments which I have ma.de. 

Negligence 

I conclude that the violations which have been affirmed 

resulted from Austin Power's failure to take reasonable care 

to insure compliance with mandatory safety standard section 

77.1607(g) and 77.1710(g), and that this failure on its part 

constitutes ordinary negligence. With regard to the safety 

line violation, since Mr. Patterson was supervising 

Mr. Smith's work on the boom and had him in view while in a 

position which placed him in danger of falling, Mr. Patterson 

had a duty to either order Mr. Smith away from his work location or instruct him to tie off. 

With regard to the crane operator's failure to insure 

that the employees were clear of the boom, since the crane 

operator did not have the employees in view but knew they 

were on a moving boom performing work, he had a duty to 

insure that they were clear of the area before attempting to 

maneuver the boom with his crane. Had Mr. Smith been ordered 

away from the end of the boom or instructed to tie off his 

1730 
safety line, he may not have fallen 36 feet and been killed 

when the eyelet failed. 

I am not unmindful of the fact that the accident victim 

Smith had a safety lanyard with him, but failed to tie off. 

I am also cognizant of the fact that the accident which 

resulted in the death of Mr. Smith resulted from an unpredicted and unexpected failure of the eyelet. I have considered all of these factors in mitigating the civil penalties 

that I have assessed for the violations which have been 

affirmed. 

Gravity 

I conclude and find that the failure by Austin Power to 

insure that Mr. Smith and the other employees were clear of 

the boom while it was being moved, and to insure that 

Mr. Smith was tied off before proceeding with his work tasks 

constitute serious violations of the cited safety standards. 

Significant and Substantial Violations 

Inspector Summers found that the violations of sections 

77.1607(g) and 77.1710(g) were significant and substantial 

violations. I agree with these findings, and conclude that 

the violations were significant and substantial. I believe 

the violations were contributing factors to the fatal injuries 

suffered by Mr. Smith. Even if the unexpected accident had 

not occurred, I would still find that the failure to insure 

that the employees were clear of the boom while it was being 

moved and the failure of Mr. Smith to tie off whi in danger 

of falling presented a hazard and a reasonable likelihood of 

serious injuries. 

Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llO(i) 

the Act, I conclude that the following civil penalty assessments are appropriate and reasonable in these proceedings: 

Citation No. 

2339411 

2339412 

Date 

8/20/85 

8/20/85 

30 C.F.R. Section 

77.1607(g) 

77.1710(g) 

1731 

Assessment 

$ 2,000 

$ 2,500 
ORDER 

Austin Power IS ORDERED to pay civil penalties in the 

amounts shown above, and payment is to be made to MSHA within 

thirty (30) days of the date of this decision. Upon receipt 

of payment, the civil penalty proceeding is dismissed. 

Citation No. 2339413, August 20, 1985, for an alleged 

violation of 30 C.F.R. § 77.205(e) or 77.404Ca), IS VACATED, 

and MSHA's proposed civil penalty assessment IS DISMISSED. 

Austin Power's Contest of this citation, Docket No. 

CENT 86-61-R, IS GRANTED. 

Austin Power's Contests of Citation Nos. 2339411 and 

2339412, Docket Nos. CENT 86-59-R and CENT 86-60-R, ARE 

DENIED and DISMISSED. 

Distribution: 

Robert Fitz, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Steven R. Mccown, Esq., Jenkens & Gilchrist, 2200 Interfirst 

One, Dallas, TX 75202 (Certified Mail) 

/f b 

1732 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. .20006 

November 12, 198G 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

v. 

BANDAS INDUSTRIES, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No.CENT 86-100-M 

A.C. No. 41-01786-05514 

Nolanville Quarry and Plant 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

The parties have filed a motion to approve settlements 

of five violations involved in this case. The total of the 

originally assessed penalties was $713. The parties now 

recommend in the sum of $535. 

The motion discusses each violation in light of the six 

criteria set forth in section llO(i) of the Federal Mine 

Safety and Health Act of 1977. Citation No. 2662416 was 

issued for violation of 30 C.F.R. § 56.14011 because of 

inadequate guarding on the primary plant impact crusher. A 

reduction in the proposed penalty from $105 to $79 is now 

recommended because of reduced negligence. The operator 

believed in good faith that the hazard had been abated. An 

inspector from the Occupational Safety and Health Administration 

(OSHA) had ob the same condition and had prescribed a 

method of abatement. The operator had followed the instructions 

of the OSHA tor but these did not meet MSHA's 

Citation No. 2662418 was issued for violation of 30 

C.F.R. § 56.9003 because of inadequate brakes on a dump 

truck. A the proposed penalty from $168 to 

$126 is now recommended because of reduced gravity. The 

conditions which the brakes •1ere tested were extreme. 

The truck was greater than it would be in actual 

practice and it was operated on a steeper grade than it ever 

was whi in service. 

Citation No. 2662425 was issued for violation of 30 

C.F.R. § 56.14006 because of failure to guard the pinch 

points of a motor on a screen. A reduction in the 

proposed penalty from $136 to $102 is now recommended 

of reduced ty. Exposure of miners to the hazard was 

extremely 1 

1733 
Citation No. 2662426 was issued for violation of 30 

C.F.R. § 56.14001 because of failure to guard the fan blades 

of a portable generator. .A reduction in the proposed penalty 

from $136 to $102 is now reconunended because of reduced 

gravity. Exposure of miners to the hazard was limited. 

Citation No. 2662427 was issued for violation of 30 

C.F.R. § 56.15002 because of the failure of some miners to 

wear hard hats in areas where material may fall. A reduction 

in the proposed penalty from $168 to $126 is now recommended 

because of reduced gravity and negligence. The operator had 

issued hard hats to its employees and had instructed the 

employees to wear them. The employees who were not wearing 

hard hats usually did not work in areas where there was a 

hazard of falling objects, and were seldom exposed to this 

hazard. I approve the recommendation but the operator should 

make sure in the future that all affected employees wear 

hard hats. 

The representations and recommendations of the parties 

are accepted, especially in light of the operator 1 s small 

size. 

Accordingly, the motion to approve settlements is 

GRANTED and the operator is ORDERED TO PAY $535 within 30 

days of the date of this decision. 

Distribution: 

Jack F. Ostrander, Esq., Office of the Solicitor, U.S. 

Department of Labor, 525 Griffin Street, Suite 501, Dallas, 

Texas 75202 (Certified Mail) 

Mr. R.F. Bandas, Bandas Industries, Incorporated, P.O. Box 

3595, Temple, Texas 76501 (Certified Mail) 

/sc 

1734· 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 121986 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. WEVA 86-217-R 

Order No. 2713945; 2/2 86 

Docket No. WEVA 86-218-R 

Order No. 2713946; 2/25/86 

Docket No. WEVA 86-219-R 

Order No. 2713952; 2/25/86 

Docket No. WEVA 86-220-R 

Order No. 2713953; 2/26/86 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 86-277 

A. C. No. 46-01867-03678 

Blacksville No. 1 Mine 

arances: W. Henry Lawrence, Esq., Steptoe & Johnson, 

Clarksburg, West Virginia, for Contestant/ 

Respondent; 

Before: 

William T. Salzer, Esq., Of ce of the Solicitor, 

U. S. Department of Labor, for Respondent/ 

Petitioner. 

Judge Maurer 

STATEMENT OF THE CASE 

Contestant Consolidat Coal Company (Consol) has filed 

notices of contest challenging the issuance of four separate 

orders during February 1986 at its Blacksville No. 1 Mine. 

The Secretary of Labor (Secretary) has filed petit s seeking c 1 penalties for the violations charged in the contested orders. The proceedings were consolidated for purposes 

0f hearing and decision. 

1735 
Pursuant to notice, the cases were hear3 in Morgantown, 

West Virginia, on July 22 and 23, 1986. 

The general issues before me concerning each of the 

individual orders and its accompanying civil penalty petition are whether there was a violation of the cited standard, 

and, if so, whether that violation was "significant and substantial11 and caused by the "unwarrantable failure" of the 

mine operator to comply with that standard as well as the 

appropriate 1 penalty to be assessed for the violation, 

should any be found. 

Both parties have filed post-hearing proposed findings 

of fact and conclusions of law, which I have considered along 

with the entire record herein. I make the following decis 

STIPULATIONS 

The parties have agreed to the following stipulations, 

which I accept: 

1. The Consolidation Coal Company, Inc., owns and 

operRtes the Blacksville No. l Mi~e and is subject to the 

j sdiction of the Federal Coal Mine Safety and Health Act 

of 1977, Public Law 91-173, as amended by Public Law 95-164 

(Act) . 

2. The Administrative Law Judge has jurisdiction over 

this proseeding pursuant to Section 105 of the 1977 Act. 

3. The subject orders (Nos. 2713945, 2713946, 2713952, 

2713953) and terminations thereto were properly served bv a 

duly authorized representative o~ the Secretary. 

4. Copies of Order Nos. 2713945, 2713946, 2713952, 

2713953 (attached to the Peti for Adjudicbtion of civil 

Penalty) are authentic copies of the original orders. 

5. The assessment of a civil penalty in this proceeding will not affect respondent's ability to cont in 

business. 

6. The operator has been assessed 852 violations for 

the two-year period prior to February 25, 1986. 

7. 1985 annual production for the Blacksville No. 1 

Mine was 1,609,803 tons of coal. 1984 annudl riroduction 

was 1,775,322 tons of coal. 
I. DOCKET NO. WEVA 86-217-R; ORDER NO. 2713945 

Order No. 2713945, issued pursuant to Section 104 (d) (2) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801 et seq. (the Act) alleges a violation of the regulatory 

standard at 30 C.F.R. § 77.205(b) 1) and charges as follows: 

In the Slurry Pump House, located on the surface 

facility of the underground mine, the travelways 

in the housing were not being maintained free of 

slipping hazards. Water was flowing freely from 

a pump on to the floor where a sediment had built 

up over a long period of time approximately 1 1/2 

inches in depth. Little or no effort was being 

made to maintain these work areas. A trough to 

catch run off from the pumps had its end cut off 

allowing this material to run onto the floor 

and across the facility floor and out the door. 

The work-travel areas were approximately 20' feet 

in length overall. This condition was obvious 

and should have been identified by management. 

FINDINGS OF FACT 

1. The order was issued at 9:40 a.m. on February 25, 

1986, by MSHA Inspector Joseph Migaiolo during a "AAA" inspection at the slurry pumphouse located on the surface 

of the Blacksville No. 1 Mine. 

2o The slurry pumphouse is a 15' long x 10' wide 

building which functions as a recycling facility for coal 

residue (slurry) emitted from coal cleaning operations. 

3. During this aforementioned inspection, Inspector 

Migaiolo observed water approximately 1/4 inch deep, exiting 

the front doorway of the pumphouse, at a rate he estimated 

to be five (5) gallons per minute. 

4. Inside the pumphouse, the entire floor was 

covered with slurry sediment, consisting of fine coal 

particles, oil shale and water. However, the water and 

slurry materials were concentrated along the back wall of 

the pumphouse where the depth of the mixture near Pump No. 

4 on Exhibit No. G-5 was three inches. The mixture was one 

and one-half inches deep at Point "C" on Exhibit No. G-5. 

1/ 30 C.F.R § 77.205(b) provides as follows: 

Travelways and platforms or other means of 

access to areas where persons are required to 

travel or work, shall be kept clear of all extraneous material and other stumbling or slipping 

hazards. 

1737 
5. There was an open-ended water trough on the floor 

of the pumphouse at Point "C11 on Exhibit No. G-5 at which 

point water was freely flowing onto the floor, adding to the 

wetness of the slurry sediment mixture as well as completely 

submerging two insulation mats which were on the floor near 

two electrical devices. Water was also flowing onto the 

floor from Pump No. 2 towards the back wall of the pumphouse due to a defective packing around the "drive shaft". 

6. I specifically find that this slurry-water mixture 

created a slipping hazard on the floor of the pumphouse. 

7. While the slurry pumphouse is not a high travel 

area, the facility is inspected on each shift to ensure the 

proper functioning of the pumps and to detect any existing 

hazards. 

8. The presence of the slurry-water mixture on the 

pumphouse floor created a reasonably-likely risk of a slip 

and fall type injury to any employee entering the building 

or maneuvering around the equipment inside. Furthermore, 

the presence of the two submerged insulating mats on the 

floor created a somewhat higher risk of a slip and fall 

injury in the somewhat less likely event an employee were 

to step on one of them. 

9. The type of injuries that would likely be involved 

if such an accident occurred would be back injuries, concussions, and/or broken bones. 

10. Shift foreman Jack Yost observed water flow from 

the pumphouse approximately sixteen inches wide and a 

quarter-inch deep the day before the issuance of the 

stant order. 

11. The operator, through its shift foreman, Yost, had 

actual knowledge of the condition of the pumphouse at least 

the day before the instant order was issued and likewise 

knew or should have known and appreciated the slipping 

hazard presented by the aforementioned conditions on the 

floor of the slurry pumphouse. 

CONCLUSIONS OF LAW 

1. Consol is subject to the provisions of the Act in 

the operation of the subject mine. I have jurisdiction over 

the parties and subject matter of this proceeding. [This 

finding applies to all the orders considered in this proceeding.] 

1738 
2. The evidence as set out above in the Findings of Fact 

establishes a violation of 30 C.F.R. § 77.205(b) due to the 

existence o~ a slippery slurry-water mixture dn the entire 

floor of the slurry pumphouse inc'luding those areas where 

persons are required to travel and work. 

3. The violation was of such a nature as could significantly and substantially contribute to the cause bf a coal 

mine safety hazard, and I accept the testimony of Inspector 

Migaiolo that there was a reasonable likelihood that that 

hazard could have resulted in serious injury to a person or 

persons. I therefore conclude that the violation was significant and substantial and serious. Mathies Coal Company, 

6 FMSHRC 1 (1984). 

4. I further find that the violation was caused by the 

"unwarrantable failure" of the operator to comply with the 

standard. Based on the same evidence, I find that the mine 

operator was negligent. In Zeigler Coal Company, 7 IBMA 280 

(1977), the Interior Board of Mine Operations Appeals interpreted the term "unwarrantable failure" as follows: 

An inspector should find that a violation of any 

mandatory standard was caused by an unwarrantable 

failure to comply with such standard if he determines that the operator has failed to abate the 

conditions or practices constituting such violation, conditions or practices the operator knew or 

should have known existed or which it failed to · 

abate because of lack of due diligence, or because 

of indifference or lack of reasonable care. 

The Commission has concurred with this definition to 

the extent that an unwarrantable failure to comply may be 

proven by a showing that the violative condition or practice 

was not corrected or remedied prior to the issuance of a 

citation or order, because of indifference, willful intent, 

or serious lack of reasonable care. United States Steel 

Corp. v. Secretary of Labor, 6 FMSHRC 1423 at 1431 (1984). 

It is not disputed that Mr. Yost's knowledge is attributable 

to the operator and he knew of the violative condition on 

the before the inspector saw it. The failure to correct 

these conditions reflects indifference to them or a serious 

lack of reasonable care to see that they are abated. 

5. Considering the criteria in Section llO(i) of the 

Act, I conclude that a penalty of $800, as proposed, is 

appropriate. 

1739 
II. DOCKET NO. WEVA 86-218-R; ORDER NO. 2713946 

Order No. 2713946, issued pursuant to Section 104(d) (2) 

of the Act alleges a violation of the regulatory standard at 

30 C.F.R. § 77.1104 ~/ and charges as follows: 

In the hoist house, located on the surface 

facility of the underground mine, the drum 

pit was saturated with a layer of oil. Such 

area had this condition for a long period of 

time due to a bucket placed beneath the 

structure to catch the drippings (3 to 6" in 

depth) . However the portion not collected by 

the bucket had layered on the metallic structure of the base area. In addition the elevated break reservoir had a leak of oil which 

had spread over the base structure and was 

being .delivered to the pit area. This condition 

was obvious and had been previously identified 

·by management as having parts on orde.r and that 

leaks from the pit metallic oil connections were 

just a special connection that leaks normally. 

Accumulations of combustible materials which 

can start fires are not permitted. 

FINDINGs~op FACT 

1. The order was issued at 9:20 a.m. on February 25, 

1986, by MSHA Inspector Joseph Migaiolo durincr a "AAA" inspection of the hoist house facility located on the surface 

of the Blacksville No. 1 Mine. -

2. Situated in the hoist house is a 20 1 long x 15' 

wide x 7' deep concrete.pit, called a "drum-pit" which 

houses a drum hoist and an electric motor driving a hydraulic 

pump for the hydraulic brakes which in turn control movement 

of the drum. 

3. A brattice-type cloth was spread over the floor bf 

the pit to catch dripping noncombustible qraohite rope dressings. However, due to hydraulic fluid leak.s ·from the various hydraulic connections existent in the pit, two-thirds 

of the brattice cloth was saturated with hydraulic fluid, 

and the adjacent floor areas were covered with a thin layer 

of hydraulic fluid. 

2/ 30 C.F.R. § 77.1104 provides as follows: 

Combustible materials, grease, lubricants, paints, 

or flammable liquids shall not be allowed to accumulate 

where they can create a fire hazard. 

1740 
4. Consol was aware of the hydraulic fluid leakage, 

evidenced by the fact that a f 9allon bucket was on the 

pit floor to catch hydraulic fluid leaks from the hydraulic 

hose fittings. Further, it is undisputed that the bucket 

had failed to catch all the and these amounts accumulated on the brattice- cloth. 

5. Consol's 

with the leakage, 

personnel were generally familiar 

not consider it a safety hazard. 

6. Before a f could result from this accumulation 

of hydraul f , a flame or electrical arc must first 

reach the brattice cloth. The only possible ignition source 

was a motor in the front left-hand corner of the pit. 

7. A flame or an electrical arc from this motor could 

possibly, although not very likely, reach the brattice cloth 

if it overheated from an overcurrent condition. 

8. Most tantly, however, this electric motor was 

equipped with both breakers and a power suppression 

system for overcurrent protection. Accordingly, I find it 

to be unlike that an ignition source existed in the drum 

pit. In s~ ho , I specifically reject Inspector Migaiolo's 

suggestion that the solenoid located in the pit could be a 

second potential source of ignition. 

9. The poss employee exposure to whatever hazard 

existed, if any, was very limited. A single employee would 

visit the hoist house once or twice a day to spend a few 

minutes in the area. 

CONCLUSIONS OF LAW 

1. On 25, 1986, the operator violated 30 

C.F.R. § 77.1104 due to the accumulation of combus e 

hydraulic f d in the drum pit of the hoist house facil 

at the Blacksville No. 1 Mine. No matter the likelihood or 

unl lihood of a f actually resulting from this accumulation, the aul fluid was allowed to accumulate where it 

could create a f hazard. Therefore, it is a viol on of 

standard. 

2. The violation was not of such a nature as could 

s f i y and substantially contribute to the cause of 

a coal safe hazard. There was no reasonable 1 li 

hood that the presence of the hydraulic fluid on the 

cloth or the floor of the pit generally would s 

nificantly te to a fire hazard because there was no 

rea ignition source. Further, there was no 

1741 
showing of a reasonable 1 lihood, that the unlikely 

event of a f , there would be an injury of any type, let 

alone an injury of a reasonably nature. Mathies 

Coal Company, supra. 

3. The violation was nonetheless caused by an unwarrantable failure to comply with the standard in question. 

It is uncontroverted that the operator knew the violative 

condition sted. The operator's belief that the brattice. 

cloth did not create a fire hazard and was not a violation 

of the mandatory standard cited was in error. My holding 

here is that any appreciable accumulation of hydraulic 

fluid on the floor 0£ the drum pit, regardless of the likelihood of ignition (so long as that likelihood is not absolute zero), can create a fire hazard, and is therefore a 

violation. That vio on is "unwarrantable" if the operator fails to abate a condition that he knew sted, as 

here. Zeigler Coal Co., supra. In the instant case the 

violative condition had existed for a long time. A bucket 

was being utilized to catch some of the fluid drippings, 

but did not contain all. The brattice cloth that was 

found saturated by Inspector Migaiolo was purportedly 

routinely changed when it became saturated. It appears to 

me that this was a condition management simp had decided 

to 1 with rather than repair. This apparent attitude 

reflects indifference or at least a serious lack of reasonable care to abate. United States Steel Corp., 

For example, the leakage from the accumulator was e 

nated by simply tightening four bolts on the s of the 

accumulator cylinder subsequent to the issuance of the 

instant order. 

4. Considering the teria in Section llO(i) of the 

Act, I conclude that a penalty of $400 is appropriate. 

III. DOCKET NO. WEVA 86-219-R ORDER NO. 2713952 

Order No. 2713952, issued pursuant to Section 104(d) (2) 

of the Act al s a violation of 30 C.F.R. § 77.205(e) ~/ 

and charges llows: 

On the second floor trave , in the preparat plant on the surface, approximate 75 

feet of toe-boards were not provided in these 

3/ 30 C.F.R. § 77.205(e) provides as follows: 

Crossovers, elevated walkways, elevated ramps, 

and stairways shall be of substantial construction, 

provided with handrails, and maintained in good · 

condition. Where necessary toeboards shall be 

provided. 

1742 
elevated walkways. In addition a railing was not 

proper maintained. Such had been cut apart, 

hinged so as to make an opening. However the 

hinged door was not bolted together at the middle. 

Such could cause persons to fall to the main 

floor approximately 12 feet. These conditions 

are obvious and should have been identi by 

management. In addition two other travelways on 

the same floor had segments of railing ssing 

approximately 36 inches in length. 

FINDINGS OF FACT 

1. The order was is at 12:15 p.m. on February 25, 

1986, by MSHA Inspector Joseph Migaiolo during a "AAA" inspection of the preparation plant located on the surface of 

the Black lle No. 1 Mine. During this inspection, Inspector Migaiolo inspected the second floor travelway of the 

said plant. 

2. The travelway on the second floor of the preparation plant lacked fifty-seven (57) feet of toeboard. 

3. Numerous activi taking place on the ground 

floor of the preparation plant place individuals, at times, 

underneath the second floor travelways. At any one time, 

at least two workers may be found on the ground floor. 

4. Two storage rooms are located on the second floor 

and materials and supplies are transported on the second 

floor travelway. In addition to these storage areas, the 

company maintains the superintendent's and the shift boss's 

offices on the second floor. 

5. 

tran 

strike 

Toeboards are necessary on the second floor 

because an object being carried or otherwise 

could fall onto the trave , roll off and 

a worker directly underneath on the ground floor. 

6. The operator was aware of the absence of toeboards 

on the second floor travelway and should have known of the 

potential danger to its employees wo below on the 

ground floor. Curiously, toeboards were installed on 

every other floor of the preparation plant except the 

second loor. 

7. The two-door loading gate located on the second 

floor travelway was s sfactorily constructed. I am 

satisf that this gate would open.inward, as des , 

but would not open outward because of the sturdy construction 

of the hinges on the s. In this regard, I speci cally 

credit the testimony of Mr. Gross over that of Inspector 

Migaio 

1743 
8. The inspector also ted two 3-foot sections of walkway on the second floor where the operator had not installed 

handrails. I find that the missing railing located in these 

areas was tuated where crossbeams and vertical I-beams 

served in place of handrails and adequately served to satisfy 

the regulatory standard. 

CONCLUSIONS OF LAW 

1. On February 25, 1986, the operator violated 30 C.F.R. 

§ 77.205(e) by its failure to provide toeboards on fiftyseven (57) feet of travelway on the second floor of the 

preparation plant at the Blacksville No. 1 Mine. 

2. This violation was of such a nature as could significantly and substantially contribute to the cause and effect 

of a coal mine hazard. When the storage room "D" was 

moved to the second floor, there was a concomitant increase 

in the amount of foot traffic on the second floor travelway 

and increased movement of tools and supplies along this 

travelway in addition to that transported via the elevator. 

It is therefore, I find, reasonably likely that during the 

course of this transportation objects can and will be 

dropped onto the travelway from whence is likewise reasonably likely that they could have rolled of~ the travelway in those areas which were unprotected by toeboards. If 

an item, such as a ballbearing, weighing up to twenty-five 

pounds, were to fall off the travelway onto the ground 

floor below, there is the stinct possibility that a 

worker would be struck. Obvious , such an occurrence 

could result in a ser injury. 

3. The operator knew of the violative condition, i.e., 

the lack of toeboards, and by serious lack of reasonable 

care failed to abate that condition. I therefore nd that 

the aforementioned violation constituted an unwarrantable 

lure to comply with the standard. 

4. Those portions of Order No. 2713952 that alleqe 

similar violations of the mandatory standard concerning the 

loading and the handrails are vacated for the reasons 

·enumerated above in Fi of Fact Nos. 7 and 8. These 

conditions, as described in the record, do not constitute 

a violation of the mandatory standard at 30 c.~.R. § 77.205 

(e), or considering the alternative, 30 C.F.R. § 77.204 

either. 

5. Considering the criteria in Section llO(i) of the 

Act, I conclude that a penalty of $500 is apnronriate for 

the remaining portion of the order for which I have found 

a violation. 

1744 
IV. DOCKET NO. WEVA 86-220-R; ORDER NO. 2713953 

Order No. 2713953, issued pursuant to Section 104(d) (2) 

of the Act, alleges a violation of the regulatory standard 

at 30 C.F.R. § 77.205 and charges as follows: 

On the third floor of the preparation plant, adequate barriers or handrails were not present to 

prevent persons who may accidently fall through. 

An opening divided into two sections by a set of 

conduit pipes existed: the first opening adjacent 

to the other was approximately 65 to 56 inches in 

height, 22 inches in width and 16 inches in depth, 

the second was 56 inches in height, 50 inches in 

width and 16 inches in depth. This was a very 

obvious hazard and should have been detected by 

management. Similar violations of this type had 

been cited the previous day on the floor below. 

No apparent record of this opening was available 

by management. Persons falling through such opening could fall approximately 12 feet to the floor 

below. 

The petitioner subsequently moved to amend Order No. 

2713953 to allege a violation in the alternative of 30 

C.F.R. § 77.204 4/ or § 77.205(e). I granted this motion 

on the record at-the hearing of this case and therefore 

will consider herein whether the record establishes a violation of either of the above standards. 

FINDINGS OF FACT 

1. The order was issued at 10:00 a.m. on February 26, 

1986, by MSHA Inspector Joseph Migaiolo during a "AAA" inspection of the third floor of the preparation plant at the 

Blacksville No. 1 Mine. 

2. During this inspection, Inspector Migaiolo noted 

two areas on the third floor of the preparation plant which 

lacked handrailing. One of the areas was approximately 22 

inches wide between four steel conduits and a vertical Ibeam. For an individual to fall the 12 feet through to the 

floor below, he would have to first negotiate his way 

through that 22 inch opening and then through a 16 inch 

wide ooening to the floor. The other area was similar. It 

was 50 inches wide and 16 inches deep in to the coal chute. 

4/ 30 C.F.R. § 77.204 provides as follows: 

Openings in surface installations through which 

men or material may fall shall be protected by railings, barriers, covers or other protective devices. 

1745 
3. I find both of these aforemSntioned areas were 

adequately protected by a crossbeam which acted as a barrier across the lower portion of the openings and a second 

crossbeam which acted as an adequate barrier across the 

upper portion of the openings. This pre-abatement arrangement of I-beams satisfactorily served as railing. I specifically find that no safety hazard existed at either of these 

openings. My impression after carefully reviewing the 

record concerning this alleged violation, particularly the 

photographic evidence submitted, is that it would fairly 

take an acrobat to fall through either one of these openings. 

CONCLUSIONS OF LAW 

1. The cited absence of handrails in Order No. 2713953 

is not a violation of either 30 C.F.R. § 77.204 or 77.205(e). 

Accordingly, Order No. 2713953 will be vacated. 

ORDER 

Based on the above findings of fact and conclusions of 

law, IT IS ORDERED: 

1. Order No. 2713945, contested in Docket No. WE'ffi 

86-217-R, properly charged a violation of 30 C.F.R. § 77.205(b) 

and properly found that the violation was significant and 

substantial and resulted from Consol's unwarrantable failure 

to comply with the standard involved. Accordingly, Order 

No. 2713945 IS AFFIRMED. 

2. Order No. 2713946, contested Docket No. WEVA 

86-218-R, IS AFFIRMED as a non-S&S violation of 30 C.F.R. 

§ 77.1104. Further, the order properly concluded that the 

said violation resulted from Consol's unwarrantable failure 

to comply with the standard involved, 

3. Order No. 2713952, contested in Docket No. WEVA 

86-219-R, properly charged a violation of 30 C.F.R. § 77.205(e) 

and properly found that the violation was significant and 

substantial and resulted from Consol's unwarrantable failure 

to comply with the standard involved. Accordingly, Order 

No. 2713952 IS AFFIR~ED. 

4. Order No. 2713953, contested in Docket No. WEVA 

86-220~R, IS VACATED. 

5. The Consolidation Coal Company 

TO PAY a civil penalty of $1,700 

of this decision. 

1746 

hereby ORDERED 

days of the date 

!/;lt~ urer 

ative Law :Judge 
Distribution: 

W. Henry Lawrence, Esq., Steptoe & Johnson, Union National 

Center East, Clarksburg, WV 26301 (Certified Mail) 

William T. Salzer, Esq., Office of the Solicitor, U. S. Department of Labor, 3535 Market Street, Philadelphia, PA 

19104 (Certified Mail) 

1747 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 1?. 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 86-287 

A.C. No. 46-06646-03505 

v. 

River Mine 

THOMPSON COAL & CONSTRUCTION, 

INC., 

Appearances: 

Before: 

Respondent 

DECISION 

Therese I. Salus, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for the 

Petitioner; · 

James W. Thompson, President, Thompson Coal 

and Contruction, Inc., Clarksburg, 

west Virginia, pro se. 

Judge Koutras 

statement of the Case 

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of 

the Federal Mine Safety and Health Act of l977, 30 U.S.C. 

§ 820(a), seeking civil penalty assessments in the amount of 

$84 for two alleged violations of certain mandatory safety 

standards found in Part 77, Title 30, Code of Federal 

Regulations. 

The respondent filed a timely answer and contest, and a 

hearing was held in Morgantown, West Virginia, on August 27, 

1986. The parties waived the filing of posthearing bri s. 

However, I have considered their oral arguments made on the 

record during the course of the hearing. 

'Issues 

The issues presented in this proceeding ar~ as follows: 
1. Whether the respondent violated the 

cited mandatory safety standards, and if so, 

the appropriate civil penalties to be assessed 

for those violations based on the criteria 

found in section llO(i) of the Act. 

2. Whetber the inspector's "sign icant 

and substantial" (S&S) findings concerning the 

violations are supportable. 

3. Additional issues raised by the 

parties are identified and disposed of in the 

course of this decision. 

Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 20 C.F.R. § 2700.1 et~­

Stipulations 

The parties stipulated to the following (Tr. 4-6): 

1. The subject mine is owned and operated 

by the respondent, and the respondent is subject to the jurisdiction of the Act and the 

presiding judge. 

2. The subject citations and terminations 

were properly served by a duly authorized representative of the Secretary of Labor upon an 

agent of the respondent on the dates, times and 

places stated therein. They may be admitted 

into evidence for the purpose of establishing 

their issuance, but not for the truthfulness or 

relevancy of any statement asserted therein. 

3. The parties stipulate to the authenticity of the exhibits, but not to the relevance nor to the truth of the matters asserted 

therein. 

4. The alleged violations were abated in 

a timely fashion. 

1749 
5. The River Mine produced twenty-one 

thousand, seven hundred and twelve (21,712) 

annual production tons in 1985, and Thompson 

Coal & Construction, Incorporated, also produced twenty-one thousand, seven hundred and 

twelve (21,712) production tons in that year. 

6. The proposed penalty assessments will 

not affect the respbndent's ability to continue 

in business. 

With regard to the respondent's history of violations, 

MSHA's counsel stated that the respondent was issued four 

section 104(a) "S&S" citations during the 24-month period 

prior to the issuance of the violations in this case, and 

that the respondent has paid civil penalties in the amount of 

$170 for these violations. Counsel agreed that the respondent has a good compliance record (Tr. 7). 

Bench Ruling 

Respondent proposed and agreed to make full payment in 

the amount of $42 for contested Citation No. 2706004, 

January 30, 1986, 30 C.F.R. § 77.410, and stated that it no 

longer wished to contest the citation. The citation was 

issued because of an alleged defective backup warning device 

on an end loader. I treated this proposal by the respondent 

as a settlement proposal pursuant to Commission Rule 30, 

29 C.F.R. § 2700.30, and it was approved from the bench (Tr. 

8). Testimony and evidence was then received with respect to 

the remaining citation. 

Discussion 

Section l04(al "S&S" Citation No. 2706002, issued on 

January 30, 1986, cites an alleged violation of 30 C.F.R. 

§ 77.1605(b), and the condition or practice is described as 

follows (Exhibit G-1): "The caterpillar front-end loader, 

Serial No. 25K339 has a defective parking brake due to when 

the parking brake is set, it will not hold the end loader in 

place. Located on the job site. Larry Reall is the area 

foreman." 

MSHA's Testimony and Evidence 

MSHA Inspector David D. Workman, testified as to his 

background and experience, and confirmed that he conducted a 

regular inspection of the respondent's mine on January 30, 

1986, and that three miners were there at the time (Tr~ 13). 
Mr. Workman identified a copy of Citation No. 2706002, and 

confirmed that he issued it because of a violation of mandatory safety standard section 77.1605(b), which requires that 

parking brakes be provided on any.equipment being operated on 

the surface areas of strip mines (Tr. 15). 

Mr. Workman stated that after beginning his inspection, 

he observed the cited end loader "setting over to the side," 

and spoke with the loader operator, a Mr. Bays. Mr. Workman 

stated that the day was cold and that it had snowed. He 

described the mine terrain as frozen, but containing ruts and 

soft mud caused by equipment travelling through the mine 

surf ace areas. He stated that work was being done in a pit 

area, and that the end loader was "parked up and out of the 

pit area, over to the left. 11 The loader was not in operation, and its bucket was down on the ground (Tr. 16). 

Mr. Workman testified that he requested Mr. Bays to 

start up the end loader so that he could check it for safe 

operation. Mr. Bays informed him that the parking brake was 

not functioning properly and that he had reported the condition to foreman Larry Reall, but that the condition was not 

repaired. Mr. Workman confirmed that the loader was not 

·tagged out, and Mr. Bays started it up, and it was functional 

and not mechanically disabled. Mr. Workman did not believe 

that a lowered bucket on such an end loader would serve as a 

brake in the event it were parked on a grade (Tr. 18). 

Mr. Workman confirmed that foreman Reall advised him 

that he did not make a record of the defective brake condition. Mr. Workman stated that he got into the loader operator1 s compartment with Mr. Bays. The brake was set, and 

when Mr. Bays accelerated the machine while in reverse gear, 

it moved backwards with the brake set (Tr. 19). The machine 

was removed from service, a record was made of the defective 

brake, and parts were ordered to repair it. The abatement 

time was extended because of difficulties in obtaining parts, 

but once the end loader was repaired, Mr. Workman abated the 

citation (Tr. 20-22). 

Mr. workman stated that the purpose of the parking brake 

is to prevent the end loader from drifting if parked on a 

grade. If the machine drifted, it could run into someone or 

a piece of equipment. Three em~loyees and a foreman were in 

the "immediate area," and if the machine drifted and hit someone, it would reasonably be expected to cause injuries or 

even death. Mr. Workman also believed that it was reasonably 

likely that the end loader could drift, and that this has 

1751 
occurred several times in work areas in MSHA District 3 ·(Tr. 

21). 

On cross-examination, Mr. Workman testified that while 

he has operated D-8 and D-9 dozers, he has not operated any 

larger surface "high lifts" and is not familiar with the 

mechanics of braking system. He also confirmed that he had 

no knowledge of the mechanical operation of the particular 

parking brake in question (Tr. 26-27). 

Mr. workman confirmed that the end loader was not in 

operation when he cited it, and that it was parked in a level 

area with the bucket down. He looked at the "daily book 11 

kept by the loader operator, and found no record concerning 

the parking brake (Tr. 27). He confirmed that except for the 

parking brake, the rest of the braking system was functioning 

properly (Tr. 28). Mr. Workman stated that when the loader 

is not in operation and parked, the parking brake must be set 

in order to keep the machine from moving in any direction. 

While the machine bucket lowered and dug into the soft ground 

would hold a machine pointed downhill, this does not satisfy 

the law (Tr. 29). 

In response to further questions, Mr. Workman stated 

that he also cited another end loader at the same work site, 

and when he returned the next day to abate that citation, he 

had the machine tested on a steep elevated area, and when the 

parking brake was set with the machine in neutral, it would 

not move. With regard to the end loader cited in this case, 

Mr. Workman confirmed that he tested it by having the operator operate the machine in reverse, and then putting it in 

neutral to see if it would continue to move (Tr. 31). 

Mr. Wor~~an confirmed that at the time of the inspection, he did not know whether or not the respondent intended 

to use the end loader. However, if the machine is not tagged 

out or dismantled, he assumes that it can be used and will 

inspect it and issue a citation if he finds any defective 

conditions (Tr. 32). Mr. Workman conceded that it was 

unlikely that the machine would move and strike someone from 

the location where he found it parked. His concern was that 

the machine would be put in operation with a defective parking brake, and if this were done, one could reasonably expect 

an accident to occur (Tr. 36). 

Mr. Workman confirmed that his inspection of the pit 

area was his first inspection of that site, and he stated 

that he was familiar with strip mining operation. He stated 

that the pit had only enough room for one end loader and a 

1752 
truck, and that work on the pit was being finished up in order 

to move to another site. He observed other pieces of equipment which were not operational parked "off to the left," and 

reiterated that the cited end loader "was sitting on a very 

flat area, with the bucket down" (Tr. 37). In response to 

further questions, he stated as follows (Tr. 37-38): 

Q. What I am driving at is: How do you know, 

or how did you come to the conclusion, that 

there was a reasonable likelihood here that 

there would be an accident? Is it based on 

your experience, generally,·about end loaders; 

that they are sometimes parked in elevated 

areas and sometimes you have runaways with 

parking brakes? Or is there something specific 

about this operation? 

A. No, sir. We have had, in the past, in 

different operations where end loaders were 

found in areas -- in elevated areas, where 

they would drift, and come into other equip--

ment. And this is from different work sites, 

and even surface areas of underground mines. 

It's not uncommon to find Mack packs or end 

loaders working in surface areas of underground 

mines. 

Q. Okay. 

A. It's quite common toward our inspections. 

Q. Now, if Mr. Thompson can establish in this 

case that he has a nice little tidy parking 

lot, paved area, where he puts his end loaders 

all of the time, and if he can establish, for 

example, that they're never parked in elevated 

areas or on ramps, and once they have finished 

their business in the pit, they are simply 

taken out and parked someplace in a level 

area, would your opinion change as to whether 

there would be a likelihood of an injury in 

this case? 

A.. No, sir. 

Q. Your opinion would be the same? 

A.. Yes, sir. 

1753 
Q. Based on your experience? 

A. Of accidents that are recorded and accidents that have occurred throughout our 

industry. 

Respondent's Testimony and Evidence 

Junior L. Bays testifi.ed that he is employed by the 

respondent as an end-loader operator, and has been so 

employed for 17 years. He confirmed that he was the operator 

of the end loader inspected and cited by Inspector Workman on 

January 30, 1986. He stated that the end loader was not in 

operation and had been parked for 3-days prior to the inspection. He confirmed that he advised the mine superintendent 

that the loader had defective brakes and that he also made an 

entry to this effect in a personal log book. Mr. Bays did 

not know whether parts had been ordered to repair the 

machine, and he confirmed that he never attempted to operate 

the machine after the superintendent told him to park it (Tr. 

4 0-41). 

Mr. Bays stated that if the loader engine were shut off, 

all four wheels will lock and it would be impossibe to move 

the machine, regardless of whether it were parked on the level 

or on a slope. He explained that the machine radiator blew 

one day, and when attempts were made to move the machine while 

hooked to a dozer with a cable, the machine would not move. 

Mr. Bays confirmed that he had the keys to the loader in his 

pocket, and was told not to run it (Tr. 42). He earlier testified that the superintendent said nothing to him about not 

running it, and simply told him to park it (Tr. 41). 

Mr. Bays stated that the most effective braking for the 

loader occurs when it is operated in 'the forward mode, and 

that operating it in reverse "is next to no brakes at all" 

(Tr. 43). He confirmed that the machine had a good foot 

brake, and that if left with the engine shut off and the parking brake on, the machine cannot be moved (Tr. 43). He also 

confirmed that because of the cold day the only piece of 

equipment operating on the day of the inspection was a "275 

Michigan" ('J'r. 43). 

On cross-examination, Mr. Bays confirmed that on the day 

in question, he parked the machine on the level with the 

bucket down, and he had the k~y in his pocket so that no one 

else could operate it. He gave his daily log book to 

Mr. Reall, and confirmed that he had entered a notation "No 

1754 
parking brake" in the book, but Mr. Reall did nothing about 

it other than to tell him to park it (Tr. 46). 

Mr. Bays stated that the purpose of the parking brake is 

to serve as a safety device if the loader is parked on a 

grade. Although the parking brake helps to hold the machine 

while on a grade, if the machine is on a 10 or 12 percent 

grade and operated in gear, it will still move, even with the 

parking brake set (Tr. 47). The machine cannot be moved with 

the engine off and all four wheels locked, and the foot brake 

will hold the machine when it travels in reverse (Tr. 49). 

In response to further questions, Mr. Bays stated that 

he first discovered the defective parking brake when he was 

operating the loader in the pit stripping away the dirt in 

preparation for loading out the coal. He explained that a 

buzzer signal device on the machine alerted him to the fact 

that the parking brake was defective and that this occurred 

3 days before the inspection. He further explained that certain disks and plates had to be ordered to repair the parking 

brake. When he discovered the condition he was told to take 

the machine out of service and park it, and that is what he 

did (Tr 50-51). Once the machine was repaired, he intended 

to use it again (Tr. 52). 

Mr. Bays stated that the pit was only large enough to 

permit the operation of two end loaders, but that no trucks 

enter the pit while he is there. Once the coal is reached in 

the pit, it is loaded out by an end loader and loaded onto 

trucks which are out of the pit. However, a truck would enter 

the pit if the pit were large enough, nut in this instance 

there was only enough room for one end loader in the pit, and 

he would not have used the end loader in question in the pit 

(Tr. 53). At the end of the day, he would fuel the loader, 

grease it, and take it out of the pit and park it on good 

solid level ground (Tr. 54). 

MSHA's Arguments 

In closing oral argument, MSHA's counsel asserted that 

the evidence adduced in this case establishes that the cited 

end loader was parked on the respondent's .mine site, and had 

the vehicle been parked on a grade, it could have moved as a 

result of the malfunctioning parking brake, and could have 

struck employees working in the area. Counsel asserted that 

one employee was exposed to this hazard (Tr. 56). 

In further support of her case, MSHA's counsel cited a 

decision by former Commission Judge John Cook in MSHA v. 
Middle Kentucky Construction, Inc., 2 MSHC 1044 (1980), 

2 FMSHRC 2589, September 12, 1980, in which Judge Cook 

affirmed a similar violation for a defective parking brake on 

a truck and an end loader. Judge Cook rejected an affirmative defense advanced by Middle Kentucky, similar to the one 

in this case, that the cited equipment had been removed from 

service prior to the inspection. In rejecting this defense, 

Judge Cook relied on the Commission's decision in Eastern 

Associated Coal Corporation, 1 MSHC 2209, October 23, 1979, 

holding that the mere placement of a danger tag on a piece of 

equipment and permitting it to remain in the mine's active 

workings, was insufficient to render the machine "removed 

from service" within the meaning of the Act. In Eastern 

Associated Coal, the Commission stated as follows at 1 MSHC 

2210: 

It is undisputed that the inoperable parking brake was a violation. For a violation 

such as this, there are two basic ways to 

abate -- repair or withdrawal from service. 

Assuming that the jitney could not have been 

repaired safely in the time set for abatement, 

the question in this case is whether a danger 

tag alone constitutes withd~awal from service. 

We hold that tagging the jitney was not sufficient to withdraw the jitney from service 

because the danger tag did not prevent the use 

of the defective piece of equipment. The 

jitney was still operable and the danger tag 

could have been ignored. To abate under. these 

circumstances, the jitney should have been 

made inoperable. There is no suggestion in 

the record that the jitney could not have been 

rendered inoperable safely, thus eliminating 

the danger posed within the abatement period. 

On the facts of the instant case, MSHA's counsel pointed 

out that the end loader was not tagged out, and nothing prevented the actual use of the equipment since the operator had 

the keys in his pocket. Although the respondent may have 

established that the operator was directed not to use the end 

loader, counsel suggested that a breakdown in communication 

could result in a miner remaining unapprised of respondent's 

decision to remove the equipment from service. Coun$el also 

pointed out that in the Middle Kentucky Construction case, 

Judge Cook ruled that the term "parldng brake" as used in the 

standard, referred to a braking system separate and independent from any service or emergency brakes on the front-end 

loader (Tr. 55~58). 

1756 
Respondent's Arguments 

Respondent argued that the 'cited end loader was taken 

out of service and parked 3-days prior to the citation, and 

that no one but the operator had the key. Respondent 

asserted that it only works one shift and that Mr. Bays was 

the only end-loader operator, and he had the key in his possession. He parked the end loader on level ground, and since 

the automatic braking system he described had taken over, the 

end loader was rendered unmovable. The respondent also 

pointed out that any vehicle with the parking brake set will 

move in reverse if placed in reverse gear, but will not move 

forward. Assuming it is parked on a down grade, the parking 

brake will in all probability hold it, but if it were parked 

so that it could run backwards on the same grade, it probably 

would not. The respondent also suggested that the cited 

standard only required that the end loader be equipped with a 

parking brake, and does not state that it must be an operating parking brake. The respondent also pointed out that the 

parking systems on trucks are different from braking systems 

on end loaders and "high lifts" (Tr. 59-60). 

Findings and Conclusions 

Fact of Violation 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 77.1605(b), because of the defective parking brake on an end loader. Section 77.1605(b), 

provides as follows: "Mobile equipment shall be equipped· 

with adequate brakes, and all trucks and front-end loaders 

shall also be equipped with parking brakes." 

The evidence adduced in this case establishes that the 

cited end loader was not equipped with an adequate parking 

brake and that the brake was defective and in need of repair 

at the time it was inspected and cited by Inspector Workman. 

Although one may question the validity of testing the ef fectiveness of the parking brake by operating the machine in 

reverse gear on level ground, the respondent here concedes 

that the parking brake was defective because the loader operator was alerted to this fact when the alarm sounded, and he 

confirmed that certain brake disks and plates needed 

replacement. 

The respondent's suggestion that section 77.1605(b) only 

requires that an end loader be equipped with a parking brake, 

without the necessity for maintaining it in a serviceable or 

1757 
safe condition is rejected. Although the language of the 

standard implies that brakes other than parking brakes are to 

be adequate, I believe the clear intent of the standard is to 

insure that all braking systems on such a piece of equipment 

be maintained serviceable and functionable so as to insure 

the margin of safety intended by the installation of these 

braking systems. Further, since the standard is obviously 

intended for the protection of the miners, any other interpretation would be contrary to the intent and purposes of the 

Act. In this case, the loader operator conceded that the 

purpose of the parking brake is to serve as a safety device 

when the machine is parked on a grade. 

The unrebutted evidence in this case establishes that 

the respondent took the end loader out of service and parked 

·it on level ground when the operator discovered the defective 

parking brake condition. The respondent's suggestion that it 

may avail itself of this voluntary withdrawal of the equipment as a defense to the citation is rejected. The facts 

reflect that the end loader was not tagged out, nor was it 

rendered inoperable. Even if it were tagged out, the respondent may not avail itself of this fact as an absolute defense 

to the citation, and my suggestion during th~ course of the 

hearing that it may was in error (Tr. 63-64). The case law 

as enunciated in the Middle Kentucky Construction and Eastern 

Associated Coal Corporation cases, supra, is to the contrary. 

In Eastern Associated Coal, the Commission ruled that even 

though the equipment was tagged out, it was not rendered 

inoperable and the danger tag could have been ignored. 

Although the facts in the instant case reflect that the 

end-loader operator was the only person with the key, was 

clearly aware of the defective brake, and testified that he 

would not have attempted to use the end loader until it was 

repaired, the fact remains that the machine was not rendered 

inoperable until such time as the parts could be ordered and 

repairs made. The unrebutted evidence establishes that the 

foreman did nothing to immediately order parts or attempt to 

repair the machine before the inspector found it. The inspector found no evidence that the machine was dismantled or disabled (Tr. 18). Although the respondent presented unrebutted 

evidence that the machine, with its engine shut down, effectively resulted in the locking of all four wheels, thus rendering the machine immovable, in light of the Commission's 

holding in Eastern Associated Coal Corporation, I cannot conclude that this fact rises to the level of rendering the 

machine inoperable. 

1758 
In view of the foregoing, I conclude and find that MSHA 

has established a violation of section 77.1605(b), by a preponderance of the credible evidence adduced in this case, and 

the violation IS AFFIRMED. 

Size of Business and Effect of Civil Penalty on the 

Respondent's Ability to Continue in Business 

On the basis of the stipulations by the parties, I conclude and find that the respondent is a small mine operator 

and that the civil penalty assessed for the violation in question will not adversely affect its ability to continue in 

business. 

History of Prior Violations 

The record establishes that the respondent paid $170 in 

civil penalty assessments for four section 104(a) citations 

issued during the 24-month period prior to the issuance of 

the contested citation in this case. I conclude and find 

that the respondent has a good compliance record, and this is 

reflected in the civil penalty assesment for the violation 

which has been affirmed. 

Good Faith Abatement 

The parties have stipulated that the violation was 

abated in good faith by the respondent. I adopt this is my 

finding and conclusion on this issue, and it is reflected in 

the civil penalty assessment. 

Negligence 

There is no evidence in this case that the respondent or 

the end-loader operator continued to operate the machine once 

aware of the defective brake condition. The unrebutted testimony by the respondent reflects that the loader operator first 

became aware of the condition while operating the machine, and 

that he immediately notified his foreman who instructed him to 

take the machine out of service and park it. MSHA presented 

no evidence that the respondent should have been aware of the 

condition prior to the operator using the machine, or that it 

failed to inspect or test the brake before allowing the operator to run the machine. Although foreman Reall was made 

aware of the brake defect after it was discovered, there is no 

evidence that he had prior knowledge of the defect, nor is 

there any evidence of any attempts to use the machine after 

the operator took it out of service. Under the circumstances, 

I cannot conclude that the respondent was negligent. 

1759 
Gravity 

On the facts of this case, I cannot conclude that the 

violation in question was serious. MSHA has presented no 

credible evidence to support its conclusion that one miner 

was exposed to a hazard resulting from the defective parking 

brake. Although I agree that if someone is struck by a piece 

of free rolling equipment he would likely be injured, the 

record in this case is devoid of any evidence that anyone was 

ever placed in jeopardy by the defective parking brake. 

I take note of the fact that in the Middle Kentucky 

Construction case, the inspector who cited the truck and end 

loader for defective parking brakes, found the equipment 

parked on grades. Judge Cook also found that the equipment 

was parked in close proximity to other equipment and mine 

personnel, and that if it moved, it could have rolled down 

the incline thus exposing miners and other equipment to a 

hazard. The facts in the instant case establish that the end 

loader was parked on a level grade and out of the pit with 

the wheels locked and the engine turned off. The available 

key was in the pocket of the operator who was aware of the 

defective braking brake and who took the machine out of service and parked it until it could be repaired. The inspector 

conceded that from the location where the machine was parked, 

there was no likelihood of the machine even moving, let alone 

rolling anywhere and striking someone (Tr. 35). The inspector's conclusion of the existence of a potential hazard was 

based on his presumption that the equipment would be op2rational in the pit (Tr. 35). 

Inspector Workman conceded that his inspection on 

January 30, 1986, was the first time he had inspected the 

site, and that his citation was not based on any specific 

operational procedures at the site in question (Tr. 37). His 

conclusion that a hazard existed, or was likely to exist had 

the machine been in operation with a defective parking brake, 

was based on his knowledge of other mine sites where equipment on elevated areas were known to drift free and strike 

other equipment, and from recorded incidents industry wide 

(Tr. 37-38). 

MSHA presented absolutely no credible evidence to suggest 

that the respondent's end loaders are ever parked on elevated 

grades in proximity to any equipment or miners. The loader in 

question was parked on level ground, with its bucket down, 

with the engin~ off and all four wheels locked. The loader 

operator testified that his usual and normal procedure at the 

1760 
end of the work shift is to take the end loader out of the pit 

and park it on level ground with the engine off, and MSHA has 

not rebutted this fact. Further, the loader operator's unrebutted testimony is that no trucks actually enter the pit for 

loading, and that the end loader comes out of the pit to load 

the trucks. In the instant case, he testified that the pit 

was only large enough to accomodate one end loader, and he 

would not have used his loader in the active pit. The inspector confirmed that this was the case (Tr. 37). 

though Inspector Workman stated that the terrain at 

the mine included up-and-down grades, he conceded that any 

conclusion concerning a hazard from a defective parking brake 

would depend or where the end loader would be operated and 

where it would be parked (Tr. 20). On the facts of this case, 

I find no credible evidence to support any conclusion that any 

of the respondent's end loaders are ever parked, operated, or 

stopped on grades requiring the use of the parking brake. 

Significant and Substantial Violation 

A "significant and substantial" violation is described 

in section 104(d)(l) of the Mine Act as a violation "of such 

nature as could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health 

hazard." 30 C.F.R. § 814(d)(l). A violation is properly 

designated significant and substantial "if, based upon the 

particular facts surrounding the violation there exists a 

reasonable likelihood that the hazard contributed to will 

result in an injury or lness of a reasonably serious 

nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 

825 (April 1981). 

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

Commission explained its interpretation of the term "significant and substantial" as follows: 

In order to establish that a violation of 

a mandatory safety standard is significant and 

substantial under National Gypsum the Secretary 

of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a aiscrete safety hazard--that is, a measure of 

danger to ety--contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature. 

1761 
In United States Steel Mining Company, Inc., 

7 FMSHRC 1125, 1129, the Commission stated further as 

follows: 

We have explained further that the third 

element of the Mathies formula "requires that 

the Secretary establish a reasonable likelihood that the hazard contributed to will result 

in ah event in which there is an injury." U.S . 

. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized that, in accordance 

with the language of section 104(d)(l), it is 

the contribution of a violation to the cause 

and effect of a hazard that must be significant 

and substantial. U.S. Steel Mining C6mpany, 

Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. 

steel Mining Company, Inc., 6 FMSHRC 1573, 

1574-75 (July 1984). 

Incorporating by reference my gravity findings, and 

applying the principles of a "significant and substantial" 

violation as articulated by the Commission in the aforementioned decisions in terms of continued normal mining operations, and in the absence of any credible evidence or facts 

to support any conclusion that the defective parking brake in 

question could contribute to a hazard, I cannot conclude that 

MSHA has established that there was a reasonable likelihood 

that an accident or injury would occur. Accordingly, the 

inspector's "significant and substantial'' finding IS VACATED, 

and the citation is modified to reflect a non-"S&S" violation. 

Civil Penalty Assessment 

In view of the foregoing findings and conclusions, and 

taking into account the requirements of section llO(i) of the 

Act, I conclude that a civil penalty assess1nent in the anount 

of $20 is reasonable for the citation which has been affirmed. 

ORDER 

The raspondent IS ORDERED to pay a civil penalty assessment in the amount of $20 for section 104(a) non-"S&S'' Citation No. 2706002, January 30, 1986, 30 C.F.R. § 77.1605(b), 

and a civil penalty assessment in the amount of $42 in settlement of section 104(a) Citation No. 2706004, January 30, 1986, 

1762 
30 C.F.R. § 77.410. Payment is to be made to MSHA within 

thirty (30) days of the date of this decision, and upon 

receipt of payment, this proceeding is dismissed. 

Distribution: 

Therese I. Salus, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 Market 

street, Philadelphia, PA 19104 (Certified Mail) 

Mr~ James w. Thompson, President, Thompson Coal & 

Construction, Inc., P.O. Box 228, Clarksburg, WV 26301 

(Certified Mail) 

/fb 

1763 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COlORADO 80204 NOV 1~1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

HOMESTAKE MINING COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 85-61-M 

A.C. No. 39-00055-05540 

pocket No. CENT 85-103-M 

A.C. No. 39-00055-05548 

Docket No. CENT 85-110-M 

A.C. No. 39-00055-05549 

Homestake Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Lasher 

Upon Petitioner's motion for approval of a proposed settlement and the same appearing proper, the settlem~nt is approved~ 

The terms of the settlement are as follows: 

A. Docket No. CENT 85-61-M 

Citation No. Assessment Settlement 

2097485 $3,000 $3,000 

B. Docket No. CENT 85-103-M 

2097236 $4,000 $2,000 

c. Docket No. CENT 85-110-M 

2097499 $1,000 Vacated 

(Unsupportable} 

The reduction of the penalty for Citation No. 2097236 in 

CENT 85-103-M appears justified, even though the violation 

resulted in a fatality. The parties agree that the degree of 

Respondent's negligence was "low" rather than "moderate" and that 

the miner's death resulted from his unanticipated performance of 

a chore normally accomplished on another shift and that he did 

such in a way contrary to company policy. Accordingly, this 

compromise is approved. 

1764 
Respondent, if it has not previously done so, is ordered to 

pay to the Secretary of Labor within 30 days from the date hereof 

the sum of $5,000.00. 

Distribution: 

'J;tu~. £ tf· ~-c;;-1 /l 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Eliehue c. Brunson, Esq., Office of the Solicitor, U.S. Department of Labor, 911 Walnut Street, Room 2106, Kansas City, MO 

64106 (Certi~ied Mail) 

Robert A. Amundson, Esq., Amundson, Fuller & Delaney, 203 W. 

Main, P.O. Box Box 898, Lead, SD 57754 (Certified Mail) 

/bls 

1.765 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 NOV 14 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA) , 

Petitioner 

v. 

U.S. STEEL MINING CO., INC., 

Respondent 

U.S. STEEL MINING CO., INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-123 

A.C. No. 36-05018-03605 

Cumberland Mine. 

CONTEST PROCEEDING 

Docket No. PENN 86-178-R 

Citation No. 2678489; 4/28/86 

Cumberland Mine 

DECISION 

Appearances: David T. Bush, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, PA, for 

Petitioner/Respondent; 

Billy M. Tennant, Esq., U.S. Steel Mining Company 

Pittsburgh, PA, for Respondent/Contestant. 

Before: Judge Fauver 

After the evidentiary hearing, counsel for the Secretary 

has moved to withdraw his petition for civil penalty and to 

vacate Citation No. 2678489. 

ORDER 

FOR GOOD CAUSE SHOWN, the petition for civil penalty in 

PEKN 86-123 is DISMISSED and Citation No. 2678489 in PENN 86-

178-R is VACATED, thereby concluding both proceedings. 

(J~~~ William Fauver 

Administra Law Judge 

Distribution: 

1766 
David T. Bush, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Billy M. Tennant, . , U.S. Steel Mining Company, Inc., 

600 Grant Street, Room 1580, Pittsburgh, PA 15230 (Certified 

Mail) 

kg 

1767 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

METTIKI COAL CORPORATION, 

Respondent 

METTIKI COAL CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

NOV 18 1986 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 86-11 

A.C. No. 18-00621-03553 

CONTEST PROCEEDING 

Docket No. YORK 86-5-R 

Citation No. 2701541; 5/5/86 

"A" Mine 

Appearances: Susan Chetlin, Esq., and Timothy Biddle, Esq., 

Crowell & Moring, Washington, DC, for Contestant; 

Susan M. Jordan, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Respondent. 

Before: Judge Melick 

These consolidated cases are before me under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et ~~q~, the "Act," to challenge the issuance by 

the Secretary of Labor of a citation under section 104(d)(l) 

of the Act,~/ and for review of civil penalties proposed by 

the Secretary for the violation alleged therein. 

~/ Section 104(d){l) provides as follows: 

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

authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created 

by such violation do not cause imminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard, and if he finds such violation 

to be caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, he 

shall include such finding in any citation given to the 

operator under this Act." 

1768 
The general issues before me are whether Mettiki has 

violated the cited mandatory standard and, if so, whether 

that violation was of such a nature as could significantly 

and substantially contribute to-the cause and effect of a 

mine safety or heal th hazard i.e., whether the violation w·as 

"significant and substantial." If a "significant and substantial" violation is found it will also be necessary in order 

to sustain the citation as a citation under section 104Cd){l) 

to determine if the violation was caused by the "unwarrantable failure" of the operator to comply with cited standard. 

Finally if a violation is found it will also be necessary to 

determine the appropriate civil penalty to be assessed in 

accordance with section llO{i) of the Act. 

The citation at bar, No. 2701541, charges a "significant and substantial" violation of the regulatory standard 

at 30 C.F.R. § 75.400 and states as follows: 

Float coal dust, coal spillage, rock and a mixture 

of fire clay, was allowed to accumulate on the 

back side of the longwall shields. The accumulation [sic] were 0 to 12 inches deep, 1 foot wide 

and approximately 18 inches in length on all 

shields. Most of the accumulations were damp and 

no source of ignition was present. John Morgan, 

longwall foreman, and John Sisler responsible. 

The condition found at the B-Portal. 

The cited standard provides that "coal dust, including 

float coal dust deposited on rock-dusted surfaces, loose 

coal, and other combustible materials, shall be cleaned up 

and not be permitted to accumulate in active workings, or on 

electric equipment therein." 

Charles Wotring, an inspector for the Federal Mine 

Saf and Health Administration (MSHA), was conducting a 

regular inspection of the Mettiki "A" mine on May 5, 1986, 

accompanied by another inspector, Mine Foreman Dennis Dever 

and Mine Manager William Pritt. According to Wotring there 

were coal accumulations around the shields along the entire 

650 foot length of the longwall face wi the blackest accumulations lying between shields number 83 and 126. Float dust 

and fine ground-up coal mixed with some coal and rock were 

also present. Wotring measured several of the accumulations 

and found them to be 12 inches wide, 18 inches long and "most 

were" 12 inches deep. Wotring also found float coal dust on 

the jacks and shields. 

The accumulations were admittedly damp and no methane 

gas or ignition sources were present. Wotring opined that 

while a methane or dust explosion could trigger an explosion 

1769 
of even this damp material, there was "little likelihood" of 

such an explosion. He further acknowledged that the accumulations on shields number 1 to 83 were not hazardous because 

they were mixed with fire clay to the point of incombustibility. 

Mettiki witnesses, Foreman John Morgan and General Mine 

Foreman Dennis Dever, agreed that there were accumulations 

around the longwall shields but testified that those accumulations consisted primarily of noncombustible fire clay, 

soapstone, and slate. These witnesses also acknowledged 

however that a fine mist of float coal dust appeared on those 

longwall shields which had not been hosed down before the 

longwall broke down earlier that morning. 

In rebuttal Inspector Wotring observed that the areas 

depicted in the photographs in evidence (Exhibits C-1 through 

C-5) indeed contained primarily rock as alleged by Mettiki's 

witnesses but he pointed out that the area in which he found 

the violative coal accumulations were not depicted in any of 

the photographs. Wotring noted without contradiction that 

the cited accumulations were located in the area depicted in 

Exhibit C-6 cross-hatched in blue. Within this framework it 

is clear that coal dust, including float coal dust, loose 

coal and other combustible materials had not been cleaned up 

and were permitted to accumulate in violation of the cited 

standard. Accordingly the violation is proven as charged. 

In light of Wotring's admission however that "there was 

little likelihood of an explosion" I cannot find that the 

violation was "significant and substantial" or of high 

gravity. In order for a saf violation to be "significant 

and substantial" there must be a reasonable likelihood that 

the hazard contribut~d to will result in an injury and a 

reasonable likelihood that the injury will be of a reasonably 

serious nature. Secretarv v. Mathies Coal Co., 6 FMSHRC 1 

(1984). Under the circumstances the citation at bar, issued 

under section 104(d)(l) of the Act, must be modified to a 

citation under section 104(a) of the Act. The issue of 

whether or not the violation was caused by the "unwarrantable 

failure" of the operator to comply with the cited standard is 

therefore moot. fn. 1 supra. 

In evaluating the civil penalty negligence criteria I 

accept the undisputed testimony of inspector Wotring that 

from the c:ompactness of the accumulated coal spillage it was 

reasonable to inf er that the accumulations had existed since 

the previous shift. Accordingly those accumulations should 

have been discovered tluring the preshif t examination or the 

onshift examination which had already been conducted that 

morning by Foreman Morgan. The failure to have removed the 

accumulations was therefore the result of operator negligence. 

It is noted that Mettiki easily removed the coal dust accumulations by merely attaching a hose to the water line and 

washing them down. 

1770 
In determining the amount of penalty herein I have also 

considered that the operator is medium in size and has a 

moderate history of reported violations. The condition was 

in fact abated in a timely and good faith manner. Accordingly a civil penalty of $250 is deemed appropriate. 

ORDER 

Citation No. 2701541 is modified to a citation 

under section 104(a) of the Act and, as modified, 

The Mettiki Coal Corporation is order to pay a civil 

of $250 within 30 days of the date of this decision. 

\ ,, 

issued 

affirmed. 

penalty ~ 

L \..,A...,,,-· ··-\,_/, .. /\ 

Distribution: 

Gary Melick 

Administrative Law Judge 

Susan Chetlin, Esq., and Timothy Biddle, Esq., Crowell & 

Moring, 1100 Connecticut Ave., N.W., Washington, DC, 20036 

(Certified Mail) 

Susan M. Jordan, Esq., Office of the Solicitor, U.S. Department of Labor, Room 1440-Gateway Building, 3535 Market 

Street, Philadelph / PA 19104 (Certified Mail) 

rbg 

1771 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 211986 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

Docket No. PENN 86-83-D 

MSHA Case No. CD 85-9 

JOSEPH G. DELISIO, JR., 

Complainant Mathies Mine 

v. 

MATHIES COAL COMPANY, 

Respondent 

Appearances: 

Before~ 

DECISION 

Linda M. Henry, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for the 

Complainant; 

Carl H. Hellerstedt, Jr., Esq., Volk, 

Robertson, Frankovitch, Anetakis & 

Hellerstedt, Pittsburgh, Pennsylvania, for 

the Respondent. 

Judge Koutras 

Statement of the Proceeding 

This proceeding concerns a discrimination complaint 

filed by the Secretary of Labor (MSHA), on behalf of the 

complainant ~ursuant to section 105(c)(l) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c)(l). 

The complainant alleges that the respondent discriminated 

against him by issuing him a verbal warning threatening 

possible disciplinary action because of his desire to serve 

as the designated miner's walkaround representative during 

Federal inspections of the mine. 

A hearing was held in this matter in Pittsburgh, 

Pennsylvania, and the parties have filed posthearing briefs 

in support of their respective positions. All of the arguments made by the parties in their briefs, as well as during 

1772 
the hearing, have been considered by me in the course of 

this decision. 

Issues 

The critical issue in this case is whether or not the 

respondent has interferred with the complainant's right to 

accompany Federal inspectors during mine inspections as the 

duly recognized union walkaround representative of the 

miners. Additional issues raised by the parties are identified and disposed of 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. Section 103(f) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 813(f). 

4. Commission Rules, 29 C.F.R. § 2700.l, et ~-

Complainant's Testimony and Evidence 

Joseph Delisio, Jr., testified that he is employed by 

the respondent as a mine examiner, and has worked for the 

company for 12 years. He has served as the chairman of the 

union mine safety committee since May, 1983, and is a member 

of the miner's Political Action Committee. He is registered 

with the respondent as the miner's safety representative, 

and has notified mine management of this fact. He indicated 

that in the event of a Federal mine inspection, if a member 

of the mine safety committee, of which there are three, were 

available, he would be the first choice to accompany the 

inspector as the walkaround representative (Tr. 19-21). 

Mr. Delisio stated that he works 1 week on the daylight 

shift and 1 week on the afternoon shift. He confirmed that 

since most MSHA mine inspections (95 perceni), take place 

during the day shift, he would generally be performing his 

duties as a miner examiner if he were working the afternoon 

shift. While working the day shift, he is the only available 

member of the safety committee. He confirmed that he works at 

the Thomas Portal, and that when inspections occur at that 

portal during his shift, he acts as the miner represent~tive 

during these inspections. He confirmed that mine management 

1773 
has never threatened him with any disciplinary action, or 

attempted to discipline him for acting as the miner walkaround 

representative at the Thomas Portal. He also confirmed that 

the Thomas Portal does not produce coal, and that coal production takes place at the Linden Portal which is approximately 

5 miles away (Tr. 23). 

With regard to the exercise of his walkaround rights at 

the Linden Portal, Mr. Delisio stated that in June, 1985, he 

attended a ·communication meeting with Mine Superintendent 

Edmund Baker and raised the question concerning his ability 

to act as the walkaround representative at that portal. 

Mr. Delisio stated that Mr. Baker "recommended" that he not 

serve as the walkaround, and "that some type of action may 

be taken.against me" (Tr. 24) •. Mr. Delisio stated that he 

again raised the question on July 30, 1985, while on his way 

to work at the Thomas Portal. He stopped by the Linden 

:Portal, which is on the way to the Thomas Portal, and asked 

Mine Superintendent George Karazsia if he would allow him to 

accompany the Federal inspector as the union walkaround 

representative. With him at the time was Ron Stipanovich, 

president of the local union, and Federal Inspector Phil 

Freese. Mr. Karazsia informed him that "he had no problem 

with me travelling with the inspector, but if I did management would take disciplinary action against me, and I could 

consider that a verbal warning" (Tr. 24). 

Mr. Delisio stated that on the evening of July 29, 

Mr. Baker telephoned his home, spoke with his wife, and 

informed her that it was his understanding that he (Delisio) 

would be at the Linden Portal in the morning to accompany an 

inspector. Mr. Baker advised his wife that he (Bai<.er) recommended that Mr. Delisio not do that, and if he did, "some 

type of action would be taken against me" (Tr. 25). 

Mr. Delisio stated that he did not accompany the inspector as a walkaround at the Linden Portal on July 30, and he 

confirmed that no miner representative accompanied the 

inspector that day (Tr. 26). He also confirmed that on that 

same day he travelled to the MSHA office in Washington, 

Pennsylvania, and filed his discrimination complaint 

(exhibit G-1, Tr. 26). 

Mr. Delisio stated that in February, 1986, he was at the 

Linden Portal in the company of Federal Inspector Francis 

Wehr. He again asked Mr. Karazsia if he could accompany the 

inspector on his regular mine inspection as the union walkaround representative, and that Mr. Karazsia informed him 

1774 
that since his discrimination case was on·appeal, he recommended that he wait until the case was heard and decided. 

Mr. Delisio stated that he then inquired of Mr. Karazsia if 

there would be a problem in Mr. Delisio reporting to the 

Thomas Portal and then driving his own car back to the Linden 

Portal to accompany the inspector, and that Mr. Karazsia 

responded that since the case was on appeal "they would have 

a problem if I did that." Mr. Delisio stated that he received 

the same response when he asked Mr. Karazsia if he could 

report to the Thomas Portal and then travel underground to 

meet and accompany the inspector at the Linden Portal (Tr. 

27). 

Mr. Delisio confirmed that his normal work reporting 

t at the Thomas Portal during the day shift was 8:00 a.m., 

and th~t he offered to report at 7:30 a.m., in order to have 

time to travel back to the Linden Portal before the inspector 

would start his inspection at 8:00 a.m. (Tr. 28). · 

Mr. Delisio stated that there have been occasions when 

he did not report to his assigned portal withbut informing 

mine management of his whereabouts. He cited ·instances wh.en 

he had "safety business" at the union international district 

office or "sudden" safety meetings where he could not contact 

mine management. On some of these days the local union president would turn in an excuse for him, and on other days when 

no excuses were turned in, mine management never questioned 

him or inquired as to his whereabouts. He also stated that 

management has never disc lined him for not reporting to 

work or for not informing them of his whereabouts. Mine 

management never threatened him with disciplinary action or 

gave him any verbal warnings for not reporting to work on 

those days (Tr. 29). 

Mr. Delisio stated that when he reports for work at the 

Thomas Portal, the foreman can visually observe his presence, 

and he does not report in to anyone. He simply changes 

clothes, gets his equipment, and starts work underground. He 

does not use any check-in or checkout system, and no time 

clock is used. Even if he reported to the nden Por and 

called the Thomas Portal, mine management would know his 

whereabouts, and during an inspection, a representative of 

management always accompanys the inspector (Tr. 30). 

~r. Delisio cited several examples of miners using their 

own vehicles to travel from portal to portal. Motormen have 

driven from one portal to another when their is a shortage of 

qualified motormen, miners have driven between portals for 

1775 
retraining, and safety committeemen have driven between portals when there are problems, accidents, or fires, ·and this 

is all on company time (Tr. 32). Forbidding him to drive his 

own.vehicles also precludes his attending mine inspection 

close-out conferences held at the Linden Portal (Tr 33). In 

his opinion, the actions taken by mine management in his case 

have interferred with his ability to act as the miners' walkaround representative (Tr. 34). 

On cross-examination, Mr. Delisio confirmed that he is 

at the Thomas Portal by his own personal choice and that he 

bid on a job at that location (Tr. 34). If the same job 

were to become available at the Linden Portal, he would bid 

on it (Tr. 35). He confirmed that he is the only safety 

committeeman on the day shift, and that other miners accompany Federal inspectors at the Linden Portal because he is 

not allowed to accompany them during his shift. The miners 

that accompany inspectors are designated to do so by the 

safety committee, but Mr. Delisio believes he is better qualified than those miners (Tr. 36-37). He conceded that the 

safety committee is sa sfied with the qualifications of the 

miners who accompany the inspectors (Tr. 37). He also con-: 

ceded that there is another representative who would function 

in his absence during any close-out conferences (Tr 37), but 

believes that it is more efficient for the union if he were 

present if at all possible (Tr. 38). 

Mr. Delisio stated that while no other miner walkaround 

accompanied the MSHA inspector on July 30, 1985, respondent's 

safety manager Malcom Dunbar did mention that another miner 

other than Mr. Delisio could accompany the inspector. However 1 Mr. Delisio asserted that Mr. Dunbar's suggestion was 

made after the inspector had started his inspection (Tr. 39). 

With regard to his absence from the mine on union safety 

matters, without first notifying mine management, Mr. Delisio 

could not state how frequently this occutred, and indicated 

only "several times throughout the year." He indicated that 

the respondent has an absenteeism policy, but that he has not 

been subjected to this policy because of his absences (Tr. 

41) 0 

With regard to the use of personal vehicles by saf 

committeemen to travel from portal to portal, Mr. Delisio 

stated that this occurred when there was a fire, accident, or 

injury, and that it did not occur too often. The on occasion he would have to travel in a government vehicle with an 

inspector was when the inspection started at the Thomas Portal and the inspector conducted a surface inspection of the 

1776 
dumps or the impoundment. This did not happen frequently 

because the inspectors usually show up at the Linden Portal 

(Tr. 42}. 

Mr. Delisio confirmed that the threatened disciplinary 

action against him amoun to warnings and that he has 

suffered no loss of pay (Tr. 43). He confirmed that what he 

was seeking in this case is the following (Tr. 43): 

Q. I will - - I just have, really, one more 

question, and that is am I incorrect iri the 

impression that what you would want to do is 

to accompany a Federal Inspector anytime that 

Federal Inspector is inspecting the mine, as 

long as that inspection is occurring on your 

regularly scheduled shift? 

A. That is correct. 

And, at (Tr. 72-75): 

JUDGE KOUTRAS: Okay. Now, what's - - tell 

me just in your own words, how you feel that 

you should able to do your job there as 

mine examiner, and also fulfill your obligations as a union walk around? How would you 

- - if you had your druthers, how would.you 

prefer to do.it? 

THE WITNESS: I would - -.you mean how would 

I prefer to travel with the Inspector and do 

my job? 

JUDGE KOUTRAS: No, first of all, you're a 

paid employee by Mathies as a mine examiner, 

that's yo~r livelihood. 

THE WITNESS: Yes, yes. 

JUDGE KOUTRAS: And then your also the 

Chairman of the Safety Committee des nated 

as the walk around. 

THE WIT~ESS: Yes. 

JUDGE KOUTRAS: There seems to be some 

1777 
THE WITNESS: Among - - among other duties, 

I'm paid as - - for my job as Chairman of the 

Safety Committee also. 

JUDGE KOUTRAS: You're paid by the union for 

that? 

THE WITNESS: Yes. So that's - - that's my 

job also. 

JUDGE KOUTRAS: But, you' re a paid employee 

of Mathies, is that correct? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: You're not suggesting - -

you're not under the control of Mathies as an 

employee? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: And, they have the right to 

tell you, you know, you bid on the job at 

Thomas, they have the right to say to you 

that your working hours are such and such to 

such and su~h, and these are your duties) and 

this is where you'll report to work. Is that 

correct? 

THE WITNESS: As far as walk around, I 

don't - - -

JUDGE KOUTRAS: 

your - - you're 

on the employee 

Mathies, do you 

Cornpany has the 

the - - -

No, no, no, no, as far as 

wea~ing two hats. Let's put 

hat. As a paid employee of 

dispute the fact that the 

the management has 

THE WITNESS: Right to direct a work force. 

JUDGE KOUTRAS: Right to direct it's work 

force. Tell you where to report for work? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: Okay. Now, you tell me how 

you would like to accomodate both things. 

From what I heard from the opening statements 

1778 
in this case mine management wants you to 

report to the Thomas portal and go to work, 

and then whe.n you' re called upon to do the 

walk around that they more or less according 

to the Government side of the story here - -

THE WITNESS: I would have no problem going 

to the Thomas portal. I will go to the 

Thomas portal and check in there, and then 

travel to wherever the Inspector is at for 

his inspection. 

JUDGE KOUTRAS: Okay, you're willing to do 

that - -

THE WITNESS: I have no problem doing that, 

no. 

JUDGE KOUTRAS: You're willing to do that? 

THE WITNESS: I'm willing to do that. 

JUDGE KOUTRAS: In your own personal vehicle? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: And, you say the Company 

management doesn't want you to do that? 

THE WITNESS: That's what management has 

said. 

JUDGE KOUTRAS: And, what reasons are they 

giving you for refusing you to use your own 

vehicle? 

THE WITNESS: Well, at the time that I 

requested to do that was the second meeting 

in February, and, at that time Mr. Karazsia 

said that he just t I should wait for this 

particular case to go to a hearing, and let 

you decide that. 

JUDGE KOUTRAS: What about the first time, 

now, I couldn't understand, once the case is 

in litigation -

1779 
THE WITNESS: The first time - - the first 

time was the question wasn't brought up 

about me using my own vehicle. 

JUDGE KOUTRAS: What was brought up then? 

THE WITNESS: About me just traveling with 

the Inspector - ~ that particular day. And, 

at that time I was told that action would be 

taken against me. There was never a question 

b+ought up about me reporting to my work 

portal and then traveling back to the Linden 

portal. That was brought up at the second 

meeting. 

And, at (Tr. 84-85): 

* * * * * * * 

THE WITNESS: I believe what you're getting 

at there is me traveling from Thomas to 

Linden in my own vehicle, which I stated 

earlier, I'm willing to do that prior to the 

shift. I'm willing to do that on my own 

time, not on company time. I'm willing to 

take the responsibility to drive my own 

vehicle, and my liability myself, traveling 

from the portal to the other portal. 

JUDGE KOUTRAS: Once you get there, taking 

the chance of the Inspector showing up, is 

that what you're saying? What if he doesn't 

show up? 

THE WITNESS: Well, the Inspector is normally 

there at 7:30 in the morning. I could easily 

call - - you're talking about ten minutes 

difference in traveling time, I could easily 

call that portal, if the Inspector was there 

then travel - - - be at that portal before 

8:00 a.m., where I would still be on my own 

time~ I wouldn't be on company's time. I 

could actually leave Thomas portal at a 

quarter to ght, and be at Linden portal 

before 8:00 a.m., on my own time where I 

would not start on company time until 

8:00 a.m. 

1780 
JUDGE KOUTRAS: And, what if the Inspector 

weren't there, you'd just turn around and 

come back? 

THE WITNESS: Well, I would call to make sure 

- - if he wasn't there I wouldn't travel to 

that portal. I mean if I called that portal 

at twenty to ght, and, no Inspector was 

there - - the majority of the times the 

Inspector wouldn't be coming that particular 

day. Just about in all cases they're there 

by half past. 

Mr. Delisio stated that during 1985 there were approximately 70 different occasions when he missed a partial work 

shift or left the mine early to attend to union business, 

and that mine management never objected to his.absences or 

complained that his mine examiner duties could not be performed by anyone else (Tr. 44). He confirmed that on each 

of these occasions~ other union members accompanied the 

inspectors on their inspection rounds. These walkarounds 

representatives would either be persons designated by him or 

the regular walkarourrd representative at the Linden Portal. 

He also confirmed tha:t there is a regular union w~lkaround 

. representative available at the Linden Portal during the 

sh if ts that he works at the Thomas Portal (Tr. 4 5 ..... 4 7). He 

further explained the circumstances concerning his absences 

from work as follows (Tr. 59-61): 

JUDGE KOUTRAS: Mr. Delisio, let me ask you 

this que~tion. These times when you have 

business downtown with the National or 

International Union, you mean to tell me you 

simply go, and mine management is total 

unaware of it? 

THE WITNESS: On occasion. 

JUDGE KOUTRAS: About how many occasions? Is 

it ~sually your practice to let somebody know 

at the mine that you're not going to be there 

so somebody else -

THE WITNESS: I make an attempt to but, 

there's occasions when I can't - - -

JUDGE KOUTRAS: How many times are you successful in reaching the mine management to 

1781 
tell them that you're going to be away on 

union business? More than the other way? 

THE WITNESS: Yes~ 

JUDGE KOUTRAS: Simply not showing up? 

THE WITNESS: More, yes. 

JUDGE KOUTRAS: What is your job.as a mine 

examiner what precisely do you do as a mine 

examiner? 

THE WITNESS: I examine an area of the mine 

for hazardous conditions, for gas - -

JUDGE KOUTRAS: Preshift, that sort of thing? 

THE WITNESS: Preshift examination, yes. 

JUDGE KOUTRAS: 'fhat' s a pretty important job 

right? 

THE WITNESS: Yes, it is. 

JUDGE KOUTRAS: Now, if you simply don't show 

up, and go on downtown, where does that put 

the - - -

THE WITNESS: I really don't know, cause 

management has never questioned me on it. 

JUDGE KOUTRAS: But, what I'm - - the point 

I'm making,. is it true or not true that most 

·of the time that you're away on union busi~ 

ness, and mine management is aware of it, 

it's not simply a situation of your not showing up, and them not doing anything. 

THE WITNESS: Yeah, I would say the majority 

of the time, yes, they would know that. I'm 

sure the foreman at the start of the shift 

looks to see if I'm there on occasions when I 

don't call in, and, he's aware of it then, 

and that foreman the majority of.the time 

does. my job. That particular foreman. 

1782 
JUDGE KOUTRAS: Well, on those occasions when 

you are not there, does he naturally assume 

that you're off on union business, or -

THE WITNESS: I don't know. He's never questioned me on it so I really don't know what 

he assumes. 

JUDGE KOUTRAS: When you report back on your 

next shift do you always have an excuse of 

some kind, a note or something? 

THE WITNESS: No, I don't. 

JUDGE KOUTRAS: So, any time you're not there 

at the mine, mine management just knows automatically that· you're off on union business, 

and they don't say anything to you? 

THE WITNESS: I - - I - - I imagine that's 

what they do, I really don't know how they 

handle that. 

JUDGE KOUTRAS: Okay. 

THE WITNESS: I have to say that a lot of 

those instances, I mentioned 70 cases, a lot 

of those 70 cases were when I was at the 

Linden portal on a safety inspection. I do 

monthly safety inspections where I'm at the 

nden portal, and some of those other 

instances where I would be at the Washington 

MSHA office, at Manager's conferences. It's 

not that I'm missing 70 days of work a year, 

you know, I'm on union business either out 

there at a conference where managements with 

me at that time, or I'm at the Linden portal 

where the prep plant will have you on safety 

inspections. I don't want you to look at 

that number and say well, this llow is missing 70 days of work, or 70 partial days of 

work a year, you know - - -

Mr. Delisio believes that he is the "most qualified" 

first choice of the miners at the Linden Portal to accompany 

inspectors during their inspections because the chairman of· 

the safety committee has always travelled with the inspectors and none of the walkarounds at the Linden Portal have 

state safety certifications as he does (Tr. 48). MSHA's 

1783 
counsel conceded that there are no particular "certification 

requirements" for a miner to serve as a walkaround representatives, and whoever the miners select for this task may 

serve as their walkaround representative (Tr. 49). Counsel 

further explained her position as follows at (Tr. 50-52): 

JUDGE KOUTRAS: Well, is he the first choice 

because he says he's the first choice, or is 

it because he's on the Safety Committee, or 

is he the first choice because the miners 

have said, Mr. Delisio, you as Chairman of 

the Safety Committee, are the only Safety 

Representative qualified to accompany a 

Federal Inspector? How many members are on 

the Safety Committee? Three? 

MS. HENRY: Three. 

JUDGE KOUTRAS: How about the other two? 

What choices would they be, second and third, 

or - -

MS. HENRY: They're all on different shifts. 

JUDGE KOUTRAS: They work on different 

shifts? 

MS. HENRY: Yes, Yorir Honor. So on the particular time - -

JUDGE KOUTRAS: On the shift that Mr. Delisio 

works on -

MS. HENRY: On the shift that Mr. Delisio 

works, he would be the only Safety Committee 

member available to accompany the Federal 

Inspector. 

JUDGE KOUTRAS: I understand.that, but - - -

MS. HENRY: And, our point is that our 

contention is that this is the miners first 

choice as the representative. When the 

miners go in to elect members of the Safety 

Committee, as there has been testimon~, they 

are aware that the duties of the members of 

the Safety Committee is that of walk around. 

If they wanted somebody else to accompany the 

1784 
Inspector on a walk around, they would elect 

that person to the Safety Committee. 

JUDGE KOUTRAS: You mean the only reason for 

·someone being on the Safety Committee is that 

he's available and willing to go as a walk 

around? 

MS. HENRY: Not the only reason, but one of 

the reasons. And, that management here is 

attempting, and has been, in numerous cases 

struck down, attempting to interfere with the 

miners choice of representative. The plain 

language of the Statute states that the 

miners choice must accompany the Inspector, 

not the most convenient choice for the 

Company, to accompany the Inspector. 

And, - - -

JUDGE KOUTRAS: Do you view that right as 

being absolute? 

MS. HENRY: Yes, Your Honor. initely. 

the islative history - - -

JUDGE KOUTRAS: Well, it's not absolute when 

he's missing though, and designates somebody 

else. 

MS. HENRY~ Yes, Your Honor, but, that is the 

miners choice, not the Company's choice. 

Mr. Delisio stated that in 1980 or 1981, mine management 

allowed union president Ron Stipanov h to travel from portal 

to portal in his own car on company time to accompany inspectors during inspections. He confirmed that mine management 

has never indicated to him that he was not the £.irst choice 

of miners for purposes of serving as the union inspection 

walkaround representative {Tr. 54-55). He conceded that the 

union-management collective ba ning agreement does not 

specify who may function as the walkaround representative 

(Tr. 55, 58). Although Mr. Delisio claimed that other miners 

were permitted to travel from portal to portal, he could not 

identify them (Tr. 58}. 

Mr. Delisio confirmed that the mine was shut down for 

10 months from June 1982 to May 1983, an~ that prior to this 

t the mine employed approximate 600 miners who entered 

at two production portals. Since that time, the mine employs 

1785 
approximately 320 miners, and the Linden Portal is the only 

production portal, while the Thomas Portal only has miners 

involved in haulage and some construction and maintenance 

work CTr. 57, 64). 

Mr. Delisio confirmed that when he worked at the Linden 

Portal, other union members at the Thomas performed the walkaround duties during an inspection at that portal. He also 

confirmed that at the present time, if he is absent from _the 

Thomas Portal the safety committee may designate other 

miners as the walkaround representative in his absence (Tr. 

65). When asked whether he had ever travelled from the 

Linden Portal to the Thomas Portal to accompany any inspectors during their inspections, he explained as follows (Tr. 

66-69): 

THE WITNESS: Did I ever travel from Linden 

portal to Thomas portal .to go with an 

Inspector? 

JUDGE KOUTRAS: Right. 

THE WITNESS: No, I didn't. 

JUDGE KOUTRAS: My question is, why didn't 

you? 

THE WITNESS: Because - - I can't answer why 

I didn't. Because I felt that the Company 

policy was that I was not allowed to do that 

- - - the only thing I can say. It's always 

been told to the Safety Committee by management that we are not allowed to travel from 

portal to portal, and that's what the Safety 

Committee - - this Safety Committee had 

believed until we got an interpretation of 

the law, or until we found out that we were 

being denied our rights. 

JUDGE KOUTRAS: Who gave you the interpretation that you had a right to go from portal 

to portal? 

THE WITNESS: Well, I don't know whether I 

got the intepretation myself from reading the 

Federal law, or whether it came from someone 

assoc ted with the Federal Government~ 

1786 
JUDGE KOUTRAS: Well, who - - I mean, did 

somebody suggest to you that - - -

THE WITNESS: I believe I got it looking at 

cases that were decided on walk around rights. 

JUDGE KOUTRAS: What cases? 

THE WITNESS: I don't know. 

* * * * * * 

JUDGE KOUTRAS: Why wasn't a case brought 

then? 

* 

THE WITNESS: Because there was never - - as 

I said, I felt that, you know, I was told 

that I was not allowed to d9 that, so I just 

assumed that that was correct. 

JUDGE KOUTRAS: Okay. When you went to - -

initially with Mr. - - with the Federal 

Inspector to the Linden portal on the day of 

July 30th, how did that all come about? Was 

this - - I'm going to lay it right on the 

line, was this a test situation? Was this a 

planned confrontation, or was this - - you 

just happened to appear at the Linden portal 

knowing that the Inspector was going to be 

there? 

THE WITNESS: It was a situation that came 

about in June when I mentioned it at a communication meeting that I was going to stop at 

Linden portal on my daylight shift and accompany the Inspector. And, that was a Monday, 

that was my daylight shift and that's exactly 

what I did. Yes, I guess you could say it 

was a - - -

JUDGE KOUTRAS: How did you know the Inspector 

was coming to Linden? 

THE WITNESS: Well, I got to the Linden portal 

roughly around 7:30 and the Inspector was 

already at the property. If the Inspector was 

not at the property I would have proceeded to 

my work portal at Thomas. 

1787 
JUDGE KOUTRAS: So, you just .took a chance 

that he would be there? 

THE WITNESS: Ninety-nine percent of the time 

they are there. They do regular inspections 

at the mine. 

JUDGE KOUTRAS: Are you familiar with - -

well, - -. Ninety-nine of the inspections 

are done at Linden, and also ninety-nine percent of the inspections are also done on the 

daylight shift, rather than the afternoon 

shift, right? 

THE WITNESS: Right. 

JUDGE KOUTRAS: So, at that particular Mathies 

operation the mine operator has a pretty good 

idea on when an Inspector is likely to show 

up, and where he's expected - - where he's 

likely to show up, is that the idea? 

THE WITNESS: Yes. 

Mr. Delisio confirmed that it was the past and present 

position of the Union that it did not want miners to be in 

vehicles operated by company personnel and did not want 

miners using their own personal vehicles for transportation 

between locations at the mine, and that this position 6as 

been communicated to mine management (Tr. 82). However, he 

stated that the Union has never taken this position with 

respect to safety committeemen travelling from portal to 

portal in their personal vehicles for the purpose of accompanying inspectors, and that mine management has never 

stated the union's position as a reason for not allowing him 

to use his vehicle to travel from portal to portal for inspection purposes (Tr. 83). 

MSHA Special Investigator John Chambers conf irrned that 

he conductd the investigation .of the complaint filed by 

Mr. Delisio in this case, and that he interviewed and took 

statements from mine management representatives Edmund Baker, 

George Karazsia, and Malcolm Dunbar. He stated that all 

three individuals advised him that they were not preventing 

Mr. Delisio from travelling with the inspector, but wanted 

him to report to his place of work (~r. 88). 

Mr. Chambers stated that during his investigation, 

Safety Director Baker confirmed that he had telephoned 

1788 
Mr. Delisio's home on July 29. Mr. Chambers identified 

exhibit G-3, as a list of questions asked of Mr. Baker during the investigation, and he read into the record the 

following question ask.ed of Mr. Baker, and his response (Tr. 

89-90): 

Q. Okay. Could you read where I'm pointing, 

the last question. Could you read that for 

us for the record? 

A. Yes, ma'am. "If Joe Delisio had first 

reported to his designated work station, then 

informed management of his desire to change 

portals, who would - - what would management's 

position be?" And, do you want the answer? 

Q. Yes, please. 

A. "Management would not authorize a portal· 

change since the portal is more than - - -

since the portal is more than well represented 

with union walk arounds. With market conditions, and absenteeism as they are, Matnies 

cannot properly afford the moving of work 

force from portal to portal." 

Mr. Chambers identified exhibit G-2, as a statement 

taken from Superintendent George Karazsia, and he confirmed 

that Mr. Karazsia gave Mr. Delisio a verbal warning and indicated that action would be taken if he did not report to his 

reporting work portal. He also indicated that the statement 

by Mr. Karazsia reflects that ~r. Delisio was told not to 

leave the Thomas Portal and go to Linden, or report to 

Linden before his shift (Tr. 92-93). Mr. Chambers confirmed 

that he spoke with MSHA Inspector Philip Freese, but that he 

no longer is employed with MSHA (Tr. 92). 

On cross-examination, Mr. Chambers stated that he conducted the investigation alone, spoke to several company 

officials, but has no notes. He confirmed that his investigation reflected no real dispute concerning the facts and no 

variation among the statements made by either side of the 

dispute (Tr. 94). He discussed the procedures he followed 

in reporting the results of his investigations, and did not 

believe that there ~ere any undue delays in processing the 

case (Tr. 95-96). Mr. Chambers stated that the question 

concerning the use of private automobiles was not raised 

during his investigation, and that "the thing that came up 

durin9 the investigation was that they- did say if you don't 

1789 
report to your place of duty, there will be action taken" 

(Tr. 99). 

On recall, Mr. Chambers stated that during the course 

of his investigation he did not contact any of the miners at 

the Linden Portal other than Union President Ron Stipanovich. 

Mr. Chambers confirmed that exhibit G-5 is a list of the 

miners working at the Linden Portal, and exhibit G-4, is a 

list of available walkarounds at that portal. Both lists 

were supplied by mine management during the investigation. 

Based on these lists, Mr. Chambers confirmed that during the 

day shift at the Linden Portal there were approximately 

12 miners who were familiar with the duties of a walkaround 

representative, and had served as walkarounds during July 

and August 1985. He confirmed that he did not interview any 

of the miners on the lists (Tr. 109-113). 

Joseph Tortorea, MSHA Mining Engineer and Senior Special 

Investigator, stated that his duties include the assignment 

of cases to special investigators and the review of investigative reports to determine whether or not there is enough evidence to forward the case to MSHA's Arlington, Virginia 

office for action. Mr. Tortorea stated that his initial 

review of Mr. Delisio's complaint raised a question of interpretation of what mine management meant by Mr. Delisio "not 

reporting to his portal." He confirmed that he drafted the 

questions put to Mr. Baker by Mr. Chambers in exhibit G-3 

(Tr. 103). 

Mr. Tortorea confirmed that after reviewing Mr. Chambers' 

final report, he concluded that mine management intended to 

discipline Mr. Delisio if he did not report to work at the 

Thomas Portal, regardless of his desire to report to Linden 

first or to report to Thomas and then travel to Linden (Tr. 

105). 

On cross-examination, Mr. Tortorea confirmed that the 

case was not referred to Arlington within 45 days because of 

the additional work that had to be done by Mr. Chambers. He 

believed the case was referred to Arlington within 58 or 

59 days, and once this was done he had no part in any MSHA 

subsequent decisions. He also confirmed that while he was 

not actively engaged in the investigation of the complaint 

and conducted no interviews, he monitored the case as it 

progressed, and does so in all cases which he assigns for 

investigation (Tr. 106). In his opinion, any threat of disciplinary action against a miner by means of a warning would 

be considered "interference" and "discriminatory" (Tr. 107). 

1790 
Ronald L. Stipanovich testified that he has been 

employed by the respondent for over 11 years and is the president of the union local and a member of the mine safety 

committee. He stated that sometime in 1977 or 1978, he participated in a local union meeting where the miners voted 

that the safety committee would serve as the walkaround representatives to accompany Federal inspectors during their 

inspections. Since the chairman of the safety committee was 

the individual who received the most votes in the election, 

it was decided that the chairman should be "the first to go 

if there was an inspector on the property," and 

Mr. Stipanovich could not recall the actual words "first 

choice" being used (Tr. 130). This decision was made by a 

vote of the general membership of the local, and since he 

became president in April, 1983, no members have expressed 

any dissatisfaction with the designation of the safety committee as the miner'.s representatives on walkarounds and the 

matter has never been brought up again for another vote (Tr. 

132-133). 

Mr. Stipanovich stated that the union furnishes written 

lists to mine management indicating the names of the union 

representatives and the members of the safety committees. 

The chairman of the committee usually furnishes the names of 

the individuals who serve as walkaround representatives (Tr. 

134). He confirmed that he has served as a walkaround representative, and that prior to 1982, before he became president 

of the local, and prior to the lay off, there were two 

instances when he travelled from the Thomas Portal, which was 

his work station, to the Linden Portal or the preparation 

plant in his automobile to accompany Federal inspectors on 

their inspection and there "was no problem. 11 He stated that 

before 1982, this was a "common practice" (Tr. 135). 

Mr. Stipanovich stated that exhibit G-5 is a list of 

the crew members used by the foremen to ascertain who is on 

each particular crew. The names of the foremen are ''blacked 

out," and the list is not a list of authorized miner walkaround representatives. He identified exhibit G-4, as a 

list containing the names of miners who have accompanied 

Federal inspectors, and he did not regard it as a list 

supplied by the union to mine management. Be alluded to two 

other lists given to management as "a courtesy" by the union 

in order to insure that the miners were paid in the event 

they decided to accompany an inspector during an inspection. 

He did not regard these lists as definite chosen union walkaround representatives (Tr. 137). He regarded these lists 

as "substitute lists" of walkarounds to be used when the 

1791 
safety committee or chairman were not available. He indicated that it was common knowledge and practice that the 

chairman and the safety committee are the first options to 

accompany inspectors, and the other miners listed are substitutes (Tr. 138). The lists were never intended as designated 

"first choices" of miner walkaround representatives (Tr. 139). 

Mr. Stipanovich stated that he knew of no instances when 

the miners have met to select someone other than a safety 

committeeman or chairman to be their walkaround representative (Tr. 141). He stated that it is reasonable to assume 

that the miners listed on exhibit G-4, as accompanying inspectors on the dates indicated, did so because the regular 

safety committeemen were not available on those days (Tr. 

144). In order to protect its members, the union makes sure 

that someone is available to accompany an inspector (Tr .• 

14 4). 

Mr. Stipanovich stated that at the present time there 

is usually only one MSHA inspector at the mine, but at least 

2 days a week there may be two or three inspectors present. 

There are times regularly when someone else other than the 

safety committeemen would need to be available to serve as a 

walkaround (Tr. 148). He confirmed that he was not always 

available, and that rotations of individuals serving as walkarounds are necessary as the work shifts rotate (Tr. 148). 

Mr. Stipanovich stated that it has been his experience that 

once mine management issues a verbal warning, it usually 

follows it up with some kind of discipline (Tr. 150). 

Mr. Stipanovich stated that on two occasions since 

February, 1984, he has travelled with company safety escort 

Kosack from the Linden Portal to the Thomas Portal or. the 

preparation plant in a company car to meet an inspector and 

management never refused to allow him to do this (Tr. 151). 

Prior to the layoff there were numerous occasions when he 

travelled with company safety inspectors from one portal to 

another in their personal vehicles or his own automooile 

because company vehicles were not available (Tr. 152-153). 

Mr. Stipanovich stated that the question concerning the 

use of private automobiles on mine property came about 

primarily as a result of the union's concern with miners 

transporting 10 to 12 people in the back of their pickups or 

in their automobiles. The union decided that this was not a 

safe and good practice, because accidents occurred. He 

stated that one miner, Jimmy Mills "utilizes bis own vehicle 

a lot" because he begins work at 6:00 or 6:30 a.m. running 

1792 
the fans and works at the water treatment plant in Mingo 

(Tr. 154). 

On cross-examination, Mr. Stipanovich responded as 

follows with respect to Jimmy Mills' use of his own 

automobile {Tr. 157-159): 

Q. Mr. Stipanovich, to pick up something 

here, this Jim Mills, the individual you 

named, you left me with the distinct impression that he uses his personal vehicle 

throughout his work shift to go and check on 

things like fans and things like that, am I 

correct in what you're trying to tell me? 

A. I say that he doesn't use it everyday, 

but, he has utilized his own personal 

vehicle, yes. 

Q. Well, isn't it true that he is issued a 

truck by the Company to make these kinds of 

stops where he has to go inspect fans or 

sub-stations? 

A. Well, there's a truck there, yes. 

Q. Isn't it the fact that what happens is 

that sometimes on his way to his port~l, 

he'll stop and check one of these locations, 

and, then when he gets there he uses the 

Company truck throughout the rest of the day 

to accomplish his authorized duties? 

A. Sometimes that does happen, but, also he 

has - - I know that.he has used his own 

vehicle. 

Q. Well, I'm trying to make it clear when he 

uses his own vehicle, and, I'm asking if 

isn't it true that what happens with this 

individual is that apparently wherever he 

lives he can stop off on his way to his 

assigned portal, and, check a fan or something, drive to work, park his car, he'll get 

in the Company truck and he'll continue to do 

whatever he's doing in checking above ground 

facilities. And, thac's whats happening with 

Mr. Mills. 

1793 
A. Sometimes it does, but, I stated sometimes 

he uses his own vehicle during the course of 

his day. 

Q. And, how often is that. sometimes, do you 

know? 

A. I don't have an average~ you know, if you 

want me to say twice, three times a week, I 

can't answer that. 

Q. You don't know? 

A. I know that the fact that he has used his 

own vehicle. 

Q. He has used it, but, you don't know how 

of ten? 

A. Yes. 

Q. Okay. Now, you indicated you were aware 

that the union and the - - perhaps you individually, had raised the concerns with the 

Company about the miners use of personal 

vehicles to transport miners between 

locations? 

A. Yes. 

Q. Now, you left me with the distinct impression that the only concern the miners had was 

getting in the back of open pick up trucks, 

or something like that? 

A. That was the complaint that was issued to 

management. 

Q. Well, I'm going to ask you straight out 

now, is that the only thing, about people 

getting in the back of pick up trucks, or, 

did the miners aLso let the Company know that 

they were concerned about miners driving their 

cars inside automobiles between locations? 

A. It was both. 

1794 
Q. It was both, right. And, when you raise 

a concern like that to the Company, you expect 

them to take an interest in it, do you not? 

A. Yes, sir, I do. 

Mr. Stipanovich stated that prior to 1982, there.were 

many times when two or more MSHA inspectors were on the 

property and no safety committeeman or chairman was available, he would drive his own car to meet or travel with an 

inspector. These occurrences varied from one Jay to 5 days 

(Tr. 161). He stated that mine management has never directly 

instituted a policy against the use of private automobiles by 

miners on mine property, and he has never inquired about any 

such policy (Tr. 162). He confirmed that since 1984, he has 

on two occasions been transported by a member of mine aianagement in that individual's private automobile from portal to 

portal or to the preparation plant for the purpose of accompanying a Federal inspector, and that he has no objection to 

doing this (Tr. 162). 

Mr. Stipanovich identified the members of the safety 

committee for the period July 9 through August 30, 1985, as 

Mr. Delisio, chairman, and Ronald Mason and Joe Balluch. He 

confirmed that he recognizes the names of the 14 miners which 

appear on exhibit R-1, dated August 9, 1983, and that the 

document is signed by Mr. Delisio. The list contains the 

names of Mr. Mason and Mr. Balluch. He characterized the 

list as a "convenience list," and conceded that it does not 

designate the "choices" for walkaround pu s (Tr. 165). 

He did not know whether a current list is n existence (Tr. 

167). With regard to exhibit G-4, containing a list of 

miners who served as walkarounds from July 9 to September 30, 

1985, Mr. Stipanovich stated that he knows of no complaints 

concerning the names on that list (Tr. 169). MSHA's counsel 

stated that she had no reason to believe that the individuals 

listed did not accompany the inspectors on the dates indicated on the list in question (Tr. 110). 

Mr. Stipanovich confirmed that he was with Mr. Delisio 

when he informed Mr. Karazsia that he wanted to walk around 

at the Linden Portal, and that Mr. Karazsia did not question 

Mr. Delisio's designation as the authorized representative 

of the miners (Tr. 176). He also confirmed that in the years 

he.has worked at the mine, mine management has never questioned a safety committeeman's designation as the authorized 

miner representative for walkaround purposes. Prior to 

Mr. Delisio's case~ management never used as a reason for 

denying a committeeman his walkaround rights the fact that he 

1795 
would have to travel from portal to portal to accompany an 

inspector. Management never refused a committeeman the right 

to accompany an inspector at another portal because he had no 

means of travel (Tr. 176). 

Mr. Stipanovich confirmed that mine management has on 

occasion attempted to have a miner on "light duty" serve as 

a walkaround, rather than the designated walkaround who may 

be busier. He has resisted these efforts by informing 

management that the designated representative must go, and 

management has never contested his decision in this regard 

{Tr. 178-179). Prior to Mr. Delisio's case, management never 

contested the right of ariyone to serve as a walkaround 

representative (Tr. 179). 

Mr. Stipanovich stated that prior to July 30, 1985, the 

safety committee raised the question of Mr. Delisio's desire 

to accompany Federal inspectors at the Linden Portal at a 

regular communications meeting held with mine management, 

and Mr. Baker was present at that meeting (Tr. 183-184). 

Mr. Stipanovich stated that in the event an inspector 

decides to go to the mine supply yard or the preparation 

plant to begin his inspection, a miner's representative would 

not likely walkaround with him because there are only two 

miners assigned to work at those locations and mine management would not likely excuse them f rorn their duties to accompany the inspector (Tr. 185). In this event, because of 

management's policy prohibiting miners from travelling from 

portal to portal to accompany inspectors, no miner representative would accompany the inspector, and only the company 

escort would go with the inspector (Tr. 185-187). He 

explained further that the two miners at the supply yard and 

preparation plant begin work at 7:15 or 7:30 a.m., and quit 

at 2:15 p.m. By the time an inspector arrives, the men are 

into their work shift, and management is not likely to 

excuse them to accompany an inspector (Tr. 187). 

With regard to the supply yard and preparation plant, 

MSHA's counsel made the following assertions (Tr. 188-191). 

MS. HENRY: The Company has a company wide 

policy. It won't let people travel from 

portal to portal. It's not just Mr. Delisio 

travelling from the Thomas portal to the 

Linden portal. It won't let Mr. Delisio, if 

he's on duty at the Thomas portal, go f rorn 

the Thomas portal to the supply yard. Or, it 

won't let Mr. Delisio, if he's on duty at the 

1796 
Thomas portal during day shift, go from the 

Thomas portal to the prep plant. There are 

occasions, because there are two miners that 

are working there, and, -

JUDGE KOUTRAS: Well, let them go there for 

what reason, I mean -

MS. HENRY: For inspection. For walk around. 

As a result, there are some occasions where 

the Inspector walks around in the prep plant 

and in the supply yard when there is no union 

representative, because the Company will not 

allow travel. And, they will not allow the 

designated representative of the miners ta 

travel. And, what we are saying here today 

is, whether it's Mr. Delisio's travelling 

from the Thomas portal to the Linden portal, 

or whether it's Mr. Delisio travelling from 

the Thomas portal to the supply yard, whatever, this travel policy of the Company is 

unreasonable, and designed to impede and 

interfere with the miner's right to walk 

around. 

JUDGE KOUTRAS: Well, let me ask you this 

question. How long has this been going on? 

MS. HENRY: I don't know how long it's been 

going on with the supply yard and the prep 

plant. 

* * * * * * * 

MS. HENRY: And, it is our contention, 

although I am sure the Company didn't want to 

qualify that, it is our contention that that 

is what occurred. That the Company will not 

allow the designated representative of the 

miners, if the designated representative is 

not already at the supply yard or the prep 

plant to travel from the Linden portal or the 

Thomas portal to the prep plant or to the 

supply yard. It's all part of this general 

- - - we're not allowing people to travel. 

JUDGE KOUTRAS: Did MSHA conduct an investigation about this general - - -

1797 
MS. HENRY: we did not find out about that 

particular event until this morning. 

JUDGE KOUTRAS: This morning? 

MS. HENRY: Yes, Your Honor. We were - -

when we were -

JUDGE KOUTRAS: And, why is this this morning, I mean, this case obviously has generated a lot of interest. You've got union 

people here, probably from the International 

and the National, and, all of a sudden this 

morning you find out that the mine operator 

has not permitted walk arounds at the supply 

and the preparation plant. I'm surprised 

that the union hasn't - - -

MS. HENRY: Your Honor - - - I'm surprised 

- - well, Your Honor we were in all fairness 

concentrating on Mr. Delisio's specific right 

in the investigation. We only concentrated 

on the events of July 30, 1985. Was 

Mr. Delisio the authorized representative? 

Was he denied permission to go? MSHA's feeling is that when there is a designated authorized representative, the miner's authorized 

representative, then he should be permitted 

to go. And, believing that, and believing 

that to be true in Mr. Delisio's circumstance, 

we filed a complaint on Mr. Delisio's behalf 

against the Company. Why the investigation -

- the investigation was not more broad than 

that, it was concentrating on Mr. Delisio's 

circumstance. And, there was no inquiry as to 

whether this particular circumstance might 

have hampered other individuals, but, MSHA's 

feeling was that the policy in general was 

wrong, because it does hamper the efforts of 

the miner's representative to be at the place 

where the inspection is. ~nd, whether that 

inspection is at the Linden portal or at the 

prep plant or at the supply yard, when the 

miner's designated representative is not 

allowed, effectively whether it's through circular reasoning - - well, it's not your reporting, it's not that we think you're going on 

the walk around we don't like, it's the fact 

that you haven't reported - - whether it's 

1798 
that kind of circular reasoning or whether 

it's simply straight out someone's not going, 

that that's an interference with the language 

is unambiguous, the only one that was investigated at the time. Therefore, ·it was not discovered until this morning that there were - -

other than Mr .. Delisio's second complaint 

second occurrence of trying to attempting to 

go to the Linden portal. 

In response to further questions, Mr. Stipanovich 

stated that MSHA inspectors have initiated their inspections 

at the suppy yard, but he could not be specific as to the 

dates when this has occurred (Tr. 207). 

John R. Schmitt testified that he has been employed by 

the respondent since May, 1975, and serves as treasurer of 

the local union. He previously served as chairman of the 

safety committee from 1976 to 1982, but lost the position 

because of a layoff. He confirmed that when he served as 

chairman he was the authorized miner's walkaround representative for purposes of accompanying Federal mine inspectors. 

He confirmed that he was on the safety committee and present 

at the time the union membership voted to designate the 

chairman and members of the safety committee as the authorized walkaround representatives of the miners. He al30 confirmed that when he served as committee chairman he was the 

designated authorized walkaround representative by virtue of 

his office and the vote of the general membership (Tr. 

213-214)0 

Mr. Schmitt stated that when he served as chairman of 

the committee he was able to travel from portal to portal to 

accompany inspectors as the union walkaround representative 

and did so by using his own automobile, and at no time did 

the respondent ever deny that he was the authorized walkaroun~ representative (Tr. 214-215). Mr. Schmitt stated 

that he frequently travelled between portals in his own automobile from his normal work location at the Linden Portal. 

During this time, he accompanied inspectors everyday while 

on the steady daylight shift (Tr. 216), and he confirmed 

that three full portals were in operation at that time (Tr. 

215). 

Mr. Schmitt stated that the resportdent never expressed 

any disple~sure with his absences while accompanying inspectors, and he was never threatened in any way for serving as 

the walkaround representative. Once he determined that an 

inspector was present at another portal, he would simply 

1799 
inform mine management that he was going to accompany the 

inspector and would drive to the portal in his car to walk 

around with the inspector. He would travel from the Linden 

Portal to the Thomas Portal in his car and management never 

prevented him from doing so. During the time he was.at the 

Thomas Portal, other miners. were available to serve as walkarounds, but he went because he was the chairman of the 

safety corrunittee and had to be present at inspection 

close-outs, and had to deal with management and the inspectors on behalf of the union. He stated further that the 

"vote was taken that the chairman of the safety committee be 

the head man to go" (Tr. 22 0). Management never questioned 

the fact that he was the designated union walkaround representative for the portals, the supply yard, or the preparation plant (Tr. 220-221). 

Although he is no longer the chairman of the safety 

committee, Mr. Schmitt confirmed that he has served as a 

walkaround at his present portal because there is no safety 

·committeeman there. If a member of the safety committee 

were there, he would recognize the committeeman as the 

authorized walkaround, even though he himself is qualified 

to walk around (Tr. 221). No miners have ever questioned 

the fact that the safety committeemen are their designated 

representatives (Tr. 222). There have been no suggestions 

that miners get together oh their work shifts and designate 

anyone other than a safety committeeman as their representative, and it is common knowledge among the miners that the 

chairman or members of the safety committee act as their 

walkaround representatives (Tr. 223-224)" 

On cross-examination, Mr. Schmitt reiterated that in 

1976 and 1977 when he served as safety committee chairman he 

of ten left his home Gamble Portal to travel to another portal 

where the inspector would be beginning his inspection, and he 

did so in his own car. In the event he encountered an inspector at one portal and the inspector decided to go to another 

mine location for his inspection, he and the company representative would travel with the inspector in the inspector's car 

(Tr. 226). 

Mr. Schmitt confirmed that within the past month or 

6 weeks he raised a concern with mine management about the 

miners riding in or being transported in private vehicles, 

and he explained the situation as follows (Tr. 227-228): 

A. Yes. In that particular situation we had 

a - - I forget just what it was the 

miners were not able to go into the mine at 

1800 
this particular time. Okay, there was a 

problem with the elevator that - - I think it 

was the elevator at Linden portal. They 

brought everybody upstairs and they had a 

meeting, and, at this meeting they said that 

they were going to transport everybody to the 

Gamble portal and enter the mine from there. 

And, I for one, was listening to what was 

going on and I dee ided to raise my hand 

because my concern is in all honesty that if 

a group of individuals as ourselves were 

transported in different cars, my question 

was who is responsible for the insurance, you 

know, if something were to happen to, you 

know, this large amount of people going over 

to the mine. The Company was accomodating 

enough to say that we would take people in 

Company cars, as many as we could. I asked 

Malcolm Dunbar at that meeting in front of 

l of management and the union, what about 

travelling in our own cars over there or are 

you going to provide Company cars, and 

Malcolm's answer to me was, that's a good 

question. I did not get an answer. He said, 

that was a good question, we'll have to check 

on that. And, as - - not to create any 

problems or anything further, we let it go at 

that, and, I myself rode in the Company car 

over to Gamble and whatever t other men did 

I don't know. But, L assume that most of 

them rode in Company cars. 

Mr. Schmitt stated that while safety committeemen are 

present at the Linden portal, they work different shifts. 

The one committeeman who works the daylight shift would be 

the one to accompany an inspector during that shift, but he 

does not work the same shift as Mr. Delisio. If no committeemen are present, the other miners listed on exhibit G-4, 

including himself, would serve as the walkaround representative, and they have done so (Tr. 232~234). 

Dunbar, respondent's saf manager, identified c.,:_~;_::_=..:.:.~~~~ 

exhi as a copy of the Mathies Mine map, and he seated 

that the Thomas Portal is approximately 5 miles from the 

Linden Portal, and that the preparation plant is approximately 10 miles from the Linden Portal. Mr. Dunbar stated 

that on the morning of July 30, 1985, he was at the Thomas 

1801 
Portal and received a telephone call concerning a discussion 

between Mr. Delisio and superintendent George Karazsia which 

was taking place at the Linden Portal. Mr. Dunbar went to 

the Linden Portal at 8:00 a.m., and learned that Mr. Delisio 

was there and wanted to accompany a Federal inspector on his 

inspection rounds. Mr. Dunbar confirmed that Mr. Delisio 

was advised by Mr. Karazsia that he could not change portals 

on his own, and that if he insisted on accompanying the 

inspector at the Linden Portal he could possibly be disciplined for not reporting to his regular duty station at the 

Thomas Portal. Mr. Dunbar stated that he suggested that 

Mr. Delisio designate a miner working at the Linden Portal 

to accompany the inspector as the walkaround representative, 

but that Mr. Delisio refused and stated that if he (Delisio) 

was not permitted to accompany the inspector, no one would. 

Mr. Dunbar confirmed that the inspector conducted the inspection without a walkaround representative (Tr. 244-248). 

Mr. Dunbar stated that since Mr. Delisio is assigned to 

the Thomas Portal, his foreman would expect him to show up 

at that portal for work. Allowing Mr. Delisio to first 

report to the Linden Portal would cause confusion since the 

foreman would not know his whereabouts or when he may be 

expected for work. With regard to the use of private 

vehicles, Mr. Dunbar confirmed that since 1982, and upon the 

recommendation of the union, the respondent has to the extent 

possible, limited the use of personal vehicles because of 

liability problems which may occur while a miner is travelling 

on mine property. Mr. Dunbar pointed out that there are many 

narrow roads, and the presence of school children in the morning hours on the roads increases the potential liability (Tr. 

2 4 9). 

Mr. Dunbar confirmed that mine training sessions are 

usually held at the Linden Portal, and since most of the 

employees are at that portal, no transportation problems 

exist. For the miners working at the Thomas Portal, the 

supply yard, and the preparation plant, they are usually 

notified in advance of any training at the Linden Portal, and 

they are permitted to initially dri~e their vehicles to the 

Linden Portal, and when the training classes are over, they 

simply dri~e home from the Linden Portal (Tr. 250). With 

regard to replacement miners needed to operate the 50-ton 

locomotives out of the Thomas Portal, Mr. Dunbar confirmed 

that the company provides thein transportation, and that someone with a company car will pick them up at Linden and trans-

. port them to Thomas, and will then return them to Linden. 

However, if a miner requests permission to us.a his own automobile, the company will permit them to do so. He indicated 

1802 
that "a lot of them" request to drive their own cars to 

Thomas so that they may shower, and they then drive home from 

the Thomas Portal (Tr. 251). 

Mr. Dunbar confirmed that during the year 1985, 391 

Federal inspectors were at one time or another on the mine 

property. He also confirmed that the mine worked 250 days 

that year, and that on any given day, an inspector was at 

the mine (Tr. 251). 

Mr. Dunbar stated that the company has suggested that 

if an inspector originates his inspection at the Thomas 

Portal, Mr. Delisio could then travel with him and go whereever he chooses, and management would know where he is (Tr. 

252). Mr. Dunbar also confirmed that within the last year, 

miners have frequently accompanied Federal inspectors in the 

inspector's government car during travel between different 

mine locations (Tr. 252}. He denied that the company has 

ever refused a miner the right to walk around with inspectors at the supply yard or the preparation plant. He 

explained that when inspectors usually show up at these locations, the miners who are working there do not by choice 

accompany the inspector. However, he indicated that inspectors usually start their inspections at the Linden Portal 

and have a walkaround with them when they go to the supply 

yard or preparation plant. The only restriction by the company is to prohibit miners from using their personal vehicles 

to shuttle between these locations (Tr. 254). 

Mr. Dunbar confirmed that in February, 1986, Mr. Delisio 

again attempted to accompany an inspector on an inspection 

out of the Linden Portal, and he took the position that he 

had an MSHA decision which allowed him to do this. Mr. Dunbar 

stated that he explained to Mr. isio that the matter was 

still in litigation, and that he advised Mr. Delisio that if 

the inspector would init te his ins ion at the Thomas 

Portal and pick him up there, he could accompany the inspector 

(Tr. 255). 

Mr. Dunbar stated that allowing Mr. Delisio to travel 

underground from the Thomas Portal to the Linden Portal would 

present a problem since there is only one self-propelled jeep 

that is used by the mine ner. Due to the comp underground haulage system, the company would have to make special 

arrangements to transport Mr. Delisio underground, and that 

the transportation time would be from 20 minutes to an hour 

underground between portals. Further, due to the fact that 

underground trips of coal have the right of way, additional 

problems would be presented in transpor ng Mr. Delisio back 

1803 
and forth underground (Tr. 256-258). Mr. Dunbar confirmed 

that the verbal warning given to Mr. Delisio on July 30, was 

because of his failure to be at his proper work station, and 

not because of his wish~n~ to serve as the miners' 

representative (Tr. 259). 

On cross-examination, Mr. Dunbar conceded that if 

Mr. Delisio were to call his foreman from the Thomas Portal 

once an inspection started, mine management.would know of 

his whereabouts. He also conceded that un~erground jeeps 

are available at the Thomas Portal for the mine examiner, 

shift foreman, and occasionally the maintenance foreman, and 

if all three are running, there may be an extra jeep available for Mr. Delisio (Tr. 260). 

In rPsponse to further questions, Mr. Dunbar testified 

as follows (Tr. 261-267)~ 

Q. Okay. And, isn't it true as a result of 

this statement that you state in that particular piece of information, that even if Joseph 

Delisio had reported to the Thomas portal, and 

his foreman knew where he· was, and knew that 

he was at work, he would not be allowed to go 

to the Linden portal to accompany the inspector from that point, from the Thomas portal? 

He would not then be allowed to go to the 

Linden portal? 

A. We don't want him to change portals, no. 

Q. What you're saying is, once he reports at 

that portal he cannot go to the Linden portal 

to accompany the inspector? 

A. That's what I said, we don't want him to 

change portals. 

Q. Well, if he reports at his regular portal, 

is he not in fact there - - he has reported 

once he's reported to the portal? 

A. That's correct. 

Q. You know where he is? 

A. That's correct. 

1804 
Q. If he says he's going to the Linden portal 

do you have any reason -- to accompany the 

inspector on an inspection, would you have any 

reason to believe that he-wasn't going to the 

Linden portal to accompany the inspector? 

A. No. 

Q. And, as you've already stated, once the 

inspection starts, assuming he was there, you 

would know at.all times where Mr. Delisio was 

during the course of the inspection -- as much 

as you could? 

A. Yes. Can I add something to that? 

* * * * * * * 

THE WITNESS: You know, what we're talking 

about here is you're going to set precedence 

·for something that maybe right now you're talking about a good employee, Mr. Delisio, on a 

one certain day going to another portal. 

Well, this opens up where if it's fair for 

this one individual, if next time we have two 

inspectors or as the testimony has shown, 

we've had three or four, I could have people 

traveling from Thomas portal to the Linden 

portal 1 and some leaving from the Linden portal going to the preparation plant 7 and some 

leaving from the prep nt going somewhere 

else" And, this is what's causing the majority of managernentcs control problems is -- you 

know, everybody talks about an isolated incidence, but, you're opening up a whole precedent setting po cy of losing control of a 

management situation. 

BY MS, HENRY~ 

Q. Mr. Dunbar isn 1 t it true that under the 

present circumstances with only the Linden 

portal in full production that it's highly 

unusual that you would have this back and 

forth -- with the three inspectors that you're 

talKing about. At this point in time there's 

on one ins general on the pr ses. 

1805 
A. No. Not with three hundred and ninety one 

inspectors shifts in 1985, no. That's a lot 

of inspectors. 

Q. Yes, but, would you state that that the 

majority of those inspection sh t occur at 

the Linden portal? 

A. Oh, yeah. The majority does. 

Q. And, Mr. Dunbar, when Mr. Schmitt was on 

the S Committee and called in to his 

mine, reported to his mine, and then reported 

to a different mine, when the mine was in full 

production -- when all these portals were 

open; the company did not stop him from using 

his personal vehicle to go from portal to portal at that point, did they? 

A. No. But, again I'd like to add something 

if I could. 

* * * * * * * 

THE WITNESS: Whenever Mr. Schmitt gave his 

testimony, he was Chairman of the Health and 

Safety Committee at the mine. But, we· had a 

different concept at the mine. We had a lot 

more employees in the mine, we had almost 

double the employees that what we have right 

now" As far as the logistics problem, as far 

as a r cement problem for Mr. Schmitt, whenever he t the property, it did not exist as 

bad as it does right now. 

BY MS. HENRY: 

Q. But, Mr. Dunbar, didn't you just state 

that one of your concerns is the control of 

people should the mine come to full production? 

I mean, you st stated that one of your concerns about allowing Mr. Delisio to use his 

car is that should the mine come to full production, and there would be more than one 

inspector there, you wouldn't know where 

people were going in their cars? Didn't you 

just say that? 

A. Yeah. 

1806 
Q. Okay, well doesn't that conflict with your 

statement that the reason you let him do it 

was because there was more people. 

A. No, I --

Q. Why didn't that become a problem when 

Mr. Schmitt was the Chairman of the Safety 

Committee? 

A. I never said, if the mine becomes full 

production, I'm saying that the mine has a lot 

inspectors, then we have a lot of cross 

shif ng, and a lot of changing. I'm not talking about adding more people, I'm talking 

about three inspectors, or even two inspectors 

with the same three hundred and ~ome people we 

have right now. 

Q. But, the -- assume for the moment, 

Mr. Dunbar, that there is -- it is not possible for Mr. Delisio to travel with the MSHA 

inspector in the car to from one portal to 

another. Would it still be mine management's 

position at that point that he could not take 

his own personal vehicle to travel from one 

portal to another? 

A. Yeah. We still don't want him to travel 

in his own personal vehicle. 

Q. Well, if Mr. Delisio was given a warning 

for not being in his proper work location, and 

he is not permitted to travel from his work 

location to the location where the inspector 

is, aren't you in effect denying him his ri 

to go to the location where the inspector is 

and accompany the ins ? 

A. Not in my opinion because there's other 

people available that can travel with the 

inspector. 

Q. When you say there are other people available, are you talking about other people who 

might then go on a walk around should Joseph 

Delisio be unavailable? 

1807 
A. I'm talking about people that -- yes, have 

gone on an inspection a lot of times. 

Q. Um-hum. And, during the times that 

they've gone on these inspections, was Joseph 

Delisio permitted to travel from his home portal, the Thomas portal to the Linden portal? 

A. He never raised that issue prior to 

July.30, 1985. 

Q. Let's talk about post July 30, 1985. 

That's a lot of what the list and -- particularly the list that is in the Government's 

Exhibit right now mostly concerns that, and, 

you will agree that he did raise the question 

in June -- sometime in June of 1985, generally. 

A. Yeah, I don't have personal knowledge, but 

I believe that the testimony showed that. 

Q. Okay. And, the walk around list that has 

been given starts in July of 1985, so, it 

starts sometime after he raised the question, 

but, before he actually went in and talked to 

Mr. Karaz a on a specific day about a specific inspection. 

A. No response. 

Q. Would you state that during that time 

period Joseph Delisio was not permitted to 

travel by his own personal vehicle once he 

reported to ·Thomas portal, from Thomas portal 

to Linden portal? 

A. Once it's in litigation he never attempted 

but the one time in early 1 86. 

Q. Um-hum. And, was he permitted at any time 

to travel from the Thomas portal to say, the 

preparation plant? 

A. Not -- not unless the inspection was originated out of there. 

Q. And, how about from the Thomas portal to 

the supply yard, would he have been permitted 

to travel? 

1808 
A. Not unless the inspection was originated 

out of Thomas. 

Mr. Dunbar stated that he has no problem with the designation of the safety committeeman as. the representative of 

the miners. He further stated that he was not previously 

aware of any "pecking order" or formal vote by the miners as 

to any order in which miners would serve as the walkaround 

representative. However, he conceded that if the chairman of 

the safety committee were present at the same time that the 

other miners were present, the gen practice at the mine 

since the 1970's is that the chairman would be the designated 

representative (Tr. 268). 

Mr. Dunbar confirmed that there are two members of the 

safety committee working at the Linden Portal, and they would 

normally accompany an inspector on his inspection. He also 

confirmed that the union's request for a limitation on the 

use of private automobiles was not in connection with travel 

f iom portal to portal for the purpose of accompanying an 

inspector (Tr. 269). He further confirmed that if no one at 

the supply yard was willing to accompany an inspector there 

during an inspection, a miner would not be permitted to 

travel there in his personal vehicle or company vehicle in 

order to accompany the inspector CTr. 270). 

Mr. Dunbar confirmed that prior to 1982, safety 

committeeman Schmitt was permitted to travel from portal to 

portal in his own car to accompany an ins (Tr. 271). 

Since there are only 10 miners on Mr. De sio's shift at the 

Thomas Portal, and since he is the only mine examiner, a 

replacement would have to be brought in from the Linden 

Portal for Mr. Delisio, and the policy was established so 

that management could control the work force (Tr. 272). Sven 

if Mr. Delisio were employed at the Linden Portal, he would 

still have to be replaced if he were to serve as walkaround, and mine. management would still des e to exercise 

management control over its workforce (Tr. 272-273). 

In response to further questions, Mr. Dunbar stated as 

follows (Tr. 274-278): 

JUDGE KOUTRAS: Well, the other point is, do 

you feel that the -- you recognize the r ht 

of a union walk around to accompany a Federal 

Inspector, I think that's obvious right? 

THE WITNESS: That's correct. 

1809 
JUDGE KOUTRAS: But, you seem to feel if that 

right the exercise of that right, entails 

changing personnel from portal to portal that 

somehow the right is ended. Or, at least has 

to be controlled in some way. 

THE WITNESS: No. I see what you're saying, 

but, my only thing with that is the way that 

we read 103(f) of the Act is -- nowhere in 

there does it say we have to have special 

accomodations for people. We're complying 

with the Act by supplying a representative, 

but, nowhere does it say we have to go out of 

our way. Just as MSHA says that they're not 

bound by the Act to go down and pick him up at 

that portal; well, in the same respect we're 

not bound by the Act to do special things to 

insure that this particular individual goes 

with them. 

JUDGE KOUTRAS: You indicated that your policy 

on use of private automobiles is limited to 

the extent possible. 

THE WITNESS: That's correct. we try to limit 

it to -- as much as we could. Now, we can't 

say absolute that you know, nobody can -

JUDGE KOUTRAS: You have no absolute ban 

against the use of private automobiles? 

THE WITNESS: Exactly. Exactly. We do try to 

limit it. 

JUDGE KOUTRAS: What would be the problem with 

allowing Mr. Delisio to drive to the nden 

portal in his own automobile, after he reports 

to duty at the Thomas portal? 

THE WITNESS: Well, the only problem with that 

is we would have to assume his liabili with 

driving. Assume his liabili once he's done 

at the end of the day driving back to his 

regula~ job. And, again, this opens up a precedence that now it's just Mr. Delisio, but I 

don't know - -

1810 
JUDGE. KOUTRAS: Why don't you just have an 

absolute ban on the use of private automobiles 

on the property? 

THE WITNESS: It would be convenient to do 

that, however, there are times when people for 

their convenience like to drive down. 

JUDGE KOUTRAS: Well, isn't this for his own 

convenience? 

THE WITNESS: It's for that and -- yes, I can 

see what you're saying. 

JUDGE KOUTRAS: What if he signs a waiver of 

liability? I mean, are there ways that you 

can accomodate Mr. Delisio exercising his 

right of being a walk around at the Linden 

portal? 

THE WITNESS: Yeah, there's a real easy way 

you can accomodate him, if MSHA will come down 

and just - - -

JUDGE KOUTRAS: And pick him up. 

THE WITNESS: Just originate their inspection 

there. 

JUDGE KOUTRAS: Start the inspection at Thomas? 

THE WITNESS: Sure. 

JUDGE KOUTRAS: Well, what I don't 

understand -- there's riot t6o much to inspect 

at the Thomas portal is that right? Most of 

activity is at the Linden portal? · 

THE WITNESS: Yes it is. 

* * * * * * * 

JUDGE KOUTRAS: And, your position here is --

seems to be that you didn't -- if he was 

threatened, assuming one can come to the conclusion that Mr. Delisio was threatened or 

chastised or told that he would be subject to 

disci inary action, the Company's position is 

that that threat or that conversation took 

1811 
place in the context of only because you 

didn't report to duty, not because you want to 

exercise your walk around rights? 

THE WITNESS: That's exactly correct. 

JUDGE KOUTRAS: But, if you put up these 

barriers to having him carry out his rights as 

a walk around, you're effectively doing the 

same thing aren't you? You're precluding him 

from doing it, if you tell him you can't use 

the car, you can't do this. We want the MSHA 

Inspector to start there, you're effectively 

precluding him from exercising his right. 

THE WITNESS: I see what you're saying, yeah. 

JUDGE KOUTRAS: Aren't you? 

THE WITNESS: I see, yeah. 

Edmund R. Baker, respondent's general mine manager, testified that during the summer of 1985, he was the underground 

mine superintendent at the Mathies Mine. He confirmed that 

the question of Mr. Delisio accompanying Federal inspectors 

at the Linden Portal as the union walkaround representative 

was the topic of conversation at a union/management "communi- ~ 

cations meeting" which he attended sometime in late June, 

1985. Mr. Baker stated that Mr. Delisio indicated that he 

wanted to go to the Linden Portal to accompany Federal inspec-

. tors when they appeared there for their inspections, but that 

in view of the vacation period, Mr. Delisio was advised not 

to do so. Mr. Baker stated that he informed Mr. Delisio that 

he would subsequently contact him to convey management's posi- · 

tion, and that he later telephoned his home and spoke with 

his wife. 

Mr~ Baker confirmed that Mr. Delisio was advised that 

the company had no objections to his serving as a union walkaround representative, but that it was management's position 

that he had to report to his regular duty station at the 

Thomas Portal and could not use his personal automobile to 

travel to the Linden Portal for the purpose of accompanying 

Federal inspectors. Mr. Baker stated that mine management 

has suggested to Mr. Delisio that he assign miners regularly 

working at the Linden Portal as the walkaround representative, but that management could not transport him from the 

Thomas Portal in company vehicles. Mr. Baker confirmed that 

mine management, through Superintendent George Karaszia, 

1812 
advised Mr. Delisio on July 30, 1985, that if he insisted on 

first reporting to the Linden Portal instead of his usual 

duty station at the Thomas Por , he could be subject to 

possible sciplinary action. Mr. Baker confirmed that he is 

in total agreement with mine management's position in this 

matter as testified to by ety manager Malcolm Dunbar (Tr. 

284-289). 

Discussion 

Section 103(f) of the Act, commonly referred to as "the 

walkaround right," provides as follows: 

Sub ct to regulations issued by the 

Secretary, a representative of the operator 

and a representative authorized by his miners 

shall be given an opportunity to accompany the 

Secretary.or his authorized representative 

during the physical inspection of any coal or 

other mine made pursuant to the provisions of 

subsection (a), for the purpose of aiding such 

inspection and to participate in pre- or 

post-inspection conferences held at the mine. 

Where there is no authorized miner representative, the Secretary or his authorized representative shall consult with a reasonable number 

miners concerning matters of health and 

safety in such mine. Such representative of 

miners who is also an employee of the operator 

shall suffer no loss of pay during the period 

of his participation in the inspection made 

under this subsection. To the extent that the 

Secretary or authorized representative from 

each par would further aid the inspection, 

he can permit each party to have an equal 

number of such additional representatives. 

However, only one such representat of 

miners who is an employee of the operator 

shall be entitled to suff2r no loss pay 

during the period of such participation under 

the provis ns of this subsection. Compliance 

with this subsection shall not be a Jurisdictional prerequisite to the enforcement of any 

provision of this Act. 

The facts in this case are not in serious dispute. 

Mr. Delisio is employed at the mine as a "fire ooss" or mine 

examiner, and he also serves as the Chairman of the Ul:1WA Mine 

1813 
Safety Committee. The mine consists of two portals, a preparation plant, and a supply yard, all of which are inspected by 

MSHA inspectors. The main coal producing portal is the 

Linden Portal, and the majority of the work force enters the 

mine at that location and work there. Virtually all of the 

mine inspections conducted by MSHA begin at the Linden Portal 

during the 8:00 a.m. production shift. A small compliment of 

miners, including Mr. Delisio, work at the second Thomas 

Portal in construction and transportation functions. The 

Thomas Portal is approximately 6 miles overland from the 

Linden Portal, and the preparation plant is approximately 

15 miles from the Linden Portal. 

Mr. Delisio has in the past accompanied MSHA inspectors 

at the Thomas Portal in his capacity of safety committeemen 

and designated miners' representative, and he did so without 

objection or interference by mine management. Mr. Delisio is 

the only safety committeeman on the day shift at the Thomas 

Portal, and two other safety committeemen who work at the 

Linden Portal, and who are also designated as miners' representatives, do not work the same shifts as he does. The 

·respondent concedes that the safety committeemen are the duly 

designated representative of miners for walkaround purposes. 

The record establishes that in late June, 1985, during a 

labor/management "communications meeting," .Mr. Delisio 

informed mine management that he wished to accompany MSHA 

inspectors as the miners' representative when they conducted 

inspections at the Linden Portal. Subsequently, on July 30, 

1985, Mr. Delisio, in the company of the president of his 

local union and an MSHA inspector, arrived at the Linden 

Portal shortly before the start his work shift and 

requested permission to accompany the inspector on his inspection at that portal. Mine Superintendent George Karaszia 

purportedly had "no problem" with Mr. Delisio accompanying 

the inspector, but "verbally warned" Mr. Delisio that if he 

did not report to. his regular work station at the Thomas 

Portal, he would be disciplined~ Mr. Delisio did not accompany the inspector, and he filed his complaint with MSHA that 

same day. 

The record establishes that the question of Mr. Delisio 

accompanying MSHA inspectors at the Linden Portal arose again 

in February, 1986, although no additional complaint was filed. 

At that time, Mr. Delisio appeared at the Linden Portal in 

the company of an MSHA inspector and requested permission 

from superintendent Karaszia to accompany the inspector on 

his inspection at that portal. Mr. Delisio suggested that he 

either be.allowed to first report to the Thomas Portal and 

1814 
then drive his car to the Linden Portal to meet and accompany 

the inspector, or the respondent furnish him with underground 

transportation from the Thoma.s Portal to the Linden Par 

Mr. Karaszia informed Mr. Delisio that since his discrimination complaint was still pending, he would have "a problem" 

with Mr. Delisio's·suggestion, and advised him th~t he should. 

await the results of his complaint. Mr. Delisio did not 

accompany the inspector on this occasion. 

MSHA's Arguments 

MSHA argues that when Mr. Delisio requested to accompany 

the MSHA inspector at the Linden Portal, he was engaged in 

protected activity. MSHA rejects the respondent's suggestion 

that Mr. Delisio need not be given the opportunity to walkaround with the inspector at this portal, and that the respondent may require Mr. Delisio to select an alternate walkaround 

representative. MSHA's views the respondent's position in 

this case as an attempt to force Mr. Delisio to design~te an 

alternative by denying him access to transportation to the 

Linden Portal from his usual duty station at the Thomas Portal. 

MSHA concludes that the miners' choice of walkaround representative must be given great deference, and that Mr. Delisio 

should be permitted to travel from portal to portal as the 

miners' representative for purposes of MSHA inspections. 

In support of its case, MSHA asserts that the statutory 

right of a miner representativ~ to accompany an inspector is 

clearly stated in the Act, and the legislative history 

r lects the Congressional intent that the scope of a miner's 

protected activities, including the right to participate in 

mine inspections, be broadly interpreted. In determining 

what c.ircumstances may excuse a mine operator from complying 

with this right, MSHA emphasizes that the importance that the 

Act places on the miner's participation in mine inspections 

must be considered. MSHA concludes that the legislat history evinces a clear intent to have the miner's partici ion 

as an important element in the inspection enforcement scheme. 

Magma Copper Company v. Secretary, 645 F.2d 694 (9th Cir. 

1981), cert. denied, 454 U.S. 940 (1981); Consolidation 

Company v. Mine Workers, 2 MSHC 1185 (198 

MSHA cites a decision by Judge Melick in support of its 

argument that miners have the right to designate anyone of 

their choosing as their primary representative, despite the 

existence of others who could act as their representative. 

In Truex v. Consolidation Coal Company, 7 FMSHRC 1401 

(September 20, 1985), a miner, who also served as a member of 

the mine safety committee, was desi9nated by the local union 

1815 
president to act as the representative of miners at a section 

103(f) post-inspection conference arranged by an MSHA inspector with mine management. The miner requested permission 

from mine management to be allowed to work until the inspector arrived. Management responded that it was company policy 

to obtain miners' representative from the area an inspector 

visits. The miner then asked for permission to work in the 

"Bottom" so that he could be available for the inspector, but 

was refused. He then announced that he was on "union business" because he believed that he would otherwise have been 

unable to attend the conference as the representative of 

miners. Management thereupon informed him that since he was 

on "union business," he would not be permitted to perform any 

work that d~y. The miner performed no "union business" that 

day other than attending the conference. 

Upon the conclusion of the conference, which lasted 

1-1/2 hours, the miner asked to go to work for the remainder 

of the shift, and he was refused. He was paid his regular 

rate of pay for only the 1-1/2 hour conference. He then 

filed a discrimination complaint seeking compensation for the 

rem~ining 6~1/2 hours of the shift he would have worked but 

for his assumption of "union business" and the related 

refusal of management to allow him to return to work. The. 

mine operator def ended on the ground that under the Nation~l 

Bituminious Coal Wage Agreement of 1981, once the complaining 

miner declared himself to be on "union business" he was no 

longer under the operator's control or direction and that it 

therefore had no obligation to pay him for his subsequent 

activities. The operator further argued that it did not have 

to accept the miner as a representative of miners on the day 

in question but could have complied with section 103(f) of 

the Act by giving any one of the approximately 130 miners 

then working the opportunity to accompany the inspector during the conference. In rejecting· this argument 1 Judge I-1elick 

states as follows at 7 FMSHRC 1403-1404" 

Section 103(f) of the Act provides, as 

relevant, that "a representative authorized by 

his miners shall be given an opportunity to 

accompany the ... [inspector] ... during 

the physical inspection of any coal . , mine 

. Eor the purpose aiding such inspection 

and to partici in pre- or post-inspection 

conferences held at the mine." [Emphasis 

added.] Since it is not disputed in this case 

that the post-inspection conference which 

Mr. Truex attended was a conference within the 

meaning of Section l03(f) of the Act it is 

1816 
clear from the above language that it is the 

miners and not the mine operator, who authorize or designate a representative for the purpose 0£ participating in.such conference. 

There is no statutory ambiguity on this point 

and the plain meaning must prevail. (Emphasis 

in original). 

MSHA further cites a decision by former Commission Judge 

Steffey in a civil penalty case initiated by MSHA for a violation of section 103(f) of the Act, Leslie Coal Mining Company, 

1 FMSHRC 2022, December 9, 1979. In that case, a miner under 

suspension by the mine operator reported to the mine for the 

purpose of accompanying an inspector on a regular inspection. 

The miner was a member of the safety committee, and he was 

chosen by the committee to serve as the walkaround_during the 

inspection. Mine management refused to permit him to accompany the inspector because he was in suspension status, and 

instead gathered together five available working miners who 

selected someone else to accompany the inspector. The MSHA 

inspector had called his supervisor who apparently took the 

position that the procedure of selecting the representative in 

the absence of any other available representative was appropriate. However, when the inspector subsequently returned to 

his office, his supervisor instructed him to issue a citation 

for a violation of section 103{f) upon his next return to the 

mine. Upon his return to the mine, the inspector issued the 

citation charging the mine operator with a refusal to permit a 

legally elected representative authorized by the miners to 

accompany the inspector during his inspection of the mine. 

In affirming a violation of section 103(f), Judge Steffey 

stated as follows at 1 FMSHRC 2026-2027: 

* * * * * * * 

It. appears to me that the fact the company 

had suspended Mr. Stiltner for this twenty-four 

hour period does not give the company the right 

to interfere with the fact that the representative--that the miners had selected 

~r. Stiltner as their representative on that 

specific day. 

* * * * * * 

Consequently, when mine management 

d~clined to let ~r. Stiltner go with the 

1817 

* 
inspectors on May 26, there was not then available another man to take his place who was 

still·in the same category of a committeeman 

that was desirable, because these were the 

three men who were to be selected to accompany 

the inspectors. 

Now, I recognize and I feel that management should have a right to discipline its 

miners, but in doing so I think that this type 

of situation could be avoided either by 

suspending--if they felt Mr. Stiltner was 

going to accompany the inspector during a 

period which was still within his suspension 

period--they could either have anticipated the 

situation by making it clear to Mr. Stiltner 

on May 25 that one of the other committeemen 

should come in on the day shift for the purpose· of accompanying the inspectors, or by 

changing the suspension period in order to 

permit Mr. Stiltner to make this inspection 

with the inspectors. 

In other words, I believe that the company cannot interfere with the person that the 

miners choose to accompany the inspectors. As 

long as he is still an employee and still a 

member of the safety committee and is still 

one of the people who is intended to accompany 

the inspectors, I believe the company must let 

him do so and must take that into consideration when they are suspending someone. I do 

not think it is something they can work around. 

MSHA argues that Jddge Steffey's reasoning is clearly 

applicable to Mr. Delisio's situation. MSHA asserts that 

there is no d pute among the miners who testified that 

Mr. Delisio was the miners' representative on the day in question, and that he was the representative for the entire mine, 

not simply for a certain section. Further, MSHA maintains 

that the testimony shows that safety committeemen at the 

respondent's mine have been designated as the authorized walkaround representatives for the entire mine by a vote of the 

UMW local. MSHA concludes that while safety committeemen 

such as Mr. Delisio may designate replacements should they 

choose not to act as walkarounds, the choice to waive the 

right to walkaround should not be forced upon them by the 

respondent, and the respondent cannot "work around" that 

1818 
selection by claiming that other potential representatives 

exist. 

MSHA maintains that the respondent bears a heavy af firmative burden demonstrating what, any, unusual and exigent 

circumstances would justify excusing the failure to comply 

with the Act by forcing a miner representative to choose a 

replacement to act as the walkaround. MSHA asserts that the 

respondent's alleged concerns with transportation do not meet 

this burden, and takes the pos ion that section 103(f) 

imposes on the respondent an implicit duty to arrange its 

transportation regulations in a manner that will ensure the 

opportunity of the authorized miners' representative to accompany the inspector. This right would have little meaning if 

the respondent could void selection by the miners of their 

representative by enforcing transportation rules which prevent the representative's participation. MSHA concludes that 

the plain language of section 103(f) demonstrates that an 

authorized representative such as Mr. Delisio is under no 

duty to waive his right and select another representative 

simply because it would be more convenient for management. 

MSHA maintains that the walkaround rights granted miners 

under the statute are broad and far reaching, and the fact 

that the respondent would assert the degree of influence it 

presently asserts in the selection of the miners' representative is inconsistent with the purpose Of section 103(£). 

Although Mr. Delisio may designate another representative for 

his own reasons, management cannot require Mr. Delisio, 

through selective enforcement of transportation regulations, 

to authorize another representative. MSHA therefore concludes that it is clear that Mr. Delisio is the illiners' representative, and that in requesting permission to accompany the 

MSHA inspector, he was asserting a right protected by the 

Act. 

MSHA concludes that the respondent engaged in discriminatory activity when it threatened to discipline Mr. Delisio if 

he acted on his request to accompany the inspector as the 

walkaround representative of miners. MSHA suggests that the 

discrimination that is motivated by such protected activity 

need not be great, and it cites the legislative history which 

makes it clear that threats of discipline for engaging in 

protected activity, as well as actual discipline, are prohibited under section 105(c) of the Act. MSHA also cites a decision by Judge Broderick in Curcio v. Kevstone Coal Mininq 

Corporatio~, 3 MSHC 2119, 2120 (1985), where he held that a 

1-day suspension was not a de minimis adverse action because 

1819 
the policy fol.lowed by the mine operator could result in discharge, thereby inhibiting or discouraging miners from bringing safety complaints to the union or to MSHA. 

On the facts presented in this case, MSHA asserts that 

Mr. Delisio was given a verbal warning that he would be disciplined if he chose to act ai a walkaround, and it concludes 

that such a warning is a threat of reprisal which is clearly 

discriminatory activity prohibited by the Act. In response 

to the respondent's contention that the warning was not motivated by any protected activity, but was issued because 

Mr. Delisio would not have reported to his regular work portal, MSHA concludes .that this "circular argument" is not 

supported by the evidence. MSHA asserts that mine management 

has stated that if Mr. Delisio reported to his portal, he 

would not have been permitted to travel to the portal of 

inspection, and that management's safety director admitted 

that the effect of this policy was to prevent Mr. Delisio 

from travelling from portal to portal to accompany an inspector. MSHA concludes that the verbal warning to Mr. Del io 

had the practical effect of preventing his walkaround activities, and that this is impermissible discrimination under the 

Act. 

In response to the respondent's assertion that its traniportation policy is not discriminatory because Mr. Delisio 

would be able to ride from one portal to another in an MSHA 

inspector's car, MSHA believes that this is irrelevant 

because the issue concerns the legality of the respondent's 

conduct, and such a question cannot be decided by the actions 

of third parties, such as MSHA inspectors. 

MSHA maintains that the respondent acted discriminatorily 

by giving Mr. Delisio a verbal warning of future discipline if 

he did not report to his work portal, and by refusing to allow 

him to travel from his work portal to an inspection portal r 

the purpose of accompanying an MSHA inspector on his regular 

inspection. MSHA states that the resoondent should be ordered 

to refrain from such discrimination i~ the future, to post a 

notice that it will refrain from such discrimination, and to 

permit Mr. Delisio access either through company transporta-' 

tion or personal transportation to the mine areas where inspections are to be held. MSHJ\ also seeks an appropriate civil 

penalty assessment against the respondent. 

Respondent's Arguments 

The respondent states that since the resumption of such 

smaller operations in May of 1983, after a long shutdown, 

1820 
including a management change from Consolidation Coal Company 

to National Mines Corporation, the respondent has maintained 

a policy that miners must report to their assigned portal at 

the beginning of their shift and are prohibited from using 

their personal vehicles to travel between portals during 

their working shifts. The policy regarding personal vehicles 

was in part prompted by concerns raised by the Union. The 

concern was that the Union did not want the miner to expose 

himself or his vehicle to the risk of having an accident, 

especially involving third parties, when the personal vehicle 

was used during his shift. 

Respondent asserts that the policy regarding reporting 

to the assigned portal at the beginning of the shift is based 

on some obvious, common sense reasons. Reporting to where 

you work obviously is the best way to know a miner is in fact 

at work and therefore must be accounted for as ng underground. In addition, relying on a miner to call from another 

por ·to report his presence there rather thah reporting to 

his assigned portal has some obv.ious drawbacks. Phone cornmun.,.., 

ications between portals at the busy change-of-shift time are 

subject to be missed or not promptly communicated to others. 

Also, it is di icult to maintain accurate verification that 

an employee is where he says he is by his phone report. An 

employer does not have to assume that all employees are completely honest all the time. 

Respondent states that another factor present in this 

case is the frequency of inspections. Respondent points out 

that a Federal inspector was present at the mine during 391 

shifts in 1985. With approximately 250 work. days during the 

year, this means a Federal inspector appears at the Linden 

Portal very frequently. ven Mr. Delisio's status as the 

only designated miner on shifts which he is working (he 

rotates 8-4 and 4-12 shifts), Mr. Delisio would be accompanying the inspector most days that he worked the daylight 

shift, which is the shift when virtually all of the inspections occur. This frequency means that most likely on four 

(4) out of five (5) work days during his daylight shift, 

Mr. Delisio would be reporting to the Linden portal, calling 

to the Thomas Portal, and using his personal car to drive 

back to the Thomas Portal at the end of the inspection. 

Respondent argues that since Federal inspectors do not 

give advance warning to the operator as to when.they will 

appear for an inspection, it can only be assumed that 

Mr. Delisio would either have advance knowledge or simply 

show up at the Linden Portal on the assumption that a Federal 

1821 
inspector would appear before the start of the shift. Respond~nt assumes that if the Federal inspector did not appear for 

an inspection, Mr. Delisio would call the Thomas Portal sometime soon after the start of the shift and inform management 

that he would be reporting late for his job at the Thomas 

Portal. It also assumes that management would have made 

arrangements to replace Mr. Delisio's fire boss position at 

Thomas when he did not report at the beginning of his shift. 

Respondent asserts that the practical effect of Mr. Delisio's 

argument would be that virtually every daylight shift his 

fire boss pas ion at the Thomas Portal would be filled by 

transferring a miner qualified as a fire boss from the Linden 

Portal at the start of every daylight shift. 

Given the frequency of mine inspections, the respondent 

states that its concerns underlying its management policies 

are all the more real and relevant, and it points out that 

there is no evidence that these concerns underlying the 

policies in question are a pretext by management. Further, 

respondent advances what it considers to be a simple solution 

which would permit Mr. Delisio to accompany the Federal 

ins·pector anytime he desired. Respondent's solution would 

have the Federal inspector appear at the Thomas Portal to 

initiate the inspection. Mr. Delisio could .then declare himself to be the designated miner and accompanying the Federal 

inspector in his v.ehicle anywhere the Federal inspector 

wished to travel, including the Linden Portal or the preparation plant. Respondent recognizes that its suggested solution is beyond its control because it cannot require the 

inspector to initiate inspections at any particular location. 

Respondent notes that inspectors have apparently frequently 

used their vehicles to transport miners while conducting 

their inspections. 

The respondent asserts that the factor which mab..,s this 

case factually unique is that it appears unusual that in a 

mine of this size, the ~iners have apparently decided that 

only a single miner can act as the designated representative 

during inspections occurring on the shifts when that miner is 

working. Compounding the problem is the fact that the single 

designated miner works at a re1note portal. 

The respondent recognizes the fact that the Act prohibits 

any interference with the choice of the designated miner or 

that miner's ability to accompany an inspector on an inspection. However, the respondent maintains that its policies 

requiring all miners to report to their assigned portal at 

the start of their shift and prohibiting the use of private 

transportatiori to travel between locations during the shift 

1822 
are neither discriminatory nor do they constitute interference prohibited by the Act. 

The respondent asserts that the complainant in this case 

is in reali requesting that the Act be interpreted to 

require the respondent to accomodate his unusul circumstances 

in his proclaimed status as the only miner who can act as the 

designated miner for inspections. The ~espondent concludes 

that the Act does not require the accomodation necessary to 

allow Mr. Delisio to act as the designated miner the way he 

desires the inspection process to operate. The respondent 

concludes further that the complainant's accomodation request 

is unworkable, and that this can be demonstrated by the 

following analysis of what would take place if his pos ion 

were sustained. 

Every day Mr. isio works the daylight shift (every 

other week), he would drive to the Linden Portal to see if .a 

Federal inspector was going to conduct an inspection. If the 

inspector was there, Mr. Delisio would call the Thomas Portal 

at the 8:00 a.m. change of shift and report that he would be 

going on an inspection. The respondent would then be required 

to obtain a replacement for Mr. Delisio's position as fire 

boss at the Thomas ~ortal. The fire boss performs preshi£t 

inspections for the next .shift, so it is essential that the 

position be filled. The replacement would come from the 

Linden Portal because of the absence of qualified employees at 

the Thomas Portal. This assumes that all communications work 

properly, which is obviously not always the case. Because 

most inspections end about 12:00 or 1:00 p.m., Mr. Delisio 

would then drive to the Thomas Portal and report to his 

regular job. Because the respondent would not know exactly 

when to expect him, the replacement would have to assume that 

the replacement would perform the afternoon preshift inspection. Mr. Delisio would thus have to catch up to his replacement underground and relieve him. The replacement would then 

have to be .transported back to the Linden Portal to finish his 

shift. 

If the Federal inspector did not happen to be at the 

Linden Portal, Mr. Delisio would call the Thomas Portal near 

the start of the s ft and report that he was going to report 

at Thomas at approximately whatever t it takes to drive 

the six (6) miles between Linden and Thomas Portals. 

Mr. Delisio would then drive to the Thomas Portal and report 

late for his shift. One or another of these two senerios 

would occur every day that Delisio worked the daylight shift. 

In addition, Mr. Delisio apparently engages in Union business 

a great deal of the time. When he engages in Union business, 

1823 
he does not always report his whereabouts to the respondent. 

This means that on any given day, the respondent would not 

know where Mr. Delisio was or whether he was going to be 

available.for his shift until immediately before or soon after 

the shift started. 

The respondent concludes that the policies it has 

attempted to apply do not violate the Act and that the accomoda tion and treatment sought by the complainant in this proceeding is an unreasonable accomodation not required by the 

Act. 

Findings and Conclusions 

In order to establish a prima facie case of discrimination 

under section 105(c) of the Mine Act, a complaining miner bears 

the burden of production and proof to establish (1) that he 

engaged in protected activity and (2) that the adverse action 

complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Company, 

2 FMSHRC 2768, (1980), rev'd on other grounds sub. nom. 

Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 

1981); and Secretary on behalf of Robinette v. United Castle 

Coal Company, 3 FMSHRC 803 (1981). Secretary on behalf of 

Jenkin~ v. Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984). 

The operator may rebut the prima facie case by showing either 

that no protected activity occurred or that the adverse 

action was in no way motivated by protected activity. If an 

operator cannot rebut the prima fac case in this manner it 

may nevertheless affirmatively defend by proving that Cl) it 

was also motivated by the miner 1 s unprotected activities 

alone. The operator bears the burden of proof with regard to 

the affirmative defense. Haro v. Magma Copper Company, 

4 FMSHRC 1935 (1982). The ultimate burden of persuasion does 

not shift from the complainant. Robinette, supra. See also 

Baich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); and Donovan v. 

Stafford Construction Company, No. 83-1566, D.C. Cir. 

(April 20, 1984) (specifically-approving the Commission's 

Pasula-Robinette test). See also NLRB v. Transportation 

Management Corporation, U.S.~~ , 76 L.Ed.2d 667 

(1983). 

It seems clear to me that Mr. Delisio has a statutory 

right pursuant to section 103(f) of the Act to serve as the 

designated walkaround representative of the miners, and the 

parties do not dispute this fact. The dispute lies in the 

manner in which Mr. Delisio seeks to exercise this right. 

Mr. Delisio has advanced several alternatives which he 

believes would permit him to effectively function as the 

1824 
miners' representative, and they are: (1) that he be petmitted to first report to the Linden Portal to ascertain 

whether an inspector is there. If is, Mr. Delisio wishes 

to accompany the inspector on his inspection rounds after 

notifying mine management at the Thomas Portal of his whereabouts; (2) Mr. Delisio would report early to his normal work 

station at the Thomas Portal, and after confirming the presence of an inspector at the Linden Portal, he would drive his 

car to that portal to accompany the inspector, and then return 

to work after the completion of the inspection; (3) instead of 

using his own car for transportation to and from the Thomas 

Por to the Lin.den Portal, the respondent would provide 

Mr. Delisio with a self-propelled jeep as a means of travelling underground between the two portals in question. 

Although recbgnizing Mi. Delisio.'s right to act as the 

designated miner "first choice" walkaround representative, 

the respondent's position is that it need not accomodate 

Mr. Delisio ~n his terms. In defense of its position, the 

respondent asserts that Mr. Delisio's suggested 11 solutions 11 

intrude on management's right to direct its own workforce, 

and is contrary to its policy prohibiting embloyees to use 

their personal vehicles while engaged in mine business on 

mine property. The respondent's alternative "solutions" 

include a suggestion that the inspectors pick up Mr. Delisio 

in their government vehicles at the Thomas Portal, and. rE')turn 

him there after the inspection is completed. Another alternative is that Mr. Delisio designate other miners who are 

readi available at the Linden Portal to serve as the walkaround representative as he has often done in his absence or 

unavailability. 

MSHA's position is that the choice of a walkaround representat lies with the miners. Since Mr. Delisio is the 

recognized "first choice" miners by virtue of his safety 

committeeman's position, MSHA takes the position that absent 

any unusual or exigent circumstances, mine management may not 

dictate who the representative shall be. MSHA apparently 

views the respondent's suggestion that other available miners 

may serve as the walkaround representative as irrelevant, and 

concludes that the respondent's insistence on applying its 

transportation policy has effectively interferred with 

Mr. Delis 's right to serve and function as the designated 

miners' representative. MSHA does not address the respondent's conc~rn that permitting Mr. Delisio to initially report 

to work at the Linden Portal before determining whether he 

\vill work at the Thomas Portal or accompany the inspector at 

the. Linden Portal is an unreasonable intrusion on management's 

right to direct the workforce and to insure the whereabout~ of 

1825 
its employees. Rather, MSHA's focus is on the respondent's 

transportation policy, and it concludes that section 103(f) of 

the Act implic ly requires the respondent to arrange its 

policy in such a manner that will insure Mr. Delisio's presence at the Linden Portal as the walkaround representative 

whenever ha chooses to exercise that right during an inspection initiated at that portal. In short, MSHA's position is 

that Mr. Delisio must be accomodated, notwithstanding the 

avowed policy in question. 

In Beaver v. North American Coal Corporation, 

2 MSHC 1417, June 2, 1981, former Commission Judge Cook dismissed a complaint by a miners' representativ~ alleging that 

he was discriminated against because of tbe refusal of the 

operator to compensate him for the time spent as a walkaround 

on an idle day when he was not scheduled to work and other 

scheduled miners were available to accompany the inspector. 

Judge Cook found no evidence that the miner's idle day ~tatus 

permitted the operator to directly or indirectly participate 

in any manner in the process of selecting a walkaround representative, and there was no indication that the opertor manipulated the miner into an idle day status to discourage his 

participation in the inspection. 

In Ronnie R. Ross v. Monterey Coal Company, 3 FMSHRC 1171 

(May 1981), the Commission upheld the dismissal of·a complaint 

by a safe committeeman who alleged that he was discriminated 

against when a mine contractor performing work at a mine 

placed a letter in his personnel file limiting his inspection 

activi es to the work areas of the contractor rather than 

non-contractor mine areas. In affirming the Judge's dismissal 

of the complaint, the Commission found that the record supported a finding that the letter was issued to protect a legitimate managerial interest in controlling the activities of its 

workforce, and did not establish tnat the miner's exercise of 

any statutory rights was in any way restricted. 

In Local Union 1110, UMWA and Robert L. Carney v. 

Consolidation Coal Co., 1 FMSHRC 338 (May 1979), the 

Commission held that an operator discriminated against a 

safety committeeman for disciplining him for leaving his 

assigned work area to contact an inspector concerning a perceived safety hazard, contrary to the operator's policy that 

permission by management was necessary ore he cou leave. 

The Commission stated that "the Company's policy effectively 

impedes a miner's ability to contact the Secretary when 

alleged safety violations or dangers arise." 1 FMSHRC 341. 

1826 
The Commission found that miner's conduct involved his statutorily pro~ected right to nbtify the Secretary of any 

violation or danger. 

On appeal of the Truex case, supia~ Docket No. 

WEVA 85-151-D, the Commission on September 25, 1986, affirmed 

Judge Melick's decision, and at 8 FMSHRC 1298, stated the 

following: 

The judge found that "it is the miners 

and not the mine operator, who authorize or 

designate a representative for the purpose of 

participating in ... a [post-inspection] 

conference. There is no statutory ambiguity 

on this point and the plain meaning·must 

prevail." 7 FMSHRC at 1404. We agree. The 

language of section l-03(f), providing that "a 

representative authorized by his miners shall 

be given an opportunity to accompany the 

Secretary," unambiguously provides that mine.rs 

possess the right to choose their representative for section 103(f) inspections and preand post-inspection conferences. (Emphasis 

.added). See also Leslie Coal Mining Co. v. 

Secretary of Labor, 1. FMSHRC 2022, 2027 

(December 1979) (ALJ). 

* * * * * * 

The purpose of section 103(f) is to enhance 

miner understanding and awareness of the 

health and safety requirements of the Act. 

The fact that section 103(£) protects the 

miner representative, who is also an employee 

of the operator, from a loss in pay in exercising s section 103(£) rights evidences Congressional recognition that an operator would 

be required to make modifications in work 

assignments to permit miner representatives to 

exercise section 103(f) rights. Here, Consol 

was aware that an MSHA inspector would be 

arriving for a meeting to review a hearing 

conservation plan. Consol was also aware that 

Truex was familiar. with the plan and had been 

designated by the miners to participat~ as 

their representative i~ the review of the plan. 

Nevertheless, upon being notified that Truex 

was the tepresentative of miners, Olzer 

directed Truex to proceed underground with his 

1827 
regular crew. Truex indicated his willingness 

to do so, but asked that he be notified when 

the inspector arrived. This request was 

used. Olzer further refused Truex's 

request that he be permitted to work, until 

the inspector arrived, in an area that would 

have allowed him to be readily available for 

the meeting. Under these circumstances, 

Truex's requests rather than Olzer's responses 

reflected the reasonable work adjustments 

required under section 103(f) to fully effectuate that section's participation rights. 

[Emphasis added.] 

Protected Activity 

On the facts of this case, it seems clear to me that 

Mr. Delisio has established that in his capacity as Chairman 

of the Mine Safety Committee, he is the designated first 

choice of the miners for purposes of serving as their walkaround representative during MSHA inspections. It is also 

clear to me that the statutory right of a miner representative 

to accompany an MSHA inspector during his inspection of the 

mine is clearly stated in section 103(£) of the Act, and the 

legislative history reflects that this right should be broadly 

construed. Any undue interferences with this right by a mine 

operator constitutes discrimination prohibited by section 

105(c)(l) of the Act. Although other miners may be available 

to accompany an MSHA inspector, the respondent may not unduly 

or unreasonably interfere with Mr. Delisio's right to accompany an inspector as the designated miner representative. 

The respondent does not deny that it issued a verbal 

warning to Mr. Delisio on July 30, 1985, informing him that 

possible disciplinary action would follow if he did not report 

to his normal work station. As a matter of fact, the record 

establishes that the warning was conveyed to Mr. Delisio's 

wife on evening of July 29, by telephone call to his home 

by a member of mine management. Union President Stipanovich 

testified that such verbal warnings are usually followed up by 

some kind of disci ine, and the respondent has not rebutted 

this fact. · 

The respondent's suggestion that the verbal warning 

issued to. Mr. Delisio was solely because he would not have 

reported.to his regular portal if he chose to accompany the 

inspection as the designated walkaround representative is not 

well taken. Given the facts and background of this case, the 

respondent was well aware of the fact that Mr. Delisio was 

1828 
seeking some accomodation by the respondent to enable him to 

effectively function as the walkaround representative. The 

respondent concedes that it raised the possibility of disciplinary action against Mr. Delisio because of its policies of 

requiring a miner to report to his assigned portal and its 

prohibition against miners using their personal automobiles 

to travel from portal to portal during their work shifts. 

Further, respondent's Safety Manager Dunbar and Mine Manager 

Baker candidly conceded that because of its policies, even 

Mr. Delisio were to first report to his home portal, he would 

still be prohibited from changing portals for the purpose of 

accompanying an inspector during his inspection of the mine. 

Thus, the practical effect of management's insistence that 

Mr. Delisio first report to his portal, and its application 

of its policies, effectively, albeit indirectly, interferred 

with his right to serve and function as the walkarounJ repre.,.;. 

sentative, an activity which is protected by the Act. Thus, 

I conclude that the verbal warning, backed up by possible 

subsequent disciplinary action, constituted a discriminatory 

threat or interference motivated in part by Mr. Delisio's 

aborted attempt to serve as the walkaround presentative. 

The Respo~dent's Right to Direct its Workforce 

The respondent has the inherent and legitimate right to 

control its own workforce 1 and is free to implement workplace 

polic which it believes will permit an efficient and productive mining operation. If the policies are consistently 

and evenhandedly applied, and are not arbitrary or unreasonable in their application, I would have no basis for concluding that they are discriminatory. In this case, there is 

ng to suggest that the respondent's policy requi ng an 

employee to report to his work station is pretexual or is 

used to circumvent the law. However, in light of the 

Commission's decision in the Truex case and Judge Steffey's 

decision in lie Coal, a mine operator may have to adjust 

its work po c es on a case-by-case basis in order to avoid 

any discriminatory result which may occur by the manner in 

which it applies its policy to any given employee factual 

s i tua ti on. 

The facts in this case establish that in his capacity as 

a safety committeeman, and by virtue of s union activities, 

Mr. Delisio is often away from his job. Mr. Delisio admitted 

that due to the press of union business, there have been occasions when he did not report to his portal without informing 

management of his whereabouts, and that this has occurred 

several times throughout the year (Tr. 29, 41). He also 

alluded to some 70 different instances when he was away from 

1829 
his job on inspections in other mine areas, or on union business attending conferences at MSHA's office (Tr. 61). 

Mr. Delisio conceded that' mine management has the right 

to expect him to report to work at his usual work station at 

the Thomas Portal. While it may be true that mine management 

has never made an issue of his absences, or applied its 

absentee policy, the fact remains that management has the 

right to expect Mr. Delisio to report for work, or to at least 

notify management if he intends to be absent. 

In my view, the facts in this case are different from 

those presented in Truex. In Truex, mine management was 

aware of the fact that the designated committeeman had 

arranged a day in advance to me.et with an MSHA inspector for 

a post-inspection conference at the mine for the purpose of 

reviewing .a hearing conservation plan. The committeeman's 

requests to be allowed to work until the inspector arrived, 

or to be allowed to work in a particular mine area so that he 

would be readily available to meet with the inspector were 

refused, and the basis for the· refusal was management's 

policy of obtaining miners' representative from the area an 

inspector visits. Further, once refused the right to be 

available for the inspector, the committeeman was forced to 

go on "union business" status because he believed he wouldc 

otherwise have been unable to attend the post-inspection conference, and management refused to allow him to return to 

work after the conference was over and refused to compensate 

him for the remaining 6-1/4 hours of the shift he would have 

worked but for his assumption of "union busines~" and the 

related refusal to allow him to return to work. 

Unlike Truex, which appears to have emanated from an 

isolated instance of refusing to accomodate a designated 

miners' representative who had a pre-arranged meeting with an. 

inspector which was known to management, the respondent here 

has no policy r~stricting miners' representatives to mine 

areas where an inspection is taking place. More. importantly, 

Mr. Delisio's situation does not involve an isolated i~stahce. 

Mr. Delisio wants to regularly report to work at a portal 

which is 6 miles from his usual place of work on a day-to-day 

basis during his day shift every other week to ascertain 

whether an inspector is present so that he may accompany him. 

If an inspector is there, Mr. Delisio wishes to telephone his 

foreman to advise· him that he will not report.to work. If an 

inspector is not present, Mr. Delisio would report late for 

work. Since Mr. Delisio·· s job as mine examiner requires him 

to preshift .his portal, mine management would be placed.in 

the untenable po~ition of arranging and rearranging for a 

1830 
suitable replacement to be brought in from another portal to 

do Mri Delisio's job frequently and unpredictably. 

I cannot conclude that the respondent's policy requiring 

Mr. Delisio to report to his assigned portal at the beginning 

of his work shift is arbitrary or unreasonable, and the 

respondent's arguments in this regard are well taken. Given 

the fact that Mr. Delisio is the only available qualified 

mine examiner on the day shift at the Thomas Portal, and the 

frequency of inspections which have occurred at the mine, I 

find nothing unreasonable or discriminatory in the application of this reporting policy. From a safety standpoint, the 

respondent has a duty and obligation to account for all of 

its employees while they are on the job. From a management 

point of view, and in order to fulfull its obligations in 

this regard, the respondent should be free to manage its workforce, and the scenarios presented by the respondent with 

respect to what will no doubt occur in terms of employee disruptions and replacements between portals in the event 

Mr. Delisio is allowed to decide when and where to initially 

report for work are legitimate and real concerns, rather than 

pretexts to preclude Mr. Delisio from functioning as the 

designated representative of miners. 

Respondent's Private Vehicle Policy 

During the course of the hearing in response to 

Mr. Delisio's "suggestion" that he be permitted to drive his 

personal vehicle between portals for the purpose of serving 

as the miners' walkaround representative, the respondent took 

the position that it does not wish to expose itself to liabili or risks to Mr. Delisio or other miners while driving 

private automobiles on company property while in the course 

of company business. Respondent's counsel asserts that this 

concern was voiced by the miners themselves several years 

ago, and reiterated over time. Counsel pointed out that this 

concern, both by the miners, and mine management, came about 

as a result of miners being alerted to the potential liability to third ies, with resulting lawsuits, in the event 

of their involv~ment in accidents on mine property while using 

their private automobiles in the course of their employment 

(Tr. 10). 

Respondent maintains that it has offered a reasonable 

resolution by suggesting that Mr. Delisio be picked up at his 

regular Thomas Portal duty station by the inspector conducting the inspection, and be taken along with the inspector 

during his inspection. Respondent maintains that it has been 

customary for an inspector to transport miners in their 

1831 
Government vehicles while conducting inspections, that it has 

occurred in the past, and the respondent would prefer this 

procedure to continue (Tr. lL). 

Respondent argues that it does not believe that it has 

discriminated against Mr. Delisio by declining to provide him 

with company surface or underground transportation from his 

regular duty portal to another portal where an inspector 

decides to initiate his inspection, or to permit him to drive 

his own automobile. With regard to underground travel between 

the two portals, respondent asserts that while a company jeep 

is normally available for Mr. Delisio's use while performing 

his fire boss duties at the Thomas Portal, the availability of 

underground transportation is determined by production schedules and the necessities of the operation at that portal. 

Respondent does not believe that it is obligated to provide or 

schedule "special trips" for Mr. Delisio or any other miner 

for the purpose of trahspor ng them underground from portal 

to portal. Making an exception for Mr. Delisio would result 

in the unavailability of a jeep at the Thomas Portal for 

safety inspections at that location, and would require the 

company to replace the jeep with another one while it is gone 

(Tr. 12) .. 

During the hearing, MSHA agreed that the only accomodation that the respondent seems willing to make in this case 

is to suggest that the Federal mine inspectors pick up 

Mr. Delisio in their Government automobile at the Thomas 

Portal, his regular duty station, and transport him to the 

Linden Portal 1 where regular inspections normally begin or 

end, or transport him to other mine areas where an inspection 

may take place. MSHA asserts that the Linden Portal is more 

accessible to everyone in the first instance, and that the 

respondent's suggestion is totally unacceptable, and would 

entail a special trip just to pick up Mr. Delisio, would be 

time consuming in instances where time may be of the essence 

during an inspection, and would conflict with Government regulations regulating the offic 1 use of Government vehicles 

(Tr, 15.-16). 

MSHA's position is that if the respondent is unwilling 

to permit Mr. Delisio to initially report to the Linden 

Portal to determine whether he will be accompanying an inspector as to the union walkaround, and insists that he must first 

report to the Thomas Portal, it must accomodate Mr. Delisio by 

permitting him to use his own automobile to drive to the 

Linden Portal, or provide him with company transportation. 

MSHA argues that the respondent cannot have it both ways by 

taking the position that company policy dictates against the 

1832 
use of private automobiles on mine property, and that the use 

of a company vehicle for Mr. Delisio's transportation would 

effectively deprive the company of the use of that vehicle at 

the Thomas Portal where it is needed. MSHA maintains that 

this positidn by the respondent is discriminatory because 

there have been other occasions where other miners were permitted the use of their private vehicles on company property, 

and that on other occasions miners do not report to their regular portal as planned, and no action has been taken against 

them. 

MSHA concludes that the respondent's position can only 

be viewed as an action against Mr. Delisio for attempting to 

exercising his rights as the walkaround representative of the 

miners. Coupled with the respondent's suggestion that other 

miners working at the Linden Portal can accompany the Federal 

inspectors as miner walkarounds, MSHA concludes that this is 

an attempt by the respondent to choose who the miner representative shall be for purposes of inspection walkarounds, and 

that this is prohibited by the Act (Tr. 17-18). MSHA further 

concludes that on the facts of this case, the respondent's 

failure to accomodate Mr. Delisio by permitting him to use 

his own vehicle, or to provide him with company transportation, interferes with his rights as the miner walkaround 

representative (Tr. 6). 

I take note of the fact that Mr. Delisio's complaint. 

makes no mention of the respondent's policy with respect to 

the use of private vehicles by miners. Respondent's safety 

manager Dunbar testified that prior to July 30, 1985, this 

was never raised as an issue by Mr. Delisio, ~nd MSHA special 

investigator Chambers confirmed that the question concerning 

the use of private vehicles was not raised during his investigation of the complaint. MSHA~s counsel conceded that she 

first learned about the transportation policy on the morning 

of the commencement of the hearing (Tr. 191). Although 

Mr. Delisio raised the question of the use of his own car to 

travel from portal to portal in February, 1986, when he again 

requested permission to accompany the inspector, this came 

well after the filing of the complaint, and management at 

that time communicated no decision to Mr. Delisio because his 

case was still in li tiga ti on. Res pond en t' s safety manager 

Dunbar did suggest, however, that ~r. Delisio arrange to have 

the inspector pick him up at the Thomas Portal, and that if 

this were done, there would be no problem (Tf. 255). 

Respondent's safety manager Dunbar conceded that the 

respondent will not permit Mr. Delisio to use his private 

automobile as a means of travel between the Thomas and Linden 

1833 
Portals for the purpose of exercising his walkaround rights 

as the miners' designated representative, and he stated two 

reasons for this position. The first reason is that company 

policy precludes the use of private automobiles by miners, 

and the second reason is that respondent believes there are 

other miners available at the Linden Portal to serve as the 

walkaround representative, and they have done so in the past. 

The respondent further concedes that it raised the possibility of disciplinary action against Mr. Delisio because of its 

reporting and transportation policies which it enforces at 

the mine (respondent's proposed finding #6). As stated 

earlier, the thrust of MSHA's arguments in support of its 

case is the assertion and suggestion that the application of 

the travel policy in Mr. Delisio's situation has interferred 

with his right to accompany an inspector as the duly designated miners' representative. Under these circumstances, the 

issue concerning the travel policy in question must be 

addressed. 

The respondent produced no evidence to establish that 

its ban on the use of private automobiles by miners is in 

writing or absolute, nor has it established any definitive 

ground rules for the application of the policy. On the facts 

of this case, it seems clear to me that the policy is not 

consistently applied, and respondent's safety manager Dunbar 

candidly admitted that there is no absolute ban on the use of 

private automobiles by miners, and that the use of automobiles 

by miners is limited to the extent possible. Mr .. Dunbar also 

admitted that there are times when miners like to drive their 

automobiles for their own convenience. 

The credible testimony in this case establishes that 

safety committeemen have in the past been permitted to drive 

their own automobiles from portal to portal for the purpose 

of accompanying inspectors on their inspection rounds. While 

it may be true that the union has in the past voiced its 

objections to the use of private vehicles by miners for 

travelling between portals, some of the objections apparently 

resulted from the practice of transporting a number of miners 

in the back of pickup trucks, or transporting too many miners 

in one vehicle. There is nothing to suggest that the union 

intended to preclude committeemen from using their automobiles 

to perform their duly recognized walkaround duties. 

The credible testimony also establishes that miners have 

been permitted to use their private vehicles for their own 

convenience while attending training sessions held at the 

mine. One ~iner (Jim Mills), who reports to work early and 

is responsible for the mine fans, has been permitted to use 

1834 
his private vehicle while checking the fans before he actually 

reports to his portal. A number of replace~ent locomotive 

operators who normally work at the Linden Portal and who may 

be needed at the Thomas Portal to operate locomotives are permitted to drive their automobiles to the Thomas Portal from 

the Linden Portal for their own convenience because they 

shower there and leave directly for home. Consequently, it 

seems clear to me that the respondent has made exceptions with 

respect to the use of private vehicles, and it has done so for 

the convenience. of the miners and notwithstanding any liability considerations. Under the circumstances, I conclude that 

the respondent must also accomodate Mr. Delisio and permit him 

an opportunity to use his automobile to travel from the Thomas 

Portal to the Linden Portal for the purpose of accompanying an 

MSHA inspector as the duly.recognized miners' walkaround represent~tive. In the alternative, I further conclude that the 

respondent must make a reasonable accomodation to Mr. Delisio 

by providing him with any available underground transportation 

between the Thomas and Linden Portals for purposes of accompanying inspectors as the walkaround representative of miners. 

If none is .readily available, then Mr. Delisio should be permitted to ~rive his own automobile between portals. 

The credible testim6ny iri this case establishes that by 

virtue of his position as the chairman of the safety committee, Mr. Delisio is the designated "first choice" walkaround 

representative,- and that other miners who have S<;?.rved as walkarounds in his absence are not the "first choice." Further, 

respondent concedea that this is. the case Ciespondent's posthearing proposed findings #8 and #9). Since Mr. Delisio is 

the ''first choice, 11 respondent may not obstruct or impede his 

right to serve through an unreasonable application of an 

inconsisterit and somewhat nebulous p~ivate vehicle pcilicy. 

By precl~ding Mr. Delisio from using his private automobile 

as a means of travel between portals for purposes of exercising his right as the duly designate.a miners' walkaround representative, the respondent has effectively prevented 

Mr. Delisio from exercising a right protected by the Act, and 

has forced him to designate someorie other than the rniners 1 

"first choice" to perform this function. The result of the 

respondent's private automobile policy, as applied to 

Mr. Delisio, is an unreasonable and unwarranted interference 

with his right to serve as the duly designated representative 

during his shift. 

On the facts of this case, and in light of the foregoing 

findings and conclusions, I conclude and find that the application of respondent's purported policy of prohibiting the 

use of private automobiles by miners to Mr. Delisio, has 

. 1835 
resulted in discrimination prohibited by section 105(c) of 

the Act. Given the fact that the respondent has conceded 

that after first reporting to his regular job at the .Thomas 

Portal, Mr. Delis.io would not then be permitted to drive his 

private automobile to the Linden Portal to accompany an 

inspector, I further conclude and find that the verbal warning 

given to Mr. Delisio constituted a discriminatory interference 

with his right to serve as the walkaround representative. 

Given these circumstances, I conclude that MSHA has established a violation of section 105(c) by a preponderance of the 

credible evidence and testimony adduced in this case, and the 

complaint is there.fore AFFIRMED. 

Respondent's Request for Dismissal of the Complaint as 

Untimely 

In its answer of March 14, 1986, to the complaint filed 

by MSHA in this case, the respondent asserted that MSHA's 

complaint was untimely filed. In its posthearing arguments, 

respondent reasserts this argument and seeks dismissal of the 

case. The respondent states that Mr. Delisio filed his complaint with MSHA on July 30, 1985, and that MSHA did not file 

its complaint with the Commission until February 10, 1986, 

more than .the 90-days required by section 105(c)(3) of the 

Act. 

After due consideration of the respondent's arguments 

concerning the late-filing of the complaint, they are 

rejected, and the respondent's request for a dismissal of the 

complaint on this ground IS DENIED. It has been held that 

the filing deadlines found in section 105(c) of the Act are 

not jurisdictional in nature, Christian v. South Hopkins Coal 

Company, 1 FMSHRC 126, 134-136 (1979); Bennett v. Kaiser 

.Aluminum & Chemical Corporation, 3 FMSHRC 1539 (1981). 

Further, as remedial legislation, the Act should be liberally 

construed so as not to unduly prejudice a miner for MSHA's 

delay in filing its complaint. In this case, I find no protracted delay on MSHA's part, nor can I conclude that the 

delay has prejudiced the respondent in its ability to present 

its defense. 

Civil Penalty Assessment 

MSHA seeks a civil penalty assessment in the amount of 

$1,200 for the respondent's violation of section 105(c) of 

the Act, and has submitted information concerning the six 

statutory criteria for penalty assessments found in section 

llO(i) of the Act. 

1836 
On the facts of this case, I do not consider the violation to be egregious. I believe that the respondent's initial 

verbal warning of possible disciplinary action against 

Mr. Delisio was made out of a good faith belief by the respondent that it had an inherent right to expect its employees to 

report to their normal duty station. With regard to the subsequent refusal to permit Mr. Delisio to accompany an inspector, 

this came after the case was in litigation, and I cannot conclude that given the posture of the case at that point in time, 

that the respondent acted unreasonably. While it is true that 

the application of the respondent's transportation policy effectively prevented Mr. Delisio from serving as a walkaround representative, there is no evidence of any pretexual motive on the 

respondent's part, nor is there any evidence that the respondent has directly or indirectly interferred with Mr .. Deli~io's 

activities on behalf of his union. To the contrary, the record 

here establishes that the respondent has been more than tolerant of Mr. Delisio with respect to his union activities in his 

capacity as a committeeman, and mine management has not inte;rferred with, or otherwise impeded Mr. Delisio's activities in 

this regard. 

MSHA's proposed civil penalty assessment of $1,200, IS 

REJECTED. In the circumstances presented in this case, I 

conclude that a civil penalty assessment of $100 is reasonable 

and appropriate. 

ORDER 

In view of the foregoing findings and conclusions, IT IS 

ORDERED THA'r: 

1. The respondent permit the complainant 

Joseph Delisio access to the Linden Portal 

during his work shift for purposes of exercising his walkaround rights to accompany MSHA 

mine inspectors on their inspection rounds by 

permitting him to drive his private automobile 

from his usual reporting place at the Thomas 

Portal to the Linden Portal for this purpose, 

or in Lhe alternative, to provide him with 

underground company transportation between 

portals for this purpose. 

2. The respondent expunge from its 

personnel or other records any references to 

the verbal warning given to Mr. Delisio.on 

July 30, 1985, with respect to his reques~ to 

1837 
accompany an MSHA inspector on that day as the 

m~ners' walkaround representative. 

3. The respondent post a copy of this 

decision on the mine bulletin board or other 

locatio~ readily available or accessible to 

miners. 

4. The respondent remit to MSHA a civil 

penalty assessment in the amount of $100 for 

its violation of section 105(c) of the Act. 

Full compliance with this Order is to be made by the 

respondent within thirty (30) days of the date of this 

decision. · 

Distribution: 

Linda M. Benty, Es~., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Carl H. Hellerstedt, Jr., Esq., Volk, Robertson, Frankovitch, 

Anetakis & Hellerstedt, Three Gateway Center, Sixth Floor 

East, Pittsburgh, PA 15222 (Certified Mail) 

/fb 

1838 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION (MSHA), 

Petitioner 

v. 

UNITED STATES STEEL MINING 

COMPANY, 

Respondent 

NOV 2 4 '986 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-203 

A. C. No. 36-05018-03613 

Cumberland Mine 

ORDER OF DISMISSAL 

Before: Judge Weisberger 

Petitioner•s Motion to Withdraw civil ty was filed with 

the Commission on November 3, 1986. To date respondent has not 

responded to this motion. 

Petitioner in its motion, has alleged, in essence, that the 

circumstances of the two citations in this case are indistinguishable from prior adverse decisions to peritioner. The citations 

in this case, cite, in essence, allegations that battery lids 

were not secured on batteries on a scoop. 

It appears that the issue here was decided adverse to 

petitioner in prior proceedings involving the same parties, 

u. s. teel, 6 FMSHRC 1617 (1984) (ALJ); 

FMS HRC 0 ( 19 8 4) ( ALJ) ; v. 

( 19 8 4 ) ( ALJ ) • 

Accordingly, as the above decisions are Res Judicata (See 

v. U. S. Steel 5 FMSHRC 1334 (1983) , the Motion to 

aw ivi s GRANTED. Citations Numbers 2683479 and 

2683654 are VACATED, and this case is DISMISSED. 

I 

I ' 

',,·"--'~ 

Avram Weisberger 

Administrative Law Judge 

(703) 756-6210 

1839 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 NOV 2 5 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION ( MSHA), 

Petitioner 

v. 

IRON MOUNTAIN ORE COMPANY, 

Respondent 

Docket.No. WEST 85-142-M 

A.C. No. 42-01929-05502 

Treasure Box 

DECISION 

Appearances: Margaret Miller, Esq., Office of the Solicitor, 

U;S. Department of Labor, Denver, Colorado, 

Before: 

for Petitioner; 

Mr. Carlyle Johnson, Iron Mountain Ore Company, 

Cedar City, Utah, 

pro se. 

,Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, charges respondent with violating safety 

regulations promulgated under the Fede~al Mine Saf e~y and Health 

Act of 1977, 30 U.S.C. § 801 et seq.,. (the "Act"). 

After notice to the parties, ~.hearing on the merits took 

place in Las Vegas, Nevada on August 27, 1986. 

At the hearing the parties waived their right to file 

post-trial briefs but subsequently respondent filed a letter. 

The judge considered the letter to be a post-trial submission. 

The Secretary was given an opportunity to reply to the letter but 

did not do SOo 

Issues 

The threshold issue is whether respondent is subject to the 

Act. If this is resolved in the affirmative then issues arise as 

to whether respondent violated the regulations and what penalty 

is appropriate. 

Evaluation of the Threshold.Evidence 

A credibility issue arises concerning the activities being 

conducted at Iron Mountain. 

1840 
Inspector Wilson described the activities as an above ground 

"crushing and screening" operation (Tr. 16, 17). He furthet 

stated that he "may be corrected later on" but as he.recalled Mr. 

Johnson's company drills and blasts large boulders. 

On the other hand, Mr. Johnson states his company picks up 

iron ore from the surface. The ore Itself was mined some 30 

years ago. Iron Mountain then crushes, screens and ships the 

surface material to its customers specifications~/ (Tr. 97, 98). 

I credit Mr. Johnson's version of the manner in which the 

company functions. As the operator he would be in a position to 

know. In addition, the inspector's testimony that the company 

drills and blasts boulders is, at best, vague and hesistant. 

The factual situation thus presented is whether respondent 

is subject to the Act when it merely picks up iron ore from the 

surface and then crushes and screens it. 

Section 3Ch) of the Act defines a coal or other mine as 

follows: 

"(h)(l) 'coal or other mirie' means (A) an area of land from 

which minerals are extracted in nonliquid form or, if in 

liquid form, are extracted with workers underground, (BJ 

private ways and roads appurtenant to such area, and (Cl 

lands, excavations, und~rground passageways, shafts, slopes, 

tunnels and workings, structures, facilities, equipment, 

machines, tools or other property including impoundments, 

retention dams, and tailings ponds, on the surface of underground, used in, or to be used in, or resulting from, the 

work of extracting such minerals from their natural deposits 

in nonliquid form, or if in liquid form, with workers und~rground, or used in, or to be used in, the milling of such 

minerals, or the work of preparing coal or other minerals, 

and includes custom coal preparation facilities. 

In the unique circumstances involved here I agree with 

respondent that it did.not extract minerals from the land. Hence 

it is not a mine as defined in (A) of the statutory definition. 

However, this 30 acre site is land used in the "milling of such 

minerals". 2; Accordingly, respondent meets the statutory 

definition as set forth in paragraph (CJ. 

l/ A 15 x 18 foot jaw crusher reduces the ore to the size of 

about two-inch pellets (Tr. 65). 

ll Milling is defined, in part, as the grinding or crushing of 

ore. A Dictionary of Mining, Mineral, and Related Terms, 707, 

U.S. Department of Iriterior, 1968. 

1.841 
Respondent further relies on the regulations of the State of 

Utah (Ex. Rl, page 64). These regulations, according to 

respondent, exclude Iron Mountain as a "mining operation." 

Respondent's argument is rejected. The determinative issue 

is whether respondent is subject to the federal Act, not the 

State of Utah regulations. 

In his evidence respondent also adduced evidence that the 

company had received other MSHA citations but they were not the 

subject cif the .instant appeal. 

While the Commission has the authority to grant declaratory 

relief the granting of such relief is discretionary. Climax 

Molybdenum Co. v. Secretary of Labor, 703 F.2d 447. Such relief. 

should not be granted in this case because the record is inadequate to determine this issue. 

Mr. Johnson also protests the action of the inspector· in 

"terminating" the citations when such authority rests with the 

Commission. 

Mr. Johnson has confused the administrative actions of the 

MSHA inspector with an adjudication by the Commission. When an 

inspector, as he did here, terminates a citation he does so 

because respondent has abated the violative condition. Failure 

of the inspector to terminate the citation could result in 

subjecting an operator to additional sanctions as contained in 

Section 104(d) of the Act, 30 U.S.C. § 814Cd). In this case 

Inspector Wilson correctly, on an administrative basis, terminated the instant citations. The authority of the Commission, 

on the other hand, rest~ on an .adjudicatory level as provided by 

Section 113 of the Act. 

For the foregoing reasons, respondent's threshold contentions are denied. 

Citation 2360842 

This citation charges respondent with violating 30 C.F.R. 

§ 48.23 which provides as follows: 

(a) Each operator of a mine shall have an MSHA approved 

plan containing programs f.or training new miners, training 

newly-employed experienced miners, training miners for new 

tasks, annual refresher training, and hazard training for 

miners as follows: 

Cl> In the case of a mine which is operating on the effective date of this Subpart B, the operator of the mine shall 

submit such plan for approval within 150 days after the effective date of this Subpart B. 

(2) Within 60 days after the operator submits the plan for 

1842 
approval, unless €Xtended by MSHA, the operator shall have 

an approved plan for the mine. 

(3) In the case of a new mine which is to be opened or a 

mine which is to be reopened or reactivated after the effective date of this Subpart B, the operator shall have an 

approved plan prior to opening the new mine, or reopening 

or reactivating the mine unless the mine is reopened or reactivated periodically using portable equipment and mobile 

teams of miners as a normal method of operation by the 

operator. The operator to be so excepted shall maintain an 

approved plan for training covering all mine locations which 

are operated with portable equipment and mobile teams of 

miners. 

Inspector Wilson issued this citation because respondent did 

not have any plan on file with MSHA (Tr. -19, 20). 

The inspector discussed the citation with Mr. Johnson. He 

was not aware such a plan was required (Tr. 21). 

The citation was abated (Tr. 21). 

Carlyle Johnson testified that he was unaware that he was 

subject to MSHA's rules (Tr. 74). 

The facts estabish that respondent did not have a plan filed 

with MSHA. Mr. Johnson failed to establish a defense to the 

citation. 

The citation should be affirmed. 

Citation 2360843 

This citation charges respondent with violating 30 C.F.R. 

§ 56.18-10, now § 56.18010, which provides as follows: 

§ 56.18010 First aid training. Selected supervisors shall 

be trained in first aid. First aid training shall be made 

available to all interested employees. 

Inspector Wilson issued this citation when he learned that 

Mr. Johnson had not received formal first aid training in years 

(Tr. 21). The other employees had received no or little training 

<Tr. 21-22). The first aid training had not been made available 

to the employees (Tr. 22). There is no lead time granted for the 

training of employees in first aid (Tr. 23, 24, 55). 

Generally, to be effective first aid training has to be 

taken every two years (Tr. ·55). 

The citation was abated (Tr. 22). 

1843 
Mr. Johnson indicated that he had extensive first aid 

training at U.S. Steel in the spring of 1984 (Tr. 76). 

Evaluation of the Evidence 

Mr. Johnson, as a supervisor, was trained in first aid. But 

such training had not been made available to interested 

employees. 

The citation should be affirmed. 

Citation 2360844 

This citation charges respondent with violating 30 C.F.R. 

§ 56.15-1, now§ 56.15001, which provides as follows: 

Adequate first-aid materials, including stretchers and 

blankets, shall be provided at places convenient to all 

working areas. Water or neutralizing agents shall be available where corrosive chemicals or other harmful substances 

are storedt handled, or used. 

Inspector Wilson did not recall seeing any stretchers or 

blankets on the mine property but there were a few supplies on 

hand (Tr. 24, 25, 55). The nearest town was 18 miles away (Tr. 

2 5) • 

The citation was abated (Tr. 25). 

Mr. Johnson testified that there were first aid materials 

and a stretcher on the job. The stretcher, constructed of pipe 

and wire, was 400 yards from the work area (Tr. 76, 77). After 

the company was cited Mr. Johnson brought over the ladder (Tr. 

76-77). Additional first aid material was purchased and brought 

to the site the following morning (Tr. 77). 

At the time of the inspection Mr. Johnson had a standard 

first aid kit available in his trailer (Tr. 77). The witness did 

not know if blankets were on hand (Tr. 78). 

Evaluation of the Evidence 

Inspector Wilson's testimony is credible. Accordingly, the 

first aid ~aterials, stretchers and blankets were not provided at 

places convenient to the working area. A stretcher 400 yards 

away was not at a convenient place. 

The citation should be affirmed. 

Citation 2360845 

This citation charges respondent with violating 30 C.F.R. 

§ 56.14-1, now § 56.14001, which provides as follow~~ 

1844 
§ 56.14001 Moving machine parts. Gears; sprockets; chains; 

drive, head, tail, and takeup 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. 

Inspector Wilson issued this citation when he observed an 

unguarded jaw crusher flywheel (Tr. 25-27). The flywheel rotates 

in a circular motion when the jaw crusher runs at a high rate of 

speed (Tr. 27; Ex. Pl, P2). 

The condition was accessible. In addition, this condition 

has been known to kill or maim miners (Tr. 27, 28, 56). This can 

occur when parts of their bodies or clothing are caught in the 

unguarded assembly (Tr. 28). 

This type of violation could cause a reasonably serious 

injury (Tr. 30). 

The inspector observed tracks around the jaw crusher but he 

didn't know when they had been made (Tr. 56). 

The citation was abated (Tr. 56). 

Mr. Johnson testified that no one had to go near the exposed 

parts involved in Citation 2360845 and 2360846. Cleanup is done 

when the machinery is shutdown. 

There was considerable room around the equipment (Tr. 79; 

Ex. R8). 

Evaluation of the Evidence 

The credible evidence adduced by Inspector Wilson 

establishes a violation of the regulation. 

Mr. Johnson's testimony that was "considerable room" around 

the equipment does not excuse the violative condition. 

The citation should be affirmed. 

Citation 2360846 

This citation charges respondent with violating 30 C.F.R. 

§ 56.14-1, now § 56.14001, cited supra, for unguarded moving 

machine parts. 

Inspector Wilson observed that a flywheel~ a "V" belt and 

the pulley assembly were unguarded (Tr. 31: Ex. P3). 

Numerous fatalities and serious injuries have occurred in 

industry from such conditions (Tr. 32). 

The citation was abated (Tr. 32, 80). 

1845 
Mr. Johnson testified MSHA was right in requiring that this 

condition be guarded but there was no necessity to get near the 

area (Tr. 80; Ex. R8). 

Evaluation of the Evidence 

The testimony of Inspector Wilson establishes a violation. 

Mr. Johnson does not contradict the evidence that a violation 

existed. 

The citation should be affirmed. 

Citation 2360847 

This citation charges respondent with violating 30 C.F.R. 

§ 14-1, now § 56.14001, cited supra, for unguarded moving machine 

parts. 

Inspector Wilson issued this citation when he saw an 

unguarded conveyor belt and "V'' belt. The condition, which could 

cause a serious injury, was adjacent to a walkway (Tr. 33, 36, 

37; Ex •. P4, PS)~ This machinery was moving at 100 rpm's or more 

(Tr. 34). 

The inspector considered this to be a significant and 

substantial violation (Tr. 36). 

The condition was abated (Tr. 37). 

For illustrative purposes, Mr. Johnson presented at the 

hearing a two horse motor mounted on a bearing assembly (Tr. 80). 

The motors go into a 15 to 1 gear reduction and the head pulley 

turns at a 15th of 1,120 rpms, or about 75 rpms (Tr. 81). Mr. 

Johnson differed with the inspector's claim that the condition 

could cause a fatality (Tr. 81, 82). 

Evaluation of the Evidence 

Mr. Johnson's evidence js cr~dible and persuasive. I agree 

that this particular unguarded equipment could not cause a 

serious injury. 

However, the violation existed and the citation should be 

affirmed. 

Citation 2360848 

This citation charges respondent with violating 30 C.F.R. 

§ 56.12-8, now § 56.12008, which provides as follows: 

§ 56.12008 Insulation and fittings for power wires and 

cables. Power wires and cables shall be insulated adequately where they pass into or out of electrical compartments. 

Cables shall enter metal frames of motors, splice boxes, 

1846 
and electrical compartments only through proper fittings. 

When insulated wires, other than cables, pass through metal 

frames, the holes shall be substantially bushed with insulated bushings. 

Inspector Wilson observ.ed an S.O. cable feeding power to the 

motor. It was not bushed nor was it provided with an appropriate 

fitting where it entered the motor makeup box (Tr. 38~ 57; Ex. 

P4, PS). 

There was not an appropriate fitting (Tr. 39). The primary 

purpose of a clamp or a bushing is to prevent the cable from 

being stressed (Tr. 39-40). It also prevents dirt, dust and rain 

from entering the box CTr. 40). 

The wires here were rubbing against the edge of the metal 

(Tr. 40). Normally a bushing citation is a minor violation but 

the inspector considered this to be serious due to the lack of 

electrical grounding (Tr. 41). 

The hazard here involved electrical shock or electrocution 

CTr. 41). The inspector had read of numerous fatalities caused 

by these conditions (Tr. 41). He believed the citation was 

significant and substanti because of the amper~ge and because 

the plant was not electrically grounded (Tr. 41). The entire 

conveyor belt frame could have been energized {Tr. 42). 

The condition was abated CT~. 42). 

Mr. Johnson testified that the grommet provided by the 

factory had pulled out. There was no short and the wiring was 

still intact (Tr. 82). 

Evaluation of the Evidence 

The regulation requires that cables enter metal frames 

through proper fittings. Inspector Wilson established the 

violative condition and Mr. Johnson confirmed it. 

The citation should be affirmed. 

Citation 2360849 

This citation charges respondent with violating 30 C.F.R. 

§ 56.12-25, now § 56.12025, which provides as follows: 

All metal enclosing or encasing electrical circuits shall 

be grounded or provided with equivalent protection. This 

requirement does not apply to battery-operated equipment. 

Inspector Wilson found that the 220 volt AC three phase 

electrical system was not continuously grounded. However, it was 

grounded by a copper rod and wire at the box (Tr. 42, 43). In 

effect, a portion of the electrical system.was grounded and 

portion was not (Tr. 44, 46). · 

1847 
Mr. Johnson told the inspector the equipment was groundsd 

because it was resting on iron ore. In the inspector's view such 

grounding was inadequate (Tr. 44, 58). 

Mr. Wilson discussed various ways the system could be 

grounded (Tr. 44, 45, 46). But he apparently did not use a meter 

to test the ground (Tr. 46). The violation. was obvious since 

there was no fourth wire and no bonding (Tr. 47). 

In the event of an electrical fault the entire metal 

conveyor belt frame could be energized. This could cause a fatal 

electrocution (Tr. 47). 

The citation was abated (Tr. 48, 60, 83); 

Mr. Johnson testified there was six inches of iron dirt 

every place you walk. Iron is highly conductive but not as good 

as copper wire (Tr. 83). · 

Evaluation of the Evidence 

A violation exists in these circumstances. In this 

connection, I cr~dit Mr. Wilson's expertise that metal resting on 

iron ore does not constitute adequate grounding. 

Citation 2360850 

This citation charges respondent with violating 30 C.F.R. 

§ 56.40-24Cb), now§ 55.4-24(b), which provides as follows: 

§ 56.4-24 Mandatory. Fire extinguishers and fire suppression devices shall be: (b) Adequate in number and size 

for the particular fire hazard involved. 

Inspector Wilson found a wooden storage shack containing 

oil, grease, rags and paper boxes. There were no fir~ extinguishers in or about the shack which was 50 to 100 feet from 

the trailer hous~ (Tr. 50, 52, 60-61). 

The standard requires fire extinguishers in the vicinity ·of 

flammable or combustible material (Tr. 51) ~ 

The inspector did not consider the violation to be 

signific~nt and substantial because the shack was away from the 

work area (Tr. 53). 

The violation was abated (Tr. 53). 

Mr. Johnson indicated there was a fire extinguisher 50 feet 

from the building. There were no grease rags; however, they did 

store unopened oil cans and fi~e gallon buckets of motor oil, as 

well as grease and paper boxes containing extra parts (Tr. 83, 

8 4) • 

1848 
Evaluation of the Evidence 

The parties agree that a fire extinguisher was 50 feet from 

the shack. However, a fire among combustibles· requires a quick 

response. Valuable time would be lost in obtaining the fire extinguisher under the circumstances involved here. 

The citation should be affirmed. 

Civil Penalties 

In this case the Secretary has proposed the following 

penalties: 

Citation No. 

2360842 

2360843 

2360844 

2360845 

2360846 

2360847 

2360848 

2360849 

2360850 

subject Proposed 

MSHA approved plan 

First aid training 

First aid materials 

Unguarded flywheel 

Unguarded pulley 

Unguarded conveyor belt 

No fit~ing to metal box 

Electrical system ungrounded 

No fire extinguisher 

$20 

20 

20 

74 

74 

74 

74 

74 

20 

The statutory criteria to assess civil penalties is 

contained in Section llO(i) of the Act. 

In reviewing the evidence in relation to the statutory 

criteria it appears that the company has a favorable prior 

history since it was not previously cited (Tr. 62). The company 

had only five or six employees. The number of the employees and 

its gross income of approximately $511,000 causes me to conclude 

that the company's size is relatively small (Tr. 88). The 

company must be considered as negligent since the violative 

conditions should have been known to Mr. Johnson. The assessment 

of a penalty would severely affect the company if it were still 

in business. 

At the time of the inspection the company had been in 

operation for three months. In 1985 the company grossed $511,000 

but spent $580,000. Mr. Johnson has financed the company by. 

borrowing on property he owns. However, he is "broke" (Tr. 88, 

89). Mr. Johnson's bank balance was $328. From this amount he 

drew out $100 to come to the hearing. In his personal account he 

has a balance of $197. At the tim~ of the hearing U.S. Steel 

owed Iron Mountain $5,000 but payment has been delayed due to the 

fact that the company is on strike. He also has a bill of $8,000 

with the Bank of Iron County but he has no way of paying it (Tr. 

95). Johnson stopped operating the mine on October 1, 1985 (Tr. 

9 5) • 

Except for the unguarded moving machine parts, the gravity 

of all of the violations was minimal.· 

1849 
~he company's good faith was apparent in that they fully 

abated the citations. They also furnished gloves, safety shoes 

and hard hats. In addition, the company fully cooperated with 

MSHA., 

As a gSneral rule, the text and legislative history of 

Section 110 of the A.ct require the Secretary to propose a penalty 

assessment for each violation and the Commission and its judges 

to assess some penalty for each violation found. Tazco, Inc., 3 

FMSHRC 1895 ( 1981). In Tazco the Conunission ruled that the 

Commission and its judges do not have the power to suspend 

penalties. 3 FMSHRC at 1897. But in Tazco the Commission 

specifically noted that it was not passing on the propriety of 

nominal penalties, 3 FMSHRC 1898, footnote 4. 

Precedent for the assessment of nominal penalties is 

contained in Potochar and Potochar Coal Company, 4 IBMA 252, 1 

MSHC 1300 (1975). 

In the instant case the operator abated the violative 

conditions and fully cooperated with MSHA. The company has 

ceased operations and there is no indication in the record that 

the company intends to resume its activities. The company and 

its owner, Mr. Johnson, have lost a substantial amount of money. 

In fact, they are essentially bankrupt. 

I do not believe that the imposition of more than nominal 

penalties in these circumstanc~s would serve tbe purposes of the 

Act or the best interests of justice. 

Accordingly, a penalty of $1 should be assessed for each 

violation. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portion of this decision, the following conclusion 

of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. Respondent violated all of the regulations for which it 

was cited in this case. 

Based on the foregoing facts a~d conclusions of law I enter 

the following: 

ORDER 

1. Citation 2360842 is affirmed and a penalty of $1 is 

assessed. 

2. Citation 2360843 is affirmed and a penalty of $1 is 

assessed. 

1850 
3 . Citation 2360844 is affirmed and a penalty of $1 is 

assessed. 

4 . Citation 2360845 is affirmed and a penalty of $1 is 

assessed. 

5. Citation 2360846 is affirmed and a penalty of $1 is 

assessed. 

6. Citation 2360847 is af finned and a penalty of $1 is 

assessed. 

7 • c at ion 2360848 is firmed and a penalty of $1 is 

assessed. 

8. Citation 2360849 is firmed and a penalty of $1 is 

assessed. 

9 . Citation 2360850 is affirmed and a penalty of $1 is. 

assessed. 

Distribution: 

Margaret Miller, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Iron Mountain Ore Company, Mr. Carlyle Johnson, P.O. Box 365, 

Cedar City, UT 84720 (Certified Mail) 

/bls 

1851 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W COLFAX AVENUE SUITE 400 

DtNVER, COlORADO 80204 NOV 2 5 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

N.L. BAROID-DIV/N.L. 

INDUSTRIES, 

Respondent 

Docket No. WEST 85-173-M 

A.C. No~ 48-01405-05502 

Lovell Plant 

DECISION 

Appeatances: James H. Barkley, Esq., Office of .the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

Before: 

for Petitioner; · 

Mr. J.D. Fontenot, NL Baroid/NL Industries, Inc., 

Houston, Texas 

se. 

Judge Morris 

This is a civil penalty proceeding initiated by petitioner 

against respondent in accordance with the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et~- The civil penalty 

sought here was for the violation of 30 C.F.R. § 56.5-l(a), a 

mandatory standard promulgated pursuant to the Act. 

After notice to the parties, a hearing on the merit.s 

commenced in Billings, Montana on November 4, 1986. At the 

hearing petitioner moved to vacate s citation and dismiss his 

petition. 

Pursuant to Commission Ru 11, 29 C.F.R. § 27800'.ll and for 

good cause shown, the motion to vacate is granted. 

Accordingly, the case is dismissed. 

Law Judge 

1852 
Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

NL Baroid/NL Industries, Inc., Mr. J.D. Font~not, Manager, Safety 

& Health, P.O. Box 1675, 2404 S.W. Freeway, Houstdn, TX 77251 

(Certified Mail) 

/bls 

1853 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 6 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

DRILLING AND BLAS 

SYSTEMS, INC., 

Respondent 

Docket No. SE 86-84-M 

A.C. No. 09-00024-05501-CSA 

Georgia Marble 

DECISION APPROVING SETTLEMENT 

Be e Broderick 

On November 20, 1986~ the ~ecre of Labor filed a 

motion for approval of a setilement reached by parties 

in this case. The violations were orig ly assessed at 

$147 and the parties propose to settle for $85. 

The motion states that Respondent is a small independent 

contractor and has no history of prior violations. The 

motion states that the gravity and negligence were over 

evaluated. The alleged viola ti on, which res.ul ted in the 

death o the son of the President of Respondent, occurred 

on mine property but 400D feet from the site, and 

there is some question of jurisdiction. I accept the allegations 

in the mot~on. I have considered the motion in the l 

of criteria in section llO(i) of the Act, and conclude 

that it should be approved. 

~ccording , the settlement i APPROVED and Re 

is ordered to pay the sum o $85 within 30 of the date 

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

~he h~aring scheduled for December 7, 1986 in Atlanta, 

Georgia is CA~CELLED. 

1854 

A. Broderick 

strative Law Judge